Yeagar v Judge O'Sullivan and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 20 March 2012
• Neutral Citation: [2012] IEHC 67
• Court: High Court
• Docket Number: Record Number 296JR/2011
• Date: 20 March 2012

[2012] IEHC 67

The High Court

Record Number 296JR/2011

Yeagar v Judge O'Sullivan & Ors

Judicial Review

Between

Salomon Yeagar

applicant

and

His Honour Judge O'Sullivan, District Judge Watkin and the Director of Public Prosecutions

defendants

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

DPP v FITZPATRICK UNREP CCA 26.4.2010 2010/15/3611 2010 IECCA 31

BARRY v DISTRICT JUDGE FITZPATRICK; BARRY v DISTRICT JUDGE HOGAN 1996 1 ILRM 512 1995/15/3832

Abstract:

Criminal law - Criminal procedure - Sentencing - Excessive sentence - Served - Fair procedures - precedent - Discretion - Whether applicant should have been released

Facts: The applicant sought to quash an order of the Circuit Court, on appeal from the District Court, convicting the applicant of assault and sentencing him to four months imprisonment. The applicant argued that as he had spent time in prison that he had been required to serve a sentence in excess of the six month statutory maximum that he had been convicted for.

Held by Charleton J. that the release of the applicant had been early and in error. The Court was bound by relevant governing precedent in the circumstances. The applicant had the benefit of early release from custody. It was appropriate also to refuse the applicant on discretionary grounds. Injustice would result from quashing a conviction by reference to an allegedly minor error.

Reporter: E.F.

1 Mr Justice Charleton delivered on the 20th of March 2012

2 1. This is an application to quash an order of the Circuit Court, dated 30 March 2011, on appeal from the District Court, convicting the applicant of assault and sentencing him to imprisonment for four months with credit allowed for the time he had served awaiting his appeal. The applicant argues that because he had spent some 21 weeks on remand prior to conviction in the District Court that he has been required to serve a sentence in excess of the six month statutory maximum for the charge of which he was convicted.

3 2. The order of the Circuit Court is dated 29 April 2011 and reads that on 6 September 2010 the applicant was tried before the Dublin District Court on a charge of assault, the particulars being "On 28 April 2010 at PIER B DUBLIN AIRPORT in the Dublin Metropolitan District, assaulted SGT MICHAEL GRIFFIN contrary to section 2 of the Non-Fatal Offences against the Person Act 1997" and had received a sentence or four months imprisonment starting on that date, the Circuit Court on appeal affirmed the conviction, ordering "said defendant being convicted of the said offence and be imprisoned in Wheatfield Prison for the period of four months, commencing 30 March 2011, allow for time served".

4 3. The facts giving rise to this application commenced when the applicant first entered the State on 28 April 2010. Sgt Michael Griffin was in Dublin Airport, Collinstown, supervising passengers who had just disembarked on a flight from Abu Dhabi. He observed that the applicant was not joining any of the immigration queues. He approached the applicant and identified himself. The applicant gave his name as Salomon Mario Garcia and claimed to be a national of Liberia and also claimed not to have a passport. He was escorted back to the arrivals gate and on the way dropped a passport-like document onto the ground from under his clothing. When Sgt Griffin bent to pick it up he was attacked from behind by the applicant who struck him a number of times so that he fell on the stairs. That which was dropped was a forged Guatemalan document. The applicant was taken into custody and was charged.

5 4. Because of the issues surrounding his identity, the applicant could not obtain bail. He was therefore remanded in custody for a considerable time awaiting trial in the District Court. There is no question but that the learned judge of the District Court conducted a fair trial and made a valid order. Upon conviction, the applicant appealed but spent time in custody before he could enter into reconnaissance and be...