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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McDonagh v. Browne & Anor [2004] IEHC 210 (10 June 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/210.html Cite as: [2004] IEHC 210

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HC 210/04

THE HIGH COURT DUBLIN (JUDICIAL REVIEW)

Record No. 68JR/2004

BETWEEN:

CHRISTOPHER McDONAGH

Applicant

-and- DISTRICT JUDGE GEOFFREY BROWNE and THE DIRECTOR OF PUBLIC PROSECUTION

Respondents

APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON THURSDAY, 10TH JUNE 2004

MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT, AS

FOLLOWS, ON THURSDAY, 10TH JUNE 2004

MR. JUSTICE SMYTH: The net question which arises in this case is whether a Judge of the District Court is entitled to impose sentences amounting to twenty-three months imprisonment upon a defendant who is already serving, inter alia, a sentence of eighteen months in respect of an unrelated matter.

THE FACTS

On 24th November 2003, the Applicant came before the District Court in Galway on foot of a number of summonses for road traffic offences and an assault charge. At that time, he was serving an eighteen- month sentence imposed by the District Court on 3rd July 2002, which was affirmed by the Circuit Court on appeal on 12th November 2002.

The Applicant pleaded guilty to the Road Traffic Act offences committed on 20^th May 2003, but prior to dealing with these summary matters the first-named Respondent ascertained his entitlement to retain jurisdiction in respect of an assault contrary to Section 3 of the Non-Fatal Offences Against the Person Act 1997 on 11th November 2001. As the assault charge was being contested, it was 'put to second call'. The Judge then proceeded with the road traffic offences and having heard the evidence he imposed a total of eleven months imprisonment for those offences, to run consecutively to the sentence the Applicant was serving at the time. Later in the day the Applicant was convicted on the assault charge and was sentenced to twelve months imprisonment. The first-named Respondent confirmed that he had sentenced the Applicant to twenty-three months imprisonment on that day, to run consecutively to the sentence being served. The affidavit sworn by Inspector Anthony O'Domhnaill, on behalf of the Respondents, states in paragraph (3) as follows:-

"I say that all of the offences dealt with by

the first-named Respondent on 24th November

2003, and in respect of which the Applicant was sentenced on that day, were committed whilst

the Applicant was on bail."

This circumstance, viz that the offences were committed by the Applicant while he was on bail, is also expressly referred to and relied upon in the Statement of Opposition. Notwithstanding the filing in court of an affidavit corrective as to the length of the term being served in prison prior to 24th November 2003, the fact sworn to by Inspector O'Domhnaill is not challenged or contradicted. Accordingly, I accept as a fact and find as a fact the matter as deposed to by Inspector O'Domhnaill.

THE LAW AND LEGAL SUBMISSIONS

The Applicant submitted that the relevant law was to be found in Section 5 of the Criminal Justice Act 1951 (No. 2 of 1951), which provides for the imposition of consecutive terms of imprisonment by the District Court in the following terms:-

"Where a sentence of imprisonment is passed on any person by the District Court, the Court may order that the sentence shall commence at the expiration of any other term of imprisonment to which that person has been previously sentenced, so however that where two or more sentences passed by the District Court are ordered to run consecutively the aggregate term of imprisonment shall not exceed twelve months."

An increase of the aggregate term of imprisonment incertain cases was provided for in the following termsby Section 12 of the Criminal Justice Act 1984:-

"12(1) Section 5 of the Criminal Justice Act 1951 (which provides that, where two or more sentences passed by the District Court are ordered to run consecutively, the aggregate term of imprisonment shall not exceed twelve months) is hereby amended by the substitution, for 'twelve months', of 'two years'. In that section 'imprisonment' shall include detention in Saint Patrick's Institution."

This statutory amendment would appear to have been a legislative reaction to decided cases dealing with Section 5 of the Act of 1951, and in particular The State (White) -v- Circuit Judge Frank Martin (111) ILTR [1977] p.21, a judgment of the Supreme Court, and the High Court decisions of Finlay P, to wit The State (Payne) -v- Clifford [1985] ILRM 70 and The State (Keating) -v- 0 hUadhaigh (unreported 11th May 1984).

The Respondent does not take issue with these decisions or the submissions that a purposive approach should be taken to statutory interpretation. The Respondent's submission was that such contentions were nihil ad rem where as a fact the offences the subject of sentencing were committed while on bail. The Applicant, notwithstanding the express ground of opposition and supporting affidavit being uncontested, sought in judicial review proceedings to contend that there was an onus on the Respondent to prove the fact that the offences were committed while on bail was brought to the attention of the District Judge and that he, in that knowledge, convicted the Applicant. In my judgment, there was no such onus on the Respondent. If the Respondent's sworn position was questionable, a replying affidavit should have been filed. I am, I believe, entitled to proceed on the basis of omnia presumunter rite esse acta.

The submission of the Respondent was that on the facts of this case the relevant legislative provision is Section 11 of the Criminal Justice Act 1984, as amended by Section 10 of the Bail Act 1997, which provides:-

"(1) Any sentence of imprisonment passed on a person for an offence committed after the commencement of this section while he was on bail shall be consecutive on any sentence passed on him for a previous offence or, if he is sentenced in respect of two or more previous offences, on the sentence last due to expire, so however that, where two or more consecutive sentences as required by this section are passed by the District Court, the aggregate term of imprisonment in respect of those consecutive sentences shall not exceed two years.

(2) Subsection (1) shall not apply where any such sentence is one of imprisonment for life or is a sentence of detention under section 103 of the Children Act 1908.

(3) Subsection (1) shall apply notwithstanding anything contained in section 5 of the Criminal Justice Act 1951.

(4) Where a court:-

(a) is determining the sentence to be imposed on a person for an offence committed while he or she was on bail, and

(b) is required by subsection (1) to impose two or more consecutive sentences,

then, the fact that the offence was committed while the person was on bail shall be treated for the purpose of determining the sentence as

an aggravating factor and the court shall (except where the sentence for the previous offence is one of imprisonment for life or where the court considers that there are exceptional circumstances justifying its not doing so) impose a sentence that is greater than that which would have been imposed in the absence of such a factor."

In my judgment, it is clear from the wording of subsection (1) of this section that what is prohibited is that the sum of the consecutive sentences (ie, the sentences added to the previous sentence -- in the instant case eighteen months) should not exceed two years; ie, twenty-four months. In this case, they did not, they amounted to twenty-three months.

Applying the law to the facts of the instant case, what Section 11(1) refers to is that "the aggregate term of imprisonment in respect of those consecutive sentences shall not exceed two years". The aggregate term in respect of those sentences imposed by the first-named Respondent on 24th November 2003 did not exceed two years and are therefore valid. The Applicant submitted that by making the cumulative time imposed by the sentences of 24th November 2003 consecutive to the unexpired term of imprisonment being served, that the first-named Respondent acted in excess of jurisdiction. I am unable to accept such submission, because Section 11(1) does not say that "the aggregate term of imprisonment in respect of those consecutive sentences AND THE SENTENCES IN RESPECT OF THE PREVIOUS OFFENCES shall not exceed two years". The insertion of the expression "and the sentences in respect of the previous offences" would lend credence to Mr. Gageby's contention, but it is not the function of the court to rewrite the legislation or seek to import words and meanings that were not clearly intended. In the course of his legal argument, Mr. P.J. McDermott, for the Respondent, stated that the provisions of Section 11 were designed to deal with the problem of recidivism. While no evidence was tendered in support of thatproposition, nonetheless, the section seems to cater for and enable, indeed oblige, the court in dealing with repeat offenders, for the section provides that a sentence in respect of an offence committed while on bail "shall be consecutive on any sentence passed on him for a previous offence".

Sheehan -v- Reilly [1993] ILRM 427, a decision of the Supreme Court was referred to by the Applicant as an authority on the limitation of the jurisdiction of the District Court to impose consecutive sentences. In my judgment, that case is clearly distinguishable not only on its facts but more importantly it did not involve a consideration of Section 11 of the Act of 1984 and thus is not authority against the interpretation contended for by the Respondents.

While other matters were raised in both the statement required to ground the application and the Grounds of Opposition, eg, the severity of sentence which is a matter properly for appeal, and delay in seeking relief, neither were seriously pursued at the hearing. The application was brought within time, it is a nice point as to whether it was promptly, there being no explanation as to why it took from 24th November 2003 to 2nd February 2004 to bring the matter before the High Court. In all the circumstances, I would not base any refusal of the application on this peripheral and not seriously contended for issue. However, I do refuse the application on the substantive matter argued before me.

END OF JUDGMENT

Approved: T.C. Smyth