About this case:

• Citation:
  [2023] IECA 47
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Delivering judgment in the case, Mr Justice George Birmingham held that section 3(2) of the Criminal Procedure Act 1993 provided that an appeal court may only impose a sentence which could have been imposed at trial. Since the defendant was a child at the time of sentence, there was no legal basis for an order of imprisonment. Accordingly, the court did not have jurisdiction to impose a sentence of imprisonment on the defendant.

Background

The appellant was a 19-year-old man at the time of his appeal hearing. In November 2021, he was sentenced by the Circuit Court to three years and two months’ detention. He was detained in Wheatfield Prison at the time of his appeal against the severity of his sentence.

Section 3(2) of the Criminal Procedure Act 1993 governed appeals against severity of sentence. It stated that the court may quash a sentence and impose such sentence as it deemed appropriate, where that sentence “could have been imposed on the convicted person for the offence at the court of trial”.

The appellant was 17 years old at the time of sentence in the Circuit Court. Section 156 of the Children Act 2001 prohibited the imprisonment of a child. Accordingly, the Court of Appeal raised the issue prior to the substantive hearing of the appeal regarding its jurisdiction to make an order in the proceedings.

Both the appellant and the DPP agreed that the court was not constrained by the fact that the appellant had attained maturity post-sentence. It was said that, if the court was satisfied that the sentence was too severe, it could quash the sentence and impose an appropriate one instead.

However, the court had previously ruled in DPP v. PMcC [2018] IECA 309 that it was constrained in a similar case involving an undue leniency application. The court took its starting position to be that it could not impose a sentence of imprisonment because this was not a sentence that could have been imposed when the defendant was originally sentenced.

In PMcC, the court commented that its interpretation of the statute was “inconvenient” but it did not accept that it was an absurd interpretation.

Court of Appeal

The court began by acknowledging the considerable weight that had to be attached to the fact that the parties were in agreement on the issue. However, the language of section 3(2) was a “considerable obstacle” to the shared desire of the parties, the court said.

The court held that the appellant could not rely on DPP v. Anthony Foley [2014] IESC 2, which was a case where the Supreme Court held that the jurisdiction of the Court of Appeal “was to quash the decision of the trial Court and impose a new sentence on the convicted person”. This decision did not provide any real assistance to the issue in the appeal, the court said.

The court was not “at large” to intervene in sentence and was limited to imposing a sentence that could have been imposed at first instance. Simply put, a sentence of imprisonment could not have been imposed by the Circuit Court due to the appellant’s age.

It was held that, in order for the court to overcome the issues in the case to re-sentence the appellant, it would have to read a wording into the statute which was not there. The language would contain extra words to the effect of “being a sentence or order which could have been imposed on the convicted person for the offence at the court of trial if it were dealing with the [appellant] as he now stands”.

The court recognised the force of the arguments advanced by the parties but concluded that the interpretation involved rewriting the legislation. It was “simply a step too far”, the court said.

A further question arose as to what orders the court could make. In this regard, the court said that “the choice is a binary one: the Court can quash the sentence imposed in the court below and make no further order; or the Court can decline to quash the sentence and reject the appeal.”

Conclusion

The court held that the situation was “far from ideal” and echoed the sentiment in PMcC that it was “inconvenient”. However, the language of the statute was clear and the court was compelled to follow it.

Having outlined its position, the court provided the parties with an opportunity to consider the ruling before embarking on the merits of the appeal. The appeal would involve a determination of whether the sentence imposed on the appellant should be allowed to stand or be quashed.

The People at the Suit of the Director of Public Prosecutions v. RL [2023] IECA 47