Court of Appeal dismisses DPP's application to extend time for reviewing a sentence as unduly lenient due to delay.

THE COURT OF APPEAL

Birmingham J.

Edwards J.

Hedigan J.

103CJA/17

IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

The People at the Suit of the Director of Public Prosecutions

Appellant

V

Gavin Barry

Respondent

JUDGMENT of the Court (ex tempore) delivered on the 5th day of May 2017 by

Mr. Justice Birmingham

1. The matter before the Court involves the Director of Public Prosecution seeking an extension of time within which to review

sentences on grounds of undue leniency in accordance with the provisions of s. 2 of the Criminal Justice Act, 1993, these being

sentences that were imposed in the Circuit Court in Meath on 14th March, 2017.

2. The statutory framework for this application is to be found in the Criminal Justice Acts of 1993 and 2006. Section 2 of the Criminal

Justice Act, 1993 provides: —

“(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the

"sentencing court") on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal

Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day

on which the sentence was imposed.

Section 2(2) of the Criminal Justice Act, 1993 is amended by section 23 of the Criminal Justice Act, 2006, by the insertion of: —

“or such longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine,” after

“within 28 days”.

Background

3. The background to the application is that on 14th March, 2017 Mr. Barry was sentenced in respect of two bills of indictment. The

first bill contained two counts of s. 3 assault that were committed in the course of a single incident on 1st December, 2016. The

second bill relates to events at the Headford Arms Hotel in Kells on 2nd September, 2016. The sentence on this bill was imposed

following a conviction by a jury.

4. The grounding affidavit on foot of which this application is made recites as follows:-

“Due to inadvertence, the concern over the sentence imposed and the leniency thereof did not come to the directing

officer’s attention until 11th April, 2017 just on the expiry of the initial 28 day period within which to apply for a review of

sentence pursuant to s. 2 of the Criminal Justice Act, 1993 as amended by s. 23 of the Criminal Justice Act, 2006.

Thereafter it was necessary to contact counsel and the State Solicitor for Co. Meath and this process was delayed by

the Easter vacation.

5. Having reviewed the matter a decision was made on 3rd May, 2017 to seek a review of the sentences imposed herein.

Counsel therefore drafted a notice of application for review of sentence.”

The draft notice of application is then exhibited.

5. Counsel on behalf of the DPP, Mr. Hanahoe said this is a case where the sentences imposed appear lenient and that the interests

of justice would be served by permitting the DPP to proceed with the application.

6. The sentences in question were as follows. In respect of the first bill, one of three years imprisonment was imposed with 18 months

suspended. In respect of the second bill, one of three years imprisonment was imposed with the last 12 months suspended. The

sentences were consecutive to each other.

7. Mr. Hanahoe explains that the first bill had involved an assault on two young men, one of whom had suffered significant

psychological consequences. After an earlier altercation, the accused had laid in wait for the two men armed with a knife. The second

incident, the incident at the Headford Arms Hotel, had involved an assault on a visitor from England who was visiting Ireland to play

golf. There was an altercation in a public house. The suggestion, and this was what was accepted by the jury in returning a guilty

verdict, was that Mr. Barry went home, armed himself and then made his way to the residents’ lounge of the Headford Arms where

the visitor was assaulted.

8. The aggravating factors which were referred to in the draft notice of application were:

(i.) the use of weapon;

(ii.) the level of premeditation;

(iii.) that the respondent had ambushed, or laid in wait for injured parties;

(iv.) the intent exhibited by the behaviour; and,

(v.) the impact on the injured parties.

9. Mr. Paul Finegan, BL, counsel for Mr. Barry has referred this Court to the well-known principles in Éire Continental Co. Ltd v Clonmel

Foods Ltd [1955] IR 170. He draws attention to the case of DPP v. Garret FitzGerald (unreported, Court of Criminal Appeal, Macken J.,

15th December, 2008) where Macken J. delivering an ex tempore judgment had referred to the Éire Continental criteria. The Garrett

FitzGerald case offers limited guidance insofar as the application there was only one day out of time and, as has been pointed out in

subsequent cases, the Court approached the application on the basis that the delay in question was de minimis. The Court does not

regard the Éire Continental criteria as determinative of the issue. The question of how to approach applications for extensions of time

was considered in the case of The People v. Kelly, a case that arose out of the Sallins train robbery. There, the appellant had been

tried with two co-accused. Before the conclusion of the trial, the appellant absconded to the US and the trial proceeded in his

absence. The appellant was convicted and sentenced to 12 years penal servitude as it then was. His co-accused were also

convicted. The co-accused appealed their convictions, and those convictions were quashed in the Court of Criminal Appeal on the

grounds that the confessions had been admitted at trial which should have been excluded. The appellant’s case was that since his

confession had been obtained in similar circumstances, his confession would also have to be excluded and it was on this basis that he

sought to extend time. The Court of Criminal Appeal refused to grant leave but it did accede to the appellant’s application for a

certificate that the decision to refuse leave involved a point of law of exceptional public importance and that it was desirable in the

public interest that an appeal should be taken to the Supreme Court. Supreme Court upheld that appeal on the grounds that the test

that had been applied in the Court of Criminal Appeal was a test appropriate in a civil matter as opposed to a criminal matter. The

Supreme Court said that in considering whether to grant an adjournment for an enlargement of time, the Court of Criminal Appeal must

be guided by what is required by the justice of the case, and it should exercise its powers flexibly, unrestricted and unhampered by

any consideration other than that which was required by the justice of the particular case in which the application was made.

10. In the case of The People v. Noel Purcell (unreported, Court of Criminal Appeal, Finnegan J., 30th March, 2009) the Court of

Criminal Appeal was dealing with a delay of ten days in a case involving possession of drugs and firearms. In the course of delivering

the ex tempore judgment of the Court, Finnegan J. had commented:-

“The Court has regard to the importance of the public interest in having appropriate sentences imposed in relation to

offences and particularly offences in respect of which the legislature has marked as being particularly serious by

prescribing presumptive minimums sentences. It is desirable that once sentence has been passed that there should be

finality and where there is provision for review of sentence that that provision be availed of promptly by the prosecuting

authority.”

The Court sees those remarks as significant.

11. In the case of DPP v. Pádraig Finn [2000] IESC 75, Keane C.J. at commented:-

“It must be remembered that the facility afforded by these provisions to the State, through its prosecuting authority, to

challenge a sentence as being “unduly lenient” constitutes a significant encroachment upon the finality of a judicial

decision in favour of a convicted person which, at least in the case of sentences imposed on persons convicted on

indictment, is without precedent. Hence, the importance of the time limit of 28 days for making such an application

prescribed by s. 2(2) and the absence of any power in the court to extend that time.”

The last observation above, about the ‘absence of any power in the Court to extend that time’ has of course been overtaken by the

subsequent statutory amendment. This Court has on a number of occasions expressed the view that applications such as these must

be brought on with all possible expedition. There have been a number of cases where the passage of time has impacted on the

outcome. The Court regards adherence to the time limits as important and the Court would stress that such applications should be

prioritised by all those charged with dealing with them, whether that is at the stage of initiating the application for a review or at the

later stage of lodging the written submissions with a view to bringing the application on for hearing. The position here is that the issue

was not brought to the attention of the directing officer until the 11th April, 2017 just on the expiry of the 28 day period. The

decision to seek a review was taken only on 3rd May, 2017, well outside the 28 day period and indeed coming towards the expiry of

the 56 day period.

12. In this case, having regard to the significance that the Court attaches to expedition in the case of applications such as this, the

Court is not persuaded that inadvertence in the circumstances of this case provide sufficient justification to accede to the

application.

13. The Court refuses the application by the Director.