Court of Criminal Appeal refused to certify four points of law to the Supreme Court for exceptional public importance.

THE COURT OF CRIMINAL APPEAL

Macken, J. [229 CCA/06]

Murphy, J.

de Valera, J.

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

LINDA MULHALL

APPLICANT

Judgment of the Court delivered on the 16th day of July, 2010 by Macken J.

This is an application made on behalf of the applicant, for a certificate pursuant to s.29(2) of the Courts of Justice Act, 1924, as

amended and substituted by s.22 of the Criminal Justice Act, 2006, on the basis that the judgments of this Court delivered on the 8th

February, 2008 and on the 21st April, 2008 involve four points of law of exceptional public importance, and that it is desirable in the

public interest that such questions be certified to the Supreme Court.

Section 29 of the Act of 1924, as amended by the Act of 2006, in the form in which it applied at the relevant date, provides as

follows:

“(1) No appeal shall lie to the Supreme Court from a determination by the Court of Criminal Appeal of any appeal

or other matter except in accordance with this section.

(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the

decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is

the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a

point of law of exceptional public importance and that it is desirable in the public interest that the person should

take an appeal to the Supreme Court.”

In its application, the points of law of exceptional public importance raised by the applicant are the following:

1. Where the Court of Criminal Appeal has decided that the trial court in determining sentence has erred in law and acted

inappropriately legally, and improperly in the procedures adopted, and as a result the appeal court has received further

evidence by way of expert opinion on the circumstances of the offender, is the Court of Criminal Appeal bound, in its

consideration of what is then the appropriate sentence, to do so with reference to the parameters, reasons adopted and

conclusions of the trial judge, or whether it considers the sentence de novo in the light of all the evidence now available.

2. When a Court is determining an appropriate sentence for an unlawful killing, to what extent are actions engaged in by

the accused subsequent to the unlawful killing, but which are not the subject of any charge, relevant to, or an

aggravating factor of, the unlawful killing itself, such as to cause the court to impose an increased sentence.

3. Is a Court, which is determining what sentence to impose on a person in respect of a serious offence, who is

effectively a first time offender and the mother of young children, bound in constructing the sentence to consider and

make provisions for the rehabilitation of that offender.

4. Is it permissible for a Court, in imposing sentence in respect of a manslaughter verdict, where a defence of provocation

has been successfully raised, to discount the personal circumstances and background of the offender on the basis that

those are matters which have already been taken into account by the jury in returning the verdict which it did.

The Background Facts

In order to appreciate the arguments made in respect of the application for the certificate in respect of the above questions, it is

necessary to say something about the unusual circumstances surrounding the delivery of the sentence in this matter by the learned

sentencing judge, the sentence being one of fifteen years in respect of the manslaughter of the victim in the case, and the

applications subsequently made by the applicant for leave to appeal against sentence imposed.

The applicant was charged with the murder, along with a co-accused, of Fareh Swaleh Noor, who was the partner or friend of the

applicant’s mother. The applicant, her sister the co-accused, and their mother had met on the day in question, and also met with

Noor. The evidence was that some ecstasy tablets were also taken during the course of the day, at least by the applicant and her

co-accused. Eventually, in the early evening, having purchased alcohol, all four returned to the house where the mother and/or the

man resided. In the course of exchanges between them, the victim made certain suggestions, or statements, of a sexual nature, to

the applicant which troubled her greatly. In the result, she and her sister were involved in an attack on the victim and he died.

Immediately thereafter, the applicant and her sister set about dismembering the body of the victim, and according to the evidence,

with the assistance also of the mother it would appear, most of the parts of the body were disposed of in a canal on the northside of

Dublin. Some parts, including the head, which had been taken to another place by the applicant, were never found. The torso was

eventually uncovered, however, and the victim was identified, and through that identification, the applicant and her sister were

eventually charged with his murder. The applicant raised, inter alia, a defence of provocation based upon the above referred to

suggestions, which defence was clearly accepted by the jury. The applicant was found not guilty of murder, but guilty of

manslaughter.

In the usual way in cases of this nature, the sentence was not imposed immediately upon conviction, but a request was made on

behalf of the applicant by defence counsel, for certain probation and/or psychiatric reports to be made available to the court. The

sentencing court acceded to the application and directed the provision of reports and the sentencing hearing was thereupon

adjourned.

When the matter came on for hearing on the eventual adjourned date, the 4th December, 2006, the anticipated reports were still not

available. There was before the sentencing judge, however, a short report furnished by a probation officer, who indicated that a fuller

report had not been prepared but could be made available upon an anticipated adjournment, it being believed that the matter would

adjourn for the purposes, it appears from the transcript, of the possibility of a victim impact statement being delivered by a member

of the victim’s family, who would have to travel from Africa. However, no adjournment was sought on behalf of the State for the

purposes of seeking to have such a person present. The sentence hearing proceeded, there being no formal application either for an

adjournment on behalf of the applicant, and the sentencing judge being of the view that there had been sufficient time to secure the

reports.

The report which was in existence at the time did not explain in any real detail the results of any interview with the applicant,

reached no conclusions and expressed no views on the condition of the applicant, her background, or her family, or any other history

or her then condition, if this required mention, and did not make any recommendations or reach any findings from the point of view of

the effects on her, of the grim events in which she had been involved, nor as to her future, nor as to whether any particular future

regime might be recommended.

The learned sentencing judge took the view, however, that he could, and normally would, proceed to impose sentence in the absence

of any further reports. Having mentioned various matters concerning the crime, he fixed eighteen years as the appropriate sentence,

but made a reduction in respect of the same, arising from the several mitigating factors mentioned by him in the course of the

sentence in favour of the applicant, and thereupon sentenced her to fifteen years.

From that sentence the applicant sought leave to appeal to this Court by Notice of Application dated the 6th day of October, 2006.

Of fundamental relevance to the present application is the main ground of that application, based on an allegation that the learned

sentencing judge had misdirected himself in law and had committed a fundamental error in principle – an essential requirement in law -

in sentencing the applicant without awaiting the reports which had been directed to be made available, and thereby imposing an

inappropriate sentence, which was unduly severe.

The application for leave to appeal against sentence was heard by this Court and argued on behalf of the applicant on two

predominant grounds, namely, the length of the actual sentence imposed, and the fact that none of the sentence included a non-

custodial portion, which it was submitted would have been appropriate had the judge had the reports which had been sought.

Although other grounds were also argued, they did not in reality feature to the same extent at all.

Counsel for the applicant, in the course of the application for leave to appeal, submitted that it was a fundamental right of the

applicant to have before the sentencing judge, reports from a probation officer and/or from psychiatrists or others skilled in such

matters, as might be advised by her legal team. He contended that since these had been requested on behalf of the applicant, and

this request had been acceded to by the learned sentencing judge, such reports should have been available, and that the applicant’s

right to a fair trial – including her right to a fair sentence hearing, being an integral part of the trial – had been unlawfully impinged

upon. He contended that the learned sentencing judge could not lawfully, in such circumstances, construct a sentence which was

tailored not simply to the crime, regardless of how serious that was, but also to this particular applicant, being obliged, on well

established case law, to have regard, inter alia, to the personal circumstances of the person being sentenced. Fundamental to his

submission was the contention that the sentence must be considered to have been unduly severe and inappropriate in the absence of

the reports.

Counsel for the respondent contended that the learned sentencing judge had taken into account everything necessary to be taken

into account in the course of the sentence, and had constructed an appropriate sentence and he argued that it was not possible for

the applicant to contend that there had been any error in principle on the part of the sentencing judge in respect of the actual

sentence imposed, since the sentence, taking into account all the matters in question, might not have been any different had such

reports been before him, and the applicant had failed to establish that it would have been different.

This court adopted the following approach. It found that:

1. It is not a fundamental principle of law, as contended for by counsel for the applicant, that in each and every case in

which an accused seeks to do so, a sentence hearing must be adjourned to facilitate the provision of such reports as an

accused wishes to have available.

2. That right must at all times depend on the case itself and on its particular features, factors well appreciated by

sentencing judges, including the sentencing judge in the present case.

3. Nevertheless, there are cases in which it is undoubtedly true that the crime is of such a nature and the convicted

person is of such a background or of such characteristics, traits or personal disposition, apparent from the trial itself or

from evidence given in that regard, and including those arising from the events leading to the trial, where it would be both

inappropriate and legally improper, to proceed with the sentencing of an accused without relevant reports being available

and ordinarily available in good time, for the sentence hearing. This was such a case.

4. It is not necessary, nor indeed possible, to lay down fixed or rigid rules as to when such reports are appropriate, and if

not available for good reasons, when a sentencing hearing should not proceed in their absence.

5. In this case there were several reasons why, in order to do justice to the accused in constructing an appropriate

sentence, the hearing ought to have proceeded upon receipt of the reports which had been directed to be made

available.

6. The absence of the reports was not due to any wrongdoing or male fides on the part of the person who would have

procured them or to any deliberate act on the part of the applicant.

7. Having regard to the extremely unusual case, its background and seriousness, the applicant’s background and her

involvement in the death of the deceased and its immediate aftermath, it is likely that such a report or reports would

address matters particularly germane to sentencing.

8. It might be considered especially important to have such reports if the sentencing judge, as here, envisaged the

imposition of a lengthy sentence.

As to the argument put forward on behalf of the respondent, that it was not possible to say, in the absence of such reports, that the

sentence was unduly severe, while this was true in logic, it did not resolve the issue before the Court, because the issue was

whether, in this particular case, and having regard to the particular circumstances of the crime and the personal circumstances of the

applicant, she ought to have been entitled to have before the court, reports which were not before the court due to no deliberate

fault on her part, and whether, in the absence of such reports, the sentencing court could construct a lawfully appropriate sentence

or whether the sentence actually imposed was too severe.

This Court stated:

“In light of the severity of the crime, its nature, and the evidence tendered by gardaí at the sentencing hearing as to

the particular circumstances of the applicant, this court concludes that it would not be possible in this case to have full

regard for the established principles of sentencing, without the reports sought to be procured on behalf of the applicant.

In that sense, and in that sense only, the learned sentencing judge erred in law.

The court refrains at this time from passing any comment on whether the sentence actually imposed is or is not unduly

severe, or on the question as to whether any part of the custodial sentence should or should not have been suspended.

It is both inappropriate and impossible to reach a conclusion on these matters without having the benefit of the above

referred to reports.” (emphasis added)

In the above circumstances, and in order for this Court to consider whether the sentence was inappropriate and/or unduly severe, as

was contended for, the Court adjourned the application pending the receipt of reports. In particular, the court did not set aside the

sentence imposed. It indicated that it would determine the arguments on the question of the sentence, in light of the reports to be

furnished.

The court thereupon made an Order, directing the provision of reports, to be provided in two distinct date specific segments, namely,

(a) reports which would deal with the position of the applicant, as at the date of sentence; and (b) separately, up to date reports, in

the event that this Court determined to set aside the sentence on the grounds that the learned sentencing judge had imposed a

sentence which, having regard to all the circumstances, and bearing in mind the content of the reports, was inappropriate or unduly

severe.

Subsequent to the above, reports were furnished to the court, pursuant to the Order made. Coincidentally, although not known to

this Court at the time, a psychiatric report had been sent to the High Court just prior to the date of sentencing, but this had not

actually reached the learned High Court sentencing judge at the time when he imposed sentence.

This Court, in its judgment of the 21st April, 2008, having reviewed the reports in the date specific segment at (a) above, and having

heard counsel for both parties on their content, found that the learned sentencing judge had taken into account the following,

namely, the early plea, the fact that the applicant was a first time offender, her assistance to the gardai in the investigation of the

crime, and her remorse, and determined that there were no grounds upon which the application could succeed on the basis either

that the learned trial judge had misdirected himself in law in relation to the appropriateness of the sentence, either as to the actual

length of sentence, or in relation to the issue as to whether or not a non-custodial element in the sentence was appropriate. Having

regard to the fact that the learned sentencing judge, in the view of this Court, had taken into account all of the appropriate matters

to be taken into account in constructing the sentence which was actually imposed, the Court did not find it possible to determine

that the sentence had been imposed in consequence of a fundamental error in law arising from the absence of the reports.

It is against that background that the above four questions arise.

The Law on S.29 Certificate Applications

First, it is a long established principle of law in relation to applications of this nature, that the procedure under s.29 of the Act of

1924, and as amended, is primarily appellate in nature and to do justice in a particular case, and is not consultative or advisory in

nature (see Supreme Court decision in DPP v. Patrick Higgins (Unreported, Supreme Court, 22nd November, 1985). Secondly, the onus

rests on the applicant to establish that the point of law is one of “exceptional public importance” and, moreover, that it is “desirable

in the public interest” that the question be referred to the Supreme Court (see The People (DPP) v. Littlejohn [1978] ILR.147 and 148

and The People (DPP) v. William Kenny (Unreported, Court of Criminal Appeal, 5th February, 2004).

Thirdly, the point of law, the subject of a certificate sought under s.29 of the Act of 1924, as amended, must be a point of law which

constitutes part of this Court’s decision (see Director of Public Prosecutions v. Higgins, supra., and The People (DPP) v. Kelly

(Unreported, Court of Criminal Appeal, 11th July, 1996) and others. As was stated in the latter case:

“While such a question as has been posed illustrates a degree of ingenuity by counsel, it is not a point of law arising from

the decision of this Court, and consequently the Court has no jurisdiction to refer such a question to the Supreme

Court.”

This issue was also considered by Blaney J. in the case of DPP v. Eamon Kelly (Unreported, Court of Criminal Appeal, 11th July, 1996),

in which this court found that it was an essential requirement that it is the decision of this Court which must involve the point of law

set out in the Notice of Motion. He stated:

“The first hurdle which the applicant has to cross on this application is to establish that the decision of this Court on his

application for leave to appeal involves the point of law set out in his Notice of Motion.” (emphasis added)

In that judgment, this Court referred also to earlier well established jurisprudence on the matter, in particular the judgment in DPP v.

Patrick Higgins, supra., in which Finlay, C.J. had stated:

“A point of law certified in the abstract or in terms wider than those involved in the decision of the Court of Criminal

Appeal cannot be entertained for it would be outside the jurisdiction given to this Court by the section …” (emphasis

added)

Conclusion

As to the first Question upon which a certificate is sought, this is by far the main point of law invoked, and is the one which is most

addressed by Mr. Grehan, senior counsel on behalf of the applicant. Briefly, Mr. Grehan in the course of his very clear oral submissions

on the matter says that this question arises “by operation of the Criminal Procedure Act, 1993 which is now the jurisdiction on which

the Court of Criminal Appeal, as a creature of statute, operates in relation to sentences”. In reality counsel’s argument is based

squarely on the provisions of s.3(2) of that Act. In his submission, Mr. Grehan contends that a matter which calls for clarification is

the particular interpretation of that sub-section, because “the Court of Criminal Appeal itself has to impose the sentence it considers

appropriate”, and that the point at issue in the question raised is “whether it must do that by reference to the judgment and

reasons adopted by the trial judge, or must it, as it were, look at the matter anew”. Counsel correctly points to the fact that this

Court heard the application for leave to appeal in two separate parts, as has been described in the above narrative. According to

counsel, this Court, having found that the learned sentencing judge ought to have awaited the delivery of the probation or other

reports as ordered, must thereafter, in effect, adopt and apply its powers under s.3(2) of the Act of 1993, and then must consider

what the appropriate sentence is. In such an event, if it receives fresh evidence or information, which he says, is the effect of the

reports actually received by this Court, then it must do so of its own motion, and not by reference to what the trial judge decided or

his reasoning in coming to the conclusions which he did. Once this Court decided that it would receive the reports or that there had

been a “legally incompetent procedure” adopted by the learned sentencing judge in terms of the sentence, that sentence should

have been set aside. Counsel argues that in this Court’s judgment of the 21st April, 2008 it was not delivering a sentence, de novo,

as it should, but in effect by reference to what the learned sentencing judge had decided. The Court instead should have simply

looked at the sentence afresh based on the transcript of the evidence, but with new reports, and impose a fresh sentence.

On behalf of the Director of Public Prosecutions, senior counsel Miss Ni Raifeartaigh argues that of the four questions only question 1

and 4 are stateable, as the law on the two other questions is well established. Insofar as the issue of a certificate is concerned, it is

said that this is a matter entirely for the Court to decide on the application of the applicant.

It is important to set out at this stage the precise provisions of the Criminal Procedure Act, 1993, insofar as they concern the present

application. In its relevant portions, s.3 of the Act reads as follows:

“(1) On the hearing of an appeal against conviction of an offence the Court may—

…

(2) On the hearing of an appeal against sentence for an offence, the Court may quash the sentence and in place

of it impose such sentence or make such order as it considers appropriate, being a sentence or order which could

have been imposed on the convicted person for the offence at the court of trial.

(3) The Court, on the hearing of an appeal or, as the case may be, of an application for leave to appeal, against a

conviction or sentence may—

…

(b) order the production of any document, exhibit or other thing connected with the proceedings;

..

(e) generally make such order as may be necessary for the purpose of doing justice in the case before the Court.”

(emphasis added)

The decision of this Court in the particular circumstances of this case did not concern s.3(2) of the Criminal Procedures Act, 1993

which the applicant invokes as the very basis for the question now being sought to be certified, save to this extent: the second

tranche of date specific reports was directed to be made available so that, if the Court considered the sentence imposed to have

been unduly severe, wrongly structured or otherwise inappropriate, and that it should therefore be quashed, up to date reports would

then be before the Court, and the Court could consult the second tranche of reports, and itself impose an appropriate sentence as of

that date, in accordance with established principles.

While this Court accepted that the learned trial judge had erred in failing to await the reports in question, the Court did not find that

he had thereby, or for that reason, imposed an unduly severe or otherwise inappropriate sentence. It was specifically for the

purposes of determining whether or not the learned trial judge had done so that this Court directed reports to be made available as of

two specific and separate dates, so that it could determine whether the sentence would have been different had the reports been

available, or was unduly severe or otherwise inappropriate by virtue of the absence of the reports. The court, in fixing the manner in

which the reports were to be formulated, was alert to the provisions of s.3 of the Criminal Procedure Act, 1993.

It is clear that this Court was not asked to make, and did not in its judgments of 8th February, 2008, or the 21st April, 2008, make

any decision on the question of whether it was considering the sentence “de novo” in light of all the evidence then available. That

would only arise if s.3(2) was engaged, and it was not. Section 3(2) of the Act is only engaged where, on an appeal, the Court sets

aside a sentence, as is clear on its terms. It is for this reason that when an application for leave to appeal against sentence is

successful, this Court treats that application as the appeal and thereupon sets the sentence aside. It is then that s.3(2) becomes

engaged, and this Court imposes sentence, with or without new material. That is not to say, of course, that in other circumstances

of absent reports or for other reasons, this court might well adopt the approach of considering the sentence “de novo”. For the

reasons next explained, in the circumstances – unusual as they were in this case – it did not do so.

What the court was asked to decide on the application for leave to appeal was whether or not the sentence should be set aside,

having regard to the fact that the learned sentencing judge did not await the availability of reports. The Court specifically reserved

the question as to whether the sentence should be set aside as being too severe or as not providing a non-custodial element. It was

not possible to do so without viewing the very documents which, having regard to the particular circumstances of this case, ought to

have been before the learned sentencing judge. The Court, in considering the position on an application for leave to appeal was,

pursuant to s.3(3)(e), entitled to make the Order it did, as to the provision of date specific reports. The provisions of s.3(3) are not

limited to the circumstances mentioned at 3(a) relating to new evidence, as counsel for the applicant suggests, but cover a variety

of possible situations including, inter alia, applications for leave to appeal, as is also clear on its face. The Court adjourned its

determination of the application pending receipt of the reports, the provision of which in the manner proposed was not objected to by

either party. This Court, in order to do justice to the applicant, made an Order permitted by to s.3(2)(e) of the Act of 1993, which

Order the Court considered appropriate. In the unusual events which occurred, it was inappropriate to set aside the sentence

imposed without receiving the reports already ordered. While Mr. O’Connell, senior counsel for the respondent did not, on the 21st

April 2008, wish to add anything further to his submissions on the 8th February, counsel for the applicant, addressed the Court, on

the 21st April, 2008, specifically, and in some detail, by reference to the first set of date specific reports. This Court, having

considered those reports did not set aside the sentence, but found that the sentence actually imposed was not tainted by

fundamental error of law arising from the failure to await them. The Court is satisfied that the question of law now sought to be raised

by way of certificate, on the legal basis contended for is not one which arises out of the Court’s decisions.

Moreover, even if the Court were satisfied that the matter could, arguably, be properly considered as arising from the Court’s decision

on the application for leave to appeal, it is for the applicant to show that the certificate sought is on a point of law which is of

“exceptional public importance”. While such a point of law is, of course, always made in the context of a specific case and is of

importance to an applicant, nevertheless, it is not at all evident that the issue raised has any wider or more general application, the

facts being highly unusual and of peculiar and particular applicability in this single case, and no evidence was tendered or argument

made that would support the contention that it is of exceptional public importance. Nor is it at all evident that it is either “in the

public interest” to do so. It is not therefore one which the applicant has established meets either of the criteria found in s.29 of the

Act of 1924, as amended.

In the circumstances, the Court rejects the application for a certificate in respect of Question 1.

As to Question 2, the Court is of the view, first, that it is not at all clear from the wording of the question itself that it relates to a

point of law of “exceptional public importance” which ought, “in the public interest”, to be referred to the Supreme Court. It asks “to

what extent are actions engaged in by the accused subsequent to the unlawful killing but which are not the subject of any charge,

relevant to or an aggravating factor of the unlawful killing itself, such as to cause the Court to impose an increased sentence”.

(emphasis added) It is difficult to envisage how such a question could be responded to in such a manner as to be applicable in all

circumstances, or on a general basis.

Secondly, the law in relation to the issue raised by this question is, at this point in time, well established, and the arguments raised

by counsel in relation to the matter do not point to any factors which require this to be clarified above and beyond the case law

which, in this Court’s opinion, adequately establishes the legal principles to be applied in an appropriate case.

A consideration of the difficulties which arise for a sentencing judge in dealing with circumstances which may, but have not, led to

separate charges being levelled against an accused, has been the subject of case law in this jurisdiction and in the United Kingdom. It

is sufficient for the purposes of this judgment to refer to the judgment of this Court (McCracken, J.) in the case of The People (DPP)

v. Gilligan [2004] 3 I.R. 87 in which the English jurisprudence on this issue is fully considered and in which the learned judge in

delivering sentence on behalf of this Court stated:

“Curiously, there seems to be very little authority in relation to that issue in this country. However, the matter was

considered by the Court of Appeal in England in the case of Reg. v. Kidd [1998] 1 W.L.R. 604. In that case, the issue was

posed as follows at p. 606:-

"The issue may be expressed as follows: if a defendant is indicted and convicted on a count charging him with

criminal conduct of a specified kind on a single specified occasion or on a single occasion within a specified period,

and such conduct is said by the prosecution to be representative of other criminal conduct of the same kind on

other occasions not the subject of any other count in the indictment, may the court take account of such other

conduct so as to increase the sentence it imposes if the defendant does not admit the commission of other

offences and does not ask the court to take them into consideration when passing sentence?"

This was decisively answered by Lord Bingham of Cornhill at p. 607 in the following terms:-

"A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved.

Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced

only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to

take into consideration when passing sentence: see Reg. v. Anderson (Keith) [1978] A.C. 964. If, as we think,

these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant

can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to

admit.

That seems to this court to be a clear and unambiguous statement of principle with which the court entirely agrees.

Indeed, counsel on behalf of the respondent does not really challenge it. He does seek to argue, however, that the

sentencing court is entitled to have regard to the overall evidence of the activities of an accused in determining the

gravity of the individual charges in respect of which he has been convicted. In the present case, he points to the fact

that the offences took place over a period of some 28 months, that there was clear evidence that these offences were

part of organised crime and that indeed the applicant was closely involved in the organisation and that he would appear

to have been motivated purely by greed.

While this court accepts the reasoning in Reg. v. Kidd [1998] 1 W.L.R. 604, quite clearly a sentencing court cannot act in

blinkers. While the sentence must relate to the convictions on the individual counts, and clearly the applicant must not

be sentenced in respect of offences with which he was neither charged nor convicted and which he has not asked to be

taken into account, nevertheless the court in looking at each individual conviction is entitled to, and indeed possibly

bound to, take into consideration the facts and circumstances surrounding that conviction. Indeed, if that were not so

and these were treated as isolated incidents occurring at six month intervals, it might well be that the proper course for

the court to adopt would be to impose consecutive sentences. The court does, therefore, accept the basic principle

behind the argument of counsel for the respondent. However, the court does think it important to emphasise that in

many cases there may be a very narrow dividing line between sentencing for offences for which there has been no

conviction and taking into account surrounding circumstances, which may include evidence of other offences, in

determining the proper sentence for offences of which there has been a conviction. It is important that courts should

scrupulously respect this dividing line.” (emphasis added)

In the case of Reg. v. Kidd which McCracken, J. accepted as setting out the correct principles, the issue concerned the possibility of

convicting, not merely for the offence which was before the court, or indeed any circumstances surrounding that particular

conviction, but rather taking into account evidence of offences which occurred on “other occasions”. So also was it the case in the

circumstances in suit in the DPP v. Gilligan, supra.

In DPP v. O’Donoghue (unreported) Court of Criminal Appeal, 18 October 2006, a case decided by this Court, in which an application

was made on behalf of the Director of Public Prosecutions, inter alia, on the basis that the sentencing judge in the case had failed to

have sufficient regard to the activities of the accused in disposing of the body of his victim after killing, this court reviewed the above

jurisprudence. Applying the principles to the facts of that case, and bearing in mind also that it was an application for leave to appeal

against an allegedly unduly lenient sentence, the Court stated:

“While a sentencing judge may validly take into account appropriate surrounding circumstances, even those of a cover

up, nevertheless, if, as the above jurisprudence recommends, a sentencing judge must scrupulously respect the

appropriate dividing line, he cannot be criticised for doing so in the present case, especially when, on the face of the

judgment he has not been blinkered as to the surrounding facts, and the cover up has in any event been taken into

account as part of the impact of the death on the boy's family.”

This Court found that the Director of Public Prosecutions had failed to establish that the learned sentencing judge in that case had

committed an error in principle in the manner in which he took into account the cover up in question. This issue was also considered in

DPP v. Long (Unreported) Court of Criminal Appeal, 7th April, 2006, and in other cases also.

It is evident that in all the cases that the issue depends on the particular facts. In each of the cases the court also recognised, in

quite different contexts, the difficulties which may arise for a sentencing judge when seeking to delineate between such surrounding

circumstances as he may properly have regard to in constructing an appropriate sentence, and those actions or matters in respect of

which the accused was not charged or which he had not admitted or asked to have taken into account, as arose for example in the

particular circumstances of the Gilligan case supra. It is for the trial judge, when sentencing, to consider whether the actions which

could have formed a separate charge bear a close relationship to the events surrounding the charge in suit, or whether these actions

are, rather, too remote to be taken into account. It is undoubtedly the case that it may be difficult, in particular circumstances, to

ensure that the dividing line referred to by McCracken, J. in the above extracts, although in a different context, is maintained.

However, it would not be possible to fix a precise “extent” to which such actions are to be considered, a “relevant or aggravating

factor”, in all circumstances, as the question seeks to do. The most that can be said is that the closer the actions are related to the

events giving rise to the charge in suit, the more evident it is that they can be taken into account in fixing an appropriate sentence.

Having regard to the circumstances in which the issue has arisen in cases such as DPP v Gilligan, supra., and in R v Kidd, supra., it

must be accepted that if the events are all proximate to the charge in suit, it may well be appropriate to have particular regard to

them.

In the present case, the evidence, according to the transcripts, makes it clear that there was a seamless chain of events between

the suggestions made by the victim referred to in the factual background earlier in this judgment, the subsequent assault on the

deceased by the applicant and her sister, and the cutting up or dismemberment of the victim’s body and its secret disposal, or the

disposal of most of the parts thereof in the canal. No suggestion appears in any of the evidence tendered that there was any

intervening period, save that which would naturally occur in the course of the events so described. It is difficult to see what point of

law of exceptional public importance therefore could arise from the decision of this Court, to the effect that the learned sentencing

judge did not commit any error in principle in taking into account the subsequent events in question. Nor is there a legitimate basis

raised for suggesting that it is in the public interest to refer the question proposed. In the circumstances the Court rejects the

application for a certificate on Question 2.

Turning now to Question 3,, again as posed, this appears to the Court to be a matter on which there is adequate case law and in

respect of which the principles are well established.

It will be recalled that the terms of the question, set out above, are as follows:

“Is a court which is determining what sentence to impose on a person in respect of a serious offence who is effectively

a first time offender and a mother of young children, bound in structuring the sentence to consider and make provision

for the rehabilitation of that offender.”

It is a long standing principle of sentencing law that the sentencing judge must take into account both the crime itself as committed

by the particular convicted person. That includes, in appropriate circumstances, a sentence which includes a designated form of

rehabilitation. It does not, however, mean that because a convicted person is “effectively” a first time offender and/or “a mother of

young children” there is any automatic entitlement to any particular sentence different from those imposed on persons convicted in

similar situations, such as a father of children or an offender who had very minor prior offences, not of particular relevance to the

sentencing for the crime in suit.

It has to be borne in mind, however, that in the present case what counsel for the applicant submitted in the course of the

application for leave to appeal was that the learned sentencing judge had erred in law in failing to provide for a non-custodial element

in the sentence, as part of his obligation to provide for rehabilitation of the applicant, having regard to the applicant’s status as a

first time offender and/or as the mother of young children. He did not so provide. In the events which arose the question may also be

whether, had the learned sentencing judge had the reports in question, he would have so provided. The reports furnished suggest

that the applicant was at a “high risk” of offending (in the absence of entering into an intensive regime of counselling or other

appropriate regime which had not been entered into). This Court, having regard to the reports, found in its decision that the learned

sentencing judge had not committed any error in principle in failing to provide for a non-custodial element or factor in his sentence. In

line with the case law on the matter, in particular the case of DPP v. Higgins, supra. and The People (DPP) v. Kelly (Unreported, Court

of Criminal Appeal, 11th July, 1996), no justifying argument is adduced to support the contention that a point of law of exceptional

public importance arises from this court’s decision, which comes within the ambit of a certificate under s.29 of the Act of 1924, as

amended. The application for the same is refused.

The fourth and final question raised on behalf of the applicant is in the following terms:

“Is it permissible for a court in imposing sentence in respect of a manslaughter verdict, where a defence of provocation

has been successfully raised, to discount the personal circumstances and background of the offender on the basis that

those are matters which have already been taken into account by the jury in returning the verdict which it did?”

A short argument on this point was made in the course of the hearing which led to the decision of this Court on the 8th February,

2008. While it was invoked as a ground of appeal in the written submissions filed on behalf of the applicant, it did not feature in any

significant manner in the oral submissions made, and having regard to the primary ground actually argued, did not call for separate

treatment in this Court’s decision of the 8th March, 2008. Indeed it was unclear to what extent, if any, the comments made affected

the sentence actually imposed, having regard to the mitigating factors actually taken into account by the sentencing judge. It was

not pursued further upon the receipt of the reports, and did not form part of the determination of this Court in its decisions of the 8th

February, 2008 and the 21st April, 2008. Having regard to the above settled jurisprudence that the question which is to be referred to

the Supreme Court is one which arises out of the decision of this Court on the application for leave to appeal (or in an appropriate

case on an actual appeal), this question is not one which falls within the ambit of s.29 of the Act of 1924, as amended. The

application in respect of this question is refused.

In the above circumstances, the Court rejects the application for a certificate for leave to appeal on any of the four questions raised

on the application for a certificate.