Court refused certificate for leave to appeal on whether prior convictions can aggravate sentencing for drug importation.

THE COURT OF CRIMINAL APPEAL

Macken, J. [No. CCA 45/09]

Budd, J.

O’Keeffe, J.

Between/

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

-AND-

THOMAS ULRICH

APPLICANT

Judgment of the Court delivered on the 11th day of May, 2011 by Macken, J.

This is an application made by Notice of Motion, by which the applicant applies to this Honourable Court for an order pursuant to s.29

of the Courts of Justice Act, 1924 (“the Act of 1924”), as amended by the provisions of the Criminal Justice Act, 2006, seeking a

certificate for leave to appeal to the Supreme Court. For the purposes of this application it is not necessary to set out in full the

provisions of s.29 as amended, it being sufficient to say that the section provides for a certificate being granted in respect of a

specified point of law, in circumstances where this Court certifies that its decision involves “a point of law of exceptional public

importance and that it is desirable in the public interest” that an appeal should be taken to the Supreme Court. The point of law upon

which a certificate is requested in the present case, is in the following terms:

“Whether the previous convictions of a convicted person may be considered to be a factor which aggravates the

circumstances or nature of the offence committed to the extent that a heavier sentence may be imposed upon the

offender, and if so, whether such a sentence may be imposed for the purpose of incapacitating the offender from re-

offending, eliminating his desire to re-offend or reducing the likelihood of his re-offending on his release from prison.”

The application is not formally opposed by the respondent, who takes the view that the matter is one for this Court, but Mr.

McGillicuddy, junior counsel on behalf of the respondent, makes certain submissions in respect of the question sought to be certified,

and, of a more general nature, in respect of the practice relating to sentencing.

Background

The applicant was convicted (having pleaded guilty) on the 18th February, 2009, of the importation of drugs contrary to s.15B of the

Misuse of Drugs Act, 1977, and as amended, and was sentenced by the learned sentencing judge to twelve years imprisonment, with

the final three years suspended on the usual bond. He had been detained at Dublin Airport, where a substantial quantity of drugs,

having a value of approximately €240,000, was found in his possession or under his control. Mr. Ulrich is a German national, but had

been living in Spain, and had a prior conviction for a drugs offence(s) in Spain.

One of the three arguments made on the original application for leave to appeal concerned that prior conviction, and the fact that it

had been taken into account by the learned sentencing judge in structuring the sentence. This was objected to by Paul McDermott,

senior counsel on behalf of the applicant, who submitted that this was not legally permissible, because in the case of a previous

conviction, a person has already served a sentence. In support of this argument, he cited certain extracts from academic writings,

which suggest that the approach apparently adopted in the United Kingdom is one under which a prior conviction, it is said, is dealt

with by “progressive loss of mitigation until such time as there is no mitigation remaining”, a matter to which the Court will return. This

approach was objected to by then junior counsel, Ms. Lawlor, on behalf of the respondent, who drew the Court’s attention to case

law already decided by this Court and, in particular, to the judgments of this Court: DPP v. G.K. (Unreported, Court of Criminal Appeal,

31st July, 2008) and DPP v. Melia (Unreported, Court of Criminal Appeal, 11th July, 2008). On behalf of the respondent, it was argued

that prior convictions can properly be taken into account in structuring sentence, and not merely and simply on the above English

basis.

In this Court’s judgment, having considered the case law on the matter, including the two cases referred to earlier, and the

submissions in respect of the manner in which the learned sentencing judge structured the sentence, this Court found that taking into

account the previous conviction of the applicant in Spain was not an error in principle on the part of the learned sentencing judge.

The Law relating to Applications for a Certificate

The law relating to applications for a certificate pursuant to s.29 of the Act of 1924, as amended, is very clear, especially in one

essential respect. It is a certificate which may only be sought when the question is one “arising from the decision of this Court”. This

is clear from several cases, and, in particular, was repeated in the case of DPP v Eamonn Kelly (Unreported, Court of Criminal Appeal,

11th July 1996), in the judgment delivered by Blayney, J., in which 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”.

The Court is satisfied that, as formulated, neither the first part of the question, nor the second part of the question on the applicable

case law, arises from the decision of this Court. This is particularly so having regard to the fact that in the DPP v. Eamonn Kelly,

supra., this Court also referred to earlier jurisprudence on this point, particularly the judgment in DPP v. Patrick Higgins (Unreported,

Supreme Court, 22nd November, 1985) in which Finlay, C.J. stated:

“While, as has been held in The People v Shaw 1982 IR p.2 this Court is not confined on the hearing of an appeal to the

point certified, it is inherent in the section that a point of law certified on these two grounds must be a point arising

before the Court of Criminal Appeal and thus involved in its decision. 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 which is not consultative, but essentially appellate and for the purpose

of doing justice in the particular case.” (emphasis added)

Applying those principles to the facts in the case before it, this Court, in DPP v. Eamonn Kelly, supra., refused a certificate on these

grounds, counsel having made two submissions relating to fingerprint evidence, neither of which involved a decision of this Court on

the point in respect of which the certificate was sought, the Court stating by way of reasoning:

“The court was not asked to make, and did not make any decision, on the question of whether any permanent record

should be made and kept of forensic tests carried out on behalf of the prosecution, and then to be disclosed for the

consideration of the Court. What the Court decided was that there was no evidence that any permanent records had

been made of the results of the fingerprint examination, and that the only evidence was that there were no such

records at the date of the trial, if they had ever existed, so there was nothing that could have been disclosed to the

defence.” (emphasis added)

The decision of this Court, therefore, must be found to include statements, principles or findings of law which generate the right,

whatever its merits, to raise the actual question sought to be the subject of a certificate pursuant to s.29 of the Act. Further, it is

clear from the last cited case that even a closely related question will not suffice. The question sought to be certified has been set

out at the commencement of this judgment. However, this Court did not find that the previous convictions of a convicted person may

be considered to be a factor “which aggravates the circumstances or nature of the offence committed” to the extent that “a

heavier sentence may be imposed upon the offender”. What the Court actually stated was as follows:

“It seems to the Court that whether one accepts that it is an absolute aggravating factor, or whether one accepts, as

might perhaps be indicative from the decision in DPP v. Melia, that it is a matter to be taken into account in relation to

the particular circumstances of the convicted person, in either event in DPP v. G.K., supra, both the fact that there had

been a previous conviction and the fact that the offence was committed within six months of having been released from

prison for a similar offence, were both matters taken into account by the learned sentencing judge. This too was the

position in the present case.” (emphasis added)

Moreover, the entire of the second part of the question now sought to be certified does not arise at all out of this Court’s decision.

The most that could be said in respect of the balance is that a certificate might arise, assuming all other criteria are met, in respect

of a question posed in the following terms:

“May the previous convictions of a convicted person be considered to be an aggravating factor, or a factor to be taken

into account in relation to the particular circumstances of a convicted person, in the course of structuring an

appropriate sentence of a convicted person.”

That of course is not the question raised. On the question raised, in oral submissions before this Court, senior counsel Mr. McDermott,

on behalf of the applicant, invoked very much the same type of principles and arguments as were invoked before this Court on the

original application for leave to appeal against severity of sentence. It seems to this Court that this argument can be synopsised as

follows:

(a) The only manner in which previous convictions, which have been served by the person about to be sentenced, can be

taken into account, is by means of a reduction in the period of time represented by the mitigating factor of “absence of

any prior convictions”, which would otherwise apply;

(b) The latter approach must be taken until such time as the period represented by the mitigating factor, whatever that

might be, has, in effect, been fully absorbed or eliminated and no longer exists, which appears to be described as

“progressive loss of mitigation”;

(c) Previous convictions cannot, otherwise, be taken into account at all;

(d) Such a principle is, it is said, supported by the author and academic, Professor O’Malley, in “Sentencing Law and

Practice (Dublin 2005)” and by English case law.

Conclusion

No English case law was opened to this Court on behalf of the applicant. Such case law, if existing, has not been adopted in any Irish

case law opened to this Court in this application. Further, on a review of the position in England, it appears that other academic

writers suggest it is no longer the applicable principle in the English jurisprudence (see Ashworth's Sentencing and Criminal Justice,

Oxford University Press 2010). It seems clear, moreover, that following a Green Paper in the United Kingdom on sentencing, s.143(5)

of the Criminal Justice Act, 2003 in the United Kingdom was adopted which provides, inter alia, that in considering the seriousness of

an offence committed by an offender who has one or more previous convictions, the Court must treat each previous conviction as an

aggravating factor, if (in the case of that conviction) the Court considers that it can reasonably be so treated, having regard to

certain factors. The provisions of s.143(5) further provide that a Court is not prevented from treating a previous conviction by a

court outside the United Kingdom as being an aggravating factor in any case where the Court considers it appropriate to do so. The

particular circumstance in which the provisions of S.143 arise clearly derives from statute, reflecting a policy decision in the United

Kingdom.

This Court considers it difficult to accept that, in principle, prior convictions of a relevant nature, such as in the present case, cannot

be taken into account in the proper construction of a sentence, provided, of course, that the sentence is not constructed with a

view to, or having the effect of, sentencing a person twice for the same offence, and provided the sentence remains at all times an

appropriate one. Further, it seems to the Court that the so-called “progressive loss of mitigation until such time as there is no

mitigation remaining”, is not a formula which gives any appropriate degree of certainty or guidance to a sentencing judge. Typically, in

cases where a sentencing judge is constructing a sentence, there may be several prior convictions of a relevant nature, for example,

in the areas of assault, burglary, or drugs convictions. A single prior conviction in relation to any one of these charges might well be

sufficient to eliminate entirely any mitigating factor arising from the absence of a prior conviction that might otherwise be applied for

the benefit of a convicted person. What then is a sentencing judge to do with six other relevant convictions, or three other

convictions, not all relevant to the offence in respect of which the sentence is being imposed, but nevertheless very serious in

nature? Are all of these to be combined, and if not, what is the status of these remaining convictions? Can they not be taken into

account?

For many years in this jurisdiction, prior convictions have been taken into account. Taking them into account was the subject of both

the DPP v. G.K. case, and the DPP v. Melia case, supra., in neither of which, so far as the Court is aware, was any s.29 application

made. They are taken into account, in all cases in which there are relevant prior convictions, as a factor in the appropriate

construction of a sentence. They may, at the very least, be taken into account as part of the construction of a sentence “applicable

to the offence as committed by the particular offender”, which is the very basis of an appropriate sentence, and which was

specifically referred to in this Court’s decision in the present matter.

It is not easy to see how, in general, a prior conviction can constitute aggravation of the circumstances of new offence committed,

unless there is some clear causal connection between the prior conviction and the particular features or characteristics of the

offence for which a person is being sentenced, although in some areas of the criminal law, for example, the unlawful importation of

drugs, an offence which has been carried out on many occasions by the same means, leading to several convictions, might be a case

in point. A particular modus operandi in rape or assault cases might also fall into the same category, and, of course, the legislature

may adopt a policy by which certain prior convictions must be considered as an aggravating factor in sentencing, as it has done in

the area of drugs, in a certain respect. On the other hand, several prior convictions, especially serious and/or relevant ones, clearly

contribute to the “particular circumstances of the convicted person”. It would in this Court’s view be wholly inappropriate to state, as

a matter of principle, that prior convictions may only be taken into account in one manner, as is suggested, since it is for the

sentencing judge to decide in what respect they may or ought to be considered relevant in the appropriate structuring of a sentence.

This Court is satisfied that the principles enunciated in the case law on sentencing in this jurisdiction, including the several relevant

Supreme Court cases which it is not necessary to cite, are sufficiently well established, and adequately nuanced, to permit

appropriate sentences to be imposed in the wide variety of circumstances coming before the courts.

Further, this Court is not satisfied either, having regard to the foregoing, that the application raises a point of law of exceptional

public importance, and in exchanges with the bench on this aspect of the matter, counsel for the applicant very properly stated that

the point of law contended for arises, because it appears to the applicant that there is some inconsistency in the jurisprudence.

However, no such inconsistency has been established, either by reference to the prior practice or by reference to any specific cases

prior to the two cases cited in the present application and the case the subject of the present application. Nor is there any

submission as to why it is in the public interest that this Court should certify the question sought to be proposed for the opinion of

the Supreme Court, nor even the question as it might have been framed.

In the circumstances the applicant has not made out grounds within s.29 of the Act of 1924, as amended, for a certificate on the

point of law sought to be certified. The application therefore stands refused.