Court allows appeal where mandatory consecutive sentence must apply to prior theft, not future offence.

Court of Criminal Appeal

CCA No: 324/10

Denham C.J.

de Valera J.

Hanna J.

Between/

The People at the suit of the Director of Public Prosecutions

Respondent

and

Christopher Smith

Appellant

Judgment of the Court delivered on the 31st day of July, 2013, by Denham C.J.

1. This is an appeal by Christopher Smith, the appellant, referred to as “the appellant”, from the sentence imposed by the Dublin

Circuit Criminal Court.

New Point

2. When this appeal was commenced before the Court, counsel for the appellant said that he was advancing a new point under s.

11(1) of the Criminal Justice Act, 1984. He argued that while it was mandatory to impose a consecutive sentence, the learned trial

judge should have applied the consecutive ruling only in relation to the theft offence, as the other offence referred to was a

subsequent, and not a previous, offence. This submission requires consideration of the facts of the case and the law.

Facts of the Case

3. The appellant pleaded guilty on the 8th November, 2010 to Count No. 6 on indictment Bill No. DU 962/07, which was a s. 15

offence contrary to the Misuse of Drugs Act, 1977, as amended. He was sentenced by the Dublin Circuit Criminal Court (Judge

McCartan) on the 13th December, 2010, to three years imprisonment, consecutive to the sentence then being served.

4. The sentence the appellant was then serving was a sentence imposed by Judge O’Donnell on the 15th December, 2009, being three

years imprisonment for an offence of theft, while a consecutive sentence of ten years for a s. 15A offence was imposed also, with

the final seven years of the later sentence suspended on specific terms.

5. The offence in issue on this appeal was committed while the appellant was on bail and therefore a consecutive sentence is

mandatory in the circumstances.

6. It was accepted that the appellant must get a consecutive sentence.

7. However, the dates of the two offences dealt with by Judge O’Donnell on the 15th December, 2009, were submitted to be

relevant. The theft offence pre dates the date of the offence the subject matter of this appeal. The s. 15A offence post dates the

date of the offence the subject matter of this appeal.

8. It was submitted, inter alia, that the sentence should not have been consecutive to the sentence imposed for the s. 15A offence

as it post dated the date of the offence the subject of this appeal.

Sentencing

9. In sentencing the learned trial judge stated:-

“Right, thank you. Well, the accused man comes before me for sentence today in respect of a very serious offence, that

is the possession of €13,000 worth of cocaine. That evidence wasn’t given in court today, but I know that from the

evidence given by Garda Scanlon on the last day when I dealt with his co-accused Mr. Duffy. And that was a significant

amount. The advice I was given by Detective or Garda Scanlon and he confirms it today, that the quantity of drug was

being delivered by Mr. Duffy, his co-accused, to Mr. Smith, who was then going to dispose of it by selling it on. It was a

significant amount and in itself is a serious matter.

In dealing with the co-accused, Mr. Dunphy, who in some respects is similar to this man here, I had come to the

conclusion that he was manipulating, sometimes I use the expression playing the lists, so as to avoid the rigour of the

law. That co-accused had a case put back before Judge Murphy to next July on the basis he was given a chance and he

was doing well and studying and the like. But I wasn't impressed with the way the case had been dealt with, the fact

that she hadn't been told fully of what his position was, and I sentenced him to seven years' imprisonment and I

suspended a significant proportion of that sentence. I mention that because the tariff has already been laid down; the

likely position is already there. It's a serious matter; it must attract a serious sentence.

However, the law does require me to measure any consecutive sentence which must be imposed and which will be

imposed in this case, for the reasons I will explain, that it is measured, having regard to the position of the accused

overall. And he is at the moment serving a significant sentence but has been given very considerable leniency by my

colleague, Judge O'Donnell. In the case Judge O'Donnell dealt with he was found with close on €200,000 worth of heroin,

and a sentence was imposed on him, which measured and reflected the -- firstly seriousness of that particular case and

also the legislation requiring a minimum sentence of 10 years, unless there are excusing, extraordinary factors. And that is

most significant. I can't second guess the mind of a colleague, but I have absolutely no doubt that Mr Smith would not

have been extended the degree of leniency he was if my colleague, in considering the provisions of section 15A, was

doing so in the context that the accused had in the months and year after committed or before committed a similar

offence to the case he was dealing with. It would have had to have had a significant impact.

It would appear that the accused had elected, in respect of this particular case before me today, to plead not guilty and

held that plea up until the day of his trial in circumstances where he had effectively no way to go. He was caught in the

motorcar with the drugs there. His house -- the car was parked in his house, his premises, his own bedroom being

searched was found to have a safe and in the safe a plethora of other drugs. So the evidence against the accused, Mr

Smith, was overwhelming, but nonetheless he held his hand and made no answer other than he was not guilty until the

day of his trial, until, I'm satisfied, he had the other, more serious matter out of the way. It is, and would have been far

better, in my mind, for Mr Smith to have put all of his cards or all of his position before his sentencing judge, Judge

O'Donnell, when he was dealt with in December 2009. So I have to have regard to all of that.

He has pleaded guilty but, as I say, he had little option and didn't do so until a very late stage in the proceedings, the

day of his trial. And sought, to my mind, to avoid this matter coming to the attention of the sentencing courts until he

had the more serious matter dealt with and disposed of.

The documentation before me, as to how he's doing in prison is conflicting. On the one hand, he is clearly a model

prisoner who has been transferred to the remand prison as a trustee, I think is how they describe them, because he's

useful and reliable. And at the same time, he is studying. But he has failed or refused, the report says, to provide two

samples for the purposes of assessing that he's drug free. Mr Smith says that if blood was taken from him, that would be

confirmed. I'm inclined to believe that to a degree. I mean, put it this way, I have a doubt in my mind. I don't believe the

prison authorities would keep him in Cloverhill if he was suspected or believing to be still using drugs. The likelihood is he

will he sent back to where he came from, Mountjoy, and so for that reason, on balance, I'm prepared to exercise my

judgment, giving him of the benefit of the doubt on that issue and accept that he physically wasn't able to produce. By

and large, I don't believe that explanation, it's universally used by prisoners who don't know the time or the day they're

going to be called in to give a sample, and when they know they're on the wrong side of the wind, they simply say, "No, I

can't do it." But I think the prison authorities would have responded to that by taking him out of the system, they haven't

done so, and sent him back to Mountjoy. So, as I say, I'll give him the benefit of that, so he's doing well at prison, it

would seem, and that's a good thing to see. He will have a very substantial sentence hanging over him on his release

when he is released, and that will act as a deterrent, if not an incentive to stay out of trouble. It's a matter for him. The

report of Dr Lambe, which is of no use whatever to the Court, I'll say no more than that. My views are known about these

reports that are sought for by the solicitors as a frankly, to my mind, a lazy way of taking their own instructions, says

that it's all terribly sad what has occurred to him. But it's all of your own making. You must serve additional time in prison

for this offence and for the way you've dealt with, and what I propose is an additional three years in prison. So, on count

6, I impose a sentence of three years' imprisonment, which will run consecutive to the sentence he's serving at the

moment.

MS BAXTER: In relation to the first bill; Judge, in relation to the 15A matter that he would receive a sentence of.

JUDGE: It's additional to the sentence he's serving, he's serving it -- he will serve additional time.

MS BAXTER: Yes, Judge.

JUDGE: So it will be consecutive to both the sentences that have been imposed.”

[Transcript, 13th December, 2010, p. 17]

Notice and Grounds of Appeal

10. The appellant served a notice of appeal, and set out fifteen grounds of appeal, as follows:-

(i) The learned trial judge erred in principle in imposing the said sentence which was excessive in this case and

represented a substantial departure from what would be regarded as the appropriate sentence in all of the

circumstances of the case;

(ii) The learned trial judge erred in principle in failing to take any or any adequate account of the entire nature and

circumstances of the offence to which the said Appellant had pleaded guilty;

(iii) The learned trial judge erred in law in failing to take any or any adequate account of the particular mitigating

circumstances of the appellant in the context of the offence, particularly his plea of guilty, his rehabilitation whilst

in custody and his youth at the time of the commission of this offence;

(iv) The learned trial judge erred in law in failing to give adequate weight to the prospect of rehabilitation despite

the evidence before the Court of the appellant’s rehabilitation whilst in custody;

(v) The learned trial judge erred in refusing to adjourn the matter of sentence in circumstances where there was no

drug analysis which could properly assist the Court further when considering rehabilitation as the appellant had

requested that a blood sample be obtained to prove he was rehabilitating while serving his sentence in Cloverhill

prison, a remand institution wherein he was a trustee;

(vi) The learned trial judge erred in principle in placing excessive weight on the aggravating circumstances of the

case and in particular making similar comparisons to his co-accused who had already been sentenced;

(vii) The learned trial judge failed to have regard to the role of the appellant in this offence compared to the more

serious role of his co-accused which was substantiated by the evidence of the prosecuting member;

(viii) The learned trial judge erred in law and fact in that no consideration or no adequate consideration was given

to the personal circumstances of either the appellant or his youth and the benefit of insight that had since

developed whilst serving his sentence which was noted by Report of Dr Lambe.

(ix) Denigrating the motive of adducing the report of Dr. Lambe to the Court;

(x) The learned judge erred in law in speculating and again erred in further acting upon that speculation by

sentencing the appellant on the basis that he had pleaded guilty only following his having been earlier sentenced on

a section 15A matter;

(xi) In so speculating that the appellant had only pleaded guilty to the within matter following sentence on the

section 15A matter erred in sentencing the appellant on the basis that he would have received a higher sentence

on that section 15A matter were the within matter also before the Court at that time;

(xii) The learned trial judge in so sentencing the appellant described the leniency of his colleague when imposing the

earlier sentence and thus in effect by imposing the said sentence of three years to run consecutive to that

sentence of thirteen years imprisonment has effectively sentenced the appellant twice for the section 15A as he

placed much reliance upon that earlier sentence;

(xiii) The learned trial judge erred in regard to the principle of totality and proportionality in sentencing the appellant

to three years consecutive to those sentences upon which he had received a sentence of thirteen years;

(xiv) The learned trial judge erred in law and in fact in ignoring the terms of the earlier consecutive sentence

wherein a sentence of ten years was imposed to run consecutive to a three year sentence where the final seven

years were to be suspended upon terms which on its face took into account the prospect of rehabilitation and the

youth of the appellant and in imposing this additional sentence of three years such has the effect of negating the

objective of the original two sentences;

(xv) The learned trial judge erred in having regard to all of the above grounds both individually and cumulatively the

sentence as imposed by the learned trial judge was both excessive and disproportionate in all of the circumstances.

Submissions on New Point

11. Counsel for the appellant stressed the new point on the appeal arising from s. 11 of the Criminal Justice Act, 1984 (referred to as

“the Act of 1984”), and relevant case law. It was submitted that while it was mandatory to impose a consecutive sentence, the

learned trial judge should have applied s. 11 of the Act of 1984, and made the sentence consecutive to the three year sentence for

the theft offence, and not to the ten year sentence which was imposed upon a subsequent offence, not a “previous” offence.

12. Counsel referred the Court to The People (D.P.P.) v. Dennigan, (ex tempore, Court of Criminal Appeal, Hederman J., 27th

November, 1989); The People (D.P.P.) v. Yusuf [2008] 4 I.R. 204; and The People (D.P.P.) v. Robinson, (ex tempore, Court of Criminal

Appeal, Hardiman J., 20th December, 2002).

13. Counsel submitted also that the consecutive element of the sentence breached the established principles of totality and

proportionality. It was submitted that the appellant was 17 years of age at the time of the offence.

14. Counsel for the Director of Public Prosecutions submitted that the appellant was on bail and that thus the sentence had to be

consecutive. Counsel considered the word “previous” in s. 11 of the Act of 1984.

15. On behalf of the Director of Public Prosecutions, it was submitted that the sentencing judge was correct in law and fact in

imposing a consecutive sentence, notwithstanding that the previous sentence contained a consecutive element. The judge was

required to measure any consecutive element having regard to the overall position of the appellant and this is reflected in the

sentence imposed. The fact that the date of the s. 15A offence post dated the offence the subject matter of this appeal, is not a

conclusive factor as to what sentence the consecutive sentence should follow. If the sentence was made consecutive to the three

year sentence (merely because this offence came next in time) the effect would be that no additional time would be served by the

appellant, and this was expressly not the objective of the sentencing judge. Additional time of imprisonment could only be achieved

by making the sentence consecutive to the s. 15A sentence, and this was done in a manner that was consistent with legal principles

governing consecutive sentences generally and to the principles in the Yusuf case of 1984, and argued that it referred to a situation

where a sentence was imposed previously, and not to a previous offence.

Law – Consecutive Sentencing

16. Section 11 of the Act of 1984 provides:-

“11.—(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.”

[emphasis added]

17. It is necessary to consider s. 11(1) of the Act of 1984 in order to construe the words “previous offence”. This has been

addressed in earlier cases of this Court.

18. In The People (D.P.P.) v. Robinson (ex tempore, Court of Criminal Appeal, Hardiman J., 20th December, 2002), having recited the

terms of s. 11(1) of the Act of 1984, the Court (Hardiman, Lavan, O’Caoimh JJ.) stated:-

“It will be noted from the Table that the offences were not dealt with in court in the order in which they were committed.

The earliest offence in point of time was the assault committed on the 4th April, 1999. This came before the Circuit Court

on the 22nd June, 2000, together with the offences of burglary and criminal damage on Bill 9/00. In the interval between

those two offences, on the 13th December, 1999, the Defendant committed the group of seven offences charged on Bill

1/01. These did not come before the Court until the 17th January, 2001.

The matter has been relisted before us on foot of a submission on behalf of the Applicant based on the meaning of the

phrase "previous offence" in Section 11(1), quoted above. In particular, it was urged that the offences on Bill 9/00 are

not "previous offences" for the purpose of Section 11(1) because they were committed subsequent to the offences

charged on Bill 1/01.

On the hearing of the Applicant's motion, the prosecution contended that the phrase "previous offence" was capable of

being construed as a reference to an offence for which the Defendant had previously been sentenced, without regard to

the question of when that offence was committed.

We consider that the argument advanced on behalf of the Applicant is correct. In the context of Section 11(1) the

phrase "previous offence" can only mean an offence previous to the offence for which he is being sentenced when the

Section is applied. In the context of this case, that was the offence (more correctly the group of offences) set out on Bill

1/01. Although this Bill came before the Court some seven months after the other two Bills, the fact remains that the

offences committed on the 21st January, 2000 were subsequent, and not previous, to the offences committed on the

13th December, 1999. Accordingly, the Court was not required to make the sentences imposed on the latter Bill

consecutive to those imposed on the former one.

It might of course be said that the offence of assault (Bill 5/00) committed on the 4th April, 1999 was an offence previous

to those committed in December of the same year, and that those offences in turn were offences previous to those

committed on the 21st January, 2000. However, at the time the latter offences were before the Circuit Court the

Defendant had yet to be convicted in respect of the offences of the 13th December, 1999. That Court, accordingly, could

not have regarded any of the latter group as a previous offence for the purposes of statutory consecutivity.”

Thus, it was held that the offences on one bill were not previous offences for the purpose of s. 11 of the Act of 1984, because they

were committed subsequently to the offence charged on the other bill. Accordingly, the Court was not required to make the sentence

consecutive.

19. In The People (D.P.P.) v Dennigan (ex tempore, Court of Criminal Appeal, Hederman J., 27th November, 1989); the Court pointed

out that under s. 11 of the Act of 1984 sentences must be consecutive and not concurrent. The Court was of the view that the

proper interpretation of s. 11 of the Act of 1984 was that a court may in appropriate circumstances suspend a consecutive sentence,

which must be imposed pursuant to section 11. The Court held:-

“Under section 11 of the 1984 Criminal Justice Act sentences must be consecutive and not concurrent. The learned trial

judge imposed a concurrent sentence of five years for these offences which he was not entitled to do. The Court while it

will not suspend that sentence and proposes to impose a custodial sentence, is of the view that the proper interpretation

of section 11 of the 1984 Act is that a court may in appropriate circumstances suspend a consecutive sentence, which

must be imposed pursuant to section 11 of the 1984 Act. But the Court in the circumstances of this case cannot even

contemplate such a course of action. The offences were committed by somebody who had a number of previous offences,

the most serious one being the offence of taking the garda property, but all the offences are serious. In respect of all

those offences the learned trial judge imposed a sentence of five years, but again this Court is satisfied that in imposing

that sentence the learned trial judge did not give sufficient weight to the circumstances of the accused and his family,

and did not give sufficient weight to his own genuine endeavours to try and rehabilitate himself. The Court proposes to

impose a sentence of three years consecutive on the twelve months for the offence committed in the first bill of

indictment.”

20. The issue of the application of s. 11 of the Act of 1984 was considered also in The People (D.P.P.) v. Cole (Unreported, Court of

Criminal Appeal, 13th July 2003, Fennelly, Lavan, O’Caoimh JJ.). In construing s. 11 of the Act of 1984 the Court noted:-

“However, the words of the section required him to make it consecutive, in a case where a person is sentenced in respect

of two or more previous offences, on the sentence last due to expire … in the present case, the four year sentence is the

last due to expire. In the view of the Court, the obligation to impose consecutive sentences is not, however, cumulative…

where there are ‘two or more previous offences’ for which sentences are imposed, the Court should sentence for the last

one consecutively to the last to expire of the earlier sentences.”

21. In The People (D.P.P.) v. Yusuf [2008] 4 I.R. 204, the Court construed s. 11 of the Act of 1984, and stated that the appeal raised

an important point in relation to the interpretation of that section. The Court held at paras. 20 – 24:-

“Turning to the construction of s. 11 itself, the court is satisfied that it is not free from ambiguity. On the one hand the

reference to "any sentence" at the commencement of s. 11(1) would suggest that where several sets of offences

committed whilst on bail are being dealt with, each sentence "shall" be consecutive to the other as recited in the section.

The subsection also contains the words "where two or more consecutive sentences as required by this section are

passed by the District Court" (emphasis added) which appears to be an explicit recognition that more than two

consecutive sentences may fall to be imposed. Furthermore, the concluding words of the subsection, which limit the

District Court to an aggregate term of two years in respect of "those consecutive sentences", would also suggest that

consecutive sentences may be consecutive to each other, providing the total does not exceed two years.

The court is satisfied that the section is open to both the interpretation indicated by Fennelly J. in The People (Director

of Public Prosecutions) v. Cole (Unreported, Court of Criminal Appeal, 31st July, 2003) and to an interpretation which

permits the imposition of more than one consecutive sentence, providing the latter course does not infringe the concept

of totality when the aggregate of the consecutive sentences is taken into account. The court does not interpret the

section as requiring that every sentence imposed for an offence committed while on bail be consecutive to any other

similar sentence save as regards the last sentence to be imposed.

On the facts of the present case, the court is of the view that to structure the sentence so that the sentence imposed

for each of the last three sets of offences is made consecutive to each of the others did result in a total sentence which

is disproportionately high having regard to the relatively small amounts of drugs involved.

The court would propose to deal with the matter by directing that only the last two sentences, (i.e. in respect of

offences (d) and (e)) be treated as cumulatively consecutive to the sentence of three years imposed in respect of

sentence (a). The sentence for offence (c) should therefore be one to run concurrently with the sentences imposed in

respect of the offences (a) and (b) so that the total period of imprisonment will amount to the sum of nine years.”

22. On this appeal counsel has raised a net issue and that is as to the meaning of the words “previous offence” as contained in s. 11

of the Act of 1984. In particular, as to whether it refers to an offence which is previous to the sentencing hearing, or whether it

refers to an offence which is previous to the offence upon which the Court is sentencing the offender.

23. There are a number of relevant facts to determining the “previous offence” in this appeal. On the 8th November, 2010, the

appellant pleaded guilty to an offence under s. 15 of the Misuse of Drugs Act, 1977, as amended. On the 13th December, 2010, he

was sentenced by Judge McCartan to a three year consecutive sentence. The s. 15 offence had been committed on the 10th March,

2007, while the appellant was on bail.

The sentence was consecutive to a ten year sentence imposed for a s. 15A Misuse of Drugs Act, 1977, as amended offence, which

was to run consecutive to a three year sentence for a s. 4 theft imposed by Judge O’Donnell on the 15th December, 2009.

The specific dates are:-

(i) On the 13th December, 2010, Judge McCartan sentenced the appellant for a s. 15 offence, to which he had

pleaded guilty; he had committed the offence on the 10th March, 2007. He was sentenced to a three year

consecutive sentence.

(ii) On the 10th March, 2007, while he was on bail, the appellant committed a s. 15 Misuse of Drugs Act offence. He

was sentenced for that offence on the 13th December, 2010, by Judge McCartan, who imposed a three year

consecutive sentence.

(iii) The above is the sentence in issue in this appeal.

(iv) The above sentence was consecutive to a sentence imposed on the 15th December, 2009, by Judge O’Donnell

where the appellant was sentenced to three years imprisonment for an offence of theft and a consecutive sentence

of ten years for a s. 15A offence, with the final seven years of that offence suspended on specific terms.

(v) Thus, as the appellant submitted, on the 13th December, 2010, a sentence of three years imprisonment was

imposed on the appellant which was to run consecutive to an earlier sentence of thirteen years imprisonment

imposed on the 15th December, 2009, the final seven years of that sentence to be suspended upon specific terms.

24. Chronologically the offences were committed as follows:-

(a) The theft offence was the first in time, being committed on the 10th August, 2006, and for which the appellant

was sentenced by Judge O’Donnell on the 15th December, 2009, to three years.

(b) The matter the subject of this appeal, the s. 15 offence, was the second in time, which was committed on the

10th March, 2007, and on which the appellant was sentenced by Judge McCartan on the 13th December, 2010, to

three years.

(c) The s. 15A offence was committed on the 18th August, 2008, and sentence was delivered by Judge O’Donnell

on the 15th December, 2009, being a sentence of ten years with the final seven years suspended on specific terms,

consecutive to the theft offence sentence.

25. The relevant words of s. 11(1) of the Act of 1984 are:-

“[…] 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 […]”

[emphasis added]

The words are clear. There is reference explicitly to “a previous offence”. Further, it states clearly that it is for any sentence passed

on him for a previous offence. Thus, it is not referring to a previous sentence. Nor does it refer to “other offence”. It plainly states

the law as referring to a “previous offence”. In such a situation there is no ambiguity. Thus, where a person is on bail and commits an

offence any sentence of imprisonment shall be consecutive on any sentence passed on him for a previous offence. Thus, the Court

would approve and apply the judgment of this Court in The People (D.P.P.) v. Robinson (ex tempore, Court of Criminal Appeal,

Hardiman J., 20th December, 2002).

26. Consequently, the learned trial judge erred in law. The Court would allow the appeal on the new ground argued, and the Court

would order that the three year sentence for the s. 15 offence should be consecutive to the previous offence of theft, for which

Judge O’Donnell sentenced the appellant to three years on the 15th December, 2009.

Other grounds of appeal

27. All other grounds of appeal raised by counsel were considered by the Court.

28. One such issue revolved around the vulnerability and the familial and low education circumstances of the appellant. The Court is

satisfied that the sentencing judge had regard to all the evidence, including that the appellant had been used by the co-accused,

and that the sentence imposed reflected the appellant’s involvement and character.

29. There was also a submission that the trial judge had not had sufficient regard to the circumstances, including rehabilitation, of the

appellant. In fact the learned trial judge gave full consideration to the plea of guilty, the appellant’s personal circumstances, including

rehabilitation, and the psychologist’s report.

30. It was also submitted that the sentences were disproportionate, and that the totality of the sentence was an error.

31. In all the circumstances of the case, including the Court’s decision on the construction of s. 11 of the Act of 1984, the Court

would dismiss all other grounds of appeal.

Conclusion

32. In light of the facts of the case, and the construction of s. 11 of the Act of 1984, the Court finds that the learned trial judge

erred in making the sentence consecutive to the ten year sentence for the s. 15A offence, but the Court will order that the sentence

be consecutive to the 3 year sentence for the s. 4 offence of theft imposed by Judge O’Donnell on the 15th December, 2009.