Court of Criminal Appeal refused certification for Supreme Court appeal on hypothetical post-release supervision sentence calculation.

COURT OF CRIMINAL APPEAL

[CCA No. 102/11]

MacMenamin J.

Moriarty J.

O’Malley J.

APPLICATION FOR CERTIFICATION UNDER SECTION 29 OF THE COURTS OF JUSTICE ACT 1924 (AS AMENDED BY SECTION 22

OF THE CRIMINAL JUSTICE ACT 2006) FOR THE PURPOSES OF AN APPEAL TO THE SUPREME COURT

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

NOEL HOLLAND

APPLICANT/APPELLANT

JUDGMENT of the Court of Criminal Appeal delivered the 20th day of May, 2014, by MacMenamin J.

1. The applicant/appellant seeks an order pursuant to s. 29 of the Courts of Justice Act 1924 (as amended), certifying that the

decision of this Court (MacMenamin J., de Valera J. and Hanna J.), delivered on the 23rd October, 2013, refusing to grant leave to

appeal against the severity of the sentence imposed upon him at the Central Criminal Court on the 15th February, 2011, involves a

point of law of exceptional public importance, such that it is desirable in the public interest that an appeal should be taken to the

Supreme Court. The point of law sought to be certified is stated in the Notice of Motion to be:

“In circumstances where a sentencing judge decides to impose a period of post-release supervision pursuant to the

provisions of section 29(1) of the Sex Offenders Act, 2001, but part of that sentence of imprisonment is suspended, can

the suspended period be omitted in calculating the aggregate of the sentence and the supervision period for the

purposes of section 29(2)?”

The statutory position

2. Section 29 of the Sex Offenders Act 2001 provides:

“29. (1) A court may impose on a sex offender in respect of the sexual offence concerned a sentence involving post-

release supervision, that is to say a sentence which consists of -

(a) the imposition of a sentence of imprisonment for a specified term (whether in addition to the

imposition of a fine or not), and

(b) a provision that during a specified period (“the supervision period”) commencing on the date of the

offender's release from prison, the offender shall be under the supervision of a probation and welfare

officer and requiring the offender to comply with such conditions as are specified in the sentence for

securing that supervision.

(2) The aggregate of the sentence of imprisonment referred to in subsection (1)(a) and the supervision period

shall not exceed the duration of the maximum term of imprisonment that may be imposed in respect of the sexual

offence concerned.

(3) …

(4) …

(5) The reference in this section to the date of the offender's release from prison is a reference to the date on

which the offender's sentence of imprisonment referred to in [subsection (1)(a)] expires or, as the case may be,

the offender's remission from the sentence begins.”

The sentence imposed and the appeal to this Court

3. The applicant was, on the 15th February, 2011, sentenced by the Central Criminal Court to 8 years imprisonment with the final 3

years suspended on conditions, and to 5 years post-release supervision. As this Court pointed out in its earlier judgment, the effect

of this sentence was that the appellant would, subject to compliance with the conditions then imposed, actually serve a total of 5

years imprisonment. It was accepted that, in the event of the applicant receiving remission for good behaviour, the term of his

imprisonment will actually be a total of 3 years and 9 months.

4. The applicant sought to challenge that sentence. It was contended that the sentence was in breach of s. 29(2) of the 2001 Act in

that, the aggregate period of the sentence of imprisonment, taken together with the post-release supervision, might exceed the total

combined stipulated maximum of 10 years, as provided for in s. 2(2)(a)(ii) of the Criminal Law (Rape)(Amendment) Act 1990, as

amended (“the 1990 Act”).

5. The Court considered that the sentence was an entirely appropriate one. It pointed out that the effect of the sentence, taken

together with the part suspension of the final 3 years of the custodial sentence, was that the applicant would serve at maximum and

subject to being of good behaviour, a total of 5 years imprisonment. In addition to that, and again subject to compliance with good

behaviour, the applicant might, with remission, hope to be released after a period of 3 years and 9 months imprisonment. It is now

three years since the applicant was sentenced. Nothing has been said to suggest the position has altered to the applicant’s detriment

in the interim.

6. In the course of submissions, counsel for the applicant submitted that the actual sentence (excluding entirely the suspensory

part), when taken together with the 5 year post-release supervision period might amount to 13 years in total, that is to say, 8 years

imprisonment and 5 years supervision period. It was suggested that this total period, taken together, could exceed the maximum

period of imprisonment and supervision permitted under the Act which, in this case, is a total of 10 years.

7. In the course of its earlier judgment, the Court observed that the appeal hinged in a large degree upon a hypothesis. It was

suggested that the sentence, as structured, might have the effect of breaching the statute in the event of certain circumstances

arising. The applicant might be called upon to serve a full 8 year period of imprisonment if he further offended or breached the terms

of a bond imposed upon him in the sum of €1,000 to keep away from his victim in perpetuity, the bond to be entered into before the

Governor. It might be that the appellant might be called upon to serve a full 8 year period of imprisonment if he further offended. It is

premised on a contingency happening. The Court observed:

“That contingency has not occurred. It may never occur. The final 3 years of the 8 year sentence were suspended. The

active effect of this sentence is to render the applicant liable to a period of 5 years in prison. This does not take into

account any remission he may receive for good behaviour.”

The Court then went on to state:

“The custodial period of imprisonment, even taken in aggregate with the period of post-release supervision, cannot

offend the statute. There is, therefore, a strong element of hypothesis in the appeal. This Court is not called upon to

furnish advisory opinions and will not do so here. It has not been submitted that there are any circumstances and the

possibility of having to serve the full 8 years might arise.”

8. Moreover, the Court considered that in the event of there being any ambiguity in the terminology of the statute there was a

necessity to interpret such ambiguity in favour of the applicant. The Court is not persuaded that this application involves a point of

law of exceptional public importance.

Exceptional public importance

9. As is well established, in applications of this type, an onus of proof rests on the applicant to demonstrate that the point which is

sought to be certified is one not only of exceptional public importance, but also that it should be determined in the public interest.

The point of law cannot be peculiar to the particular facts of a given case; the point must have the capacity of application in its

subject area. The point must, therefore, have a gravity and importance which enables the Court properly to classify it as being truly

“exceptional”. The section is not intended to provide a “second strand of appeal”. Nor is it intended or provide an opportunity of re-

running an argument which was put before the Court of Criminal Appeal. The process must, therefore, only be invoked on rare and

limited occasions.

10. These are not the only requirements, however. In considering an application of this type, the Court must, inter alia, consider the

precise relevance of the point of law to the critical issues still pending in the case, the necessity of obtaining the Supreme Court’s

view on the point, and what effect such certification would have on the ultimate disposal of the case.

Conclusions

11. On the basis of these well established principles (see most recently Court of Criminal Appeal, DPP v. Paul O’Connor [2014] IECCA

4), this Court is of the view that the application cannot succeed. This is so for a number of reasons. First, as adverted to earlier, the

point is hypothetical.

12. Second, even on the hypothesis that the applicant re-offended, any possible transgression of the terms of the statute in question

would, of necessity, have to be addressed by the sentencing court addressing the re-offence. Thus, the supervisory period could be

taken into account in sentencing.

13. Third, and connected with the first point, the point sought to be determined does not directly arise from the earlier judgment of

the Court. It might arise rather on the premise that the applicant will re-offend, and then a situation might emerge where the total

period of imprisonment and supervision might, possibly, be in breach of the section.

14. Fourth, there is now an additional dimension which has arisen since the sentencing court imposed its penalty. The sentencing

judge, Carney J., having pronounced sentence, stated that he would take into account the applicant’s plea of guilty, lack of relevant

previous convictions, and substantial history of employment. To take account of these factors, he stated:

“I sentence the accused to 8 years imprisonment to date from yesterday with the final 3 years suspended on his

entering a bond himself in the sum of €1,000, to keep away from his victim in perpetuity, the bond to be entered into

before the Governor, credit to be given for any period spent in custody already in relation to this offence. I direct that

the accused undergo 5 years post-release supervision and I am bound by law to inform him that he may be subject to

further periods of imprisonment in the event of the breach of any terms of the post-release supervision.”

The judge pronounced that the only condition attaching to the supervision was that he was to keep away from his victim in

perpetuity. Regrettably, since the time that the sentence was imposed on the 15th February, 2011, the victim of this serious sexual

assault has died. The applicant was not bound over to keep the peace or to be of good behaviour as the law specifies. In the

circumstances, therefore, the only condition which was imposed upon him is now no longer applicable. On the basis of the one

condition imposed on him at sentence, it is impossible now to envisage how he could be in breach of any condition of the sentence.

Insofar as counsel for the applicant may have argued that the order drawn up omitted the other statutory provisions identified above,

this Court would observe, first, such omission can hardly be a matter for complaint by the applicant; and second, that if the

implication contained in such submission was that the order should be read as if these other conditions were included, counsel for the

Director expressly disavowed any such interpretation.

15. Finally, it is evident that these submissions arise specifically from the unusual and individual facts of this case.

16. Having regard to all these circumstances, it cannot be said that this is a point of law of exceptional public importance. Nor, in the

view of the Court, can it be said that it is desirable in the public interest that this appeal should be brought to the Supreme Court. In

all the circumstances, the Court will refuse the application.