Court amends post-release supervision order to clarify probation officer supervision requirement under Sex Offenders Act 2001.

THE COURT OF CRIMINAL APPEAL

[Appeal No. 12/07 CCA]

Dunne J.

Moriarty J.

Finlay Geoghegan J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

v.

G. K.

RESPONDENT

Judgment of the Court delivered on the 29th day of October by Dunne J.

This is an application on behalf of the Director of Public Prosecutions (the DPP) for an order amending the order made herein on the

31st July, 2008, specifically, by setting out such conditions as the Court considers necessary for securing the supervision of the

respondent by a probation and welfare officer under s. 29(1)(b) of the Sex Offenders Act 2001, the respondent having been made the

subject of a post-release supervision order for a period of ten years from the date of his release from custody.

Background

The respondent to this application faced a trial in respect of allegations of aggravated sexual assault and a threat to kill contrary to

s. 5 of the Non-Fatal Offences Against the Person Act 1997. In the week preceding the date fixed for trial the respondent pleaded

guilty to a count of aggravated sexual assault contrary to s. 3 of the Criminal Law (Rape) (Amendment) Act 1990 and it was agreed

that the offence contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1977 could be taken into account in sentencing.

The respondent was sentenced on the 22nd January, 2007 to a term of life imprisonment to date from the 13th March, 2006. The

respondent applied for leave to appeal against the sentence of life imprisonment imposed on him and the matter came before the

Court of Criminal Appeal. Having heard the application for leave to appeal, the Court reserved judgment and judgment was delivered

by the Court of Criminal Appeal in respect of this matter on the 31st July, 2008 (Finnegan J.). In the course of the judgment it was

stated by Finnegan J. at p.14 as follows:

“There can be no doubt here but that the [respondent] committed a sexual assault on the victim which included elements

of aggravation. The evidence of Detective Sergeant Forsythe to the sentencing judge was that the [respondent] came

from behind the victim, put one hand over her mouth and another hand around her waist and said ‘If you make noise or

shout I will slice you’. After he had sexually assaulted the victim he said to her, ‘If you tell the police or mammy or daddy I

will come down and burn the house when they are all asleep’. The learned sentencing judge found that this was a credible

threat. These are clearly threats of serious violence within the above cited definition of ‘aggravated sexual assault’.

Therefore in the view of this Court the culpability of the [respondent] has to be of a very high level.”

The Court went on to describe in detail the nature and extent of the attack on the victim. Finnegan J. then added (at page 15):

“While the assault was very serious and serious harm was undoubtedly done to this unfortunate victim in this case, having

regard to the types of indignity, physical abuse and depravity to which other victims of aggravated sexual assault have

been subjected and to the effects which their ordeal has had on some victims, the Court is satisfied that this particular

aggravated sexual assault lies in the mid to upper range of seriousness on the scale of gravity of such assaults.”

Reference was then made to a probation report in respect of the respondent. At page 16 of the judgment the following passage

appears:

“The author of the Probation Report on the [respondent] found that the [respondent] had insight into his offending

pattern and that it was therefore critical that he receive therapeutic counselling within the Prison Service. Significantly,

the author is not prepared to put the matter further than that this may (emphasis added) assist him in controlling his

emotional needs, sexual deviance, anger and substance abuse. Because of the [respondent’s] previous history of

repeated sexual offending, his deeply dysfunctional background, his lack of education, his substance abuse, his lack of

marketable skills, his difficulties in social integration, his failure to persevere in the Sex Offenders Programme during a

previous period of incarceration and the fact that custody, (in his case long terms of imprisonment), does not appear to

be a deterrent, the author concluded that the [respondent] represented a high risk of re-offending a conclusion which

this court considers to be entirely appropriate and justified.”

The Court added (at page 17):

“This [respondent] must be incapacitated from re-offending for a long time by way of a long term of imprisonment. This

custodial sentence must also reflect the censure of society on the [respondent] for his shocking crime in the instant

case. While being careful to abide by the principle of proportionality this Court should also take into account an element

of individual and general deterrence. Having regard to the information before this Court as to the character, disposition,

circumstances and previous record of the [respondent], the term of the sentence in this case will have to be increased

substantially from that which the Court might otherwise consider appropriate for this particular aggravated sexual assault.

Such an increase is necessary to remove the [respondent’s] capacity to offend, to eliminate so far as possible his desire

to re-offend and to reduce the likelihood of a reoccurrence of his offending on his release from imprisonment. In the

opinion of the Court the object of general deterrence, causing others who might be tempted to commit similar aggravated

sexual assaults on females to desist, must also be met.”

The Court concluded that the imposition of a sentence of life imprisonment on the respondent amounted to an error in principle. In

those circumstances the Court substituted a sentence of sixteen years imprisonment from the 13th March, 2006 but suspended the

final three years of that term on the respondent entering into a bond to keep the peace and be of good behaviour for a period of five

years from his release. The Court then stated:

“The Court will in addition impose a period of ten years post-release supervision on the [respondent].”

The Order drawn and perfected on 10th September 2013 pursuant to the judgment in relation to post release supervision states:

“And pursuant to Section 29 of the Sex Offenders Act 2001 the Court doth make a Post-Release Supervision Order for a

period of 10 years from the date of such release”

Section 29 of the Sex Offenders Act 2001 insofar as relevant to this application 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) . . .

(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.”

The Application

The application before the Court was primarily to amend the order made by the Court of Criminal Appeal herein on the 31st July, 2008

by the insertion in the order of conditions being “such conditions as the Court considers necessary for securing the supervision of the

respondent by a probation and welfare office under s. 29(1)(b) of the Sex Offenders Act 2001”. It also sought further or other orders.

The application was grounded on an affidavit of Padraic Taylor, a solicitor in the Solicitors Division of the Office of the DPP. In the

course of his affidavit he referred to the provisions of the Sex Offender Act, 2001 and in particular s. 29(1)(b) of that Act. Mr. Taylor

pointed out that the order of the Court did not specify any conditions for securing the supervision of the respondent and then stated

.

“. . . that it is common practice for sentencing judges to specify that an accused who is made the subject of a post-

release supervision order must abide by the lawful instructions of any probation and welfare officer who is assigned to

work with him on release”.

Submissions

Counsel on behalf of the DPP, Mr. Barron, S.C. has argued that in order to give effect to the decision of the Court of Criminal Appeal it

is necessary to impose conditions. He emphasised that what is proposed to be in the order by way of amendment is a standard

condition.

In support of his contentions he referred to the decision of the Court of Criminal Appeal in the case of the Director of Public

Prosecutions v. Comerford, Brennan and Griffin [2014] IECCA 32, a judgment of Hardiman J. The application before the Court in that

case related to the question of whether, following the quashing of the convictions in respect of two of the accused, namely Messrs.

Comerford and Griffin, an application for a re-trial could be made. It appears that no application for a re-trial was made on the day

when the conviction was quashed. Some days later a motion was issued on behalf of the Director of Public Prosecutions seeking to

apply for a re-trial in the case against Messrs. Comerford and Griffin. It was contended on behalf of the respondents to the motion

that the Court was functus officio, “especially since the Order of the Court of Criminal Appeal which allowed the defendants’ appeal

had already been passed and perfected.” Despite the arguments made in that case the Court of Criminal Appeal went on to consider

the question of a re-trial. As was stated by Hardiman J. (at page 1):

“The Court is satisfied from the judges’ recollection of what transpired on 31st March, 2014, from their own notes made

on that occasion and, from page 7 of the transcript of the D.A.R., that it was the intention of this Court to adjourn

dealing with the question of a re-trial to give Senior Counsel for the prosecution an opportunity to take instructions from

the D.P.P. As Ms. Gearty, S.C. had no instructions regarding bail the Court discharged all three accused but without

prejudice, in the case of Griffin, to the lawful warrant on which he was held in custody on another matter. . . .

The Order made on 31st March, 2014, and perfected, 2nd April, 2014, does not therefore ‘carry out the intention and

express the meaning of the Court at the time the Order was made’. [In Re Swire 30 Ch. Div. 239 per Bowen L.J.].”

Reference was made in the course of the judgment to a number of authorities which permit the amendment of an order already

passed and perfected. At page 1 of the judgment, it was stated as follows:

“The Court is satisfied therefore that the matter comes within the second case identified by Romer J. in Ainsworth v.

Wilding [1896] 1 Ch. 673 at 677, where an order even though passed and perfected and in the form of a final order may

be amended. This occurs where:

‘The Court itself finds that the judgment as drawn up does not correctly state what the Court actually decided and

intended: (In Re Swire 30 Ch. Div. 239). Bowen L.J. in In Re Swire added:- ‘provided the amendment be made

without injustice or on terms which preclude injustice’. Though he refers to ‘judgment’ it is perfectly clear from the

context and the reference to In Re Swire that Romer J. was using ‘judgment’ in the sense of a formal order drawn

up following a determination and not the conclusion of the Court and the reasons given for it.’

Ainsworth v. Wilding was followed and applied by the Supreme Court in Belville Holdings Ltd (in Receivership and in Liquidation) v.

Revenue Commissioners [1994] 1 ILRM 29, per Finlay C.J. at 36 & 37.

In Lawrie v. Lees [1881] 7 App. Cas. 19 at 35, House of Lords [e] (cited in Thynne v. Thynne [1995] p. 272 at 313 and by Lord

Denning M.R. in R&T Thew Ltd v. Reeves [1981] 2 All E.R. 964 at 975), Lord Penzance held:

‘I cannot doubt that under the original powers of the Court, quite independent of any order that is made under the

Judicature Act, every Court has the power to vary its own orders which are drawn up mechanically in the registry or in

the office of the Court – to vary them in such a way as to carry out its own meaning, and where language has been used

which is doubtful, to make it plain. I think that power is inherent in every Court. Speaking of the Courts with which I have

been more familiar all my life, the Common Law Courts, I have no doubt that that can be done, and I should have no

doubt that it could also be done by the Court of Chancery. Moreover, having regard to the orders made under the

Judicature Act, I should myself have thought that it would very well have come under those orders. I recommend your

Lordships not to make any variation of this order, but to affirm it as it stands without prejudice to any such application to

the Court below.’”

Mr. Barron also relied on the decision in the case of In re Greendale Developments Limited (No. 3) [2000] 2 I.R. 514. Hamilton C.J. in

that case also referred to the decision in Ainsworth v. Wilding and having done so stated (at page 527) as follows:

“However, it set out in detail the common law principle concerning the question, holding that where a final order has been

made and perfected it can only be interfered with

(1) in special or unusual circumstances, or

(2) where there has been an accidental slip in the judgment as drawn up,

or

(3) where the court itself finds that the judgment as drawn up does not correctly state what the court actually decided

and intended.

The restriction on the power of a court to amend or vary an order which has been made and perfected, therein set forth,

must apply to an application to set aside an order.”

Relying on that authority it was the contention of Mr. Barron that this Court had jurisdiction to amend the order on the basis that the

order as made and perfected did not correctly state what the Court actually decided and intended.

Mr. Michael Bowman, S.C. on behalf of the respondent did not take issue with the general principles applicable to an application to

amend an order of the Court having been passed and perfected. He did not dispute that the Court of Criminal Appeal decided that the

respondent be the subject of a s. 29(1) supervision order for ten years from release i.e. that he be under the supervision of a

probation and welfare officer during that period. However he laid emphasis on the fact that nowhere in the judgment of the Court of

Criminal Appeal was there any indication as to the intention of the Court as to the conditions that might be considered appropriate

having regard to the circumstances of the case. In the absence of any clarity as to what was intended by the Court by way of the

conditions that might be applied in that regard, he submitted that it was not open to this Court to make an order amending the terms

of the order of 31st July, 2008 by adding a condition such as that suggested by Mr. Taylor in the course of his affidavit.

Decision

The Court also had the benefit of a helpful passage from The Criminal Process by Thomas O’Malley which was referred to in the

course of the submissions. The passage at para. 15.45 considered the relevance of the slip rule and the extent of its application in

the context of District Court Rules. He observed:

“The application of the slip rule was recently considered in some depth by Cooke J. in DPP v. Reilly, where a defect

occurred in an order sending a person forward for trial to the Circuit Court. The schedule of charges was inadvertently left

blank. This led the Circuit Court Judge to conclude, quite reasonably, that he was without jurisdiction to deal with the

matter, and the principal question for the High Court was whether the slip rule might appropriately be applied. Having

considered earlier authorities relating to the slip rule in the Superior Courts, Cooke J. said:

‘It clearly emerges from this case law that a court has power to make good accidental errors or omissions in orders

so as to ensure that they correctly reflect the intended effect of the court’s judgment or decision and this is so

even where the judgement or order is one finally disposing of the rights of the parties.’

Although a court may be functus officio in the sense of having disposed of the matter finally, it retains an inherent power to remedy

accidental errors and omissions in any order drawn up. The purpose of the rule is to avoid a situation in which the proper jurisdiction

of the court is prevented from taking full effect as a result of an accidentally incorrect or defective order. In DPP v. Reilly, it also

appeared that the District Court Judge was no longer sitting in the area where the relevant order was made. Cooke J. did not consider

this to be an obstacle to the operation of the slip rule and distinguished it from the situation which had arisen in relation to the issue

of a search warrant in Creaven v. Criminal Assets Bureau. He held that the application of the slip rule does not amount to a judicial

act in the sense of the exercise of a power of adjudication. It is more in the nature of an administrative or ministerial act ‘in that it is

a necessary and automatic step in reproducing correctly the content and effect of what was decided and pronounced in court’.”

I think it is clear from the authorities referred to above that notwithstanding the fact that an order has been ‘passed and perfected’

the order can be amended in certain circumstances. Thus, as Hamilton C.J. set out in the case In re Greendale Limited, an order can

be amended where there has been an accidental slip in the judgment as drawn up or where the Court finds that the judgment as

drawn up does not correctly state what the Court actually decided and intended.

This Court has the benefit of a lengthy and considered judgment of the Court of Criminal Appeal in this matter. The Court was

satisfied that the imposition of a sentence of life imprisonment amounted to an error in principle and accordingly substituted a lesser

sentence on the respondent. Having done so, it provided for a period of post-release supervision.

The Sex Offenders Act 2001 provides, as set out above, a power for the Court to impose a period of post-release supervision on a

sex offender. Clearly, it was decided by the Court of Criminal Appeal that the respondent in this case was one who would require and,

no doubt, benefit from a ten year period of post-release supervision. Having regard to the terms of s.29(1)(b) this was a decision that

during the ten year period the respondent be under the supervision of a probation and welfare officer. The imposition of a requirement

of post-release supervision also enures for the benefit and protection of society. However, no conditions were specified in the course

of the judgment of the Court of Criminal Appeal. This Court is unable to ascertain the intention of the Court of Criminal Appeal as to

conditions to be imposed from the judgment. The principles identified in the authorities referred to above permit the Court to amend

an order where the Court finds that the order as drawn up does not correctly state what the Court actually decided and intended.

This Court is not in a position to say that the Court of Criminal Appeal intended to impose a condition to the effect that the

respondent “must abide by the lawful instructions of any probation and welfare officer who is assigned to work with him on release”.

While that may be a condition which is frequently imposed, and as suggested by Mr. Taylor in his affidavit may well be common

practice to impose, it is simply not possible for this Court to say that that was the condition decided or intended by the Court of

Criminal Appeal to be imposed on the respondent on the 31st July, 2008. In those circumstances, this Court is of the view that it

would not be appropriate to make the order sought herein. However, for the reasons stated, the Court is satisfied that the Court of

Appeal in its judgment of 31st July 2008 decided and intended that the respondent be under the supervision of a probation and

welfare officer for ten years from the date of his release and accordingly will make an order amending that part of the order of 31st

July 2008 as relates to post release supervision by the addition of the words underlined so as to provide

“And pursuant to Section 29 of the Sex Offenders Act 2001 the Court doth make a Post-Release Supervision Order that

the said [name of respondent] be under the supervision of a probation and welfare officer for a period of 10 years from

the date of such release”