Certificate for appeal refused as the question of law did not arise from the Court's decision due to factual errors in the applicant's premise.

Macken, J.

Murphy, J.

deValera, J. No CCA 17/2007

THE COURT OF CRIMINAL APPEAL

COURTS OF JUSTICE ACT, 1924. S.29

Between/

The People at the Suit of the

Director of Public Prosecutions

Respondent

-and-

Patrick Rafferty

Applicant

Judgment of the Court delivered on the 23rd day of July 2009 by Macken, J.

Pursuant to a notice of motion dated the 29th May 2008 returnable for the 15th December 2008, the applicant applied to this honourable Court for an order

pursuant to s.29 of the Courts of Justice Act 1924 (“the Act of 1924”) seeking a certificate for leave to appeal to the Supreme Court on a point of law of

exceptional public importance. For the purposes of this application, it is not necessary to set out in full S. 29. It is sufficient to say that the section provides for a

certificate in circumstances where this court’s “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.”

The certificate is sought in respect of the following question of law:

“In circumstances where an offence is not prevalent or has not taken root in the jurisdiction, is it correct for the Court to have regard to a

substantial deterrence factor when sentencing a particular individual for the offence.”

The application is opposed by the respondent.

Background:

On the 14th November 2006 the applicant pleaded guilty at the Central Criminal Court sitting at Limerick to a charge that he did solicit to murder his wife, on the

7th February 2005 in the region of certain premises in Nenagh in County Tipperary contrary to s.4 of the Offences Against the Person Act 1861. The applicant

was, at the time, separated from his wife. The applicant, having been on continuing bail for some time, was, on the 30th January 2007, sentenced to seven years

imprisonment. The maximum sentence in respect of the offence is ten years. The applicant applied to this court for leave to appeal against the sentence imposed

on the basis that it was unduly severe.

In outline, the applicant’s written submissions before this Court having dealt with the factual background, included, inter alia, the following:

“For the avoidance of doubt, it is accepted that the learned sentencing judge had no option but to impose a custodial sentence, having regard

to the seriousness of the offence. It is further accepted that in imposing sentence, the court was entitled to have regard to rarity of the offence in

this jurisdiction and the necessity for a substantial deterrent element in sentencing.

That said however, it is respectfully submitted that the sentence imposed was excessive and that the learned sentencing judge failed to give any

adequate weight to the mitigating factors present in the case. He also failed to have adequate regard to the personal circumstances of the

appellant.” (emphasis added)

It was argued in the written submissions, in particular, that the learned sentencing judge did not attach sufficient weight to the applicant’s previous good

character and the fact that the preponderance of the evidence suggested that his conduct in the commission of this offence was out of character, and that his

plea of guilty alleviated his separated wife from having to give evidence at trial. Further, it was contended the learned sentencing judge had not attached any

weight to other matters outlined, and in particular, did not give any consideration to the applicant’s personal circumstances as they existed at the time of the

sentence hearing, the applicant not having come to any adverse garda attention in the two years between the date of commission of the offence and the

sentencing hearing, which was relevant to the question of rehabilitation, and most significantly that the sentencing judge did not appear to attach any weight or

significance to the remorse expressed by the applicant. Finally it was submitted in writing that the learned sentencing judge appeared to have applied the

mitigating factors to the maximum sentence available to the Court as opposed to ascertaining first, where the particular offence fell in the range of offences, in

accordance with M v DPP [1994] 3 IR 306, and then reducing the sentence by the mitigating factors.

Thereafter the written submissions filed on behalf of the applicant dealt with a number of English and Irish cases (taking into account nevertheless the difference

in the maximum sentence in England as opposed to that in Ireland), but no further relevant legal arguments were covered in the written submissions.

In the course of oral submission, however, counsel on behalf of the applicant argued that the learned sentencing judge was wrongly influenced by an English

case, the details of which are not especially relevant, in which the judge in that case had suggested that a “significant sentence” ought to be imposed so as to

constitute an appropriate deterrence against this particular crime which, counsel argued, was far more widespread in the United Kingdom, and which, counsel

also argued, was not an approach permitted to be adopted in this jurisdiction because, as was accepted by the learned sentencing judge, the particular offence of

attempting to murder a spouse had not in fact taken root in this jurisdiction.

By a judgment delivered (ex tempore) on the 20th December 2007, this Court found there were no grounds on which the sentence could be considered to be

unduly severe. There was no error of principle on the part of the sentencing judge. This Court considered all of the case law relied upon by the applicant and the

respondent, dealt with the several issues of mitigation sought to be relied on or which were said not to have been taken into account by the learned sentencing

judge, and took into account all arguments on the issue of deterrence.

In its judgment, having considered the language used by the learned sentencing judge, and in particular his finding “it is of course important in this jurisdiction

where the number of cases one can find is still as low as three, that a message of deterrence goes out that this crime is not to take root here”, and contrary to the

position in England where the case law referred to had spoken of a “substantial element of deterrence” in the sentencing, this court found that the learned

sentencing judge did not invoke that latter formula and did not indicate that he considered “a substantial element of deterrence” was appropriate. This Court

concluded that, on a proper reading of the sentencing judge’s judgment, he was entitled to have regard to an “element of deterrence”, the phrase used by him, in

a matter of this nature, in particular where a crime of this type had not fully taken hold or even had scarcely taken hold in this jurisdiction. The Court found also

that as a matter of proper construction, his comments did not constitute an overwhelming or an unduly exaggerated reliance on deterrence as a factor in the

construction of the sentence. The written submissions filed on behalf of the applicant, mentioned above, accepted that the sentencing judge was entitled

nevertheless to have regard to the rarity of the offence in this jurisdiction and to the necessity for “substantial deterrent element in sentencing”.

In oral submission on this application for a certificate pursuant to s.29 of the Act of 1924 Mr O’Higgins, Senior Counsel, submits that the real issue for

consideration in relation to the certificate is the “building blocks” used by the sentencing judge, that is to say, that “a message of deterrence must go out” which

Mr O’Higgins submits is a policy statement, not permitted to be adopted by a sentencing judge as part of a sentencing structure. He argues that the matters

which can be taken into account in the construction of a lawful sentence are “the gravity of the offence” and “the individual circumstances of the offender”, and

that a person may only spend additional time in jail where an offence has been carried out in a heinous way or in an aggravated way or in light of his personal

circumstances which makes such lengthier sentences justifiable. In all other circumstances, matters of policy are for the Oireachtas, and this can be seen from the

approach of the Oireachtas to sentencing matters in misuse of drugs cases.

On behalf of the respondent Ms O’Boyle, Senior Counsel, objects to the grant of a certificate on the grounds that no point of law of exceptional public

importance arises. She submits that the application for leave to appeal against severity of sentence before this Court was based on whether the sentencing judge

had laid too much emphasis generally on the issue of deterrence when arriving at the sentence he imposed, and not on the issue of whether he was correct in

having regard to the prevalence or otherwise of the crime as such within this jurisdiction. In that regard she relies on the portion of the written submissions filed

on behalf of the applicant which are set out above.

Conclusions:

The law relating to applications for a certificate pursuant to s.29 of the Act of 1924 is very clear, especially in one essential respect. It is a certificate which may

only be sought arising from “the decision” of this Court. A review of the content of the question proposed in this application and the submissions made by

counsel suggests that it does not arise from the decision of this court, and the court is satisfied that it does not. It is well established, and repeated in the case of

DPP v Eamonn Kelly, (unreported, Court of Criminal Appeal, 11th July 1996), in the judgment delivered by Blayney, J. that it is 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)

The Court in that judgment also referred to earlier jurisprudence on the matter, particularly the judgment in DPP v Patrick Higgins (unreported, Supreme Court,

22 November 1985) in which Finlay, C.J. had 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 its judgment in DPP v 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, and stated:

“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.”

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

the question of a certificate pursuant to s.29 of the Act of 1924. It will be recalled at the outset of this judgment that the Court set out the question sought to be

certified which is in the following terms:

“In circumstances where an offence is not prevalent or has not taken root in the jurisdiction, is it correct for the court to have regard to a

substantial deterrence factor when sentencing a particular individual for the offence.”

This Court found that the learned High Court judge did not, as a matter of fact, include a “substantial deterrence factor” when sentencing the applicant in the

present case, but rather had regard to an element of deterrence as one of the factors to be taken into account in the particular circumstances of the present

sentence. This court did not either pronounce in any way on the issue whether it was appropriate in any particular case to have regard to a “substantial

deterrence factor” in constructing a sentence.

It can scarcely be gainsaid however that deterrence has from time immemorial constituted an appropriate and lawful factor to be taken into account in sentencing.

Deterrence in the context of the present case was of special relevance, having regard to the following particular feature of the case, which this Court found was

properly invoked by the learned sentencing judge. The evidence was that the applicant had solicited a garda (unknown to the applicant to be such) to kill his

separated wife. This was to occur by the garda arranging for a car accident to take place in which the wife’s car would be put off the road. However there was an

alternative or fallback situation provided for which was that if the car accident was not successful well then the garda should ensure that the wife was killed by

choking and this request to the garda was accompanied by a gesture made by the applicant across his throat, all for the payment of €15,000, and possibly a

further €5,000. It was also the evidence that the applicant had previously solicited another person, as little as five or six months earlier, to dispose of his

separated wife in return for the payment of €8,000 which payment had been made. However, the payment had been made to a person who was described as a

“significant criminal” and the garda who gave evidence relating to this indicated that the wife had been very lucky indeed that this criminal had considered the

applicant to be a “soft touch” and having taken the money, had not actually gone through with the request made by the applicant to kill the applicant’s wife.

These factors were, as this Court found, more than sufficient for the learned sentencing judge, properly and appropriately to have regard for a deterrent factor in

the construction of the sentence imposed, in the case of this particular accused.

The difficulty which the applicant faces in the present case is that the question upon which the applicant seeks a certificate is based on two false premises. The

first of these is that the learned sentencing judge, in fact, had regard to “a substantial deterrence factor” when sentencing in the present case, and the second,

implicit in the wording of the certificate, is that this Court upheld the learned sentencing judge in so doing, in such a manner as to contend that the question

arises out of this Court’s “decision”. This Court found, on the contrary, that having regard to the judgment as a whole and the many factors which were taken

into account, the “element of deterrence”- in the language used by the judge - did not constitute an overwhelming or an unduly exaggerated reliance on

deterrence as a factor in the sentence, and further that the sentencing judge had not invoked or applied any “substantial deterrence factor” at all. That being so

the question now sought to be the subject of a certificate does not, in accordance with the applicable jurisprudence, arise out of this Court’s decision or is wider

than this Court’s decision, and consequently does not come within the ambit of s.29 of the Act of 1924, as amended.

The application for a certificate for leave to appeal is in the circumstances refused.