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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Meagher v. O'Leary [1997] IEHC 158; [1998] 2 IR 33; [1998] 1 ILRM 211 (8th October, 1997) URL: http://www.bailii.org/ie/cases/IEHC/1997/158.html Cite as: [1998] 1 ILRM 211, [1997] IEHC 158, [1998] 2 IR 33 |
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1. A
sequence that has to date entailed substantive hearings in the Supreme Court,
the High Court (twice), the Circuit Court and the District Court (twice)
relates to events that transpired at the Applicant's farm on the 27th March,
1991. The largely undisputed facts may be summarised as follows:
2. On
that date a party of officials from the Department of Agriculture and Food
together with two local Gardai attended at the Applicant's farm near Clonmel in
the County of Tipperary on foot of a duly issued search warrant. Significant
quantities of veterinary preparations were found in various locations in or
close to the farmhouse, including the sitting room, hall, kitchen, back
bedroom, bedroom of the Applicant's son, shed and two motor cars, registration
numbers 90-TS-1456 and 770-IP. These items were seized and sent for analysis.
Thereafter, on 24th August, 1992, the Applicant was served with twenty
summonses alleging separate breaches of the European Communities (Control of
Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations,
1988, and the European Communities (Control of Veterinary Medical Products and
their Residues) Regulations, 1990 (Statutory Instruments Numbers 218/88 and
171/90).
3. All
the matters complained of related to offences of possession of illegal growth
promoters including that colloquially known as
"Angel
Dust"
,
and related items at the Applicant's farm.
4. Upon
taking legal advice the Applicant brought High Court proceedings impugning the
validity of the said Regulations and the constitutionality of Section 3
subsection (2) of the European Communities Act, 1972. The grounds of such
challenge need not be noted, and it will suffice to state that the Applicant
succeeded in the High Court but, upon an appeal being brought by the Minister
for Agriculture and Food, the Supreme Court, by judgment and order of 18th
November, 1995 reversed that finding, thereby entitling the Minister to have
relisted the District Court prosecution which had been adjourned pending the
outcome of the challenge.
5. Accordingly,
a special sitting of Clonmel District Court was held on the 6th April, 1984 to
hear the summonses before the second-named Respondent, both sides being
represented by Solicitor and Counsel. No evidence was offered in relation to
three summonses, and evidence was adduced by the Prosecution in regard to the
remaining seventeen. The Applicant by his Counsel cross-examined the
Prosecution witnesses, and argued certain procedural and other legal
infirmities, but no evidence was offered by or on behalf of the Applicant.
Rejecting the Applicant's submissions, the second-named Respondent convicted on
all seventeen summonses, indicated that he took a most serious view of the
offences in the context of their likely repercussions on the Irish beef
industry, and sentenced him on fifteen of the summonses to concurrent two year
terms of imprisonment, the then maximum custodial sanction, in addition to
providing for fines and expenses on the remaining two summonses. From these
Orders the Applicant appealed, and by the time the appeal came to be heard,
the Supreme Court had given judgment in the separate but related case of
Mallon
-v- Minister for Agriculture Food & Forestry & Others
1996
1 I.R. 517, on foot of which it had in effect been determined that the maximum
custodial sanction provided upon conviction on any of the relevant summonses
was not two years, but one years imprisonment. The Applicant's hearing before
the first named Respondent took place on the 13th March, 1997. Having some
knowledge of the weight of Criminal Appeal Lists in Clonmel, I make no
criticism of the date chronology, and obviously recognisances staying sanctions
pending appeal had been set, but it is regrettable that in excess of six years
elapsed between the search and the appeal hearing. At that latter hearing, the
Prosecution conceded the appeals on three of the seventeen summonses, and the
Applicant, through his legal advisors, indicated that the remaining fourteen
convictions were no longer in issue, and that only the severity of the
sanctions was being contested. Having heard the matter on this basis, the
first-named Respondent indicated that he considered the offences in themselves
of sufficient gravity to merit the maximum sentence of imprisonment, but that
he was disposed to make allowance both for the Applicant's hitherto unblemished
character, and his pleas of guilty upon the appeal.
6. Accordingly,
on eleven of the summonses, he imposed terms of imprisonment of eight months,
directing that these should be concurrent terms, save in respect of the first
two summonses heard, namely 490 and 491, in regard to which he ordered that the
eight month terms should operate consecutively. Three remaining summonses were
taken into consideration.
7. The
commencement of what thus appeared a final Order that the Applicant be
imprisoned for an aggregate term of sixteen months was deferred for some weeks
by the first-named Respondent to enable the Applicant to arrange his affairs.
On 22 April, 1997, within that period of grace, the Applicant sought and
obtained from Kelly J. leave to apply by way of Judicial Review for Orders of
Certiorari quashing such portions of the respective Orders of the first-named
and second-named Respondents as imposed respectively sixteen months and two
years imprisonment, on the basis that the provisions of Section 5 of the
Criminal Justice Act, 1951, as amended by Section 12 subsection (1) of the
Criminal Justice Act, 1984 were unconstitutional.
8. Detailed
and informative written submissions and extracts from relevant legal
authorities were exchanged between the parties prior to the one and a half days
of legal argument which constituted the hearing. The availability of the
former appreciably facilitated a narrowing and defining of the ambit of
controversy at the hearing, so that certain aspects alluded to in the
submissions no longer require ruling.
9. The
case accordingly turns on the issue of the constitutionality of Section 5 of
the Criminal Justice Act, 1951 as amended by Section 12 subsection (1) of the
Criminal Justice Act, 1984, in providing for the imposition of consecutive
terms of imprisonment by the District Court, or, as already indicated, by the
Circuit Court on appeal. It is well settled that the Applicant is entitled to
maintain his constitutional argument in the existing Judicial Review
proceedings, and is not obliged to institute Plenary proceedings seeking
declaratory relief.
The
State
(McEldowney) v. Kelliher
High
Court unreported 5 February
1982;
The
State (Lynch) v. Cooney
1982
I.R. 337;
The
State (Gallagher Shatter & Company) v. De
Valera
1987 I.R. 55.
10. For
clarity it is well to set forth the respective provisions under review.
Article 38.2 of the Constitution provides that:-
12. This
provision was amended by Section 12 subsection (1) of the Criminal Justice Act,
1984 whereby
13. Mr
Hogan submitted that this last quoted provision, on foot of which his client
had been penalised, was repugnant to Article 38.2, insofar as the extent of the
consecutive sanction, being one of the primary determinants of minor offences
noted in a long line of cases from
Melling
v. O' Mathghamhna
1962
I.R. I onwards, was of such duration as to take the Prosecution beyond the
sphere of minor offences. Reliance was placed on dicta of O'Flaherty J. in
Heaney
and McGuinness v. Ireland and the Attorney General
1996
I.R. 580 at 589 to the effect that "
constitutional
rights must be construed in such a way as to give
life
and reality to what is being guaranteed
",
and of Gannon J. in
The
State (O'Reilly) v. Delap
(High
Court 1985), confirming that if one of the first-named Respondent's
jurisdictional limitations related to range of punishment, his sentence must be
seen to be within such limitation. Even though the argument would have been
clearer had the differential between maximum terms for single and aggregated
offences exceeded that between one year and two years, the Oireachtas had in
setting a self-imposed limitation so eroded the Applicant's rights, in the
context of the proper ambit of minor offences and access to trial by jury, as
to require a finding of unconstitutionality. Such a finding would mean it was
accepted that on all occasions on which District Judges or Circuit Judges on
appeal had utilised Section 12 subsection (1) of the 1984 Act so as to impose
sentences exceeding twelve months, those sentences exceeded the true
jurisdictional limits applicable.
14. I
have considered the detailed submissions advanced by both sides, and the
authorities relied upon, although, given the absence of direct authority on the
essential issue, some of these are perhaps of somewhat peripheral relevance.
15. Given
that it is uncontested in argument, and indeed was set forth in the Supreme
Court judgments in the Mallon case supra, that a maximum penalty of two years
imprisonment for a single offence takes that offence beyond the category of a
minor one, whereas a maximum penalty of one year's imprisonment does not, the
crucial issue in the present instance appears as follows:
16. Is
the sphere of minor offences likewise exceeded if that two year maximum
penalty
is comprised as an aggregation of two or more lesser sentences imposed
consecutively in respect of different offences tried together by a Judge?
17. It
is difficult to oppose in principle the concept of some measure of consecutive
sentencing rendering sanctions for a plurality of offences greater than for a
single one: if a youth snatches handbags from six different women on different
occasions then, whether it be viewed from the stand point of moral turpitude,
loss and distress to victims, or in the context of any of the generally held
objectives of sentencing, his criminal involvement self-evidently exceeds that
of the perpetrator of a single like offence. From the offender's standpoint
also, as argued by Mr Charleton, and in the context of the efficient conduct of
the criminal justice system, it is desirable and preferable that some fair and
balanced scheme of sentencing perimeters address this contingency, rather than
having disposal of a second or subsequent complaint against an alleged offender
deferred until conclusion of hearing and/or sentence in relation to its
predecessor.
18. Notwithstanding
Mr Hogan's concerns over a self-imposed limitation, it seems to me imperative
that a maximum aggregate sentence be set forth by the Oireachtas that accords
with the requirements of fairness and constitutional justice. If, in the
example referred to above a Court dealing summarily with the six offences were
permitted to impose an indeterminate succession of consecutive sentences, it
could give rise to an aggregate sentence of six years imprisonment, which would
exceed the maximum allowable for many serious offences following trial on
indictment, and could on no rational basis be viewed as an exercise of
jurisdiction pursuant to Article 38.2.
19. Construing
the impugned subsection of the 1984 Act in this regard inevitably involves a
balancing of conflicting constitutional rights and duties. The manner in which
this exercise should be undertaken was set forth in
Touhy
v. Courtney
1994
3.I.R.
1 at 47 by Finlay C.J., as approved by Hamilton C.J. in the reference case
Information
(Termination of Pregnancies) Bill,
1995
1 I.R.1:
20. Applying
this test to the relevant subsection, I am clearly of the view that the balance
set forth in limiting to two years an aggregated maximum of lesser consecutive
sentences cannot be said to so contravene reason and fairness as to constitute
an unjust attack on the Applicant's constitutional rights. In the words of
O'Flaherty J. in
Heany
and McGuinness -v- Ireland and the Attorney General (Supra
),
it appears to me that there is
"proper
proportionality in the provision"
between the conflicting rights involved.
21. Whilst
not directly in point, since the first-named Respondent was confined to an
appellate exercise of the second-named Respondent's summary jurisdiction, I am
by analogy somewhat fortified in the view that I have taken by noting, as urged
by Mr Charleton, the exceptionally far-reaching jurisdiction in indictable
crime entrusted exclusively to the Circuit Court in respect, inter alia, of
such crucial matters as the entire spectra of offences relating to controlled
drugs, non-fatal offences against the person, and offences against property, an
allocation of jurisdiction upheld by the Supreme Court in
Tormey
-v- Ireland
1985
I.R. 289.
22. In
accordingly forming the view that Section 12 subsection (1) of the Criminal
Justice Act, 1984 is not unconstitutional, I do so on the basis, be it either
by way of concession or legal finding, that summonses 490 and 491 amounted to
separate offences. Undoubtedly many common factors applied to all items found
in the search and it may be that other items would have been more obviously
mutually distinguishable, but the two substances involved clearly differed in
form and colour, and in my opinion may properly be found to disclose separate
offences.
23. Whilst
it does not now govern my findings, it does appear to me that in situations
where a summary sentencing jurisdiction is being exercised in relation to what
in essence amounts to a single criminal transaction, it is wrong in law that
consecutive sentences should be imposed in respect of different summonses or
charges clearly referable to that single transaction, in such fashion as to
render the aggregate sentence in excess of twelve months. One may envisage
cases of potential difficulty having to be analysed in this regard, but it may
be that an appropriate criterion in analysing inter-linked offences would be to
decide whether or not an acquittal on a first alleged complaint would amount to
a bar against the Prosecution proceeding on second or subsequent complaints.
However, this does not fall to be decided in the present case.
24. It
was also canvassed in the Applicant's written submission, but not argued by Mr
Hogan, that the first-named Respondent's sentence was arbitrary,
disproportionate and of such dimensions as to amount to a manifestly unjust
punishment warranting the intervention of this Court. I do not think such a
proposition is sustainable. Undoubtedly the sentence was one of appreciable
rigour, but it factually represented the considered determination following a
proper hearing of a Judge who was experienced and aware of the circumstances
surrounding these types of offences, and legally, given my primary finding, it
was imposed neither in excess of, nor without, due jurisdiction.
25. On
foot of the authority of
Associated
Provincial Picturehouse Limited v.
Wednesbury
Corporation
1948 1 KB 223, as substantially adopted in this jurisdiction in
The
State
(Keegan) -v- The Stardust Victims Compensation Tribunal
1986 I.R. 642, and succeeding cases, I can envisage extreme cases in which a
High Court jurisdiction might arise to impugn a particular sentence of such
unreasonableness or unfairness as to satisfy the criterion formulated by Henchy
J. in the Keegan case of "
whether
the impugned decision plainly and unambiguously flies in the face of
fundamental reason and common sense".
26. This
is not such a case and it seems to me that for such a theoretical jurisdiction
to be invoked over and above ordinary appellate procedures, it would require
singular and striking facts, such as perhaps an immediate maximum custodial
sentence being imposed following a guilty plea to shoplifting a single item,
upon an elderly female first offender.
27. As
to the severity of the aggregate sentence, I am satisfied on the findings I
have made that it should not be quashed, and of course I am concerned with its
merits neither in the context of a sentence re-hearing nor of considering
whether its duration erred in principle. Whilst the Executive are required to
honour the substantive integrity of the sentence imposed, the authorities are
entitled (as noted in a recent unreported Court of Criminal Appeal decision of
14th July, 1997 given by Barron J. in
DPP
-v- Trevor Rowley
(sentence ex-tempore portion)) to take such steps within the sentencing
structures as may be humane and appropriate.