Irish Court of Criminal Appeal
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Cite as: [2014] IECCA 18
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Judgment Title: Director of Public Prosecutions -v- Holland Neutral Citation: [2014] IECCA 18 Court of Criminal Appeal Record Number: 102/11 Date of Delivery: 20/05/2014 Court: Court of Criminal Appeal Composition of Court: MacMenamin J., Moriarty J., O'Malley Iseult J. Judgment by: MacMenamin J. Status of Judgment: Approved
Notes on Memo: Refuse Section 29 Certificate | ||||||||||||
COURT OF CRIMINAL APPEAL [CCA No. 102/11] MacMenamin 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
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:
2. Section 29 of the Sex Offenders Act 2001 provides:
(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. (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.” 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:
Exceptional public importance 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 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:
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.
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