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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Director of Public Prosecutions -v- Fitzgibbon [2014] IECCA 25 (17 July 2014)
URL: http://www.bailii.org/ie/cases/IECCA/2014/C25.html
Cite as: [2014] IECCA 25
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Judgment Title: Director of Public Prosecutions -v- Fitzgibbon Neutral Citation: [2014] IECCA 25 Court of Criminal Appeal Record Number: 2/12 Date of Delivery: 17/07/2014 Court: Court of Criminal Appeal Composition of Court: Clarke J., Birmingham J., Sheehan J. Judgment by: Clarke J. Status of Judgment: Approved |
THE COURT OF CRIMINAL APPEAL [Appeal No: CCA 2/2012] Clarke J. Birmingham J. Sheehan J.
The People at the Suit of the Director of Public Prosecutions Prosecutor/Respondent and
Adam Fitzgibbon Accused/Appellant Supplemental Judgment of the Court delivered by Mr. Justice Clarke on the 17th July, 2014. 1. Introduction 1.2 As appears from the judgment given in this case, the Court took the view that an error in principle in respect of the sentencing of the accused/appellant ("Mr. Fitzgibbon") had been established and, for the reasons indicated, decided to put the matter in for a further hearing to determine the appropriate sentence that should be imposed. The primary purpose of this judgment is to set out the determination of the Court on that question. In that context it is unnecessary to revisit the main factual and, indeed, legal issues which are fully addressed in the earlier judgment. The Court will turn to the question of the appropriate sentence to be imposed in all the circumstances of the case in due course. 1.3 However, a second issue arose in the course of the resumed hearing. In one of the three connected cases (being D.P.P. v. Z.), this Court had taken the opportunity to address the question of the assistance on sentence which a sentencing judge was entitled to receive from counsel on behalf of the D.P.P. Having regard to the fact that this Court was, in this case, required now to consider afresh the proper sentence to be imposed in Mr. Fitzgibbon's case, counsel on behalf of the D.P.P. requested that the Court would, in that context, and for the purposes of defining the precise parameters of the obligations on counsel for the D.P.P. to assist at a sentencing hearing, receive submissions on the precise extent of that obligation. It seemed to the Court that it was appropriate that the Court should hear counsel in that regard. 1.4 Essentially this Court is now engaged in something approximating to a sentencing exercise, having determined that the original sentence imposed on Mr. Fitzgibbon was affected by an error in principle. At least in general terms the same broad obligation of assistance lies on counsel for the D.P.P. in hearings such as this as would apply at an original sentencing hearing before a court of trial. In that context it is appropriate that the Court consider the submissions of the D.P.P. as to the precise parameters of the assistance obligation identified in Z. Before going on, therefore, to consider the appropriate sentence to be imposed on Mr. Fitzgibbon, the court proposes to deal with the issues raised on behalf of the D.P.P. in that regard. 2. The Obligation to Assist at Sentence Hearings 2.2 However, it was suggested that there might be some practical difficulties with the implementation of certain aspects of what was said by this Court in Z. It is, therefore, necessary to identify those aspects of the process which the D.P.P. considers might raise difficulties and to set out the Court's view on them. Between the issues canvassed in the written submissions filed and matters which emerged in the course of the oral hearing, it seems to this Court that the following matters do require comment:-
(b) the question of the role of counsel for the D.P.P. in sentencing hearings, involving offences in respect of which no guidance in accordance with (a) is available, was also touched on in the written submission; (c) the proper role of counsel for the D.P.P. in respect of matters of mitigation put forward on behalf of the accused at a sentencing hearing was, however, I think it is fair to say, the principal focus of the submissions made by counsel for the D.P.P. 3 The Jurisprudence
3.2 Counsel did draw attention to the jurisprudence to be found in cases such as Deaton v. Attorney General and Revenue Commissioners [1963] I.R. 170, which makes clear that sentencing is exclusively a judicial task. Counsel acknowledged that the Supreme Court, in Deaton, was concerned with a different issue being the question of whether it was constitutionally permissible that a sentence should be selected or determined by a branch of government or other authority separate from the judiciary. It was held that it could not. Counsel did, however, argue that it followed that the sentencing function could not properly be delegated by a judge. The Court fully agrees. 3.3 In that context, attention was drawn to recent Australian jurisprudence including R. v. MacNeil-Brown [2008] 20 V.R. 677, and Barbaro v. The Queen [2014] HCA 2 (February 12, 2014). Counsel in particular drew attention to what was said by the High Court of Australia in Barbaro as follows:-
… 33. The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process. If a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution's view of what punishment should be imposed. By contrast, if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable. … If a sentencing judge is properly informed about the parties' submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range. " 3.5 It would, indeed, create the very difficulties identified by the High Court of Australia in para. 33 of the judgment in Barbaro, if the D.P.P. were simply to state that the appropriate sentence, in the D.P.P.'s view, for a particular offence was between x and y years. It is, on the other hand, a very different thing for counsel for the D.P.P. to draw the Court's attention to the fact that this Court has given guidance as to the appropriate ranges of sentences for crimes of a particular type and to submit, on the facts and having regard to appropriate sentencing principles, that the case in question falls into a particular part of that range. In so doing counsel is doing no more than any counsel on any side of any case, whether civil or criminal, is required to do; drawing the Court's attention to the law and making submissions on what the result should be as a result of applying that law to the facts. 3.6 Finally, before going on to deal with the three specific issues identified earlier, it is necessary to touch on a point made by counsel for the D.P.P. in the course of oral argument. Based on a suggestion that an equal burden should lie on the prosecution and the defence, counsel made the argument that the obligation on prosecuting counsel should not extend beyond the obligation which rests on the defence. The Court does not, however, see that there is any reason why a sentencing judge cannot equally ask defence counsel for submissions as to where the defence submits the offence in question lies on any spectrum of seriousness identified in the jurisprudence of this Court. In particular if defence counsel wishes to argue that either the guidance to which the prosecution has drawn attention is not fully relevant or correct or that the submissions of the prosecution as to where the offence in question lies on any spectrum identified in such guidance is incorrect, then it is for the defence to make its submissions on those issues as part of the sentencing process. 3.7 In the light of those general observations the Court now turns to the three specific questions raised. 4 What Guidance comes within the ambit of the Prosecution's obligation? 4.2 A sentencing judge is not, of course, bound by any such analysis. However, it seems likely that, at least in many cases, a sentencing judge will obtain assistance from having such information, if it exists, drawn to his or her attention. Likewise, it is important to note that an important factor behind the views expressed by this Court in Z is a desire, while recognising the significant range of different factors which may be relevant to the sentencing process in any individual case, to bring about the maximum level of consistency in sentencing which is compatible with giving proper weight to such individual factors. Bringing to the attention of the sentencing judge any reputable analysis of the sentences which are typically imposed in respect of a relevant offence can only be of assistance in bringing about such consistency. For those reasons it is the Court's view that the obligation on prosecuting counsel extends beyond bringing the sentencing judge's attention to guidance from this Court, but extends also to any reputable analysis of the sentences typically imposed by sentencing judges for the offence in question. 4.3 In that context it is appropriate to draw attention to the fact that one of the matters specifically identified by the High Court of Australia in Barbaro, as being a matter which the prosecution should bring to the Court’s attention, is the question of “comparable sentences”. There is, of course, as has been pointed out in many cases, a real difficulty in attempting to compare with any degree of precision the sentence imposed in one case with another. The range of factors, both those which influence an assessment of the seriousness of the offence and the culpability of the accused and those which derive from the accused’s circumstances, which are properly taken into account makes it very difficult to draw any great assistance from a single sentence. It is for that very reason that a sentencing judge must be allowed a real margin of appreciation in determining the appropriate sentence. Likewise, drawing to a sentencing judge’s attention a single decision, whether of a sentencing judge in another case or of this Court, is unlikely to be of very great assistance, at least in many situations. However, where there is sufficient information available as to the range of sentences typically imposed, different considerations obviously apply. That leads logically to the second issue raised. 5 What if there is no guidance? 6 Submissions on Mitigation
8.18 Where the defence advances matters in mitigation of which the prosecution has not been given prior notice or the truth of which the prosecution is not in a position to judge, the prosecutor should invite the court to insist on the matters in question being properly proved if the court is to take them into account in mitigation. … 8.20 The prosecutor should not seek to persuade the court to impose an improper sentence nor should a sentence of a particular magnitude be advocated. However, the prosecutor should draw the court’s attention to any relevant precedent." 6.2 Counsel also acknowledged that, in accordance with the principles identified in R. Newton [1982] 4 Cr. App. R. (S) 388, there may be cases where, because of significant disputes in relation to the precise facts of a crime, an adversarial sentencing hearing on the facts may take place. 6.3 This Court does not see any inconsistency between the obligation on prosecution counsel identified in Z and those guidelines. First, it should be emphasised that there is nothing in Z which deals at all with the obligations of counsel in relation to the facts asserted in mitigation. The guidelines, and in particular paras. 8.17 and 8.18, make clear that there are circumstances where there is an obligation on the prosecution to engage with facts asserted in mitigation by the defence. Where the prosecution has evidence to suggest that facts asserted by the defence in mitigation are incorrect then the guidelines, quite properly, require that the defence be sought to be put on proof and, if necessary, that rebuttal evidence be sought to be called. Likewise, where, not least because the prosecution has not had advance notice of the intention to assert particular facts, the prosecution is unaware of the truth or otherwise of a material matter asserted, counsel's duty is met by inviting the Court to insist that the matter be properly proved if it be truly material and if it is to be taken into account. 6.4 It should be emphasised that there is nothing in Z which imposes an obligation on the prosecution to engage to any greater degree in relation to the facts on which any plea in mitigation is based beyond that identified in the passages from the prosecution guidelines cited. To the extent that the written submissions filed on behalf of the D.P.P. raised the question of the adequacy of the resources of the office of the D.P.P. to deal with any greater burden in the sentencing context then it may well be that no such burden will arise, at least to any significant extent, in the light of what the Court has just said. 6.5 That leaves only the question, on which counsel placed some significant emphasis, as to whether there was any general obligation on prosecuting counsel to deal with points raised in mitigation at the sentencing hearing (as opposed to the facts relied on). This Court has already noted the position concerning the facts. It does also need to be mentioned that many of the matters frequently referred to by counsel in the course of a plea in mitigation are more properly described as background material to enable the sentencing judge to understand the context against which the sentencing exercise, insofar as it relates to the specific individual accused, is to be conducted. Where, however, matters are urged in mitigation and where significant weight is sought to be attached to such matters and where, in the view of the D.P.P., such matters do not bear, in the light of the jurisprudence of the courts, any, or the asserted level of, mitigation, then it does seem to this Court that prosecuting counsel should address argument to that effect to the sentencing judge. 6.6 It is commonplace in sentencing appeals before this Court for counsel for the D.P.P. to address the weight to be attached to mitigation argued and/or to suggest that any mitigating factors properly arising are adequately reflected in a sentence imposed. Even in the more limited circumstances where the appellant is the D.P.P., it is frequently the case that prosecuting counsel, while acknowledging that certain mitigating factors are present, nonetheless argues that the sentence is unduly lenient notwithstanding such mitigation. In those circumstances it seems to this Court that there is an obligation on the D.P.P. to deal with such matters at a sentencing hearing for to address them on appeal without having made submissions at the sentencing hearing is unfair. 6.7 However, a common sense approach needs to be adopted to this issue. It is certainly not the case that there is an obligation on prosecuting counsel to deal with every issue raised in mitigation. The obligation arises either where a matter of some significance is urged in mitigation which the D.P.P. considers is not properly a mitigating factor at all in accordance with the jurisprudence of the courts or where significant weight is urged to be attached on a matter which, for like reasons, the D.P.P. does not consider would warrant significant mitigating weight. 6.8 Having made those comments the Court now turns to the facts of this case. 7 The Proper Sentence 7.2 The Court indicated that it would be very difficult to place this offence, in the light of the facts which are fully analysed in its previous judgment, anywhere other than at the top end of the most serious part of the range (although not, as pointed out, beyond that range (see para. 8.16)). For those reasons the Court is of the view that the starting point, before any mitigation, has to be a sentence of 12½ years. 7.3 In addition to the mitigating factors urged both before the sentencing judge and before this Court at the initial hearing of this appeal, the Court now has the benefit of up to date reports on how Mr. Fitzgibbon has been faring while in prison and an up to date report on Mr. Meaney. 7.4 Before going on to deal with the mitigating factors it is important that the Court makes a number of points. First, the Court is aware, not least from an additional victim impact statement from the Meaney family, of the understandable frustration which that family feels concerning the criminal process in the light of the appalling assault inflicted on Kevin and the permanent consequences which he has suffered. However, this Court must emphasise that there is an importance in consistency. The analysis which this Court conducted of a large number of previous sentences for serious assaults was designed to attempt to improve consistency between sentences for broadly like offences. As pointed out in the Court's initial judgment, the upper end of the most serious range of sentences which have been imposed for like offences (which in the main also involved persons who had suffered significant permanent injury) was 12½ years. To depart from that figure in this case would be to create greater inconsistency where what is required is more consistency. 7.5 Second, so far as mitigating factors are concerned, the error in principle which the Court previously identified needs to be properly understood. As the Court pointed out in its previous judgment, it is not simply that the Court must take into account the fact that a person suffers from a significant and persistent substance abuse problem. As the Court went to some length to explain, the problem identified in the approach of the sentencing judge in this case was to take the view that there were no circumstances where any significant mitigation can be found in a difficult upbringing or substance abuse. It would, however, be equally a mistake to seek to interpret the judgment of this Court in this case as implying that such factors always amount to mitigating factors. Rather, as the Court pointed out at para. 9.7 of its judgment, the Court is required to consider whether, on the facts of an individual case, and most particularly where there are real and credible attempts at rehabilitation, the overall picture is one which requires the Court to take those factors into significant account. To say that the Court must take into account a persistent drug habit is as much an error as to say that the Court can never take into account that factor. Such a factor must be analysed in the light of all of the circumstances of the case and in particular the causes of such habit and, importantly, any real, significant and credible attempts at rehabilitation. 7.6 On that basis it is necessary to consider what adjustment to the indicative sentence of 12½ years imprisonment is appropriate in all the circumstances of this case. The principal features which properly ought be taken into account in mitigation in this case are Mr. Fitzgibbon’s young age and, at least to some extent, for the reasons analysed in the initial judgment and further expanded on in this judgment, his difficult background, history of substance abuse leading to him being placed in the care of the authorities and his more recent attempts to deal with those difficulties. As these matters have already been dealt with in some detail in the initial judgment it is unnecessary to set them out at length again. 7.7 The sentencing judge made a reduction of three years, or 20%, in the overall sentence to reflect each of those mitigating factors with the exception of the background and abuse issues on which this Court has already commented. For the reasons already analysed this Court is of the view that the starting point should be 12½ years rather than 15 years. A reduction of three years from a starting point of 12½ years is, of course, a somewhat greater reduction than a reduction of three years from a starting point of 15 years. In the light of all of the factors identified this Court has come to the view that a reduction of three years from a starting point of 12½ years is the maximum reduction which the mitigating factors in this case would permit. 8. Conclusions 8.2 For the reasons also analysed in this judgment, the Court is of the view that the maximum reduction which can properly be applied to that sentence to reflect all mitigating factors properly identified, is a reduction of three years. 8.3 In those circumstances the Court proposes to substitute, for the sentence originally imposed, a sentence of nine and a half years imprisonment. |