The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER

1994

Recent Irish Cases

Edited by Ra ymond Byrne, BCL, LLM, BL, Lecturer in Law,

Dublin City University

The following case summaries have been reprinted f r om t he

Irish La\v

Times and Solicitors Journal

w i t h t he kind permission of t he publishers.

People (Director of Public Prosecu-

tions) v. W.C.: Central Criminal Court

(Flood J) 14 July 1993

Criminal Law - Sentencing - Rape - Con-

stitutional duty to take all relevant circum-

stances into account and impose sentence

appropriate to degree of guilt - Principle of

proportionality - Purpose of passing sen-.

tence includes affording opportunity for re-

form where appropriate - Formulaic ap-

proach to sentencing not adopted by our

courts - Offences Against the Person Act

1861

, s.

Facts On 15 July 1992, the accused

pleaded guilty to a charge of raping his

girlfriend on 31 December 1991. While

it appeared that in the immediate after-

math of the event the accused was nei-

ther fully aware, nor appreciated, the

wrong he had done, he had admitted

his guilt promptly thereafter and had

pleaded guilty to the charge as afore-

said at his arraignment.

Held by Flood J in imposing a sus-

pended sentence of nine years penal

servitude on the accused: (1) While the

maximum sentence that a court may

impose for the crime of rape is a term of

penal servitude for life as provided by

s. 48 of the Offences Against the Persons

Act 1861, the sentence to be imposed on

an accused person in a particular case is

solely a matter for a trial judge in the

independent and impartial exercise of

judicial discretion.

Costello v. Director of

Public Prosecutions

[1984] IR 436 consid-

ered. (2) As well as a constitutionally

protected independence in the selection

of a particular sentence, a constitutional

duty is imposed upon a judge to fix a

sentence appropriate to the degree of

guilt taking into account all relevant

circumstances which may arise in that

case.

Deaton v. Attorney General

[1963] IR

170,

State (O.) v. O'Brien

[1973] IR 50,

State (Healy) v. Donoghue

[1976] IR 325

and

Cox v. Ireland

[1992] 2 IR 503 ap-

plied. (3) Where a person is convicted of

a criminal offence or pleads guilty to

such offence, that person does not

thereby forfeit every legal and constitu-

tional right he has previously enjoyed.

Murray v. Ireland

[1985] IR 532 applied.

(4) The sentence imposed by a trial

judge should be appropriate not only to

the offence committed but also to the

particular offender having regard to the

fact that affording a compelling induce-

ment and an opportunity to the of-

fender to reform serves the public inter-

est which is the primary object in deter-

mining sentence.

People v. O'Driscoll

(1972) 1 Frewen 351,

People v. Poyning

[1972] IR 402,

State (Stanbridge) v.

McMahon

[1979] IR 214 and

State (Healy)

v. Donoghue

[1976] IR 325 considered.

(5) The exercise of judicial discretion in

sentencing a convicted person should

never be formulaic in approach, nor

subordinated to fixed policy criteria. (6)

The crime of rape is a serious offence

which

prima facie

requires a custodial

sentence but the courts will not adopt a

formulaic or tariff approach to sentenc-

ing a convicted person.

R. v. McDonald

[1989] NI37 and

People v. Tiernan

[1988]

IR 250 considered. The category of case

where a judge may consider imposing

a non-custodial sentence where an ac-

cused has pleaded guilty to rape is very

rare.

Reported at [1994] 1 ILRM 321

Vincent Hoey and Neil Matthews v.

Minister for Justice: High Court

(Lynch J) 3 September 1993

Courts and Courthouses -

Mandamus -

Provision and maintenance of courthouses

by local authority - Whether statutory ob-

ligation upon local authority to repair and

maintain courthouse and upon the minister

to enforce compliance with this obligation -

Whether attempt to circumvent instant pro-

ceedings - Financial and budgetary consid-

erations - Civil Bill Courts (Ireland) Act

1851, s. 31 - Courthouses (Provision and

Maintenance) Act 1935, ss. 3, 6,10 - Ad-

aptation of Enactments Act 1922, s. 12 -

Courts (Supplemental Provisions) Act

1961 - Civil Bill Courts (Ireland) Act 1851

(Adaptation) Order 1992 (SI No. 193 of

1992) - Civil Bill Courts (Ireland) Act 1851

(Adaptation) (No. 2) Order 1992 (SI No.

174 of 1992)

Facts Sittings of the Circuit Court at the

courthouse in Drogheda ceased in 1964

due to its state of disrepair. In 1972 the

High Court ordered the Minister for

Justice to perform the duties imposed

on him by the Courthouses (Provision

and Maintenance) Act 1935. Repairs

were carried out in compliance with

this order and sittings recommenced in

1974. The Circuit Court sittings at

Drogheda continued until July 1991

when Drogheda Corporation served a

dangerous buildings notice on Louth

County Council and the sittings were

transferred to Dundalk. On 11 July 1991

the President of the Circuit Court made

an order pursuant to s. 10 of Courts of

Justice Act 1947 specifying the venues

at which the court should sit in the East-

ern Circuit. This order omitted

Drogheda. The applicants, who were

solicitors practising in the town of

Drogheda, wrote to Louth County

Council and the minister calling upon

them to perform their duties under the

1935 Act. In a letter dated 19 June 1992

the minister indicated that pursuant to

s. 3 of the 1935 Act, the county council

was not required by the minister to pro-

vide courthouse accommodation in

Drogheda for sittings of the Circuit

Court and that the sittings would be

fully accommodated by the courthouse

in Dundalk. Accordingly the county

council was not required to repair the

courthouse or provide a replacement

building. The applicants were unaware

that the minister had written to the

county council on 8 January 1992 stat-

ing that he did not require the provision

of courthouse accommodation in

Drogheda for the Circuit Court sittings

and that sittings would be accommo-

dated by the continued provision and

maintenance of the courthouse in Dun-

dalk. On 23 June 1992 the government

and the Minister to make orders pursu-

ant to s. 31 of the Civil Bill Courts (Ire-

land) Act 1851 which provided that the

courthouse in Drogheda should be dis-

continued as a Circuit Court venue with

effect from that date. The applicants

sought an order of

mandamus

compel-

ling the respondent to perform the du-

ties imposed by s. 6 of the 1935 Act.

Held by Lynch J in making an order of

mandamus

requiring the minister to di-

rect the county council to provide ac-

commodation for the Circuit Court in

Drogheda but subject to a stay until 1

December 1993 and with liberty to both

parties to apply for further relief: (1) The

obligation of providing, maintaining

and financing suitable courthouse ac-

commodation rested on the local

authority and it was not open to the

executive to make arrangements with

the local authority or, by promises

made to the local authority, to attempt

to relieve such local authority from the

obligations expressly imposed upon