THE SUPREME COURT
348/13
Denham CJ,
O’Donnell J.,
Clarke J.,
Charleton J.,
O’Malley J.
BETWEEN:
DIRECTOR OF PUBLIC PROSECUTIONS
And
MAURICE COLBERT
Appellant
Judgment of O’Donnell J delivered the 28th of November 2016
1 This is in my view, an unsatisfactory case from the position of almost all the participants, and indeed the public interest. In a broader context it bears scrutiny as an example of many of the difficulties which can be encountered in the criminal justice system. In relation to the narrow issue raised on this appeal I agree with the joint judgment of Charleton and O’Malley JJ and the disposition of the case they propose. I wish to add something on the question of the interpretation in this case of the decision in DPP v Cunningham [2002] 2 IR 715.
2 The critical feature of this case is that when the appellant was sentenced on the 15th of July, 2011 (in what I will call “Case 2” because it is later in time), he was at the time a man who had a previous conviction for a related and more serious offence (which I will call “Case 1”) which was closely connected to this case. It is clear that the existence of both the previous conviction and the sentence imposed were important factors by the time the trial judge came to consider sentence in Case 2 on the 15th of July, 2011. First, it was entirely relevant to sentence that the convicted man had, at that point, a previous conviction related in nature, time and fact to the offence for which he had just been convicted. Second, at the level of practicality, the fact that a lengthy prison sentence had been imposed in Case 1 meant, that unless the judge in Case 2 imposed a sentence consecutive on that sentence, then the sentence in Case 2 was not going to result in a single day more being served as a result of the conviction. For the same reason any question of the commencement date of the sentence in Case 2 was somewhat academic, since whatever date was chosen (the date of conviction, 15th July, 2011, or the date he went into custody, both on remand on this charge, and to serve sentence on Case 1 (the 5th of February, 2010) or some date in between) the sentence in Case 2 would have expired before the expiry of the sentence in Case 1. In the circumstances, the imposition of the sentence must have appeared largely an exercise in marking the significance of a second conviction. No one now suggests that the sentence of four years imposed was excessive nor on the facts as they were on the date of that sentence, that the judge was in anyway in error not to backdate the sentence. If anything, there was an argument for a lengthier sentence or for making a short sentence consecutive on the first sentence. In substance therefore, it can be said that the trial judge on the information available to her made no error which would have required to be addressed by a Court of Appeal. If the appeal against severity was heard the following day it would, in all probability have been dismissed.
3 However, the convicted man appealed the conviction and sentence in both cases. In the events that transpired, he withdrew his appeal against conviction in Case 2, and by the time his appeal against severity was heard by the Court of Criminal Appeal on the 15th of July, 2013, the conviction and sentence in Case 1 had been quashed, and the complainant had informed the DPP that the previous trials (note the plural) had taken too much out of her physically and mentally and she wished to get on with her life and did not want to give evidence. Accordingly the DPP had indicated her intention enter a nolle prosequi.
4 Taking a more general view, it might seem obvious that since Case 2 was still within the Court system, that the Court of Criminal Appeal should have been able to address the justice of the situation by approaching the question of the appropriate sentence for the offence in Case 2 on the basis that there were no previous convictions and taking account of the fact that he had surrendered his bail and gone into custody on these charges, albeit at the same time at which he had been required to go into custody to serve his sentence on Case 1. This is a not necessarily an easy task, but it is one regularly encountered by sentencing courts. If for example, the sequence was slightly different and the quashing of the conviction and decision to enter a nolle prosequi in Case 1 had preceded the trial and sentence in Case 2, the sentence to be imposed in Case 2 would have posed little difficulty, particularly given the level of discretion exercisable by a judge who presided at the trial and heard the evidence and submissions in relation to the sentence. In principle it is difficult to see why the Court of Criminal Appeal should not have been in a position to do the same.
5 However, it appears that some of the difficulty in this case arose from an understanding that the decision in DPP v Cunningham required that an appellate court exercising jurisdiction in a criminal field, could not interfere with a sentence imposed unless an error of principle was identified. If so, then there was a difficulty since it was difficult, if not impossible to say that the trial judge had erred in principle. What rendered the sentence potentially unjust was something which occurred after the trial judge had imposed sentence and which she could not have been aware, that is the subsequent quashing of the conviction in Case 1.
6 It is the fate of even the most important judgments to be reduced to head notes then paraphrased in a few sentences in textbooks, later perhaps reduced to footnotes in texts, and finally pithy rules of thumb expressed by practitioners. In most cases these simplified versions of sometimes complex decisions are useful for courts and participants. The rule of thumb that it is necessary to identify an error of principle before a Court of Appeal can interfere with a sentence, is normally a concise and sufficient guide for a court. It is only rarely that it will be necessary to go behind it. However, almost every important general proposition can be pressed beyond its anticipated area of application with the possibility of error. While the student might yearn for a striking judgment enunciating the clear and straight line rule of general application, the reality of the law at appellate level is more often a process of ongoing adjustment with the statement of principle almost immediately followed by a qualification. The decision in Cunningham requires some careful scrutiny, explanation, and perhaps qualification. It is clear that the trial judge did not here err in principle given the state of the facts at the time she imposed judgment. Yet few I think would consider that a refusal to consider the appropriateness of that sentence in the light of the changed circumstances would be consistent with the administration of justice.
7 It is perhaps understandable, if indeed it is the case, that Cunningham came to be interpreted as a strict rule of identification of error in principle before it was possible to adjust a sentence. That followed in part from the terms of the certified question and in particular from the first portion of the answer italicised below:
“Whether the Court of Criminal Appeal, in hearing an appeal or an application for leave to appeal against the severity of a sentence imposed by a court of trial, was strictly limited to considering the state of facts existing at the date when the sentence was imposed or whether it could receive evidence relating to events or facts subsequently occurring, as regards the behaviour of the applicant, his state of health or otherwise, which might be relevant if the Court were itself deciding on the correct sentence.”
8 This reading is, if anything, strengthened by the terms of the majority judgment, and the rationale underpinning it, which drew support from the separation of powers. It was said that the reconsideration of a sentence, correct when imposed, because of subsequent events rendering it more exceedingly harsh, was to confuse the appellate function with the executive power of clemency and indeed the scheme for remission for good behaviour. This strict reading is also reinforced by the fact that the majority judgment appeared to differ from a more flexible approach contained in the judgment of Denham J. However, in my view the case requires a more careful reading.
9 First, it is important to place the decision in its context. The particular application was to accept testimonials offered in relation to the progress of the convicted person in the prison system. This is a practice which as a matter of history was sometimes permitted as part of a broader and unprincipled approach which was almost indistinguishable from an invitation to the Court of Criminal Appeal to simply substitute a verdict it considered more appropriate (and more lenient) than that imposed at the trial. That was an approach which was correctly and firmly rejected in both judgments. Second, it must be recognised, that the case was decided in the context of the proffering of post-sentence testimonials and did not address some of the more troublesome cases such as that which is now being considered in this case. Third, it should be recognised that both judgments in the case came to the same conclusion, i.e., that the reception of the testimonials was not permitted. There is in my view less distance between the two judgments than may be popularly understood. It is necessary to consider therefore each judgment in a little more detail.
10 The judgment of Denham J. pointed out that what was then the Court of Criminal Appeal was established under s.3 of the Courts (Establishment and Constitution) Act, 1961. Section 12 of the Courts (Supplemental Provisions) Act 1961, provided at subparagraph 1 that the Court should have “full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it”, and subparagraph 2 provided that the Court of Criminal Appeal had all jurisdiction which prior to its enactment had been vested in the existing Court of Criminal Appeal. The jurisdiction of the Court of Criminal Appeal was therefore described in s.34 of the Courts of Justice Act 1924 which provided that the Court of Criminal Appeal should have jurisdiction to “affirm or reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court”. Denham J. traced the proposition that the Court of Criminal Appeal would overturn the sentence given by a trial court if it erred in principle, to the decision in R v Sidlow [1908] 1 Cr. App. R. 28. She observed that a then recent edition of Archbold recorded that the Court of Criminal Appeal might, having regard to a report from a prison governor, consider that while a sentence was neither wrong in principle nor excessive in length, nevertheless reduce it as an act of mercy because of the impact of the sentence on the appellant. Ultimately she concluded that “the Court of Criminal Appeal may hear evidence of facts occurring after sentence by a trial court even if there has been no error in principle, in exceptional cases, for purposes of doing justice in the case”. She agreed with the judgment in the Australian State of Victoria, R v Babic [1998] 2 VR 79, where Brookings J.A. said:
“Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible. The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the executive in the exercise of the prerogative of mercy, not by an appellant court … These authorities recognise … that where it is sought to establish that the sentence was excessive, evidence of events occurring after a sentence may be received by an appellate court in the exercise of its discretion in appropriate circumstances if those events may be said to be relevant, not, so to speak, in themselves, but for the light which they throw on the circumstances which existed at the time of sentence.”
Denham J. considered this passage to be an example of the type of exceptional case where, she considered, it would be permissible to hear evidence of facts occurring after sentence even if there had been no error in principle for the purpose of doing justice in the case.
11 The judgment of Hardiman J (with whom Keane CJ Murray and Murphy JJ agreed) stated that it was trite but fundamental to recall that the jurisdiction of the Court of Criminal Appeal was both an ‘appellate jurisdiction, and one that was a “creature of statute”. Although it was clear that the Court of Criminal Appeal had jurisdiction to hear fresh evidence that power must be read in the context of the nature of the Court’s jurisdiction in general. He drew an analogy with the power of the Supreme Court to hear fresh evidence in civil cases as discussed in Lynagh v Macken [1970] I.R. 180, and Murphy v Minister for Defence [1991] 2 I.R. 161. He considered that the general rule was consistent with the separation of powers since the question of whether a sentence, appropriate when passed, but in the light of subsequent events appears to be manifestly excessive, was a matter for consideration by the Executive in exercising its prerogative of mercy and not a matter for an appellate court. He approved however of the principle in R v Babic [1998] 2 VR 79 observing that the facts of that case emphasised “both the rarity of any exception and its basis in principle”. The principle identified in the Australian case was, that new evidence was related to events which can be said to be “relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of the sentence”. He concluded:
“In the light of the principles summarised above, that the Appellant is attempting to introduce at the “error in principle” stage of the appeal material which would be relevant (if at all) only at the “appropriate sentence” stage. He will not get to this stage unless he establishes an error in principle. Moreover, that error that must be in the approach actually adopted by the learned trial judge to sentencing. By definition, this approach could not possibly include facts which were not in existence at the relevant time.”
He also observed:
“If it were otherwise, and it was open to a sentenced prisoner to ask a court to review a sentence which is not wrong in principle on the basis of how he has got on in prison, that would be a form of review overlapping to an unacceptable degree the Executive power of commutation and remission. This power must be regarded as an exclusive one unless it is conferred elsewhere by law.”
12 Both judgments rejected the application to admit evidence of post conviction prison testimonials. Both judgments also accepted a general principle that post- sentence matters should not, and in most cases could not, be relevant to the question of whether a sentence was excessive. And both judgments endorsed an exception to the general rule which could be traced to R v Babic, namely, that subsequent events could be referred to if they were relevant “not so much per se, but because they throw a different light on circumstances which existed at the time of the sentence”, the judgment of Hardiman J considering this a narrow exception to a general rule, and the judgment of Denham J considering this to be a species of a somewhat wider exception when necessary to do justice in the individual case.
13 However, inevitably a simplified version of the decision in Cunningham became common currency, and was succinctly expressed in O’Malley, The Irish Criminal Process, (2009), p. 952-3, para. 23.35:
“The appeal court will not interfere with a sentence unless satisfied that it reveals an error in principle … When dealing with an appeal, the Court of Criminal Appeal will confine its attention to the circumstances of the offence and the offender as they appeared at the time of sentence. Matters arising between sentence and appeal will not be taken into account.” (Referring in a footnote at this point to DPP v Cunningham).
The author also observed at p. 953:
“This rule can operate rather harshly at times, but the standard response is that the executive branch of government may take any such factors into account when deciding on application for clemency.”
14 It is troubling that a distinguished and experienced author should observe that a rule enunciated in the context of the administration of justice, is nevertheless capable of operating harshly at times. It should be said that the possibility for serious injustice is limited first because the requirement to identify an error in principle is not particularly onerous. As was observed in the Canadian case of R v Rezaie (1996) 112 C.C.C. (3rd) 97:
“Error in principle is a familiar basis for reviewing the exercise of judicial discretion. It connotes, at least, failing to taken into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally it includes an error of law.”
15 Furthermore, the Babic exception is itself, if applied flexibly, capable of addressing many situations. Even in the present case for example it might be said that the evidence of the quashing of the conviction in Case 1, while not admissible per se, “throws a different light on the circumstances which existed at the time of the sentence”, namely the approach of the sentencing court on the basis that the appellant was a person with a previous conviction and serving a lengthy sentence. Indeed in one sense it can be said that any new significant fact which is relevant casts a new light on the circumstances which existed at the time of sentence. However I should say that for my own part I would prefer not to force parties to engage in the exercise of shoehorning arguments into the Babic mould, and would myself prefer the formulation in the minority judgment of Denham J, so long as parties, and as importantly, appellate courts understand that the general rule remains, the exception is limited, and the rationale for both the rule and the exception.
16 It is of some significance in my view, that the decision in Cunningham was distinguished almost immediately by a Court of Criminal Appeal which had the distinction of being presided over by Keane C.J. in the case of People (DPP) v Duffy and O’Toole [2003] 2 I.R. 192. There the defendants had pleaded guilty to possession of firearms and false imprisonment and had been sentenced to nine and seven years imprisonment respectively. Subsequently, a further defendant involved in the same incident was sentenced to six years imprisonment by a differently constituted court, the last four years of which were suspended on appeal by the Court of Criminal Appeal. There was thus a very significant disparity between the sentences imposed on three different individuals. The Court considered that the sentence on the first named appellant could be justified, on the facts of the case relevant to the first named appellant, but acknowledged that there was a significant disparity between the sentences imposed on the sentence being served by the second appellant and the defendant in the other proceedings. However, that disparity had arisen because of events (the sentencing and review by the Court of Criminal Appeal in the other defendant’s case) which had occurred after the sentence of seven years had been imposed on the second named appellant in the case. That sentence on its own terms could not be said to be an error in principle. Nevertheless the Court admitted the evidence and reduced the sentence imposed on the second named defendant by suspending the last two years of that sentence. The Court distinguished Cunningham and held it was not necessary here to demonstrate that there was an error in principle by the trial judge. Cunningham had been decided in a context of further evidence as to matters such as the state of health of the applicant or prospects of rehabilitation and was based on the fact that a court might be seen to be assuming the role of the Executive in deciding if a convicted person should be released at an earlier stage because of his present state of health or similar matters. The Court of Criminal Appeal in People (DPP) v Duffy and O’Toole considered that no such considerations arose in that case, and that therefore to have regard to the disparity in the subsequently imposed sentence, would not be inconsistent with that decision. It should be recognised, that since the Court of Criminal Appeal was bound by the decision in Cunningham, it could only distinguish it. On any view, the decision represents a significant qualification of Cunningham, at least insomuch as that case was understood as establishing some general and strict rule that an error in principle had to be identified before a court could address matters occurring subsequent to the trial, or indeed consider the sentence.
17 In the context in which it was decided it was understandable that the Court in Cunningham considered that the post-sentence behaviour in prison was not primarily a matter for the Court, since there was in place already a system of providing for remission for good behaviour under the prison rules, and an overriding executive power to commute sentences in the exercise of clemency. But in a broader context, I do not think the existence of an executive power of clemency should preclude judicial consideration of a sentence. Mercy and justice are different concepts but they are not mutually exclusive. If it can be said that a sentence is now “manifestly excessive” as was contemplated in the Australian case of R v W.E.F. [1998] 2 V.R. 385 quoted in Cunningham, and a matter is still before a court, then the existence of an executive power of clemency should not preclude a court from addressing the matter. A court’s consideration of whether the sentence is excessive, is different in nature and function to the executive consideration of clemency, and they cannot in my view be regarded as a substitute for each other. A court is bound to hear the parties submissions but only on matters which are relevant to the legal issue, to decide the case in accordance with law, and in most, if not all cases, to give reasons for its decision, sometimes in a formal judgment. It is true that the court can only decide matters which are within the proper function of the court, and cannot exercise power outside those limits. However, the appropriate sentence for the crime is normally understood to be a core function of a court. It is in my view not an answer to say therefore that there exists an executive power of clemency which may be granted in the discretion of the Executive and in which many other factors may be considered. That, in my view, cannot be a blanket justification for refusal to consider matters arising post-sentence.
18 It is true that the Court of Criminal Appeal was a creature of statute, but nothing in the 1961 Act, or the 1924 Act restricted the Court’s power in relation to sentence or in express terms, mandated a general and inflexible rule that an error in principle had to be identified. The limitation on the Court’s function flowed, as both judgments in Cunningham recognise, from the appellate nature of the jurisdiction being exercised. Appellate review is not a rehearing. It requires consideration of the transcripts of the evidence. An appellate court is normally only in a position to assess whether the decision appealed against was correct in principle. These features impose constraints on the scope of appellate review and the information which may be considered. Again, as both judgments recognise, the Court of Criminal Appeal was not unique in this regard. A clear analogy could be drawn with the jurisdiction of the Supreme Court in civil matters. However, in that field, it appears that even at the time of the decision in Cunningham, the rule on the admission of fresh evidence was less strict, and matters have developed since then.
19 Perhaps the most obvious comparison is with a personal injuries claim, in which it is contended that the personal injury suffered by the plaintiff is now much worse (or conceivably much less severe) than had been understood to be the case at the time of the trial. It is clear that as a general principle the Supreme Court (or now the Court of Appeal) will view the matter as of the time of trial and will be slow to admit further evidence when the question of the development of injuries was considered at the trial. The nature of the appellate process, the limitations on the review, the need for certainty, the limited resources available to courts, and the costs in time, effort and money involved, all require that the parties make their best effort to place all relevant material before the trial judge and furthermore must normally bear the consequences if they do not do so. An appellate court could not function if it was to be regarded as simply a second chance to have a hearing and determination of damages. A trial, whether civil or criminal, is the main event and not a trial run for the appeal. But there are circumstances where the alteration in condition is so dramatic that it would be an injustice if a court could not take account of it. There is of course an inevitable anomaly depending on the passage of time. If the change in circumstances occurs after the appellate court has dealt with the appeal, then there is in general nothing that can be done. But I do not see why that is a reason why, when something can be done about it, it is not. Finality is an important part of the administration of justice in any particular case. That is why parties must accept the final outcome. But until the outcome is indeed final, it would be wrong to adopt a rule which prevented the appellate court from addressing matters which had arisen since the trial, no matter how dramatic the effect of such matters on the assumptions upon which the trial proceeded.
20 In Fitzgerald v Kenny [1994] 2 I.R. 383, the Supreme Court had to consider circumstances in which it would admit further evidence in relation to a plaintiff’s loss of his job as a garda on medical grounds, and further evidence of the deterioration of his condition. Both O’Flaherty and Blayney J.J. approved the observations of Lord Wilberforce in the United Kingdom House of Lords in Mulholland v Mitchell [1971] A.C. 666:
“I do not think that, in the end, much more can usefully be said than, … that the matter is one of discretion and degree. Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that the courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice.”
The reference to evidence falsifying basic assumptions, is of course close to the language of Babic which was approved in Cunningham, but the further reference to common sense, or an affront to a sense of justice, is broader.
21 This approach resonates with that adopted by Denham J. in Cunningham. I would accordingly favour approaching the case on the basis that there is a general rule against considering matters which have arisen since trial, subject however to an exception that the court should do so where it is required to do so by the demands of justice in the case, the most obvious example of which is where those subsequent events have significantly falsified basic assumptions common to all sides present at the trial. The potential breadth of this test may be narrowed by understanding the rationale for the rule and the exception, and therefore the object being sought to be achieved by courts in applying the test. The general rule exists because life is inherently uncertain. There are a number of variables in sentencing or in the award of damages, and in most cases those uncertainties will be built in to the assessment by the trial judge. It is only if something arises which falsifies the underlying assumptions in a fundamental way, or where exclusion would be an affront to common sense or a sense of justice that it would be appropriate to consider considering matters which have occurred since trial. It may be that these two formulations of falsifying assumptions and affront to common sense, will be coterminous in most if not all cases, but since it is impossible to anticipate all possible circumstances there is some benefit in expressing the test in this fashion.
22 In this case, in the events which have transpired, by the time the appellant was before the Court of Criminal Appeal, he was to be treated as a man with no previous convictions. Justice required that his sentence be assessed on this basis. It is in my view irrelevant that the trial judge was not to blame in any way for this state of affairs, and could not have avoided it. The Court of Appeal, before whom the appellant appeared on appeal against sentence, knew both that the appellant was to be treated as a person with no convictions, and that he was not so treated when sentenced in the trial court. Since sentence had been appealed it was in a position to adjust the sentence to reflect the facts as it knew then. I do not think it was precluded from doing so because, as it said, no error of principle had been identified. Accordingly I agree that the appeal should be allowed and with the order proposed in the judgment of Charleton and O’Malley J.J.
Judgment of Mr Justice Peter Charleton and Ms Justice Iseult O’Malley, delivered on the 28th day of November 2016
1. By order dated 15th July 2013, under section 29 of the Courts of Justice Act 1924 as substituted by section 22 of the Criminal Justice Act 2006, the Court of Criminal Appeal, MacMenamin, de Valera and Hanna JJ, dismissed the appeal of Maurice Colbert against his 4 year sentence for 10 counts of sexual violence committed against a young girl, here called victim A. These sentences were to be served concurrently. In dismissing the appeal, that court certified the following as points of law of exceptional public importance that it would be desirable in the public interest to be taken as an appeal to this Court:
(1) Whether in an appeal against severity of sentence to the Court of Criminal Appeal the court should, as a matter of law, take into account time spent in custody by the appellant for a conviction subsequently quashed, and
(2) whether in an appeal against severity of sentence to the Court of Criminal Appeal the court should, as a matter of law, take into account time spent in custody on remand by the appellant even where he was at the same time serving a sentence for a previous conviction subsequently quashed.
2. In hearing this appeal, this Court is applying the powers contained in s. 3 of the Criminal Procedure Act 1993. This provision governs the jurisdiction of the Court of Criminal Appeal in relation to appeals. Under section 3(1), “On the hearing of an appeal against conviction of an offence the Court may” decide to “affirm the conviction”, or to quash it while making no further order or order a retrial, or, under s. 3(2), to “quash the sentence and in place of it impose such sentence or make such order as it considers appropriate”, which may be “a sentence or order which could have been imposed on the convicted person for the offence at the court of trial.” While the appeal of Maurice Colbert started out as one as against his conviction and sentence, by the time of the hearing in the Court of Criminal Appeal the conviction appeal had been abandoned. In general, the Court of Criminal Appeal, under section 34 of the Courts of Justice Act 1924 has these powers:
The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court.
3. A brief summary of the facts should suffice to provide a context for the issues on this appeal. Maurice Colbert was initially convicted and sentenced in the Dublin Circuit Court by Judge Yvonne Murphy for a series of sexual assaults committed against victim A. At that time,, he possessed a prior conviction for rape and other offences committed against another young girl, victim B, and was serving 8 years imprisonment for this crime. He was sentenced by Judge Murphy on that basis. By the time the appeal against his 4 year sentence for this series of predatory sexual abuse crimes on victim A came up for hearing before the Court of Criminal Appeal, that Court had quashed his conviction relating to victim B, thus rendering him a person with no prior convictions. Was the Court of Criminal Appeal obliged to take that change into account? To put it simply, when he was sentenced, he had a serious record of offending directly relevant to determining the appropriate sentence whereas on appeal, he had no prior conviction. This is the real issue that arises from the questions certified. The Court of Criminal Appeal in their judgment on the sentence appeal of 15th July 2013 apparently felt bound by the state of affairs as of the date of the sentencing by Judge Murphy and ruled that there was “no error in principle and that the trial judge was acting within the area of discretion in acting in the manner which she did and accordingly the court does not consider it can interfere with the sentence”.
Chronology
4. The proper approach of an appellate court to the issue which arose is best seen in the context of a chronology concerned with the offences and the various steps in the criminal process that were taken.
• 23rd June 2005: victim A makes a statement to gardaí concerning the activities of Maurice Colbert and his sexual assault violence towards her as a child. Around this time another woman, victim B, makes similar complaints which also involved rape. Charges relating to victim B proceeded first, while the appellant was on bail in relation to the complaints by victim A.
• 5th February 2010: Maurice Colbert is convicted of a series of offences involving rape, rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 and sexual assault on victim B. The trial which resulted in those convictions was a retrial as a prior jury had failed to agree a verdict in April 2008. He was then sentenced to 8 years imprisonment. During those trials, he was on bail in respect of the offences relating to victim A. He immediately surrendered his bail on those charges and went into custody.
• 15th July 2011: Maurice Colbert is convicted of the 10 counts of sexual assault relevant to this appeal on victim A. This was the second trial, a prior jury having disagreed.
• 28th July 2011: a plea in mitigation is heard and Judge Yvonne Murphy sentences Maurice Colbert to 4 years imprisonment on each of the 10 counts against victim A, all to run concurrently. She refers to the prior conviction for the offences against victim B in her sentencing remarks. The sentence commences as of the day of conviction, the 15th July 2011.
• 20th October 2011: the Court of Criminal Appeal quashes the conviction on the rape and other offences against victim B for which Maurice Colbert was serving 8 years imprisonment.
• 28th August 2012: while a retrial for the offences against victim B was pending, that victim had written to the Director of Public Prosecutions stating that because of the trauma the two prior trials had inflicted on her and on her family she did not want to have to give evidence again. She says that the “previous trials have taken too much out of me physically and mentally and I now want to get on with my life with my partner and two children”.
• 15th October 2012: a nolle prosequi is thus entered in respect of all the charges related to victim B.
• 30th November 2012: whereas the appeal by Maurice Colbert in respect of the sexual assaults on victim A had been in respect of both conviction and sentence, his solicitors told the Court of Criminal Appeal that only a sentence appeal in respect of the 4 year sentence was now being pursued.
• 24th January 2013: a motion is issued on behalf of Maurice Colbert to admit new evidence before the Court of Criminal Appeal, which is the quashing of the conviction for the rape and other offences on victim B.
• 4th February 2013: a bail application is made by Maurice Colbert stating that if his sentence was to run from when he first went into custody for the quashed offences in respect of victim B, 5th February 2010, his sentence of 4 years in respect of victim A would expire on that day. The Court of Criminal Appeal grants him bail. This has persisted to date.
• 15th July 2013: the Court of Criminal Appeal finds no error in principle in the sentencing approach of Judge Yvonne Murphy in respect of victim A but certifies the questions set out above for an appeal to this Court.
6. In consequence, there are two issues which are most pertinent. The first concerns the degree to which, in sentencing, a court is required to take time already spent in custody into account in either measuring the sentence or deciding when it is to run from. The second concerns circumstances where there has been a radical change in the record of a person; here, from a situation where they had a serious and directly relevant prior conviction while being sentenced, to a situation where they have no such record on appeal.
The submissions
7. The Director of Public Prosecutions submits that, while the Court of Criminal Appeal can correct errors that arise in consequence of the later sentences of co-offenders being shown as disproportionate to the sentence under appeal, there is no basis in law for the submission that the quashing of a prior conviction between sentence and appeal necessarily renders that sentence wrong in principle. It is contended by them that it “would be inappropriate for either of the questions to be answered in the affirmative.” This is because, it is asserted, “the legislation appears to limit the jurisdiction of the Court of Criminal Appeal to dealing with errors in principle, which would suggest that the answer should be in the negative.” Hence, the assertion is that “the most appropriate answer would be to allow the matter be left to the discretion of the Court of Appeal, taking into consideration the circumstances of any particular case. Counsel has accepted that the Court of Criminal Appeal may have taken too narrow a view of its role in this case, and that it should at least have considered whether it was appropriate that the sentence should date from conviction or should have been backdated in the circumstances. It is pointed out that the question of backdating was not really an issue before the trial judge, since her decision not to make her sentence consecutive to that imposed in the Central Criminal Court meant that the four years would inevitably expire first. It is also accepted that the trial judge would probably have given the appellant credit for time served if she had believed that he had been in custody on these charges only.
8. For Maurice Colbert it was argued that it would be wrong in principle to ignore the prior time spent in custody, which was here a surrender of bail on the pending charges in respect of victim A immediately upon his conviction in respect of victim B. The period of time previously in custody must, it is contended, be taken into account. Where the prior sentence is set aside then, it is claimed, the quashing of a relevant conviction requires the position of the appellant to be treated on appeal “as he would or should have been treated when being sentenced originally where they had spent a period on remand in custody”. That time in pre-conviction detention is properly to be viewed as part of the overall punishment, it is said, rather than a mitigating factor. It is also argued that the Court of Criminal Appeal should have treated Maurice Colbert as a person with no previous convictions, in circumstances where the trial judge had considered the convictions in respect of victim B as significant. The appellant does not now make any argument that the four year sentence was itself excessive or otherwise wrong in principle.
Change of circumstances between sentence and appeal
9. What occurred in this case between the sentence hearing and the appeal hearing was a change in the record. Colloquially, people often talk of a person who has been convicted of a crime as “having a record” or, in worse examples, as “having a bad record”. This expression reflects the idea that, upon conviction, a record is drawn up of the court which establishes a public recording of the offences concerned and the sentence imposed. That record is relevant to any further conviction which an accused gets. It will be pertinent to any sentencing judge to consider certain factors as a matter of principle: whether the person before him or her has led a blameless life, whether they have previously been involved in crime or, in the worst cases, where they are a career criminal. That situation is generally established by the record of the various courts that have previously dealt with the person to be sentenced. While there are formalities in the reception of the record of an accused’s prior convictions into evidence (most generally a computer print out will be produced) only a challenge to a particular conviction will require the production of the court record.
10. Taking the above into account, this case could not be considered as one where the Court of Criminal Appeal was reviewing new evidence. Instead, the plea before the appellate court was for a reduction in sentence based upon a relevant change in the record which had occurred between sentence and appeal. As a matter of undoubted principle, the nature of any record which a person to be sentenced has is among the central considerations in determining how he or she is to be punished. For a sentencing judge to ignore the record would be an error in principle, unless that record was demonstrated as being so far in the past or so trivial as to be irrelevant. For an appellate court, in considering whether the sentencing court had made an error in principle, to fail to consider a relevant change in the record would be incorrect.
11. In The People (DPP) v Cunningham [2002] 2 IR 712, this Court was required to consider an individual instance of a situation which had arisen whereby testimonials, evincing good conduct and educational pursuits undertaken while in custody in the interval between sentence and appeal, were sought to be pleaded before the Court of Criminal Appeal as being relevant. The effective result of allowing that practice was that the accused received two sentence hearings, at the option of the accused, one before the sentencing court and the other before the appellate court. Hardiman J, in the majority judgment, distinguished between the executive function and the judicial function in determining length of sentence. The executive exercises clemency depending upon good behaviour or health considerations relevant to a person in custody and whether such behaviour or other relevant considerations should result in either remission of sentence or temporary release. The judicial function, by contrast, decides upon appropriate punishment in the context of the factors relevant to the commission of the crime and the situation of the convicted person. He admitted, however, at page 739, that circumstances might arise which, citing the judgment of Winneke P in R v WEF [1998] 2 VR 385, are “relevant, not so much per se, but because they throw a different light in circumstances which existed at the time of the sentence”.
12. The overriding principle is as stated at page 741 of that judgment, which rules out the reception of certificates regarding behaviour in custody between sentence and appeal:
It appears to me, in light of the principles summarised above, that the accused is attempting to introduce, at the "error in principle" stage of the appeal, material which would be relevant (if at all) only at the "appropriate sentence" stage. He will not get to this stage unless he establishes an error in principle. Moreover, that error must be in the approach actually adopted by the learned trial judge to sentencing. By definition, this approach could not possibly include facts which were not in existence at the relevant time.… Since the material in question was wholly directed at evoking the mercy or leniency of the Court of Criminal Appeal, it could not be said to have any bearing whatever on the question of whether the learned trial judge's sentence was erroneous in principle. Since that was the only issue before the Court of Criminal Appeal, it follows that that court was entirely correct to reject the evidence since it failed to meet the first and most basic test of admissibility, which is relevance to the matter in issue.
13. Later cases affirmed that limitation on the function of an appellate court. But, as a principle, appellate review limited to the state of the evidence at sentencing stage is one which must be considered within its limits. Between the sentencing stage and the appeal stage, factors can occur which may render the approach of the sentencing judge open to review. It may be the case that the sentencing judge, on the material before the court at that time, was faultless in their approach to reaching the appropriate sentence, but that circumstances have altered so much as to require the appellate court to review the sentence as if there had been an error in principle. An instance of that occurred in The People (DPP) v Duffy and O’Toole [2003] 2 IR 192. There, the defendants had pleaded guilty to several counts of possession of firearms and false imprisonment and received a sentence before the Special Criminal Court. Subsequently, another person who participated in the crime received a much lesser sentence, the disparity being that the original defendants had received nine years and seven years imprisonment respectively while, due to the suspension of four years of a six-year sentence, the latter convicted person was only being required to serve two years. Keane CJ at page 201 took the opportunity on behalf of the Court of Criminal Appeal to emphasise the desirability of those participating in a crime to be sentenced, “if at all possible, at the same time and, in any event, by the same judge.” He also affirmed the necessity for the Court of Criminal Appeal to consider the state of evidence as it existed before the sentencing judge but allowed for the possibility that alterations in the subsequent record could render the original approach of the sentencing judge subject to review as being wrong in principle:
As the court has already noted, the judgment of the Supreme Court in The People (Director of Public Prosecutions) v. Cunningham [2002] 2 IR 712 makes it clear that the Court of Criminal Appeal in general cannot interfere with a sentence until it has been demonstrated that there was an error in principle by the trial judge. It is clear, however, from the judgments in that case that the issue with which the court was concerned was whether this court could entertain evidence relating to matters such as the present state of health of the applicant or his prospects of rehabilitation which had not been before the court of trial for the purpose of determining whether, in the light of that evidence, the sentence should be regarded as excessive. It is clear from the judgment of Hardiman J., that an important factor was that the court, in acting on such evidence, would be assuming the role of the executive in deciding that a convicted person should be released at an earlier stage than the trial judge had envisaged because of evidence as to his present state of health or similar matters. The court is satisfied that no such considerations arise in this case and that to have regard to the disparity in sentence would not be inconsistent with that decision but would be consistent with the approach adopted in The People (D.P.P.) v. Conroy (No. 2) [1989] I.R. 160.
14. That case could be regarded as an example of an error in principle by the sentencing judge being made manifest by the record of the court. The disparity emerges from the way in which subsequent co-offenders were treated, in that this rendered the original and later sentencing records in respect of the offences which all the offenders had perpetrated so inconsistent with each other as to amount to an error in principle.
15. It therefore follows that the prior convictions of Maurice Colbert in respect of the rape and other serious offences of victim B were relevant as a matter of principle when the trial judge came to sentence him in respect of the sexual violence perpetrated on victim A. Consequently, the subsequent alteration in the record by the quashing by the Court of Criminal Appeal of the convictions for the offences on victim B rendered Maurice Colbert at the time of his appeal as a person who should have been sentenced on the basis of having no prior relevant criminal offence. That alteration was not, to any extent, the fault of the trial judge and nor could it have been considered by her since, at the time of the initial sentencing, it did not exist. But it was a change in the record relevant to sentencing which was outside the remit of mercy or clemency exercised by the executive in allowing early release, and which instead directly impacted on the appropriate sentence. The presence or absence of a prior conviction is a matter which is relevant in sentencing; see for instance The People (DPP) v V (Court of Criminal Appeal, 16th of January 1996, unreported) and The People (DPP) v Kelly [2005] 2 IR 321.
Prior time in custody
16. Counsel for Maurice Colbert have correctly accepted that “there would be very considerable difficulties in the concept of a person having a reserve of time spent in custody which they could seek to apply to future sentences”. While, however, it is right that a person cannot as of right have time in custody on other charges previous to sentence taken into account on that offence, the argument is made that any time spent in custody on a charge prior to sentence on that charge is always to be taken into account by the sentencing judge.
17. To attempt to give rigid answers to the two questions posed by the Court of Criminal Appeal would unnecessarily trammel sentencing discretion. There are a huge number of varied circumstances which can arise in sentencing in relation to prior time in custody and, on appeal, this Court is only dealing with the particular instance now arising. Prior time in custody on an offence should be considered by a sentencing judge when sentencing for that offence. Such time as an accused has spent in custody prior to conviction should be put before the trial judge as part of the prosecution presentation of its case on sentencing. That information should be revealed before the judge decides on the appropriate sentence. The judge should not just be told after pronouncing sentence by way of an application for a sentence to be backdated. Where it is relevant, the sentencing judge should consider what effect on sentence results from time already spent in custody for an offence which an accused is found guilty of or pleads guilty to. As Denham J said in her minority judgment in Cunningham at page 726, sentencing “includes the concept of justice” as what is involved is “considering all the facts of a case with a view to determining a just sentence”.. The issue is always what sentence is appropriate to the particular offence and the particular offender. Where time has already been spent in custody on a charge, that should be considered in fixing an appropriate sentence.
18. What is therefore clear is that part of the factual matrix which should be considered by the trial judge in determining sentence is whether an accused person had spent time in custody with reference to the charge in respect of which a sentence is to be considered. Part of that exercise by the sentencing judge, in arriving at a just sentence, must necessarily involve a consideration of when the relevant custody commenced, whether it coincided with serving a prison sentence or remand in respect of other offences or whether it is related only to the offence for which a sentence is to be imposed, and thus relevant to imposing a sentence which is proportionate to the crime committed, the participation of the convicted person in the crime and any relevant mitigating factors. Prior time in custody solely referable to an offence for which a person is convicted is therefore relevant. It would be impossible to answer the questions posed by the Court of Criminal Appeal beyond offering that guidance.
These offences
19. Maurice Colbert was charged with 12 counts of sexual assaults on a young girl, victim A, in relation to whom he was in a position of authority between March 1991 and September 1995. She was then between the ages of 7 and 12. The abuse presumably stopped as she went into secondary school. On 28th July, the victim made a statement following on the conviction of Maurice Colbert on the 10 counts found proven by the jury. There had previously been a trial where a jury had disagreed. She detailed the offences, which exploited what otherwise should have been a life-enhancing relationship, and her description of what happened to her as a child demonstrates how serious these crimes were. She said:
While in primary school I kept to myself and had very few friends. As a result, I ended up being bullied. I felt different from everyone else. As I got older, I knew it was not normal. I hated [going to where the offences occurred], knowing what was going to happen, but I went as I knew that if I did not go one or other of my two younger sisters would go instead of me and I did not want the same thing to happen to them. When I used to come back home from [the place where the abuse was perpetrated] I used to lock myself into the bathroom and cry… Prior to going for counselling, I felt that I was to blame for the abuse and that I had said or done something for Maurice Colbert to choose to abuse me.
20. The relevant maximum sentence for sexual assault at this time was 5 years imprisonment. That sentence has since been revised upwards to reflect the gravity of this kind of corruption of children. These offences continued over years and it is clear that the sentencing judge took that matter into consideration. As of that time, the sentence imposed could not be regarded as wrong in principle. This was not a case where the sentencing judge had available to her a set of precedents which judicially set out categories of gravity of crime as in The People (DPP) v WD [2007] IEHC 310, [2008] 1 IR 308, which concerned sentencing in rape.
21. These were very serious offences which blighted the life of a young schoolgirl over a period of around 4 years. She was used as an object of sexual gratification by Maurice Colbert who was, at that time, a person to whom she was entitled to look for protection and nurturing. One of the difficulties relating to arriving at a proper series of sentencing bands for sexual assault has been the various recalibration of the maximum sentence through legislation over the past decades. This was clearly a series of offences, however, which could and should have attracted a penalty at the upper end of the sentencing band and where a maximum sentence would not have been wrong in principle in the context of the order made by the sentencing judge that all sentences were to be served concurrently. Since then the sentencing bands have been increased through legislative intervention. Most recently, s. 37 of the Sex Offenders Act 2001 amends s.2(2) of the 1990 Act and makes a potential sentence for the offence of sexual assault on a child 14 years imprisonment.
22. In this instance, the time spent in custody was directly referable to this case. The accused surrendered his bail because he had been convicted of a different set of offences committed against a different victim. By the time, however, the matter came for reconsideration by the Court of Criminal Appeal, the record had altered so that this surrender of liberty was entirely referable to the offence for which he was later convicted. That changed matters. This was not a case where the accused simply surrendered his bail because of a term of imprisonment for a different matter. That is what, in terms of the record, occurred on 5th February 2010, when on conviction in respect of the rape and other offences against victim B, the accused surrendered his bail in respect of these charges as against the victim A. When the offences in respect of victim B were later quashed, it would have been appropriate to have regard to the time spent in custody on the surrender of bail as being exclusively referable to these offences committed against victim A. Thereafter, it is a matter of constructing an appropriate sentence. Because of the gravity of these series of offences, however, notwithstanding the alteration in the record, no error in principle can be found in the sentence actually imposed.
Result
23. The convictions for rape and other serious offences against another victim were correctly taken into consideration by the trial judge when arriving at a proper determination of the sentence in this case. At that time, the accused had a serious and directly relevant prior conviction. The situation in the Court of Criminal Appeal was different; by that point the prior rape conviction had been quashed. Despite the fact that the conviction on prior offences had been removed from the record between the time of sentence and appeal, this Court would not propose to interfere with that sentence given the gravity of these offences and the marked impact which the chain of abuse had on the life of the victim. As already noted, no case has been made that a sentence of this length was wrong in principle according to the maximum term for these offences as it stood at that time. It is also the case, however, that the time spent in custody prior to trial may reasonably be regarded, due to the quashing of the offences against victim B, as exclusively referable to this offence against this victim, victim A. The commencement of custody should therefore be backdated to the date of surrender of bail on the conviction once recorded in respect of victim B, which was 5th February 2010. Having regard to the fact that the appellant was released on bail 3 years later on 4th February 2013, and taking into account the 25% standard remission for prisoners of good behaviour, the Court has no option but to deem that sentence as having been served.
