No CCA 87CJA/08

Macken, J.
Budd, J. 
McCarthy, J.

THE COURT OF CRIMINAL APPEAL

 Between/

AND IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC 
PROSECUTIONS

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ARTHUR JAGOE
Respondent

Judgment of the Court (ex tempore) delivered on the 13th day of October 2008 by Macken, J.
This is a matter in which the court is in a position to deliver its decision immediately. This is an application under s.2 of the Criminal Justice Act 1993 brought on behalf of the Director of Public Prosecutions who seeks to set aside the sentence in the present case on the grounds that it was unduly lenient. It is not necessary to go into the jurisprudence in relation to that matter, save to say of course that we are not looking at whether or not judgment was lenient, because that is not the criterion to be applied but rather whether it was unduly lenient. It arises out of the application by the learned sentencing judgment of the provisions of what is commonly called the Probation Act, that is, the Probation of Offenders Act 1907 and in particular s. 1(2) which states that:

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"Where any person has been convicted on indictment of any offence punishable with imprisonment and the court is of the opinion that having regard to the character, antecedents age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or anything other than a nominal punishment, or that it is expedient to release the offender on probation, the court may in view of imposing a sentence of imprisonment make an order discharging the offender conditionally on his entering into recognisance's etc." 
That is the nub of the difficulty that arises in the present circumstances. It has to be accepted that in circumstances of an assault of the nature that occurred in the present case, it must be very rare indeed that the provisions of the Probations of Offenders Act would be applied but that does not mean that it may not be applied by the judge since it may apply in all circumstances or to all offences that are punishable with imprisonment.
The two main arguments made on behalf of the Director are firstly, to the effect that the learned sentencing judge had an inadequate regard to the gravity of the offence or what might be called the seriousness of the offence but "the gravity of the offence", and it was certainly quite a grave offence. Secondly, that he had an undue regard to the existence of an offer of compensation on the part of the accused, taking it into account with undue weight according to Senior Counsel, Ms. Farrelly on behalf of the Director. In addition, there is a claim on behalf of the Director that there was no or insufficient evidence before the court of the good character of the accused.

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Finally it is argued that the learned sentencing judge failed to designate clearly and explicitly which of the provisions of s. 1(2) he relied on. On the part of the respondent to the application, it is argued that the judge fairly and squarely came down in favour of applying the first of the three possible provisions that can be applied under s.l(2) namely, the question of the character of the respondent accused. Secondly, that the learned sentencing judge was fully entitled to do this and that in exercising the discretion which he did to do so, he did not make any error in law and certainly no error in principle. 
Conclusion;
The conclusion which the court comes to in relation to the matter recognising that this is a very rare event that occurs which is clear from the absence of any substantial amount of case law on the application of the Section, is nevertheless that the judge was entitled to come to the view which he did. The court starts by dealing with the last of the issues raised by the Director, namely that the learned sentencing judge had failed expressly or explicitly to designate which of the categories 1,2 and 3 of s.l(2) he was relying on that argument is based on a fairly old decision in Kilroy v Brennan in which it was stated that the sentencing judge when applying the provisions of the Probation of Offenders Act 1907 should explicitly state which of the categories the judge was relying on. That is what is sometimes called a "reasoning" argument and it is an argument that can be made in appropriate circumstances. But the court takes the view that having regard to the rarity with which this Section arises and having regard to the fact that the provisions of the Section as enunciated in Kilroy v Brennan or the principles to be applied to the Section were not brought to the attention of the sentencing judge, it would not be appropriate to make any criticism of the

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sentencing judge on the basis that he did not explicitly state which of the three alternatives he was opting for. That deals with that aspect of the matter.
In relation to the question of failing to have sufficient regard to the gravity of the offence it is the court's view that the sentencing judge is obliged to take into account the gravity of the offence. In the present case, he is not obliged as he is not specifically compelled to invoke the wording "and I have regard to the gravity of the offence". Having regard to the gravity of the offence can be found in the actual wording used in the course of the sentence or indeed even in the course of the hearing part of the sentence and in the course of the cross-examination of Garda Greenwood the judge intervened to pass comment that all of this had occurred in a night club and the judge said "yes Cubans and he had a glass in his hand" and he was corrected by the garda who said "a bottle" and the judge said "a bottle and he struck yer man in the face with the bottle". Then a little bit later when he was being re-examined or counsel was addressing the judge the judge said "he had a bottle in his hand and he turned around" and counsel said she had no difficulty with that, the judge the said "and he gave yer man a clatter of the bottle into the face". While he did not use the words the gravity of the offence in the sentence it is quite clear that with that type of language even though it is the use of the vernacular, he was not considering and was not giving any impression that he considered it to be a trivial offence but rather an offence which could only be described by those words as an offence of some considerable gravity. So that while neither the sentence nor the part of the judgment leading up to the sentence specifically refers to the "gravity of the offence" the court is satisfied that the learned sentencing judge knew that he was dealing and accepted that he was dealing with an offence of some considerable

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gravity. It would of course have been preferable if he had included clearer words in his judgment.
Now the court turns to whether or not the sentencing judge being entitled to have regard to the first of the categories before him, had adequate information or evidence upon which he could conclude that the accused at the time was a person of considerable character, and in the submissions which have been furnished in relation to this application it is quite clear that there was in the opinion of this court, adequate evidence upon which the learned sentencing judge could find that the accused was of such character that he fell within s.l(2) and that it was either inexpedient to inflict any punishment, or was expedient to release the offender on probation, as occurred here. The evidence that he had was as to the respondent's age, the work that he carried out, the fact that he had neither any previous convictions nor had come at any stage to the attention of the gardai before. The fact that he had presented himself to the gardai when there was publication of the CCTV footage and was very cooperative and remorseful and had not come to the attention of the gardai since the incident, and it had been submitted that the incident was out of character. The court pauses here to say that in relation to the coming forward once the CCTV footage had been shown, and it appears that the CCTV footage was of a blurry nature or perhaps not wholly of benefit to the prosecution, the fact that he came forward indicates to the court that he was a person of some considerable probity, that it was the action of a person of good character to have come forward in those circumstances, and of a person of some considerable responsibility.   When one compares that evidence with the evidence which did not exist in Kilroy v

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Brennan, the court is satisfied that the judge had sufficient evidence before him upon which he could reach the conclusion that he reached.
That leaves the final matter concerning the question of compensation. The argument which is made in relation to the question of compensation is that the learned sentencing judge gave undue weight to the fact that a substantial amount of money was being offered by way of compensation. There is no doubt but that the learned sentencing judge was impressed and it might be said very impressed by the fact that a substantial offer of compensation was being tendered and also that that compensation was not just substantial of itself but was substantial having regard to the extent of the income of the accused which it represented. It does not follow from the fact that he was impressed by the amount and impressed by what he represented that he had undue regard for it. In one of the cases presented to the court in the bundle of case law which was handed in very recently perhaps even this afternoon is DPP v McLoughlin [2005] 3 IR19 that is a decision of the Court of Criminal Appeal. The judgment is a judgment of Kearns, J. It concerned a different type of case which was a rape case in which compensation had been offered to the victim and the court held that the offering of that to the victim was not of itself a special circumstance but it did find that the fact that compensation was offered and accepted "was a factor which the court must take into account when sentencing". While the judge was perhaps very impressed by it and may have given it very considerable weight he was obliged to give it some weight and the court is satisfied that although he did give it considerable weight he did not give it such weight as would set aside or lead to a conclusion that the exercise of the discretion which

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he has was in any way perverse or unjustified or in any other manner exercised so as to set aside the decision on sentencing which was made.
In those circumstances the court will reject the application made on the part of the Director of Public Prosecutions and allow the sentence to stand.