THE SUPREME COURT
[Appeal No. 289/2007]
IN THE MATTER OF SECTION 29 OF THE COURTS OF JUSTICE ACT 1924
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of Ms. Justice Dunne delivered on the 4th day of November 2014
1. What could be more disturbing than the idea of a young person setting out to try and kill a child to see what it would be like to kill somebody? That is precisely what happened in this case. The applicant herein when aged eighteen years of age attempted to murder a young girl aged approximately ten years of age. She was a neighbour of the applicant and he lured her to a field near their homes on the pretext of looking for some puppies that he said he had seen earlier on in the field. While they were engaged in the search for the puppies, the applicant took a lace out of his pocket, put it around the girl’s neck and tried to strangle her. She tried to scream and he pushed her down on the grass. The lace was around her neck and she pretended that she was dead. The applicant took the lace off her neck and shortly afterwards, she was able to make her escape and ran home. There, she alerted a babysitter. The applicant was subsequently arrested and then charged. On the third day of his trial for attempted murder, inter alia, the applicant was re-arraigned and pleaded guilty to the charge of attempted murder. A nolle prosequi was entered in respect of three other counts on the indictment.
2. In the course of the sentence hearing evidence was given by Sergeant Tom O’Dwyer who described a number of admissions made by the applicant in the course of his interviews with the Gardaí following his arrest. Amongst other things he said: “I was just trying to inflict pain. I just wanted to see what it was like” and “I got the lace around her neck. When I did this it was my intention to choke her. I wanted to see what it would be like to kill somebody.”
3. Reflecting the undeniable gravity of the offence, the learned trial judge imposed a term of life imprisonment on the applicant.
4. The applicant then applied to the Court of Criminal Appeal for leave to appeal. The two principal grounds of appeal canvassed before the Court of Criminal Appeal were that the imposition of a life sentence necessarily meant that no weight was given to mitigating factors put forward on behalf of the applicant and that the imposition of the life sentence was therefore inappropriate and secondly, that the judgment of the learned trial judge in which the reasons for imposing a life sentence was set out could only lead to the conclusion that the sentence imposed was a sentence of preventative detention. Thus it was argued that on each of these grounds there was an error in principle in the sentence imposed on the applicant. The arguments on behalf of the applicant were rejected by the Court of Criminal Appeal. Subsequently an application was made to the Court of Criminal Appeal for a certificate under s. 29 of the Courts of Justice Act 1924 (as substituted by s. 22 of the Criminal Justice Act 2006) and that application was granted. The Court of Criminal Appeal certified that its decision involved points of law of exceptional public importance namely:
(1) Is it lawful to give an accused person the maximum term of imprisonment for the offence with which he is charged under statute even where there are significant mitigating factors in play such as -
(2) Does the sentence imposed constitute a sentence of preventative detention and if so is such a sentence a proper one in Irish law?
(a) a plea;
(b) a first offence;
5. When the matter came on for hearing before this Court it was quite properly conceded on behalf of the applicant that the answer to the first question as certified by the Court of Criminal Appeal was yes and thus it is not necessary to consider that issue any further.
6. The seminal decision on the question of preventative detention is The People (Attorney General) v. O’Callaghan  I.R. 501. That was, of course, a case concerned with the entitlement of a person awaiting trial to bail. The argument made in that case was that an individual should be refused bail because of the likelihood that he would commit further offences if admitted to bail. The offences for which the applicant was seeking bail were alleged to have been committed in circumstances where the applicant was already on bail for other offences at the time of the alleged offences for which he subsequently sought bail. It was submitted on behalf of the Attorney General that this was something which should be taken into account by the Court when considering an application for bail. Ó Dálaigh C.J. in that case commented (at page 508):
7. In the same case Walsh J. at page 516 of the judgment stated:
“The reasoning underlying this submission is, in my opinion, a denial of the whole basis of our system of law. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty and seeks to punish him in respect of offences neither completed nor attempted. I say ‘punish,’ for deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand his trial when called upon.”
8. The position in respect of bail remained the same until a constitutional amendment in 1996 which enabled bail to be refused in respect of a person charged with a serious offence where it was considered necessary to prevent the commission of further serious offences by that person. (See Article 40.4.7 of the Constitution).
“Ground number 4 of the learned Judge, that is to say, the likelihood of the commission of further offences while on bail, is a matter which is in my view quite inadmissible. This is a form of preventative justice which has no place in our legal system and is quite alien to the true purposes of bail. . . .
In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.”
9. The decision in the case of O’Callaghan related to a bail application. The principle identified in that case to the effect that a person cannot be deprived of their liberty on the basis that they might commit other offences, in other words, preventative detention is nevertheless a principle of general application which extends beyond the confines of a bail application and therefore has a relevance to the question of sentencing. That this is so is apparent from a number of decisions of the Supreme Court and the Court of Criminal Appeal. For example in The People (Director of Public Prosecutions) v. M  3 I.R. 306 a decision of the Supreme Court, Denham J. (as she then was) said (at page 318):
Similar statements can be seen in the decision in the case of The People (DPP) v. Carmody  ILRM 370, a decision of the Court of Criminal Appeal, The People (DPP) v. Jackson, Unreported, 26th April, 1993, another decision of the Court of Criminal Appeal and the decision of the Supreme Court in the case of Lynch and Whelan v. The Minister for Justice, Equality and Law Reform  1 I.R. 1 in which Murray C.J. at page 29 of his judgment stated:
“In contemplating the sentences it is appropriate to consider the offences and their nature and their circumstances, but this is not done for the purpose of determining whether the appellant should be incarcerated for the future so as to prevent him committing further offences: he is sentenced solely for the offences before the court.”
10. He went on to state at pages 276 to 277:
“The Court reiterates that it is important to take account of the fundamental distinction between the sentence imposed by a court pursuant to s.2 of the Act of 1990 and any subsequent decision by the Minister to grant temporary release pursuant to the Act of 1960. The plaintiffs were quite correct in submitting, as they did in relation to the constitutional issue, that the Court should not look simply at the formal provisions of the law but at the substance and effect of the law in practice concerning the sentence imposed on a convicted person. In this context the plaintiffs attached significant importance to a number of decisions of the European Court of Human Rights which concerned the sentencing regime in England, particularly as applied in the case of life sentences, including mandatory life sentences. The Court will make reference to those cases later in the judgment but for present purposes it is sufficient to state that the relevant sentencing regime in England and Wales at least means that a life sentence comprises of a punitive period (‘the tariff’) and, when the ‘tariff’ or punitive period has expired, a subsequent period of preventative detention. That is not and could not be the position in law in this country as has already been explained in the part of the judgment addressing the constitutional issues. To emphasise the point the Court refers to the decision of Carney J., in The People (Director of Public Prosecutions) v. Bambrick  1 I.R. 265. In that case the accused was convicted of manslaughter and the trial judge concluded at page 270 that the evidence, including psychiatric evidence, established such a strong and uncontrollable propensity on the part of the accused to commit serious crimes against women in the future that he would have been inclined to sentence the accused ‘to life imprisonment with the possibility of his release after a substantial punitive period had expired when, but only when the Minister’s expert advisers were fully satisfied that he no longer posed a danger or threat to any member of the community and women in particular.”
11. The substantive argument made on behalf of the applicant was to the effect that preventative detention was not constitutionally permissible in this jurisdiction. Counsel on behalf of the DPP accepted that the submissions made on behalf of the applicant to that effect were correct and that preventative detention as part of the sentencing process would be unlawful and unconstitutional. Thus it seems to me that it can be clearly stated having regard to the passages cited from the authorities referred to above that an individual being sentenced must be sentenced for the offence or offences before the Court and not on the basis that the sentence or any part of it is designed to prevent the commission of further offences in the future by that person. All sentences of imprisonment necessarily involve an element of preventative detention in the sense that when an offender is in prison, they are not at liberty to commit other offences and in this way, a sentence of imprisonment offers protection to society from the possible commission of other offences by that individual. However, the sentence imposed should not be longer than is necessary to punish the offender for the offence or offences concerned. The matter is well put in a joint decision of the Australian High Court, R v Veen (No.2) (1988) 164 CLR 465, (Mason CJ, Brennan, Dawson and Toohey Jj, where it was stated at p. 473:
“. . . ‘I am precluded from approaching the case on the basis that over and above any considerations of punishment this dangerous accused should be preventively detained until in the opinion of the most qualified experts he is safe to be let back into the community.’ This conclusion that a sentence could not, as a matter of law, include a preventative element was arrived at after a consideration of the relevant case-law. Any convicted person on whom a sentence comprising of such a preventative element was imposed would be entitled to successfully appeal his sentence on that ground to the Court of Criminal Appeal or any such person who claimed that he was being detained in prison, by the executive or otherwise, as a form of preventative detention rather than punishment would be entitled to seek a review of the lawfulness of that detention pursuant to Article 40 of the Constitution.”
Thus, preventative detention as an element of sentencing above and beyond what is appropriate to the particular offences or offences having due regard to the personal circumstances of the offender is not permissible.
“It is one thing to say that the principle of proportionality precludes the imposition of a sentence beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. A distinction in principle is clear between an extension merely by way of preventive detention which is impermissible and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”
Is the imposition of a life sentence on the applicant a form of preventative detention?
12. In order to answer this question it is necessary to consider the facts of this case. The applicant pleaded guilty to the attempted murder of a young girl, a neighbour of his. He attempted to strangle her with a lace and admitted that he had an intention to murder. Amongst the comments he made was “I wanted to see what it was like to hurt somebody, to see real pain. It was my intention to kill her”. The Court of Criminal Appeal described the facts of the case as “harrowing, disturbing and . . . frightening in the extreme”. Hardiman J. delivering the judgment of the Court went on to observe:
He went on to conclude:
“Nevertheless, the Court is of the opinion that there are cases whose gravity is at such an extreme that (by a calculus like process as it were), mitigating factors, even strong mitigating factors, are devalued to zero, and this is such a case. The case is at an extreme of depravity. It is an extreme of depravity not found in the experience of any member of the Court.”
13. It is not necessary in the context of this case to embark on a lengthy discourse as to the principles of sentencing generally. This is a case in which the trial judge imposed a discretionary life sentence on a young man of nineteen years of age who had committed no previous offences and who, albeit on the third day of the trial, pleaded guilty to the offence before the Court. That sentence was one upheld by the Court of Criminal Appeal having regard to the obvious gravity of the case. It is beyond doubt that a case in which a maximum sentence is imposed notwithstanding mitigating factors will be exceptional. Such a situation is, of course, provided for by the provisions of s. 29 of the Criminal Justice Act 1999 in respect of guilty pleas and expressly provides at s. 29(2) as follows:
“The sentence is not here mandatory but if any circumstance could justify the imposition of a life sentence, this case seems to present it.”
14. Reference was made in the course of submissions to the case of The People (DPP) v. Carmody  ILRM 370 in which the trial judge sentenced two brothers who were habitual criminals. They pleaded guilty to a charge of burglary before the Circuit Criminal Court and the trial judge noted the long list of convictions for similar offences by each of the accused men. They had a similar pattern of sentences in respect of those convictions over the years, generally of three, six or twelve month’s duration. One of the applicants had been sentenced to three years imprisonment in respect of one charge of burglary but the sentence was suspended. The two individuals were described as professional burglars. The trial judge in sentencing them observed as follows:
“To avoid doubt, it is hereby declared that subsection (1) shall not preclude a court from passing the maximum sentence prescribed by law for an offence if, notwithstanding the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence.”
He imposed a sentence of six years imprisonment on both. The Court of Criminal Appeal referred to the judgment of Walsh J. in The People v. O’Callaghan  I.R. 501 at page 516 and went on to comment as follows:
“They are not amenable in any manner to the ordinary constrictions of the society in which they live and they are preying on innocent people and my primary duty is to protect those people. I don’t think that these men have any remorse other than for being caught. I think they pleaded only because they were caught red-handed with no hope of escaping and thought that it might benefit them to do so and for no other reason.”
In those circumstances the sentences were set aside and a sentence of three years imprisonment was imposed on each of the applicants.
“The Court is satisfied that the only justification for the radical departure from the previous measures of imprisonment, mostly at District Court level, was an understandable attempt to procure reform by prevention. Absent the use of appropriate statutory provisions, however, such is not an acceptable basis for the particular sentence.”
15. Reference was also made in the course of submissions to the decision of the Court of Criminal Appeal in the case of The People (Director of Public Prosecutions) v. Duffy  2 I.R. 395. That case concerned the jurisdiction of a court to impose a maximum sentence in the case of attempted murder and possession of a firearm with intent to endanger life or cause serious injury. A life sentence was imposed in respect of the charge of attempted murder following a plea of guilty. The accused in that case sought leave to appeal his sentence on the basis that the imposition of the non-mandatory maximum sentence of life imprisonment did not reflect the mitigating factor of a plea of guilty and thus amounted to preventative detention. Reference was made to the provisions of s. 29(2) of the Criminal Justice Act 1999 which is set out above. That case is of interest because there was a discussion of the judgment of the Court of Criminal Appeal in the present case in the course of the judgment. While the argument in that case reflects to a large extent the issue that arose in the first question certified by the Court of Criminal Appeal in this case, which, as has been mentioned previously was very properly conceded by counsel on behalf of the applicant, an observation of Hardiman J. in the course of the judgment is of relevance. At page 406 of the judgment he observed:
16. Relying on that passage, it was submitted on behalf of the applicant herein by Mr. O’Leary, S.C. that it is no answer to an allegation that a sentence is preventative to reply that a sentence imposed is solely penal in nature simply because the sentence was within the limit prescribed by law. It was argued that the correct test is whether or not the sentence exceeds what is “required purely for penal purposes”. It was further argued that in the cases of Carmody and Jackson the sentencing Court fell into error by expressly imposing a preventative sentence. However the question posed on behalf of the applicant was whether in the absence of an express statement by a sentencing judge to the effect that an intended sentence includes a preventative component, an appellate Court is entitled to infer that, when viewed objectively, the sentence must be interpreted as including such a preventative component. By way of response, counsel on behalf of the DPP, Patrick McCarthy S.C. observed that it was not simply a question of asking whether or not the Court is entitled to infer that the sentence must be interpreted as including a preventative component. It was argued that the application of such a test would ignore the fact that a preventative component is an incidental effect of a proper sentence. Thus it was contended that this was one of the cases which merited a life sentence even though a life sentence was not mandatory and that in those circumstances the protection that the public achieved thereby was an incidental effect of the sentence.
“It is not a speculation as to the moral character of the accused, but a plain and obvious deduction from the proven facts, that the applicant here is a dangerous man, uninhibited about killing, with access to firearms, and capable of using a firearm on a very slight pretext such as (apparently) a sense of grievance on being thrown out of a pub. The law would be an ass if it failed to draw these obvious conclusions. The imposition of a term of life imprisonment on this man is in no sense an example of preventative detention: it is a sentence richly deserved by him on account of a proven capacity to act in a feral way at least when provoked. His behaviour merits a condign sentence and has received it. The preventative effect is incidental to this: the sentence does not exceed what is required for purely penal purposes in so aggravated a case.”
17. In order to reach the conclusion that a sentence included an element of preventative detention, it would be necessary to show that no court acting properly could have imposed the sentence. Comments made by the learned trial judge in his sentencing remarks as to the protection of the community could have given the impression that the sentence imposed in this case was in some measure intended to include a degree of preventative detention. However, when one looks at the remarks of the learned trial judge, it is clear to see that he was attempting to explain that a life sentence, albeit harsh, could be examined in the future by the Parole Board. Indeed, the learned trial judge was careful to point out that he could not look to the future - he could only have regard to the situation of the applicant as it was at the time of sentence.
18. A trial judge has discretion in the exercise of his or her sentencing jurisdiction. That discretion must be exercised in accordance with well established principles of sentencing. Professor Thomas O’Malley in The Criminal Process at paragraph 22.02 expressed the matter succinctly as follows:
Thus a sentencing judge will consider matters such as a plea of guilty, the age of an offender before the court, the previous conduct of that offender, expressions of remorse, if any, the impact of the offence on a victim in appropriate cases, the rehabilitation of the accused and any other relevant matters. As long ago as 1972, Walsh J. observed in The People (Attorney General v. O’Driscoll) [1972 1 Frewen 351 at page 359:
“A sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender. A proportionate sentence is calculated by first locating the particular offence on the appropriate scale of gravity and then, applying credit for the relevant mitigating factors to the otherwise proportionate sentence. Mitigation must always be applied to the proportionate sentence and not to the maximum sentence (unless, of course, the offence is so serious that the maximum is also deemed to be the proportionate one).”
19. It was pointed out previously by Denham J. (as she then was) in the case of The People (Director of Public Prosecutions) v. M.S.  2 ILRM 311 at p.318:
‘The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him insofar as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case - not only in regard to the particular crime but in regard to the particular criminal’.”
20. That case is a useful reminder of some of the elements involved in the exercise of the sentencing function. A term of imprisonment is not solely directed to the punishment of the offender. It also involves elements such as rehabilitation of the offender, deterrence and the protection of society. The learned trial judge in this case clearly had regard to the possibility of rehabilitation as can be seen in his remarks about the possible role of the Parole Board. Hardiman J. in the Court of Criminal Appeal in this case observed:
“Sentencing is a complex decision. It may involve aspects of retribution, deterrence, protection, reparation and rehabilitation. In cases relating to sexual offences there are important aspects relating to protection of society and rehabilitation of the defendant. In this case, the applicant has received the benefit of a programme for sexual abusers in prison.
In offences where there have been circumstances including addiction, for example of drugs or alcohol, or of dysfunctional personal or family relationships, then a programme of treatment may be relevant and may prove beneficial to the convicted person and to society by altering the offender’s future pattern of behaviour. In this case the Court was informed that the applicant had completed successfully a programme of treatment and that release under supervision would be more beneficial to the applicant and to society than release at the end of his sentence with no supervision. If the sentence incorporates retribution only then it may run its course and not be varied. However, the Court is satisfied that a just sentence may have elements of rehabilitation also. The applicant has successfully completed a treatment programme which illustrates this element most appropriately. Further a sentence may incorporate an element of protection of society. Protection of society may sometimes be best achieved by a supervised release after treatment rather than a later release with no treatment or supervision.”
On that basis the Court rejected the arguments made on behalf of the applicant.
“We turn then to the argument, and again we pause to say it is a powerful and substantial argument, based on the proposition that the sentence offends in its own terms what Mr. O’Leary says is a strong rule against preventative detention. The rule against prevention of detention (sic) is most strongly stated, as Mr. O’Leary cited, in O’Callaghan, and it was there of course stated in the context of the preventative detention of an unconvicted person. But more generally, I think it is true to say that the ordinary rules of sentencing (the rule for example that a sentence has to be proportioned to the offence committed and to the offender who commits it), does suggest that preventative detention at least stated in that way gives rise to a serious conceptual problem. On the other hand the notion of deterrence is one which has a well established role in sentencing. A case where a person sets out to kill ‘to see what it feels like’ is a case which cries out for deterrence. Because if deterrence is not applied in some form, as Mr. Justice Carney said, it is impossible to provide any form of protection to the community which must be one of the court’s major functions.”
21. The facts of this case are as Hardiman J. said, “Extraordinary, chilling and frightening”. The offence to which the applicant pleaded is a most serious one involving as it does an intention to kill. It is one of those rare cases in which the maximum sentence permissible under the law was appropriate. It necessarily does have a preventative effect in that the applicant is not at liberty to commit further offences whilst in custody and thus society has the benefit of that protection but insofar as there is a preventative element achieved by the sentence I think it is fair to say as Hardiman J. said in the case of The People (Director of Public Prosecutions) v. Duffy:
22. The Court of Criminal Appeal in the unusual circumstances of this case found that the imposition of a life sentence for the offence of attempted murder was merited. It is impossible to see how the sentence imposed could be objectively viewed or interpreted as including a preventative component where the sentence imposed, to repeat the words of Hardiman J., “does not exceed what is required for purely penal purposes in so aggravated a case.”
“The preventative effect is incidental to this: the sentence does not exceed what is required for purely penal purposes in so aggravated a case.”
23. When a sentence imposed on an individual is a proportionate sentence having regard to the seriousness of the offence and the personal circumstances of the offender, it could not be said that the sentence imposed was one which contained an element of preventative detention even in the exceptional circumstances that a maximum sentence has been imposed notwithstanding the existence of some mitigating circumstances. Some offences are so grave that a maximum sentence will be the appropriate sentence. If a sentence is excessive having regard to the nature of the offence and the circumstances of the accused person, then the sentence will be wrong in principle and will be set aside. If a sentence is expressly stated to include an element of preventative detention, then, the sentence is likely to be set aside as pointed out in the case of Lynch and Whelan v. The Minister for Justice, Equality and Law Reform  1 I.R. 1. Great care must be taken by a sentencing judge to have regard only to the factors which have been identified over the years as being appropriate to take into account, such as deterrence, protection of society, retribution, reparation and rehabilitation. Preventative detention is not one of those factors. I have already referred to the well known passage from the judgment of Walsh J. in O’Callaghan and would reiterate the point made by him that a person cannot be punished in respect of any matter upon which he has not been convicted or that anyone should be deprived of their liberty upon the belief that he or she will commit further offences if left at liberty. It will be recalled that the first question certified by the Court of Criminal Appeal, was as follows:
Counsel for the applicant in the course of the hearing conceded that the answer to this question was “yes” and had such concession not been made, I would, notwithstanding the factors identified at (a), (b) and (c) have answered that question “yes” in the circumstances of this case.
“Is it lawful to give an accused person the maximum term of imprisonment for the offence with which he is charged under statute even where there are significant mitigating factors in play such as -
(a) a plea;
(b) a first offence;
24. I am satisfied that the sentence imposed by the learned trial judge did not constitute a sentence of preventative detention but on the contrary was a sentence appropriately imposed having regard to the very grave circumstances of the offence committed by the applicant. There is nothing in the sentence imposed in this case to suggest that an element of the sentence must be inferred to be for the purpose of preventative detention. In the circumstances, I would answer the second question posed “No”, as the sentence imposed does not constitute a sentence of preventative detention. Accordingly, the sentence imposed is a proper one in Irish law.