DPP v Colbert: Appellate court can interfere with trial judge’s sentence where the justice of the case demands

Prison2As a general rule, an appellate court cannot consider events which occurred after a trial when reviewing a sentence and should not interfere with a sentence unless it is satisfied that the trial judge committed an error in principle. That general rule is “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” O’Donnell J [21] (here).

Background

In February 2010, Colbert was convicted of a number of offences of rape and sexual assault and was sentenced to eight years in prison. In July 2011, the Circuit Court convicted Colbert for 10 other offences of sexual assault. The trial judge considered Colbert’s previous conviction and sentenced him to four years in prison for each of the 10 offences, to run concurrently with his previous sentence.

In October 2011, the Court of Criminal Appeal quashed Colbert’s 2010 conviction and ordered a retrial. The complainant decided not to give evidence in the retrial, and the DPP entered a nolle prosequi.

In 2012, Colbert appealed against the sentence for the 2011 conviction. In 2013, the Court of Criminal Appeal dismissed Colbert’s appeal, holding that it was precluded by  The People (DPP) v Cunningham [2002] 2 IR 712 from interfering with the trial judge’s sentence where no error in principle was identified. However, it released Colbert on bail, as he had served three years in prison since his first conviction, and certified two questions for an appeal to the Supreme 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.

Supreme Court

The Court issued two judgments and was unanimous in its decision. O’Donnell J wrote a judgment clarifying the jurisdiction of appellate courts to review sentencing. Denham CJ, O’Donnell, Clarke, Charleton and O’Malley JJ concurred  Charleton J and O’Malley J wrote a joint judgment (here) relating to the application of the law to this case. The other three judges concurred.

O’Donnell accepted that it is understandable that the general rule from Cunningham became interpreted as a strict rule. In Cunningham it was held that an appellate court cannot consider a prisoner’s good behaviour as a grounds to reduce a sentence on appeal. That would offend the separation of powers, as there is statutory guidelines on remission for good behaviour and clemency is at executive discretion. However, O’Donnell points out that Cunningham was distinguished almost immediately in People (DPP) v Duffy and O’Toole [2003] 2 IR 192. There, the Court of Criminal Appeal reduced the appellants’ sentences where a third defendant had received a lesser sentence for the same offence by a differently constituted Special Criminal Court. And, in that case, there was no error in principle by the sentencing judges.

O’Donnell adopted the more flexible approach from the minority judgment by Denham J in Cunningham, which considered s 3 of the Courts (Establishment and Constitution) Act 1961 and s 34 of the Courts of Justice Act 1924, which states:

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.

ODonnell stated that the general rule that an appellate court will not interfere with a sentence unless the trial judge committed an error in principle must be qualified. An appellate court must allow an exception “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”. He concurred with Charleton and OMalley’s judgment and orders.

Charleton and O’Malley held that “to attempt give rigid answers to the questions posed by the Court of Criminal Appeal would unnecessarily trammel sentencing discretion” [17]. Dealing with the case before them, they held that, as the trial judge passed sentence on Colbert with the view that, at the time, he had a prior conviction, the sentence must be reviewed. But, as Colbert had not argued that the sentence was wrong in principle or excessive, the Court did not reduce the term. As Colbert had served three years and was entitled to 25% remission, the Court ordered his release.

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