John Meagher (applicant) v His Honour Judge Sean O'Leary, District Judge Michael Patwell, the Minister for Agriculture and Food and the Attorney General (respondents).Judicial Review - Applicant convicted on offence of possession of illegal growth promoters - Sentence of two years imposed in district court on 17 summonses - Appeal - Aggregate sentence of 16 months imposed - Application for leave to apply for judicial review granted on the basis that section 5 of 1951 Act (as amended) unconstitutional - Whether limiting to two years an aggregated maximum of lesser consecutive sentences unconstitutional - Whether summonses amounted to different offences - Courts of Justice Act 1928 (No 15), section 18 - Criminal Justice Act 1951 (No 2), section 5 - Criminal Justice Act 1984 (No 22), section 12 - Constitution of Ireland 1937, articles 34.3.2 and 38.2.
The High Court (before Mr Justice Moriarty); judgment delivered 8 October 1997.
It is well settled that an applicant is entitled to maintain his constitutional argument in existing judicial review proceedings and is not obliged to institute plenary proceedings seeking declaratory relief.
It is imperative that a maximum aggregate sentence be set forth by the Oireachtas that accords with the requirements of fairness and constitutional justice. Construing the impugned subsection of the 1984 Act in this regard inevitably involves a balancing of conflicting constitutional rights and duties.
In the challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in the legislation, but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights.
The High Court so held in holding that section 5(1) of the 1951 Act as amended by section 12 of the 1984 Act does not constitute an unjust attack on the applicant's constitutional rights.
Gerard Hogan SC and Conleth Bradley BL for the applicant; Peter Charleton SC and Shane Murphy BL for the respondent.
Mr Justice Moriarty said that on 27 March 1991 a party of officials from the Department of Agriculture and Food together with two local gardai attended at the applicant's farm near Clonmel in County Tipperary on foot of a duly issued search warrant. Significant quantities of veterinary preparations were found in various locations in or close to the farmhouse, including the sitting room, hall, kitchen, back bedroom, bedroom of the applicant's son, shed and two motor cars, registration numbers 90 TS 1456 and 770 IP. These items were seized and sent for analysis. Thereafter, on 24 August 1992 the applicant was served with 20 summonses alleging separate breaches of the European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations 1988 and the European Communities (Control of Veterinary Medical Products and their Residues) Regulations 1990. All the matters complained of related to offences of possession of illegal growth promoters including that colloquially known as "angel dust" and related items at the applicant's farm.
Mr Justice Moriarty said that upon taking legal advice the applicant successfully challenged in the High Court the constitutionality of the 1972 Act and the regulations made thereunder. On appeal, the Supreme Court, by judgment and order dated 18 November 1995 reversed that finding, thereby entitling the Minister to have relisted the district court prosecution which had been adjourned pending the outcome of the challenge.
Accordingly, a special sitting of Clonmel District Court was held on 6 April 1996 to hear the summonses before the second-named respondent, both sides being represented by solicitor and counsel. No evidence was offered in relation to three summonses, and evidence was adduced by the prosecution in regard to the remaining 17. The applicant by his counsel cross-examined the prosecution witnesses, and argued certain procedural and other legal infirmities, but no evidence was offered by or on behalf of the applicant. Rejecting the applicant's submissions, the second-named respondent convicted on all seventeen summonses, indicated that he took a most serious view of the offences in the context of their likely repercussions on the Irish beef industry, and sentenced him on 15 summonses to concurrent two year terms of imprisonment, the then maximum custodial sanction, in addition to providing for fines and expenses on the remaining two summonses.
From these orders the applicant appealed and by the time the appeal came to be heard, the Supreme Court had given judgment in the separate but related case of Mallon v Minister for Agriculture Food and Forestry [1996] 1 IR 517 on foot of which it had in effect been determined that the maximum custodial sanction provided upon conviction on any of the relevant summonses was not two years, but one year's imprisonment. The applicant's hearing before the first respondent took place on 13 March 1997. Having some knowledge of the weight of criminal appeal lists in Clonmel, Mr Justice Moriarty made no criticism of the date chronology, and obviously recognisances staying sanctions pending appeal had been set, but he said it was regrettable that in excess of six years elapsed between the search and the appeal hearing. At that latter hearing, the prosecution conceded the appeals on three of the 17 summonses, and the applicant, through his legal advisers, indicated that the remaining 14 convictions were no longer in issue, and that only the severity of the sanctions was being contested. Having heard the matter on this basis, the first respondent indicated that he considered the offences in themselves of sufficient gravity to merit the maximum sentence of imprisonment, but that he was disposed to make allowance both for the applicant's hitherto unblemished character, and his pleas of guilty upon the appeal. Accordingly, on eleven of the summonses, he imposed terms of imprisonment of eight months, directing that these should be concurrent terms, save in respect of the first two summonses heard, namely numbers 490 and 491, in regard to which he ordered that the eight month terms should operate consecutively. Three remaining summonses were taken into consideration.
The commencement of what thus appeared a final order that the applicant be imprisoned for an aggregate term of sixteen months was deferred for some weeks by the first respondent to enable the applicant to arrange his affairs. On 22 April 1997 within that period of grace, the applicant sought and obtained from Mr Justice Kelly leave to apply by way of judicial review for orders of certiorari quashing such portions of the respective orders of the first and second respondents as imposed respectively 16 months and two years imprisonment, on the basis that the provisions of section 5 of the 1951 Act as amended were unconstitutional. Detailed and informative written submissions and extracts from relevant legal authorities were exchanged between the parties prior to the one and a half days of legal argument which constituted the hearing. The availability of the former appreciably facilitated a narrowing and defining of the ambit of controversy at the hearing, so that certain aspects alluded to in the submissions no longer required ruling.
Mr Justice Moriarity said that aside from the repercussions of the Mallon judgment delivered by the Supreme Court between the respective orders of the first and second respondents, it was abundantly clear from section 18 of the 1928 Act that in undertaking the appeal from the second respondent, the first respondent was exercising de novo an appellate jurisdiction for the trial of minor offences that was in principle fully subject to all or any limitations applicable at first instance to the second respondent. Counsel on behalf of the applicant intimated that certain old authorities suggested that if the first respondent's orders of imprisonment fell, the more adverse orders of the second respondent might in some fashion revive, so that he had felt it prudent on this basis to join the second respondent. Mr Justice Moriarty fully accepted this, but in the context of the Mallon decision, the second respondent's custodial determination could not in any event now stand, and he had no doubt that in these circumstances it was unnecessary to proceed beyond addressing the lawfulness and constitutionality of the first respondent's custodial orders.
Mr Justice Moriarty said that although it was contended in the respondent's written submission that the applicant, having acquiesced in and pleaded to the several summonses in both the district and circuit courts, was estopped and precluded from now contending that no more than a single generic criminal transaction was disclosed, counsel for the respondent had rightly not sought to rely on this argument: if a penal statutory provision that is applicable to particular facts is found repugnant to the Constitution, the consequences inter partes must not be negatived by reason of how those parties have conducted themselves procedurally. Nor would it be at all warranted to even infer any element of criticism in this regard against any of the practitioners who appeared for the applicant before the first and second respondents.
In any event, counsel for the applicant had for his part with equal propriety conceded that, notwithstanding matters set forth in the written submissions, he could not realistically dispute that summonses number 490 and 491 constituted separate offences in law. Mr Justice Moriarty had little difficulty in coming to a like conclusion; given well settled authorities and practice in criminal pleading, allied to the range of items found and venues at which found, it would have been entirely inappropriate for the prosecution to have sought to combine all matters in a single summons. If a consensual basis for a plea of guilty had been explored between the parties, it would have been open to them to proffer an amended and extended representative summons and/or to have had certain of the summonses "taken into consideration" but a proper framing of the matters of complaint at the outset clearly required the issue of separate summonses along lines such as were adopted.
Mr Justice Moriarty said that the case accordingly turned on the issue of the constitutionality of section 5 of the 1951 Act as amended in providing for the imposition of consecutive terms of imprisonment by the district court, or, as already indicated, by the circuit court on appeal. It is well settled that the applicant is entitled to maintain his constitutional argument in the existing judicial review proceedings, and was not obliged to institute plenary proceedings seeking declaratory relief: The State (McEldowney) v Kelliher (High Court, unreported 5 February 1982); The State (Lynch) v Cooney [1982] IR 337; The State (Gallagher Shatter & Company) v De Valera [1987] IR 55.
Mr Justice Moriarty set out the respective provisions under review. Article 38.2 of the Constitution provides: "Minor offences may be tried by Courts of summary jurisdiction."
Article 34.3.4 further provides: "The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law."
Section 5 of the 1951 Act provides: "Where a sentence of imprisonment is passed on any person by the District Court, the Court may order that the sentence shall commence at the expiration of any other term of imprisonment to which that person has been previously sentenced, so however that where two or more sentences passed by the District Court are ordered to run consecutively the aggregate term of imprisonment shall not exceed twelve months."
Section 12 of the 1984 Act amended the above whereby the aggregate term of imprisonment was amended by the substitution of two years for twelve months. Counsel for the applicant submitted that this amendment, on foot of which his client had been penalised, was repugnant at Article 38.2 insofar as the extent of the consecutive sanction, being one of the primary determinants of minor offences noted in a long line of cases from Melling v O Mathghamhna [1962] IR 1 was of such duration as to take the prosecution beyond the sphere of minor offences. Reliance was placed on dicta of Mr Justice O'Flaherty in Heaney and McGuinness v Ireland and the Attorney General [1996] IR 580 to the effect that constitutional rights must be construed in such a way as to give life and reality to what is being guaranteed and of Mr Justice Gannon in The State (O'Reilly) v Delap (High Court, unreported, 1985), confirming that if one of the first respondent's jurisdictional limitations related to range of punishment, his sentence must be seen to be within such limitation. Even though the argument would have been clearer had the differential between maximum terms for single and aggregated offences exceeded that between one year and two years, the Oireachtas had in setting a self-imposed limitation so eroded the applicant's rights, in the context of the proper ambit of minor offences and access to trail by jury, as to require a finding of unconstitutionality. Such a finding would mean it was accepted that on all occasions on which district judges or circuit judges on appeal had utilised section 12 of the 1984 Act so as to impose sentences exceeding twelve months, those sentences exceeded the true jurisdictional limits applicable.
Mr Justice Moriarty said that given that a maximum penalty of two years imprisonment for a single offence takes that offence beyond the category of a minor one, whereas a maximum penalty of one year's imprisonment does not, the crucial issue in the instant case appeared to be whether the sphere of minor offences was likewise exceeded if that two year maximum penalty is comprised as an aggregation of two or more lesser sentences imposed consecutively in respect of different offences tried together by a judge.
Mr Justice Moriarty said that it was difficult to oppose in principle the concept of some measure of consecutive sentencing rendering sanctions for a plurality of offences greater than for a single one. He said if a youth snatches handbags from six different women on different occasions then, whether it be viewed from the stand point of moral turpitude, loss and distress to victims, or in the context of any of the generally held objectives of sentencing, his criminal involvement self-evidently exceeds that of the perpetrator of a single like offence. From the offender's standpoint also and in the context of the efficient conduct of the criminal justice system, it is desirable and preferable that some fair and balanced scheme of sentencing address this contingency, rather than having disposal of a second or subsequent complaint against an alleged offender deferred until conclusion of hearing and/or sentence in relation to its predecessor.
It seemed imperative to Mr Justice Moriarty that a maximum aggregate sentence be set forth by the Oireachtas that accords with the requirements of fairness and constitutional justice. He said that if, in the example referred to above a court dealing summarily with the six offences were permitted to impose an indeterminate succession of consecutive sentences, it could give rise to an aggregate sentence of six years imprisonment, which would exceed the maximum allowable for many serious offences following trial on indictment, and could on no rational basis be viewed as an exercise of jurisdiction pursuant to Article 38.2. Construing the impugned subsection of the 1984 Act in this regard inevitably involves a balancing of conflicting constitutional rights and duties. The manner in which this exercise should be undertaken was set forth in Tuohy v Courtney [1994] 3 IR 1 at 47 by the then Chief Justice Mr Justice Finlay as approved by the Chief Justice Mr Justice Hamilton in the reference case Information (Termination of Pregnancies) Bill [1995] 1 IR 1:
"In the challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the Courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation, but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights."
Applying this test to the relevant subsection, Mr Justice Moriarty was clearly of the view that the balance set forth in limiting to two years an aggregated maximum of lesser consecutive sentences cannot be said to so contravene reason and fairness as to constitute an unjust attack on the applicant's constitutional rights. It appeared to him that there was proper proportionality in the provision between the conflicting rights involved.
Mr Justice Moriarty said that in forming the view that section 12(1) of the 1984 Act was not unconstitutional, he did so on the basis, be it either by way of concession or legal finding, that summonses 490 and 491 amounted to separate offences. Undoubtedly many common factors applied to all items found in the search and it may have been that other items would have been more obviously mutually distinguishable, but the two substances involved clearly differed in form and colour and in his opinion were properly found to disclose separate offences.
Mr Justice Moriarty said that while it did not now govern his findings, it did appear to him that in situations where a summary jurisdiction is being exercised in relation to what in essence amounts to a single criminal transaction, it is wrong in law that consecutive sentences should be imposed in respect of different summonses or charges clearly referable to that single transaction, in such fashion as to render the aggregate sentence in excess of twelve months. He said that one might envisage cases of potential difficulty having to be analysed in this regard, but it might be that an appropriate criterion in analysing inter-linked offences would be to decide whether or not an acquittal on a first alleged complaint would amount to a bar against the prosecution proceeding on second or subsequent complaints. This did not fall to be decided in the instant case.
It had been canvassed that the first respondent's sentence was arbitrary, disproportionate and of such dimensions to amount to a manifestly unjust punishment warranting the intervention of the court. Mr Justice Moriarty did not believe that such a proposition was sustainable. He said that undoubtedly the sentence was one of appreciable rigour but he said, it factually represented the considered determination following a proper hearing of a judge who was experienced and aware of the circumstances surrounding those types of offences and legally, given his primary finding, it was imposed neither in excess of, nor without, due jurisdiction.
Mr Justice Moriarty concluded that, as to the severity of the aggregate sentence, he was satisfied on his findings that it should not be quashed and of course he was concerned with its merits neither in the context of a sentence rehearing nor of considering whether its duration erred in principle. While the Executive are required to honour the substantive integrity of the sentence imposed, he said that the authorities are entitled (as noted in a recent unreported Court of Criminal Appeal decision of 14 July 1997 given by Mr Justice Barron in DPP v Trevor Rowley) to take such steps within the sentencing structures as may be humane and appropriate.
Solicitors: Michael J. O'N. Quirk & Co (Carrick-on-Suir) for the applicant; Chief State Solicitor (Dublin) for the respondent.