Director of Public Prosecutions -v- GK [2014] IECCA 35 (29 October 2014)

Judgment Title: Director of Public Prosecutions -v- GK

Neutral Citation: [2014] IECCA 35

Court of Criminal Appeal Record Number: 12/07

Date of Delivery: 29/10/2014

Court: Court of Criminal Appeal

Composition of Court: Dunne J., Moriarty J., Finlay Geoghegan J.

Judgment by: Dunne J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
Dunne J.	Link	Other (see notes)

Notes on Memo: Order of Court of Criminal Appeal of 31st July 2008 amended as relates to post
release supervision

THE COURT OF CRIMINAL APPEAL

[Appeal No. 12/07 CCA]

Dunne J.

Moriarty J.

Finlay Geoghegan J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR

OF PUBLIC PROSECUTIONS

APPLICANT

G. K.

RESPONDENT

Judgment of the Court delivered on the 29th day of October by Dunne J.

This is an application on behalf of the Director of Public Prosecutions (the DPP) for an order amending the order made herein on the 31st July, 2008, specifically, by setting out such conditions as the Court considers necessary for securing the supervision of the respondent by a probation and welfare officer under s. 29(1)(b) of the Sex Offenders Act 2001, the respondent having been made the subject of a post-release supervision order for a period of ten years from the date of his release from custody.

Background
The respondent to this application faced a trial in respect of allegations of aggravated sexual assault and a threat to kill contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1997. In the week preceding the date fixed for trial the respondent pleaded guilty to a count of aggravated sexual assault contrary to s. 3 of the Criminal Law (Rape) (Amendment) Act 1990 and it was agreed that the offence contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1977 could be taken into account in sentencing. The respondent was sentenced on the 22nd January, 2007 to a term of life imprisonment to date from the 13th March, 2006. The respondent applied for leave to appeal against the sentence of life imprisonment imposed on him and the matter came before the Court of Criminal Appeal. Having heard the application for leave to appeal, the Court reserved judgment and judgment was delivered by the Court of Criminal Appeal in respect of this matter on the 31st July, 2008 (Finnegan J.). In the course of the judgment it was stated by Finnegan J. at p.14 as follows:

“There can be no doubt here but that the [respondent] committed a sexual assault on the victim which included elements of aggravation. The evidence of Detective Sergeant Forsythe to the sentencing judge was that the [respondent] came from behind the victim, put one hand over her mouth and another hand around her waist and said ‘If you make noise or shout I will slice you’. After he had sexually assaulted the victim he said to her, ‘If you tell the police or mammy or daddy I will come down and burn the house when they are all asleep’. The learned sentencing judge found that this was a credible threat. These are clearly threats of serious violence within the above cited definition of ‘aggravated sexual assault’. Therefore in the view of this Court the culpability of the [respondent] has to be of a very high level.”

The Court went on to describe in detail the nature and extent of the attack on the victim. Finnegan J. then added (at page 15):

“While the assault was very serious and serious harm was undoubtedly done to this unfortunate victim in this case, having regard to the types of indignity, physical abuse and depravity to which other victims of aggravated sexual assault have been subjected and to the effects which their ordeal has had on some victims, the Court is satisfied that this particular aggravated sexual assault lies in the mid to upper range of seriousness on the scale of gravity of such assaults.”

Reference was then made to a probation report in respect of the respondent. At page 16 of the judgment the following passage appears:

“The author of the Probation Report on the [respondent] found that the [respondent] had insight into his offending pattern and that it was therefore critical that he receive therapeutic counselling within the Prison Service. Significantly, the author is not prepared to put the matter further than that this

may

(emphasis added) assist him in controlling his emotional needs, sexual deviance, anger and substance abuse. Because of the [respondent’s] previous history of repeated sexual offending, his deeply dysfunctional background, his lack of education, his substance abuse, his lack of marketable skills, his difficulties in social integration, his failure to persevere in the Sex Offenders Programme during a previous period of incarceration and the fact that custody, (in his case long terms of imprisonment), does not appear to be a deterrent, the author concluded that the [respondent] represented a high risk of re-offending a conclusion which this court considers to be entirely appropriate and justified.”

The Court added (at page 17):

“This [respondent] must be incapacitated from re-offending for a long time by way of a long term of imprisonment. This custodial sentence must also reflect the censure of society on the [respondent] for his shocking crime in the instant case. While being careful to abide by the principle of proportionality this Court should also take into account an element of individual and general deterrence. Having regard to the information before this Court as to the character, disposition, circumstances and previous record of the [respondent], the term of the sentence in this case will have to be increased substantially from that which the Court might otherwise consider appropriate for this particular aggravated sexual assault. Such an increase is necessary to remove the [respondent’s] capacity to offend, to eliminate so far as possible his desire to re-offend and to reduce the likelihood of a reoccurrence of his offending on his release from imprisonment. In the opinion of the Court the object of general deterrence, causing others who might be tempted to commit similar aggravated sexual assaults on females to desist, must also be met.”

The Court concluded that the imposition of a sentence of life imprisonment on the respondent amounted to an error in principle. In those circumstances the Court substituted a sentence of sixteen years imprisonment from the 13th March, 2006 but suspended the final three years of that term on the respondent entering into a bond to keep the peace and be of good behaviour for a period of five years from his release. The Court then stated:

“The Court will in addition impose a period of ten years post-release supervision on the [respondent].”

The Order drawn and perfected on 10th September 2013 pursuant to the judgment in relation to post release supervision states:

“And pursuant to Section 29 of the Sex Offenders Act 2001 the Court doth make a Post-Release Supervision Order for a period of 10 years from the date of such release”

Section 29 of the Sex Offenders Act 2001 insofar as relevant to this application provides:

“29 - (1) - A court may impose on a sex offender in respect of the sexual offence concerned a sentence involving post-release supervision, that is to say a sentence which consists of -

(a) . . .

(b) a provision that during a specified period (‘the supervision period’) commencing on the date of the offender's release from prison, the offender shall be under the supervision of a probation and welfare officer and requiring the offender to comply with such conditions as are specified in the sentence for securing that supervision.”

The Application
The application before the Court was primarily to amend the order made by the Court of Criminal Appeal herein on the 31st July, 2008 by the insertion in the order of conditions being “such conditions as the Court considers necessary for securing the supervision of the respondent by a probation and welfare office under s. 29(1)(b) of the Sex Offenders Act 2001”. It also sought further or other orders.

The application was grounded on an affidavit of Padraic Taylor, a solicitor in the Solicitors Division of the Office of the DPP. In the course of his affidavit he referred to the provisions of the Sex Offender Act, 2001 and in particular s. 29(1)(b) of that Act. Mr. Taylor pointed out that the order of the Court did not specify any conditions for securing the supervision of the respondent and then stated .

“. . . that it is common practice for sentencing judges to specify that an accused who is made the subject of a post-release supervision order must abide by the lawful instructions of any probation and welfare officer who is assigned to work with him on release”.

Submissions
Counsel on behalf of the DPP, Mr. Barron, S.C. has argued that in order to give effect to the decision of the Court of Criminal Appeal it is necessary to impose conditions. He emphasised that what is proposed to be in the order by way of amendment is a standard condition.

In support of his contentions he referred to the decision of the Court of Criminal Appeal in the case of the Director of Public Prosecutions v. Comerford, Brennan and Griffin [2014] IECCA 32, a judgment of Hardiman J. The application before the Court in that case related to the question of whether, following the quashing of the convictions in respect of two of the accused, namely Messrs. Comerford and Griffin, an application for a re-trial could be made. It appears that no application for a re-trial was made on the day when the conviction was quashed. Some days later a motion was issued on behalf of the Director of Public Prosecutions seeking to apply for a re-trial in the case against Messrs. Comerford and Griffin. It was contended on behalf of the respondents to the motion that the Court was functus officio, “especially since the Order of the Court of Criminal Appeal which allowed the defendants’ appeal had already been passed and perfected.” Despite the arguments made in that case the Court of Criminal Appeal went on to consider the question of a re-trial. As was stated by Hardiman J. (at page 1):

“The Court is satisfied from the judges’ recollection of what transpired on 31st March, 2014, from their own notes made on that occasion and, from page 7 of the transcript of the D.A.R., that it was the intention of this Court to adjourn dealing with the question of a re-trial to give Senior Counsel for the prosecution an opportunity to take instructions from the D.P.P. As Ms. Gearty, S.C. had no instructions regarding bail the Court discharged all three accused but without prejudice, in the case of Griffin, to the lawful warrant on which he was held in custody on another matter. . . .

The Order made on 31st March, 2014, and perfected, 2nd April, 2014, does not therefore ‘carry out the intention and express the meaning of the Court at the time the Order was made’. [In Re Swire 30 Ch. Div. 239 per Bowen L.J.].”

Reference was made in the course of the judgment to a number of authorities which permit the amendment of an order already passed and perfected. At page 1 of the judgment, it was stated as follows:

“The Court is satisfied therefore that the matter comes within the second case identified by Romer J. in

Ainsworth v. Wilding

[1896] 1 Ch 673 at 677, where an order even though passed and perfected and in the form of a final order may be amended. This occurs where:

‘The Court itself finds that the judgment as drawn up does not correctly state what the Court actually decided and intended: (

In Re Swire

30 Ch. Div. 239). Bowen L.J. in

In Re

Swire

added:- ‘provided the amendment be made without injustice or on terms which preclude injustice’. Though he refers to ‘judgment’ it is perfectly clear from the context and the reference to

In Re Swire

that Romer J. was using ‘judgment’ in the sense of a formal order drawn up following a determination and not the conclusion of the Court and the reasons given for it.’

Ainsworth v. Wilding was followed and applied by the Supreme Court in Belville Holdings Ltd (in Receivership and in Liquidation) v. Revenue Commissioners [1994] 1 ILRM 29, per Finlay C.J. at 36 & 37.

In Lawrie v. Lees [1881] 7 App. Cas. 19 at 35, House of Lords [e] (cited in Thynne v. Thynne [1995] p. 272 at 313 and by Lord Denning M.R. in R&T Thew Ltd v. Reeves [1981] 2 All E.R. 964 at 975), Lord Penzance held:

‘I cannot doubt that under the original powers of the Court, quite independent of any order that is made under the Judicature Act, every Court has the power to vary its own orders which are drawn up mechanically in the registry or in the office of the Court - to vary them in such a way as to carry out its own meaning, and where language has been used which is doubtful, to make it plain. I think that power is inherent in every Court. Speaking of the Courts with which I have been more familiar all my life, the Common Law Courts, I have no doubt that that can be done, and I should have no doubt that it could also be done by the Court of Chancery. Moreover, having regard to the orders made under the Judicature Act, I should myself have thought that it would very well have come under those orders. I recommend your Lordships not to make any variation of this order, but to affirm it as it stands without prejudice to any such application to the Court below.’”

Mr. Barron also relied on the decision in the case of In re Greendale Developments Limited (No. 3) [2000] 2 I.R. 514. Hamilton C.J. in that case also referred to the decision in Ainsworth v. Wilding and having done so stated (at page 527) as follows:

“However, it set out in detail the common law principle concerning the question, holding that where a final order has been made and perfected it can only be interfered with

(1) in special or unusual circumstances, or

(2) where there has been an accidental slip in the judgment as drawn up,

(3) where the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.

The restriction on the power of a court to amend or vary an order which has been made and perfected, therein set forth, must apply to an application to set aside an order.”

Relying on that authority it was the contention of Mr. Barron that this Court had jurisdiction to amend the order on the basis that the order as made and perfected did not correctly state what the Court actually decided and intended.

Mr. Michael Bowman, S.C. on behalf of the respondent did not take issue with the general principles applicable to an application to amend an order of the Court having been passed and perfected. He did not dispute that the Court of Criminal Appeal decided that the respondent be the subject of a s. 29(1) supervision order for ten years from release i.e. that he be under the supervision of a probation and welfare officer during that period. However he laid emphasis on the fact that nowhere in the judgment of the Court of Criminal Appeal was there any indication as to the intention of the Court as to the conditions that might be considered appropriate having regard to the circumstances of the case. In the absence of any clarity as to what was intended by the Court by way of the conditions that might be applied in that regard, he submitted that it was not open to this Court to make an order amending the terms of the order of 31st July, 2008 by adding a condition such as that suggested by Mr. Taylor in the course of his affidavit.

Decision
The Court also had the benefit of a helpful passage from The Criminal Process by Thomas O’Malley which was referred to in the course of the submissions. The passage at para. 15.45 considered the relevance of the slip rule and the extent of its application in the context of District Court Rules. He observed:

“The application of the slip rule was recently considered in some depth by Cooke J. in

DPP v. Reilly

, where a defect occurred in an order sending a person forward for trial to the Circuit Court. The schedule of charges was inadvertently left blank. This led the Circuit Court Judge to conclude, quite reasonably, that he was without jurisdiction to deal with the matter, and the principal question for the High Court was whether the slip rule might appropriately be applied. Having considered earlier authorities relating to the slip rule in the Superior Courts, Cooke J. said:

‘It clearly emerges from this case law that a court has power to make good accidental errors or omissions in orders so as to ensure that they correctly reflect the intended effect of the court’s judgment or decision and this is so even where the judgement or order is one finally disposing of the rights of the parties.’

Although a court may be functus officio in the sense of having disposed of the matter finally, it retains an inherent power to remedy accidental errors and omissions in any order drawn up. The purpose of the rule is to avoid a situation in which the proper jurisdiction of the court is prevented from taking full effect as a result of an accidentally incorrect or defective order. In DPP v. Reilly, it also appeared that the District Court Judge was no longer sitting in the area where the relevant order was made. Cooke J. did not consider this to be an obstacle to the operation of the slip rule and distinguished it from the situation which had arisen in relation to the issue of a search warrant in Creaven v. Criminal Assets Bureau. He held that the application of the slip rule does not amount to a judicial act in the sense of the exercise of a power of adjudication. It is more in the nature of an administrative or ministerial act ‘in that it is a necessary and automatic step in reproducing correctly the content and effect of what was decided and pronounced in court’.”

I think it is clear from the authorities referred to above that notwithstanding the fact that an order has been ‘passed and perfected’ the order can be amended in certain circumstances. Thus, as Hamilton C.J. set out in the case In re Greendale Limited, an order can be amended where there has been an accidental slip in the judgment as drawn up or where the Court finds that the judgment as drawn up does not correctly state what the Court actually decided and intended.

This Court has the benefit of a lengthy and considered judgment of the Court of Criminal Appeal in this matter. The Court was satisfied that the imposition of a sentence of life imprisonment amounted to an error in principle and accordingly substituted a lesser sentence on the respondent. Having done so, it provided for a period of post-release supervision.

The Sex Offenders Act 2001 provides, as set out above, a power for the Court to impose a period of post-release supervision on a sex offender. Clearly, it was decided by the Court of Criminal Appeal that the respondent in this case was one who would require and, no doubt, benefit from a ten year period of post-release supervision. Having regard to the terms of s.29(1)(b) this was a decision that during the ten year period the respondent be under the supervision of a probation and welfare officer. The imposition of a requirement of post-release supervision also enures for the benefit and protection of society. However, no conditions were specified in the course of the judgment of the Court of Criminal Appeal. This Court is unable to ascertain the intention of the Court of Criminal Appeal as to conditions to be imposed from the judgment. The principles identified in the authorities referred to above permit the Court to amend an order where the Court finds that the order as drawn up does not correctly state what the Court actually decided and intended. This Court is not in a position to say that the Court of Criminal Appeal intended to impose a condition to the effect that the respondent “must abide by the lawful instructions of any probation and welfare officer who is assigned to work with him on release”. While that may be a condition which is frequently imposed, and as suggested by Mr. Taylor in his affidavit may well be common practice to impose, it is simply not possible for this Court to say that that was the condition decided or intended by the Court of Criminal Appeal to be imposed on the respondent on the 31st July, 2008. In those circumstances, this Court is of the view that it would not be appropriate to make the order sought herein. However, for the reasons stated, the Court is satisfied that the Court of Appeal in its judgment of 31st July 2008 decided and intended that the respondent be under the supervision of a probation and welfare officer for ten years from the date of his release and accordingly will make an order amending that part of the order of 31st July 2008 as relates to post release supervision by the addition of the words underlined so as to provide

“And pursuant to Section 29 of the Sex Offenders Act 2001 the Court doth make a Post-Release Supervision Order

that the said [name of respondent] be under the

supervision of a probation and welfare officer

for a period of 10 years from the date of such release”

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