An Chúirt Uachtarach
The Supreme Court
O’Donnell J
McKechnie J
Clarke J
Charleton J
O’Malley J
Supreme Court appeal number: 2016 no 000079
[2017] IESC 047
Court of Criminal Appeal record number: 2008 no 218
[2016] IECCA 1 and 3
Circuit Criminal Court bill number: 2007 CY 136
The People (at the suit of the Director of Public Prosecutions)
Prosecutor/Appellant
- and -
Perry Wharrie
Defendant/Respondent
Judgment of Mr Justice Peter Charleton, delivered on Monday, July 3rd 2017
1. This appeal arises out of a major drugs importation. At issue is whether a person convicted by a jury who had not given perjured evidence in defence of himself at his trial is entitled to a reduction of the sentence appropriate to his crime. Under s. 29(3) of the Courts of Justice Act 1924 as amended by s. 22 of the Criminal Justice Act 2006, the Director of Public Prosecutions is entitled, following an appeal in the Court of Criminal Appeal, to certify a question for the consideration of the Supreme Court, without prejudice to the existing outcome. Following the judgment of the Court of Criminal Appeal on the 15th day of February 2016, [2016] IECCA 1, Hunt J, with MacMenamin and Moriarty JJ concurring, leave of the Court of Criminal Appeal to appeal sought by the Director of Public Prosecutions was refused; [2016] IECCA 3. The Director of Public Prosecutions then certified this question for appeal to this Court on the 31st of May 2016:
Is it a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give evidence at his trial?
2. The notice of appeal of the Director of Public Prosecutions 15th day of June 2016 asserts that this is not a correct principle and sets out three grounds of appeal:
1. That the failure by an accused to give evidence in his trial cannot be considered as a factor which should mitigate his sentence;
2. That the failure by an accused to give evidence in his trial can at most be considered as the absence of an aggravating factor;
3. Whether or not an accused gives evidence at his trial is not a relevant factor as regards his sentence.
Background facts
3. Early on the morning of the 2nd of July 2007, Gerard Hagan, an Englishman, who was panicked and drenched to the skin by seawater, called to a private home in Dunlough Bay in County Cork and sought help. His story was that his boat had sunk. He had gotten ashore, he told the family, but another man remained in the sea. That was indeed the case. The emergency services were called. On the lifeboat being launched, they found another Englishman called Martin Wanden floating in the ocean in a force 6 gale, with a collapsed and disabled boat nearby. This was a rigid-hulled inflatable boat, sometimes called a RIB, which is a lightweight but high-performance and high-capacity boat, constructed with a solid, shaped, hull and flexible inflatable tubes at the gunwale. While designed to be stable and seaworthy in challenging conditions, the Atlantic waves had defeated it. Floating around the shipwrecked man in the water were bales of what later proved to be almost pure cocaine, a controlled drug under the Misuse of Drugs Acts 1977 and 1984. When recovered, and subsequently analysed, the weight of the cocaine was found to be 1.5 tonnes. On the headland overlooking the bay, a green Land Rover Defender jeep had been abandoned. Nearby, and apparently keenly observing the rescue, were the accused Perry Wharrie and another man, Joseph Daly. Though soaked through, and clearly the victims of the same accident at sea as the seafarer then being fished out of the water, they were not prepared to admit it. They spoke briefly to members of the Coast Guard and then walked away, making through the fields and putting distance between themselves and this bizarre scene. Two days later, they were arrested in a dishevelled state. Following hospital care, Martin Wanden was also arrested on the 5th of July.
4. The background facts were investigated by the gardaí. It emerged that this group of four men had sourced cocaine in South America and determined on a plan of importation, with Ireland being either a staging post or perhaps the final destination. They had stowed the drugs in an ocean-going catamaran, called Lucky Day, and sailed eastwards across the Atlantic. The catamaran was brought to on the open water south west of Mizen Head, where the RIB was planned to take on the contraband for freighting ashore. While approaching the Cork coast, the RIB sank. At Perry Wharrie’s trial, it was disclosed that considerable funds had been invested into this criminal enterprise, with the purchase of the cocaine at wholesale value coming to perhaps €330,000. It also involved the purchase of the catamaran, three jeeps, two RIBs, fitting out the conspirators with false identities and passports, and providing them with sophisticated communications equipment, including satellite telephones, so that Lucky Day could be tracked as it made its ill-starred passage between continents. The weather, however, literally sank the enterprise.
Sentencing factors
5. The accused Perry Wharrie had a long criminal record in England. He was born in August 1959 in east London and was first convicted at Bromley Magistrates Court for theft in 1978. There followed property offences, burglary, obtaining property by deception, and the like, with two counts of possession of drugs in 1985. In April 1989, he was convicted of murder, associated with robbery and the possession of firearms. The murder count carried a mandatory sentence of life imprisonment, while the robbery with firearms resulted in a concurrent 15 year jail term. On being released on licence in 2005, Perry Wharrie broke the conditions of his licence, cut off contact with his parole officer and left England. He travelled into Ireland under a false passport using the name Andrew Woodcraft. While no one was identified as the leader of this criminal enterprise, nothing about the approach of the men involved indicated anything less than full commitment.
6. In Cork Circuit Criminal Court, Perry Wharrie faced a charge under s. 15A of the Misuse of Drugs Act 1977 as amended, which fixes a minimum 10 year sentence for the possession of controlled drugs for unlawful sale of supply exceeding €13,000 in value. Here, the estimate for the value of the drugs on the open market, at retail rates, varied between €108 million and up to around €400 million. Gerard Hagan pleaded guilty on arraignment but Perry Wharrie, Martin Wanden and Joseph Daly, as was their right under our system of justice, put the prosecution on proof by pleading not guilty. On the 28th of May 2008 they were all tried before Judge Seán Ó Donnabháin and a jury. This involved a 42 day trial, during which two of the accused, but not Perry Wharrie, gave evidence in their own defence. That evidence was later, at sentencing stage, described by the trial judge as an “insult to the intelligence of the jury” but, notwithstanding those sterling efforts, on the 22nd of July 2008 all three were found guilty. Gerard Hagan was sentenced to 10 years imprisonment; Joseph Daly was sentenced to 25 years imprisonment; and a 30 year sentence was handed down to Perry Wharrie and Martin Wanden. In the appeal of Joseph Daly, the Court of Criminal Appeal refused to interfere with his sentence, McKechnie J delivering a comprehensive analysis of sentencing principles in refusing leave to appeal, a reference point on so many aspects of this difficult area; [2012] 1 IR 476. Gerard Hagan was transferred from Ireland to Kirkham Prison in England to serve the remainder of his 10 year sentence in 2010, but apparently escaped in July 2012. What happened thereafter is not relevant.
7. Perry Wharrie’s appeal to the Court of Criminal Appeal resulted in the reduction of his sentence of 30 years to one of 17 years and 6 months. Examining the written submissions on both sides, as lodged in the Court of Criminal Appeal, the question now before this Court is not mentioned. Clearly, that argument of reduction in sentence because of no perjured evidence from an accused emerged from his counsel during the hearing. The ingenious argument was, in any event, successful. In Hunt J’s judgment for the Court of Criminal Appeal, the situation of Perry Wharrie, who had not given evidence in his own defence, was contrasted with that of his co-accused Martin Wanden and Joseph Daly. At paragraphs 5-8 of his judgment, Hunt J stated:
Two features are of particular relevance to the position of the appellant in this appeal. Firstly, unlike his co-accused, he did not contest the matter by giving evidence, in circumstances where the jury apparently had no difficulty in convicting all of the accused men. Secondly, it must be noted that the appellant had a lengthy and serious criminal record … at the time of his involvement in these matters … [and that] this criminal record included convictions for murder, robbery, possession of a firearm with intent to endanger life, and possession of a firearm while committing a scheduled offence… Insofar as it may be relevant, the Court was informed that the conviction for murder was recorded against the appellant as a participant in a joint enterprise. The unfortunate victim was a policeman. …
Both of the other accused persons testified at the trial. The … trial judge regarded the evidence given by those co-accused as being an aggravating factor in their cases. This does not apply in the case of the appellant. The … trial judge correctly recognised that this was a mitigating factor potentially available to the appellant on the facts of the case. The question is whether he actually gave the appellant any credit for such mitigating circumstances?
In essence, this Court considers that the learned trial judge erred in principle by failing to afford any credit to the appellant for this significant element of potential mitigation. He considered that it was in fact cancelled out by what the learned trial judge described as the appellant’s “lamentable antecedence”, in reference to his criminal record. The Court considers that this was an error in principle in the circumstances of this case. The appellant ought to have received credit in respect of the mitigating factor that he did not attempt to tender false evidence.
8. The Court of Criminal Appeal clearly regarded the decision by Perry Wharrie to shun the witness box and any attempt at perjury in defence of himself as being a significant factor. While treating testimonials on the behaviour of the accused while on remand as being a mitigating factor, also taking into account his age and isolation from family members due to imprisonment in Ireland as an Englishman, these were regarded as only requiring “a modest discount” at sentencing. The error in principle, as the Court of Criminal Appeal so described it, was clearly a major factor. At paragraphs 20-21, the result was:
[T]his Court will quash the sentence imposed by the … trial judge, and substitute a sentence … consisting of twenty-two years and six months as a headline sentence, with five years deducted therefrom to reflect all applicable mitigating factors.
The Court, therefore, will quash the sentence imposed by the … trial judge, and substitute the sentence identified above (being a sentence of seventeen years and six months) on the charge contrary to the provisions of s.15A of the 1977 Act, the said sentence to commence from the date upon which the appellant went into custody on these charges.
Mitigation and aggravation
9. Any offence is rarely to be described as ordinary. While offences are defined under common law or statute, within the parameters of its commission there will be variation on how seriously the offender infringed the law. Stealing a bar of chocolate from a supermarket is different to stealing a precious artefact from a national collection, yet both are theft. Fraud resulting in a cheque for a small amount being wrongly encashed in a bank is the same offence as a fraud which destroys the solvency of a major financial institution. Someone may kill another person unlawfully with one punch because of momentary anger, while the grossly negligent construction of a scaffold may result in the death of many but both are manslaughter. In setting very broad bands within which an offender may be sentenced, the law recognises the variability of offences. Apart from murder, where there is a mandatory life sentence, save for children where the sentence is discretionary, most crimes allow a judge to suspend a prison sentence or to suspend part of it, or to put an offender to work on a community scheme, or, on the other end of the scale, to sentence the convicted person to the maximum term. In the past, sentencing statutes tried to precisely predict and define the response to an offence. At the present time, there is much discussion of sentencing, but that is not new. While a mandatory minimum sentence, such as involved in this case, perhaps reflects a legislative will to strongly influence the punishment for crime, legislation from the last century is also witness to a motive to guide judges on what is the appropriate sentence for a crime. A prime example was the Larceny Act 1916, which defined theft in a precise way as an overall offence, but then set out defined maximum sentences which clearly indicated how the legislature regarded those who offended. Thus, stealing cattle, perhaps because farm stock cannot be guarded in fields, carried a higher maximum sentence than that which could be handed down for stealing a dog; harder to steal because of canine loyalty and because dogs as pets or working animals are normally kept much closer to their owners. Stealing oysters by dredging was a different offence with a different penalty to that which applied to stealing postal packets. The detail of past legislation is surprising in the light of the modern legislation which replaced it, namely the Criminal Law (Theft and Fraud Offences) Act 2001, which has few such nuances and which leaves judicial sentencing for particular categories of offences very much at large.
10. While the gravity of crimes varies, offenders also differ from one another: from those opportunistic offenders who seem to never have had much of a chance in life to those who meticulously plan and pursue crime as a way of life. Some offenders are the organisers of a criminal enterprise, such as drug and firearms importation, while others may be at the periphery of a crime gang. The actual nature of the offending contraband for possession-type offences is also a strong determining factor on the appropriate sentence. For example, the importation of cannabis leaf has been recognised as not necessarily as serious an offence as importing liquid lysergic acid diethylamide (LSD), a hallucinogen derived from lysergic acid. Both offences carry the same maximum sentence but it can be expected that the both the nature of the drug and the level of offender’s involvement will be taken into account on sentencing.
11. Thomas O’Malley in The Criminal Process (Dublin: Round Hall, 2008) the author notes at paragraph 22.01 that:
No area of law has attracted more public attention in recent years than the sentencing of criminal offenders. Ireland has so far refrained from adopting guidelines or other formal means of structuring judicial sentencing discretion. The principal restraints on judicial sentencing are the maximum sentences prescribed by statute, the jurisdictional limits imposed on courts of summary jurisdiction in relation to the use of imprisonment, certain general principles established by statute and, finally, those general principles which developed at common law and which have been confirmed and refined in judgments of the Court of Criminal Appeal and the Supreme Court … the courts have expressly refrained from indicating any benchmark or tariff sentences for [offences such as manslaughter, rape and dangerous driving causing death].
12. Outstanding work has been done as to the judicial approach to offences by the Judicial Researchers’ Office and meticulously researched papers for instance on robbery, manslaughter and drug offences are publicly available on www.irishsentencing.ie. These demonstrate the logic in the variability on sentencing and analyse in particular the aggravavating and mitigating factors that tend to move an offence from one broad band of sentencing precedent into another. Of course, these analyses are based on existing examples of judicial approaches to sentencing and are not binding. They are designed to help judges and practitioners and to make sentencing transparent. The papers demonstrate a consistent approach based on logical factors.
13. As O’Malley, cited above, recognises at paragraph 22.09, “[o]ne of the most widely accepted principles of sentencing is that a guilty plea should ordinarily be rewarded with a discount on the otherwise deserved sentence”. In Sentencing Law and Practice (Dublin: Thomson Round Hall, 2nd ed, 2006), the same author notes at paragraph 6-21 that:
Mitigation of sentence in response to a guilty plea may be justified on three grounds: it saves the criminal justice system time and money, it may indicate remorse on the part of the offender and, in certain cases, it saves the victim and others affected by the crime the experience of giving evidence and being subjected to cross-examination.
O’Malley further states at paragraph 6-31 that:
Few jurisdictions, if any, make formal provision for the amount of discount merited by a guilty plea, preferring to allow courts to assess the appropriate sentence reduction in light of the specific circumstances. In the vast majority of cases, failure to give adequate credit for a guilty plea will be an error of principle.
14. An admission of guilt by the offender can therefore be described as the most conspicuous and frequently occuring factor mitigating culpability for a crime. Even there, a wide range of variables come into focus. An accused may admit a crime simply because a reading of the evidence against him shows that there is almost no chance of an acquittal. In that context, an admission of guilt is only naively construed as a realisation of wrongdoing and a determination to set out on a better life. A plea of guilty may be entered at the first possible opportunity in such circumstances, and this may be different to eventually deciding to plead guilty when the offender ascertains that all of the witnesses have turned up to testify on the day of trial. The circumstances in which an admission of guilt is made ranges from the offender who, through conscience, goes to a police station many years after the offence and confesses, to an offender who makes an admission of culpability on arrest, to an offender who pleads guilty at the first opportunity, to an offender who pleads guilty on the date of trial, to an offender who initially pleads not guilty but runs an issue as to admissibility of, for instance, evidence found under a search warrant, and then changes their plea to an admission of culpability when the issue is decided in favour of the prosecution.
15. The neighbouring jurisdiction of England and Wales has a sentencing structure which operates on the basis of sentencing bands that can be departed from only by reason of factors particularly mitigating the involvement of the offender in the crime. Section 144 of the Criminal Justice Act 2003 provides:
16. Courts there also have a duty to explain sentence under s. 174(1). Tariffs are set not only by judges but are also set out in guidelines of the Sentencing Council for England and Wales which was created under the Coroners and Justice Act 2009. The issue of guilty pleas and their impact on sentencing is dealt with in the Reduction in Sentence for a Guilty Plea, Definitive Guideline which dates from 2007. At paragraph 4.3, the guideline provides that:
The level of reduction should reflect the stage at which the offender indicated a willingness to admit guilt to the offence for which he is eventually sentenced:
(i) the largest recommended reduction will not normally be given unless the offender indicated willingness to admit guilt at the first reasonable opportunity; when this occurs will vary from case to case …
(ii) where the admission of guilt comes later than the first reasonable opportunity, the reduction for guilty plea will normally be less than one third;
(iii) where the plea of guilty comes very late, it is still appropriate to give some reduction.
17. More specifically, the guideline states that a sentence would be reduced by 30% where a guilty plea is entered “at the first reasonable opportunity”, a reduction of 25% where entered before the trial date is set, and a reduction of 10% where entered after the trial has begun. In this jurisdiction, such reductions are not explicitly declared. However, it is acknowledged that an early guilty plea enables a trial judge to reduce the standard or expected sentence for the offence, while any later admission of guilt has a lesser significant impact at sentencing stage.
Conduct at trial
18. For Perry Wharrie, it is claimed that in a series of cases, the Court of Appeal and its predecessor, the Court of Criminal Appeal, have appeared to take the conduct of an accused at trial into account at sentencing stage. It is argued on his behalf that “the flexibility of approach inherent in the application of the proportionality principle” in sentencing allows all factors relating to the conduct of a trial to be taken into account, and that this includes giving credit to an accused who does not give perjured evidence in his own defence at trial. Perhaps the high point of this argument is the citation of The People (DPP) v DO’D (No 2) [2015] IECA 306, a case involving the commission of offences under s. 5 of the Criminal Law (Sexual Offences) Act 1993, the victim being a lady of limited intellectual gifts, in which the trial judge had identified as a relevant mitigating factor “the manner in which the trial was conducted, including the limited extent to which the victim was subjected to cross examination.” On appeal, Mahon J, giving judgment for the Court of Appeal in reducing the sentence, found that there had been an error of principle in not attaching sufficient weight to the manner in which the appellant participated in the trial. At paragraph 13, Mahon J stated:
The court is also concerned that the learned sentencing judge did not attach sufficient weight to the manner in which the appellant participated in his trial, and particularly, the extent to which counsel for the respondent was permitted to examine Miss A without interruption or objection from the appellant's counsel, and the relatively low key cross examination of Miss A by the appellant's counsel. Undoubtedly, these are matters which could reasonably be expected to have significantly reduced the stress of the proceedings for Miss A, and which deserved specific recognition in the sentencing of the appellant.
19. This case may have been an extreme one since the victim of the offences had a mental impairment. Nonetheless, the mitigating factor is hard to find since it is expected that counsel in any case, and in particular in trials involving witnesses with a disability, should conduct themselves in a proper manner. Counsel are expected to remain polite throughout a trial and this is notwithstanding the fact that difficult questions, or ones of an unpleasant nature, may need to be asked of witnesses. Possibly other factors were important in the decision but remained unexpressed? As a matter of general principle, it is hard to see how credit can be given to an accused person at sentencing stage for what is within the duty and responsibility of counsel. The corollary would be that sentence might be increased were counsel rude in court. That is not right. It is the duty of the trial judge to control the trial and to divert and dampen down the emotions that can often take hold of even professional advocates.
20. The Director of Public Prosecutions contends that the conduct of a trial may come within the remit of the trial judge’s discretion at sentencing, but that this cannot extend to treating the fact that an accused did not give false evidence in his own defence as a mitigating factor.
21. Mitigating factors in relation to the commission of a crime can take many forms. While these may change over time, established practice currently demonstrates that the personal difficulties and circumstances of an offender can be a legitimate factor resulting in some reduction of sentence. Examples include where the offender is of a particularly young or old age, where the offender is in ill-health, or where the offender is the primary carer of young children or elderly relatives. The relevance of this factor and the degree of discount granted is within the appropriate use of the trial judge’s discretion. It may also be a factor that an offender is likely to feel the effects of imprisonment more keenly than the general population, being from outside Ireland and not subject to the prisoner transfer scheme between this and the neighbouring jurisdiction. In rare circumstances, the delay between the commission of the offence and prosecution may not be the fault of the offender, but rather be inherent in the court system or because a victim has not reported an offence, and may be taken into account in appropriate circumstances. Good conduct during the period of delay may be relevant as to the character of the accused. The fact that an offender has been of particular assistance in police investigations may also be a mitigating factor at sentencing. In order to safeguard any later trial, the assistance of an accomplice should properly be responded to by that case being completed before any subsequent trial of co-offenders, and a definite sentence given. Finally, admissions of guilt and guilty pleas, especially an early plea are relevant mitigating factors as such may demonstrate the genuine regret of the offender.
22. When it comes to the conduct of a trial, some credit may be given to an accused who does not insist on the production of every witness who has preserved the scene of a crime or who has taken temporary custody of an exhibit. The criminal law, however, has not ever required mathematical certainty; proof beyond reasonable doubt is the standard. With the advent of sections 21 and 22 of the Criminal Justice Act 1984 as amended, an accused can admit a statement of evidence rather than requiring a prosecution witness to be called. A formal admission can also be made, such as that the deceased was a particular person who lived at a particular address, rather than requiring that a relative be called to give formal evidence. Similarly, entering a plea of guilty after a legal issue has been decided in favour of the prosecution may come within the category of actions which an accused at trial is not obliged to take but which, if taken, may demonstrate conduct that may properly be taken into account in mitigation at sentencing stage. It may reasonably be commented, however, that while these matters save prosecuting authorities time and money, these are lesser factors compared to an early plea of guilty which obviates the need for the organisation and attendance of witnesses.
Shunning perjury is not mitigation
23. As to the course of the trial, nothing should be taken into account at sentencing which would inhibit the full entitlement of an accused person to contest the case and to make whatever contrary case he or she regards as appropriate. While sentencing occurs at a stage of the trial when the presumption of innocence is no longer in place, it must be remembered that throughout the trial and up to the point where the jury, or the judge in a summary case, pronounces the accused guilty, he or she is an innocent person in law and is entitled to conduct the case on that basis. Nothing which would inhibit the constitutional entitlement to a trial in due course of law under Article 38.1 can be taken as being an aggravating factor at sentencing stage. Thus, for instance, it may be necessary for counsel to challenge police officers on the basis that admissions ostensibly made by the accused were obtained by coercion or were invented. That is a necessary part of the conduct of a criminal trial, and instructions to counsel to put unpleasant matters to witnesses cannot be a factor which can later be used to increase the sentence when the accused is found guilty. Were the principle otherwise, inhibition might hinder the defence of those presumed to be innocent. In Siganto v R (1998) 194 CLR 656, the High Court of Australia ruled out a sentencing judge treating as a circumstance of aggravation the fact that the victim found the experience of giving evidence particularly traumatic.
24. An illustrative case is R v Harper [1968] 2 QB 108. Counsel were instructed to challenge witnesses, including police officers, on the basis that the defendant had been subjected to intimidation and threats, and were required to allege that a number of prosecution witnesses were perjurers. A sentence of five years was reduced by the Court of Criminal Appeal to three years; the court considering that remarks by the trial judge could appear as if the accused was being punished for the conduct of the trial. At page 110, Lord Parker CJ stated:
It is true that the recorder goes on to say that his behaviour shows that he had no remorse and was only sorry because he had been caught. But, nevertheless, this court feels that there is a real danger, as in the previous case, that this defendant was being given what was undoubtedly a severe sentence because he had pleaded not guilty and had run his defence in the way indicated by the recorder. This court feels it is quite improper to use language which may convey that a man is being sentenced because he has pleaded not guilty, or because he has run his defence in a particular way. It is, however, of course proper to give a man a lesser sentence if he has shown genuine remorse, amongst other things by pleading guilty.
25. Perjury is a crime at common law in Ireland. While prosecutions are indeed very rare, and in the context of false evidence given by an accused in the course of his or her trial, may seem like a waste of effort where a conviction results in a substantial sentence, nonetheless the giving of false evidence on oath, and knowing such evidence to be false, which is the mental element of the crime, is a separate offence. There should be no conflation of that crime with whatever crime the accused is found guilty of. An accused is entitled to conduct a defence on a basis where conduct in court is not to be treated in law as the aggravation of the charge that he or she faces. It is for the trial judge to use the authority of judicial office to control and guide the process. In R v Richmond [1920] VLR 9, the Supreme Court in Victoria clearly enunciated the irrelevance of defence perjury to sentence as a principle, with Cussen J stating at page 12:
[e]xcept so far as is expressly enacted, an accused person giving evidence should be in the same position as any other witness, and subject to no greater fears or liabilities than any other witness. It would certainly act as a deterrent even to an innocent man giving evidence, especially where there is a strong case against him, if he knew that if the jury does not accept his evidence he may receive a sentence heavier than otherwise would be imposed. It seems to me that, in substance, the same considerations apply whether the Judge states expressly that he imposes a heavier sentence because the prisoner’s sworn statement was not accepted, or whether he states that he does not because of that fact reduce the sentence to what otherwise he would have done. The result, so far as the prisoner is concerned, is the same in both cases. In addition, the prisoner, like any other witness, is liable to prosecution for perjury, and if convicted should receive an adequate sentence for that offence. It would in such a case be punishing him twice if the Judge, in imposing sentence after the first trial, took into consideration the falsity of the accused’s sworn statement.
26. This issue also arose in the appeal of one of Perry Wharrie’s co-accused. In The People (DPP) v Joseph Daly [2012] 1 IR 476, the applicant sought to have his 25 year sentence overturned. One of the arguments advanced on his behalf was that the remarks of the trial judge describing the accused’s attempt to mislead the jury by giving false evidence could have been taken as the trial judge treating this aspect of the accused’s conduct at trial as an aggravating factor in sentencing. While content to accept the assurance of the trial judge that this had not been taken into account at sentencing stage, as explicitly and unambiguously stated by him in his sentencing remarks, McKechnie J remarked at paragraph 86 of the report:
It needs to be said however, that when commenting on extraneous matters, a judge must exercise not only measured restraint but considerably more, lest a wrong perception or impression might be given. In fact, unless relevant to a particular aspect of sentencing, it would be infinitely better to avoid such remarks entirely. In that way no misunderstanding could arise and no assertion could be made that justice has not been seen to be done.
27. At paragraph 79, McKechnie J also explicitly stated that the conduct of an accused during a trial is not to be taken into account at sentencing:
The law on this latter point is perfectly clear, leaving no room for ambiguity. It was said in The People (DPP) v. Maloney (1989) 3 Frewen 267 and repeated in The People (DPP) v. Gillane (Unreported, Court of Criminal Appeal, 21st December, 1998) that an accused has a legal (and, may I add, a constitutional) right to fight the case tooth and nail, as it was put and that his decision to so do must not add one day to his sentence.
28. In a wide-ranging review of the relevant authorities, the Court of Criminal Appeal determined that there was an entitlement vested in an accused to contest a case and that in doing so there should be no question of this being an aggravating factor at sentencing. No argument has been presented to this Court, that the principles so clearly enunciated in that decision were not soundly based.
29. In the result, it would be impossible to establish any principle whereby the apparent waste of court time or the presentation of what might colourfully be described as a scurrilous defence would add to the appropriate penalty in respect of the crime; see The People (DPP) v Shekale [2008] IECCA 28, (Unreported, Court of Criminal Appeal, 25th February 2008), and R v Gray [1977] VR 225.
30. These authorities are based on sound principle. An accused person is entitled to contest a case. While he or she may be given credit appropriate to an early admission of guilt, a plea of guilty, or, to a lesser extent, an approach to the trial process which saves time and money, no trial judge is entitled to aggravate the appropriate sentence because the accused gave perjured evidence in his own defence or in defence of others. Perjury is a separate crime and it is not a factor of aggravation of an existing offence. Finally, as a matter of principle, since perjury is a criminal offence as well as a grave moral wrong, it defies logic to conclude that failing to tell deliberate lies under oath or affirmation somehow mitigates the seriousness of an offence.
Result
31. The answer to the question certified, on a without prejudice basis, by the Director of Public Prosecutions, is that it is not a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give false evidence at his trial.
