David Hyland (applicant) v His Honour Judge Patrick McCartan (respondent) and the Director of Public Prosecutions (respondents).

Judicial Review - Whether a plea of guilty entitles an accused to a reduced sentence - Whether the District Court judge has discretion to treat a plea of guilty as a mitigating factor in sentencing.

The High Court (before Miss Justice Laffoy ); judgment delivered 26 June 1998.

A plea of guilty is a relevant factor to be considered in the imposition of a sentence and may, depending on the circumstances in each case, be a mitigating factor; it does not automatically prevent the imposition of the maximum penalty. The High Court does not have the jurisdiction in judicial review proceedings to consider whether sufficient weight was attached to a guilty plea in imposing a sentence; that is a matter for the discretion of the sentencing judge.

The High Court so held in finding that an application for an order of certioari must fail where the applicant had pleaded guilty to 23 charges under the Road Traffic Acts and the maximum custodial sentence of 24 months was imposed.

Michael O'Kennedy SC and Andrew Kelly BL for the applicant; Feichin McDonagh BL for the respondents.

Miss Justice Laffoy set out the facts. On 12 September 1996 the applicant appeared in the District Court to answer 23 charges under the Road Traffic Acts. He pleaded guilty to all of the offences which occurred on four separate occasions. The applicant pleaded guilty to the charge of driving without insurance on each of the four occasions. Judge Windle imposed terms of imprisonment in respect of some of the offences charged and, in total, the applicant was sentenced to 24 months imprisonment, being the maximum term of imprisonment which could be imposed pursuant to the provisions of section 5 of the Criminal Justice Act 1984. The applicant appealed the orders of the District Court to the Circuit Court and the appeal came on for hearing before the first respondent on 23 July 1997. The applicant was represented by a solicitor and counsel and, in effect, the appeal was an appeal against the severity of the sentences imposed in the District Court. Counsel for the applicant in that appeal said that the applicant was a drug addict and was trying to deal with his habit and that a reduction or suspension of sentence would help his rehabilitation.

Having inquired as to the applicant's previous convictions the first respondent was apprised that the applicant had twelve previous convictions including convictions on 28 June 1994 for making a false declaration to obtain insurance, uttering a forged driving licence and having no driving licence or insurance, for which he received a six month sentence and was disqualified for twelve years. The list of previous convictions also included the imposition by the first respondent of a five months suspended sentence and disqualification from driving for seven years, four weeks earlier, on 27 June 1997, for driving without insurance. On that occasion the applicant had made a plea in mitigation similar to the plea he had made on 23 July 1997. The first respondent affirmed the orders made in the District Court and said that the applicant had an appalling record.

Counsel for the applicant submitted that in imposing the maximum penalty and in failing to give the applicant a "discount" for his plea of guilty, the first respondent acted in a manner which was inconsistent with the duty imposed by law on him and in excess of his jurisdiction. In the circumstances, it was submitted, an order of certiorari was available to the applicant and the decision of the first respondent should be quashed. In support of his contention that the first respondent was obliged to "discount" the maximum sentence in favour of the applicant on account of his guilty plea, counsel for the applicant cited the decision of the Court of Criminal Appeal delivered on 15 December 1997 by Mr Justice O'Flaherty in The People (DPP) v Martin Gannon, in which the accused had pleaded guilty to a charge of unlawful possession of a quantity of heroin for the purpose of sale or supply contrary to sections 15 and 17 of the Misuse of Drugs Act 1977, as amended. In that case the court, taking into account the plea of guilty, gave a discount in sentence.

Counsel for the respondents took issue with the proposition that the maximum penalty had been imposed on the applicant, in that, in addition to a maximum custodial sentence of 24 months, the District Court and the Circuit Court could also have imposed fines aggregating £7,700 on the applicant. Moreover, it was contended that the District Court judge was constrained by the relevant provisions to impose consecutive sentences amounting in total to a period not greater than 24 months. At all times the first respondent was acting within jurisdiction and within the parameters of the authority conferred on him by the Oireachtas. Counsel for the respondent said that certiorari is not a form of appeal and certiorari does not lie to quash a decision within the jurisdiction of an inferior tribunal on the grounds that the decision is wrong on matters of fact.

In reaching her conclusion, Miss Justice Laffoy cited The People (DPP) v Tiernan [1988] IR 250 where the Supreme Court held that a plea of guilty is a relevant factor to be considered in the imposition of a sentence and may constitute a mitigating circumstance. The word "may" indicated that the weight to be given to a plea of guilty in the particular circumstances of any imposition of sentence is a matter of fact within the discretion of the sentencing judge. In affirming the order of Judge Windle, who had undoubtedly acted within jurisdiction, the first respondent had also acted within jurisdiction.

There were various factors which he was required to have regard to in imposing a sentence. The weight he attached to various factors is not a matter which the court is entitled to scrutinise on an application for judicial review. It would be outside the scope of the High Court's jurisdiction in judicial review to find that the first respondent did not give sufficient weight to the plea of guilty as a mitigating factor.

In the circumstances the application failed and the relief sought by the applicant was refused.

Solicitors: Anthony Murphy (Dublin) for the applicant; Chief State Solicitor for the respondent.