The High Court has refused an application by Karl O’Brien challenging the legality of his detention after he received a six-month sentence for the attempted robbery of a schoolboy.
Mr Justice Hogan ruled on 22 October 2014 that the Article 40.4.2 application did not establish a fundamental breach of the applicant’s constitutional rights. He said the order of conviction was valid on its face and that any imperfections in the District Court sentencing hearing should have been addressed through an appeal to the Circuit Court.
The sentence followed Mr O’Brien’s guilty plea to attempting to rob a 17-year-old student who was returning from school. At the sentencing hearing in Bray District Court on 24 July 2014, a prosecuting garda described the offence and told the court that Mr O’Brien had 77 previous convictions, including numerous offences in recent years.
The judge said a custodial sentence was “more or less inevitable” given the offending history and the circumstances of the offence. Defence counsel sought an adjournment to present mitigation, including evidence of a full-time FÁS training programme, a six-week Health Service Executive course, help from Alcoholics Anonymous and a stable relationship with twin daughters.
After listening to the hearing’s digital audio recording, Mr Justice Hogan rejected the claim that the District Judge had unfairly prevented defence counsel from making submissions. He said the substance of the mitigation case had been adequately conveyed, although the hearing may not have been “absolutely perfect or ideal”.
The applicant’s counsel argued that the appeal route was effectively unavailable because recognisances had been set at €800, including a €400 cash lodgement, and his client was in financial difficulty. Mr Justice Hogan said the required lodgement for an unemployed and impecunious defendant with two young children was troubling. He described an effective right of appeal against sentence as a fundamental constitutional value.
The judge said the applicant could appeal to the High Court against the amount of the cash lodgement. He did not decide whether such an appeal would be heard or what its outcome might be. He concluded that the applicant was in lawful custody and refused the Article 40.4.2 application.