The Court of Criminal Appeal refused an application by Patrick Rafferty for a certificate allowing him to appeal to the Supreme Court on a question about deterrence in sentencing. The court held that the proposed question did not arise from its earlier decision on his sentence appeal, as required under section 29 of the Courts of Justice Act 1924.
Rafferty had pleaded guilty in November 2006 at the Central Criminal Court sitting at Limerick to soliciting the murder of his separated wife. The offence was alleged to have occurred in February 2005 near premises in Nenagh, County Tipperary. In January 2007, he was sentenced to seven years’ imprisonment, against a maximum sentence of ten years.
The Court of Criminal Appeal dismissed his sentence appeal in December 2007, finding no error of principle and no basis to regard the sentence as unduly severe. In that appeal, Rafferty argued that the sentencing judge had given insufficient weight to mitigation, including his previous good character, guilty plea, personal circumstances and remorse. His written submissions accepted that the judge could consider the offence’s rarity and the need for a deterrent element. In oral submissions, however, his counsel argued that the judge had been influenced by an English case and that a substantial deterrence approach was not suitable where the offence had not taken root in Ireland.
For the certificate application, Rafferty proposed the question: “In circumstances where an offence is not prevalent or has not taken root in the jurisdiction, is it correct for the Court to have regard to a substantial deterrence factor when sentencing a particular individual for the offence.” The Director of Public Prosecutions opposed the application, arguing that the question was not the issue decided in the sentence appeal.
The court said a certificate under section 29 could address only a point of law involved in the Court of Criminal Appeal’s own decision. It had found in the earlier appeal that the sentencing judge considered an “element of deterrence” in the circumstances, not a “substantial deterrence factor”. The court had neither endorsed such a substantial factor nor ruled on whether it could be appropriate in another case.
It said deterrence was a lawful sentencing consideration and that the evidence in this case supported its relevance to the particular circumstances. But because the proposed question rested on the premise that a substantial deterrence factor had been applied and upheld, it did not arise from the court’s earlier decision. The application for a certificate for leave to appeal was refused. The ruling addressed the certificate application; it did not grant leave to appeal to the Supreme Court.