The High Court refused a taxi driver’s application to quash two Circuit Court convictions, finding that his counsel had sufficient opportunity to ask to make submissions on sentence but did not do so.
In a judgment delivered on 7 June 2018, Ms Justice Faherty denied the relief sought in a judicial review challenge to the way the Circuit Court dealt with sentence and costs after a de novo appeal hearing in February 2017.
The driver had faced three summonses arising from allegations that he used offensive language towards a passenger and acted in an abusive and offensive manner. The Circuit Court set aside the conviction on the offensive-language summons after an error was identified on the face of the District Court order. It convicted him on the other two summonses.
The Circuit Court affirmed fines of €1,000 on each of those two charges, with four months to pay, and affirmed the District Court costs order. It also ordered a further €1,000 in costs for the appeal.
The driver argued that the judge moved directly from conviction to sentence without inviting submissions in mitigation or hearing about his personal circumstances, previous record or means. He said the sentencing exchange and the judge’s departure from the bench happened so quickly that his counsel had no fair opportunity to speak. The National Transport Authority disputed that account, arguing that counsel could have intervened during or after the sentencing exchange or asked the judge to return.
Justice Faherty accepted that the judge did not invite a plea in mitigation and that the prosecution did not prompt her to do so. The period from the sentencing ruling until the judge left the bench was about 40 seconds. The court also accepted that the driver’s counsel was taking notes during the sentencing ruling.
However, the judge found that counsel could have indicated in a few words that he wished to address mitigation and costs. She considered that the prosecutor’s request for appeal costs, and the tipstaff’s announcement that the court was rising, offered opportunities to intervene. If the judge had already left, counsel could have asked the registrar to have her recalled. The court was not satisfied that counsel would have been prevented from speaking if he had taken one of those steps.
The High Court concluded, on the balance of probabilities, that sufficient opportunity existed to seek a mitigation hearing. Because that opportunity was not used, the driver was not entitled to the discretionary relief sought. The court refused the application to quash the convictions; it did not make a finding that the driver had received a mitigation hearing.