The Court of Criminal Appeal has certified a point of law for appeal to the Supreme Court concerning its power to review a sentence after finding it unduly lenient.
In a ruling delivered on 14 May 2009, the court granted Rory Lernihan a certificate under section 3 of the Criminal Justice Act 1993. It determined that the case raised a point of law of exceptional public importance and that an appeal would be desirable in the public interest.
The certified question is whether the Court of Criminal Appeal may find an aspect of a sentence, or the sentence itself, unduly lenient when the Director of Public Prosecutions has not indicated that view in an application under section 2 of the 1993 Act.
The question followed the court’s 18 April 2007 decision on the Director’s application to review sentences imposed on Lernihan in Cork Circuit Criminal Court. He had pleaded guilty to possessing cocaine for supply, with a market value above €13,000, and possessing cannabis. The trial court imposed concurrent four-year terms and suspended the final two and a half years.
The Director argued that the suspension was unduly lenient. Lernihan’s side argued that the Director had abandoned any challenge to the four-year term itself and that the appeal court could not revisit that part of the sentence.
The appeal court held that the sentence was a single sentence and that, once it found the sentence unduly lenient, it could quash the whole sentence. It said the Director’s submissions did not limit its statutory power to consider the appropriate sentence afresh. The court then imposed seven years’ imprisonment, taking account of the offence and the mitigating circumstances it identified.
The 2009 ruling certified only the legal question for a possible Supreme Court appeal. It did not decide that appeal or alter the seven-year sentence imposed in 2007.