The Supreme Court has allowed an appeal over the sentence imposed on Maurice Colbert, agreeing that it should be reassessed after the conviction that had influenced the original sentence was quashed.
In a judgment delivered on 28 November 2016, O’Donnell J said that when Colbert was sentenced in July 2011, he had a previous conviction for a related and more serious offence. The sentencing judge considered that conviction, and imposed a four-year sentence. The Supreme Court judgment records that no one argued the sentence was excessive based on the facts then before the trial judge, or that the judge had erred by not backdating it.
Colbert appealed his conviction and sentence in both cases. He withdrew his appeal against conviction in the later case. By the time the Court of Criminal Appeal heard his appeal against sentence in July 2013, the conviction and sentence in the earlier case had been quashed. The complainant had told the Director of Public Prosecutions that earlier trials had taken too much out of her physically and mentally and that she did not want to give evidence. The DPP had indicated an intention to enter a nolle prosequi.
O’Donnell J examined whether the Court of Criminal Appeal could take those later events into account despite finding no error of principle by the trial judge. He said there was generally a rule against considering matters arising after trial, but that an exception applied where justice required it, particularly if later events fundamentally falsified assumptions shared at trial. He concluded that by the time of the sentence appeal, Colbert was to be treated as a person with no previous convictions, and justice required the sentence to be assessed on that basis.
This was O’Donnell J’s additional judgment. He agreed with the joint judgment of Charleton and O’Malley JJ and the disposition they proposed: that the appeal be allowed. The source does not set out the precise replacement sentence or any further order.