Sentence set aside in judicial review proceedings where sentencing judge refused to adjournment sentence hearing

Simons J: Criminal law – judicial review – application to quash sentence imposed by Circuit Court – whether Circuit Court judge’s refusal to allow counsel opportunity to take instructions from accused person results in unfair hearing – three-year sentence of imprisonment imposed on defendant – defendant pleaded guilty before Carlow Circuit Criminal Court – defendant in custody for other offences – delay in bringing applicant to court for his sentence – defendant’s counsel who was briefed, had only recently come into the case – at call-over counsel sought a short adjournment but it was refused – sentence hearing called as first matter on the list by judge – unsubstantiated evidence given by An Garda Siochana in relation to allegations that defendant was a key member of an organised crime gang and that there was a number of convictions against the defendant in England – defendant offered to pay the sum of €5,000 by way of compensation to the victims – defence counsel explained that the defendant’s family members pooled together and brought the sum to court – judge indicated scepticism as to the actual source of the monies – defendant purported to challenge sentence by parallel procedural routes – judicial review and appeal against severity of sentence – judicial review not appropriate where defendant has an adequate alternative remedy by way of an appeal – judicial review is concerned principally with the legality of the decision-making process, and not with the underlying merits of the decision under challenge, save in cases of irrationality – entitlement to a constitutionally fair hearing at first instance – entitlement includes, inter alia, right to effective legal representation – refusal to afford an accused person a reasonable opportunity to consult with their legal representatives prior to a hearing, whether a full trial or a sentencing hearing, has the potential to undermine this right – refusal to grant a short adjournment resulted in a breach of the defendant’s right to a constitutionally fair hearing – defendant was a risk of, and ultimately received, a significant custodial sentence – adjournment would not have interfered with efficient running of court’s list – defendant was blameless as need for adjournment arose from circumstances outside his control – some weight can be attached to the fact that counsel for DPP supported application for adjournment – judge failed to provide any reasoned justification for refusal of adjournment – when accused person has demonstrated that a criminal trial has not been conducted in a constitutionally fair manner, it is not required to demonstrate actual prejudice – person who is at risk of having a term of imprisonment imposed upon them is entitled to a constitutionally fair hearing at first instance – appeal to court of appeal does not provide full remedy to this breach – this is one of the truly exceptional cases where the appropriate remedy is by way of judicial review – debate as to whether it is permissible to sever sentence from conviction – defendant submitted that they don’t seek to resile from earlier plea of guilty and the matter might be remitted on that basis – provisional view is that justice of the case can be met by setting aside the conviction and sentence – remitting criminal prosecution to the Circuit Court on the basis of a guilty plea.