A decision on an application by architect Philip Sheedy for leave to appeal his sentence, or for an extension of time in which to do so, will be made by Judge Joseph Matthews today. The application was made at Dublin Circuit Criminal Court by Mr Patrick MacEntee SC for Sheedy and was not opposed by Mr Peter Charleton SC for the Director of Public Prosecutions. Sheedy had been jailed for four years by Judge Matthews in October 1997 with a review after two years. His then legal advisers applied shortly afterwards to have the review date vacated.
Sheedy said in an affidavit read by Mr MacEntee that the possibility of appeal had not been canvassed with him at any time until his present solicitor, Mr Michael Staines, came into the case in November 1998, just two days before Judge Cyril Kelly suspended the final three years of his four-year sentence.
Mr MacEntee submitted that the events of November 12th, 1998, and since then "had frustrated" the effect of the sentence imposed originally by Judge Matthews and forced the position where his client was now serving in effect a four-year sentence.
Both counsel agreed it was a matter for the court to grant or refuse a certificate for leave to appeal and to decide if an extension of time would be granted for that. They told Judge Matthews that his decision either to grant or refuse a certificate for leave to appeal was appellable, but his decision on whether or not to extend the time in which an appeal could be lodged was final.
Mr Charleton (with Mr Hugh Hartnett SC and Mr George Birmingham) said the DPP did not seek to advance any argument which would obstruct Sheedy's application for leave to appeal, but reserved his right to argue at an appeal that the sentence of the court should stand.
He said Sheedy would be advised by his own legal team of the right of the Court of Criminal Appeal to uphold, reduce or enlarge a sentence imposed. He agreed with the legal arguments put forward by Mr MacEntee regarding the matter.
Mr MacEntee (with Ms Aileen Donnelly and Mr Luigi Rea, instructed by Mr Michael Staines) read the affidavit from Sheedy and made his submission in Court 25 at Chancery Place, the court in which Sheedy was jailed in October 1997. He said Sheedy pleaded guilty on June 11th, 1997, before Judge Kelly to dangerous driving causing death and the matter then came forward for sentence on October 20th, 1997 when it was transferred to Judge Matthews.
Sheedy said he had been advised by his then legal advisers he could expect a sentence with a review within one year. He was jailed for four years with a review in two years. "After that I was in considerable shock as I wasn't expecting a sentence of that length," he said in his affidavit.
He was visited in the holding cell by his legal team who advised he should vacate the review date. He was not in court later that month when the application to vacate the review date was granted. Sheedy said he first heard that had been done when told by the prison governor, who expressed surprise.
He still had no proper understanding of the review date matter at this time. He spent the first six months of his sentence in the Mountjoy Prison training unit and was then taken to Shelton Abbey. Sheedy said he was not advised that an application for leave to appeal should be made within a certain time to the court.
Mr Staines then came into the case and visited him in Shelton Abbey to tell him his case was being listed two days later on November 12th, 1998, to make an application to reinstate his review date and to have it brought forward. He was also advised that if that application was not successful, his new legal advisers would be looking for leave to appeal the sentence.
Sheedy said he was taken back to the court on November 12th last and Judge Kelly made an order suspending the final three years of his sentence. He was not aware of any defect in that order.
Continuing his affidavit, Sheedy said he tried to get his life back in order on his release, having served 13 months in prison. He believed that on his release the custodial part of his sentence had been served and he would not be called on to serve any more time unless he breached the conditions of his release. The DPP sought to contest his release in February 1999 by means of judicial review and on March 25th he withdrew his opposition to that and presented himself back in Mountjoy.
Mr MacEntee said the events of the intervening period had had a devastating effect on his client's health and he feared he was heading for a breakdown. Counsel said he would not read in open court the details of a psychiatric report obtained by Mr Staines, dated March 23rd, 1999 .
Counsel said Sheedy could have expected to be released after two years following the original sentence by Judge Matthews. He had conducted himself well in prison and had no reason to see himself as other than a model prisoner.
Mr MacEntee said that what had happened now was that, through no fault of his own, Sheedy faced serving the full four years even though the court had considered his sentence should be reviewed in two years from the date it was imposed. He wished to revert to that sentence and could do that only by making this application for leave to appeal.
Mr MacEntee quoted from various rulings by the Supreme Court, including the Nicky Kelly appeal in the Sallins armed robbery case, and submitted there was no statute that provided a time limit to making an application for leave to appeal. It was a matter for judicial discretion.
Judge Matthews had the right to extend the time in which such an application could be made. "Your Lordship's order has been frustrated by the events that have happened and we want to revert to the situation which existed at the time of sentence in this case," he told Judge Matthews.
"What has happened has resulted in my client's sentence being effectively doubled and that is manifestly unjust. It's quite unusual to have a certificate for leave by a judge against his own order but this case is most unusual in that your sentence has been frustrated," he added.
Mr MacEntee said that in these circumstances he submitted Judge Matthews had discretion to grant extended time for leave to appeal and he asked him to do so in order that an appeal could be carried to the Court of Criminal Appeal, whether or not he was willing to grant a certificate. Without an order for extended time, Philip Sheedy was blocked from carrying an appeal. Judge Matthews alone could grant the order.
Mr MacEntee added: "My client wants a judicial termination of this case in the only court permitted to do that. No mischief can come from that and it would be wrong if he was arbitrarily kept out from his appeal and made to serve twice as long as intended."
Judge Matthews asked counsel if he could set out the case made in court in November 7th, 1997 to have the original review date set aside.
Mr MacEntee said his client was told "this was the appropriate course". He said that at the conclusion of any criminal trial, counsel applied for a certificate for leave to appeal "even if it was only to give time to consider the matter".
He added: "Even in a murder case where there is a guilty plea and the mandatory sentence is one of life imprisonment, it is probably more prudent to do so". Mr MacEntee agreed with Judge Matthews, who had asked counsel if he was saying that all he should focus on was what was just. Mr MacEntee said it was quite open for solicitors and counsel to visit Sheedy and advise him why they were not seeking a certificate for leave to appeal. As well as that, he was not in court when the application was made to vacate the review date.
Mr MacEntee said: "The whole question of leave to appeal was not canvassed with Mr Sheedy at all until just two days before November 12th last. There does not seem to have been any advice or discussion with him as to why this unusual course was being adopted. Philip Sheedy was not consulted."
Judge Matthews said he wanted to consider all the submissions and authorities quoted by counsel and would give his decision today.