Suspended Sentences

Cases

 

 

The People (Attorney General) v. Grimes.

[1955] IR 315

MAGUIRE C.J. :
1 July

This is an application on behalf of the Attorney General for an order that Peter Grimes, at present serving a sentence of imprisonment, be ordered on the expiration of the said sentence to serve the sentence of two years’ imprisonment with hard labour imposed upon him by the Judge of the Circuit Court sitting at Wicklow on the 10th November, 1952, which sentence was on the 18th December, 1952, suspended by this Court on the said Peter Grimes entering into a recognisance acknowledging himself bound to the State in the sum of ten pounds to keep the peace and be of good behaviour towards all the citizens of Ireland for a period of two years, which said recognisance he broke on the 24th December, 1952, by committing the offences for which he is now suffering imprisonment.
Peter Grimes appears in person and is unable to assist the Court with any argument. The Court, however, properly has had its attention drawn by Mr. Macdonald, representing the Attorney General, to the case of Attorney General v. Carolan which was before this Court on the 24th April, 1944, and which is unreported. An application was there made ex parte for a warrant to arrest Carolan for a breach of his recognisances entered into before the Court of Criminal Appeal in circumstances similar to those in the present case. The Court, consisting of O’Byrne, Maguire and Haugh JJ., refused the application. There=
is no note of a judgment in the case. The note in the court note book, however, contains these words:”With liberty to apply to the Circuit Court for such warrant.” This would seem to indicate that it was the view of the Court that the application should have been made to the Circuit Court. We are told that the Circuit Judge, when his attention was called to this case, declined to accept it as ruling the present application.
Mr. Macdonald, although he makes the application to this Court, can suggest no distinction between this and Carolan’s Case (unreported) save that in this case application has been made to the Circuit Judge who has refused it, whereas in Carolan’s Case (unreported) the application was made ex parte to this Court in the first instance. This Court is however unable to see that any distinction can be drawn between the two cases. The reasons which seem to support the decision in Carolan’s Case (unreported) are that this Court has merely an appellate jurisdiction; ss. 31, 32 and 33 of the Courts of Justice Act, 1924, make this clear. By s. 34 it has jurisdiction to affirm or reverse a conviction in whole or in part and to remit, reduce or to increase or otherwise vary the sentence and generally to make such order, including any order as to costs, as may be necessary for the purpose of doing justice in the case before it. It was in exercise of this jurisdiction that the Court varied the sentence imposed by the Circuit Judge. Once it had done this the Court had completed its task in that case. The effect of the order was to allow the conviction to stand but to vary the sentence by suspending it. There appears to be no ground for regarding the matter as being still before this Court. It is not necessary for this Court to rule finally that the Circuit Court has jurisdiction nor can the Court make any order in the nature of mandamus to that Court to hear the application. It does seem, however, to the Court, as it seemed to the Court in Carolan’s Case (unreported), that the application was properly made in the Circuit Court.
This application will be refused.

Wansboro v DPP

 

[2018] IESC 63
Judgment of Ms. Justice Dunne delivered on the 20th day of December 2018
1. The suspended sentence has long been an important feature of Irish sentencing practice. Section 99 of the Criminal Justice Act 2006, as amended, (hereinafter referred to as s. 99) sought to put a statutory framework around the procedures to be operated in respect of a suspended sentence, particularly in the context of the revocation of a suspended sentence. In the case of DPP v. Carter , and DPP v. Kenny [2015] IESC 20, this Court considered the provisions of s. 99 in the context of two cases stated. The majority judgment in that case was delivered by O’Donnell J. and at the commencement of his judgment he made the following observation:

“Section 99 of the Criminal Justice Act 2006 (‘the Act of 2006′) is an apparently innocuous procedural provision. It has already been amended twice in its short life (s. 60 of the Criminal Justice Act 2007, and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009). Nevertheless it has given rise to innumerable practical difficulties and problems of interpretation, only some of which are illustrated by the present cases. What these cases do demonstrate clearly however is that the provision is one of considerable complexity and difficulty, requiring some learned debate, fine distinctions and considerable argument. Only one thing is clear and beyond dispute: s. 99 is in need of urgent and comprehensive review.”
2. Section 99 has been subject to further review though perhaps not quite in the manner contemplated by O’Donnell J. in the judgment referred to above. The procedures for revocation of a suspended sentence to be found in subss. (9) and (10) of s. 99 were subsequently found to be unconstitutional in the case of Moore v. DPP [2016] IEHC 244. The question at the heart of this appeal concerns the extent, if any, to which the applicant/appellant in this case can rely on the finding of invalidity of s. 99(9) and (10) of the Act of 2006 to challenge his detention in respect of a sentence which had been suspended and was subsequently revoked by reason of a breach of the conditions imposed on the appellant when his sentence was suspended.
Background
3. The appellant was charged with three offences arising out of events which occurred on the 1st December, 2012. The offences involved were the unlawful taking of a motor vehicle contrary to s. 112 of the Road Traffic Act 1961 (as amended), an offence of drink driving and, finally, driving without insurance. He pleaded guilty to the three offences and at a sentence hearing on the 14th November, 2013, he was sentenced to three years imprisonment on the s. 112 charge and six months in respect of each of the other two charges, to be served concurrently with the three years sentence. The sentence was suspended on terms including that he keep the peace and be of good behaviour for three years. Other terms were imposed including a requirement to attend an alcohol awareness programme. Finally, the appellant was disqualified from driving for a period of four years.

4. On the 29th May, 2014, the appellant was involved in a serious incident which led to him being charged with dangerous driving causing death and serious bodily harm contrary to the provisions of s. 53(1) of the Road Traffic Act 1961, as amended. At the time, the appellant was driving the car in which there were two passengers when it came to the attention of the Gardaí. In the course of the incident, the appellant attempted to make a right turn at a junction, failed to do so and crashed into a tree. As a result, all three people in the car were injured and when the Gardaí came to the scene all three were unconscious. Unfortunately, the rear seat passenger in the vehicle died as a result of her injuries. Subsequently, the appellant was charged with the offences referred to and on arraignment on the 22nd April, 2015, the appellant pleaded guilty to the offence of dangerous driving causing death and serious bodily harm. On that occasion, given that the appellant had previously been the subject of a suspended sentence, the question of sentence for these offences was adjourned until the 18th May, 2015 for a hearing before Her Honour Judge Ring (as she then was). By way of background, it appears that when the appellant was brought before the Circuit Court for arraignment on the 22nd April, 2015, the judge presiding, Judge Nolan, was advised that there was a previous matter which had been heard by Judge Ring and it was on that basis that the matter was adjourned to the 18th May, 2015 pursuant to the provisions of s. 99(9) of the Act of 2006. Accordingly the appellant was remanded in custody for the purpose of considering the revocation of the suspended sentence, together with the sentencing hearing in respect of the matter to which the appellant had just pleaded guilty. On that date, Judge Ring heard evidence relating to the facts in respect of the dangerous driving causing death and serious bodily injury charge. She heard information in relation to the appellant’s background and circumstances and submissions from counsel for the appellant.

5. The learned trial judge in her sentencing remarks referred to the previous Bill number in respect of which the appellant had pleaded guilty. She lifted the suspension of the sentences in that pursuant to the provisions of s. 99(10) of the Act of 2006 and noted that they were to run concurrently. She observed that by virtue of the provisions of s. 99 of the Act of 2006, the sentence on the latter Bill number was required by law to be consecutive to the three year sentence. She referred to a number of the factors to be borne in mind in regard to the appropriate sentence to be imposed. She noted:

“Eric Wansboro drove this vehicle at a time when he was disqualified and on a suspended sentence. He drove at speed, without regard to anyone’s safety, through city streets. He ignored the garda requests to stop and continued on driving. He killed S. M. and seriously injured I. McD. I have to have regard to the totality principle in light of the matters on Bill 298/2012 in sentencing. However in this case I can’t overlook the fact that Eric Wansboro was fully aware of what was at risk and took that risk regardless. Had Eric Wansboro not pleaded not guilty the appropriate sentence would have been one of six and a half years. Taking these matters into consideration and weighing the limited mitigation in this case and having regard to the totality principle, I find that the appropriate sentence on count 2 on Bill 99/2015 is one of five and a half years.”
As previously mentioned that sentence was required to be consecutive to the sentence imposed in relation to the earlier offences.
6. Following the sentencing of the appellant, committal warrants were issued to give effect to the sentences imposed and accordingly the appellant was lodged in the custody of the second named respondent herein. On the 20th May, 2015, the appellant filed a notice of appeal against the order made in respect of Bill No. 298/2012 and also against the severity of the sentence imposed on Bill No. 99/2015.
The law
7. It would be useful at this stage to refer to the provisions of s. 99 of the Act of 2006 which are relevant to these proceedings. Section 99(9) provides as follows:

“Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, being an offence committed after the making of the order under subs. (1) the court before which proceedings for the offence are brought shall, before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order.”
Section 99(10):
“A court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1) unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody other than a period spend in custody by the person in respect of an offence referred to in subsection (9)) pending the revocation of the said order.”
Section 99(17):
“A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and where the court revokes that order, the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order.”

Moore & Ors. v. DPP & Ors. [2016] IEHC 434
8. The event which gave rise to these proceedings was the decision of the High Court in the case of Moore & Ors. v. DPP & Ors. which found that the provisions of s. 99(9) and (10) were unconstitutional. Judgment in that case was delivered by Moriarty J. on the 19th April, 2016. The judgment in that case dealt with a total of six individuals who complained of aspects of the operation of s. 99 of the Act of 2006 and challenged the constitutionality of the provisions having regard to an unfairness in its operation as it applied to them. In the course of the judgment, details were given in relation to the circumstances of the various individuals who came before the court. By way of illustration it would be helpful to refer to the circumstances of one of the individuals challenging the provisions of s. 99(9) and (10), namely the first named applicant, Mr. Moore. At para. 4 of his judgment Moriarty J. set out the position as follows:
“In this instance, the applicant was convicted of a minor District Court offence, and the presiding judge was proceeding to sentence when it became apparent that a prior suspended sentence imposed by the Circuit Criminal Court was still operative. Accordingly the matter was remanded to the Dublin Circuit Criminal Court for determination of whether or not the suspended sentence should be activated. In what was to become a constant argument in similar cases, it was submitted on behalf of Mr. Moore that he wished to appeal the conviction in the District Court and have an outcome pronounced prior to any hearing in the Dublin Circuit Criminal Court. It was pointed out that this now appeared to be precluded in view of the amended wording of s. 99, and that if the Circuit Court were to activate the suspended sentence, he would serve considerable time in prison prior to his appeal hearing. If the appeal against the District Court conviction ultimately proved successful, it was argued that the basis for activation that he was unfairly being prevented from challenging would be incorrect, and his period in custody unjustified. It was also argued that under R. 28(a) of the Rules of the District Court the applicant was accordingly precluded from appealing his latter conviction until the issue of activation of his suspended sentence had been finalised, and this it was argued was unfair and unconstitutional.”
9. On that basis he was granted leave to apply for judicial review seeking a number of declarations including a declaration of unconstitutionality. Having reviewed the arguments, and considered a number of authorities, the learned High Court Judge concluded that the provisions of s. 99(9) and (10) were unconstitutional. In the seminal work on Sentencing Law and Practice (3rd Ed., Round Hall), the learned author described the difficulties with s. 99(9) and (10) in the following way at para. 22 – 32:
“The major problem with subss. (9) and (10) of s. 99 which eventually led to their being declared unconstitutional in Moore v. DPP was that the later court had to remand the defendant to the first court before imposing sentence; to do otherwise would be to act without jurisdiction. This gave rise to particular difficulties in the District Court. A person convicted in that court may appeal to the Circuit Court against conviction, sentence or both. Such an appeal is by way of rehearing, and entering into a recognisance to pursue an appeal operates as a stay on the District Court order. But an appeal may not be taken until sentence has been imposed. A person who is convicted of an offence in the District Court while subject to a suspended sentence imposed by, say, the Circuit Court had to be remanded to the latter court, in accordance with s. 99(9) for a determination on the revocation of the suspended sentence. If that sentence was revoked in whole or in part and the person was then immediately committed to custody but later succeeded in having the District Court conviction quashed on appeal, he or she might legitimately complain of having been wrongfully detained. The person had not, after all, been convicted of a further offence during the operational period of the suspended sentence. This led the High Court in Moore to conclude that subss. (9) and (10) were unconstitutional.”
10. The passage referred to above from Sentencing Law and Practice highlighted the practical problem that arose in relation to the operation of the relevant sections. Obviously, there was a potential problem with the reactivation of a previously suspended sentence on the basis of a further conviction in circumstances where that subsequent conviction might be the subject of an appeal which could result in the latter conviction being quashed. In those circumstances clearly the basis of the revocation of the earlier suspended sentence would be unjustified.
Events following Moore v. DPP
11. Subsequent to the decision in Moore the appellant made an application for leave to seek, inter alia , an order quashing the order of the Circuit Court on the 18th May, 2015 pursuant to s. 99(10) of the 2006 Act in respect of Bill No. 298/2012; an order of certiorari quashing the committal warrant issued pursuant to the said order and finally a declaration that the appellant is being held in unlawful detention by the Governor of Mountjoy Prison on foot of the committal warrant. It should be noted that while there was a challenge to the order providing for the five and a half year sentence in respect of Bill No. 99/2015, that was expressly not pursued at the hearing of this appeal.
Judgment of the High Court
12. The key question to be decided by the learned High Court Judge was the extent to which the declaration of invalidity of s. 99(9) and (10) could be applied retrospectively to persons who had the benefit of a suspended sentence which was subsequently revoked, by reason of further offending, in accordance with the provisions of s. 99(9) and (10).

13. The learned trial judge had regard to a number of well known authorities in which the question of the effect of a finding of invalidity could be applied retrospectively such as A. v. Governor of Arbour Hill Prison [2006] IESC 45 and Director of Public Prosecutions v. Cunningham [2012] IECCA 64. She also considered a number of cases in which the same question had to be decided following the finding of invalidity of the relevant provisions in Moore. Those cases include: Clarke v. Governor of Mountjoy Prison [2016] IEHC 278; Clarke v. Governor of Mountjoy Prison [2016] IECA 244; Foley v. Governor of Portlaoise Prison [2016] IEHC 334; Foley v. Governor of Portlaoise Prison [2016] IECA 411; Ryan v. Director of Public Prosecutions [2016] IEHC 380 and Larkin v. Governor of Mountjoy Prison [2016] IEHC 680.

14. Particular emphasis was placed on the case of Clarke referred to above and I will return to the judgments in that case later.

15. The learned trial judge relied on the authorities referred to above. She noted that there had been no challenge brought by the appellant in this case in relation to the constitutionality of the provisions of s. 99(9) and (10) and further that there was no objection raised on his behalf to the order made on the 22nd April, 2015 remanding him in custody for the purpose of a sentence hearing for, inter alia , the potential activation of the suspended sentence. At para. 57 of her judgment she concluded as follows:

“The net issue for this Court is whether the applicant is precluded from obtaining the benefit of the declaration of unconstitutionality in Moore , as contended for by the respondent. Having considered the merits of the applicant’s case, I am satisfied that the decided authorities particular to the consequences of the declaration of unconstitutionality made in Moore , as referred to in this judgment, support the respondents’ argument that the applicant’s application for judicial review should be rejected. Furthermore, whilst the applicant stresses that he is not looking for the Moore declaration to have any retrospective effect, on any reasonable interpretation of the substance of his case, as pleaded, the reality of the matter is what he is seeking is that the declaration of unconstitutionality should have a blanket effect. That being the case, the relevant jurisprudence both pre- and post- Moore is clearly against the applicant’s claim, having regard to the particular circumstances of his case. I am satisfied that the circumstances where prisoners can obtain relief in cases of this kind are limited. There must be, in the words of Birmingham J. in Clarke ,:

‘a default of fundamental requirements such that the detention could be said to be wanting in due process of law or that his detention arises on a departure from fundamental rules of natural justice’.”
In those circumstances, the learned trial judge considered that she was bound by the Court of Appeal decision in Clarke and therefore refused to grant the relief sought in the proceedings.
Discussion
16. In making the application for judicial review in this case, the appellant sought to distinguish the facts of his case from those apparent in A. v. Governor of Arbour Hill Prison referred to above and in particular placed reliance on the decision in the case of DPP v. Cunningham . Reliance was placed on Cunningham to argue that the principles ascertainable from the decision in A. do not apply where finality has not been reached in criminal proceedings. It was pointed out that there has not been finality in this case given that the appellant had lodged an appeal to the Court of Appeal and until such time as his appeal has been disposed of, the proceedings have not reached finality. On that basis it was contended that the appellant was entitled to rely in these proceedings on the findings made in Moore . As pointed out previously, it is accepted on behalf of the appellant that the sentence of five and a half years in respect of the later offence is not now the subject of any relief in these proceedings albeit that there is a live appeal in respect of that sentence.

17. The starting point for a consideration of the issues arising in this case therefore is clearly the decision of this Court in the case of A. v. Governor of Arbour Hill Prison . In that case Mr. A. had been convicted in the Circuit Criminal Court on a plea of guilty of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law (Amendment) Act 1935 and was sentenced to three years imprisonment. He sought release from custody pursuant to the provisions of Article 40.4.1° of the Constitution. He contended that his detention was unlawful on the basis that the Supreme Court on the 23rd May, 2006 in the case of C.C. v. Ireland [2006] 4 IR 1 found that s. 1(1) of the Criminal Law (Amendment) Act 1935 was inconsistent with the Constitution. The Supreme Court held that there was neither an express nor an implied principle of retrospective application of unconstitutionality in the Constitution. It was not a principle of constitutional law that cases which have been finally decided and determined on foot of a statute which was later found to be unconstitutional must invariably be set aside as null and of no effect. Once finality had been reached and the parties had in each case exhausted their actual or potential remedies, the judicial decision must be deemed valid and lawful. In the course of his judgment in that case, Murray C.J. commented at para. 36 as follows:

“Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law, such as a statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position .” (emphasis added)
He concluded his judgment by saying (para. 114 et seq.):
“It follows from the principles and considerations set out in the cases, which I have cited, that final decisions in judicial proceedings, civil or criminal, which have been decided on foot of an Act of the Oireachtas which has been relied upon by parties because of its status as a law considered or presumed to be constitutional, should not be set aside by reason solely of a subsequent decision declaring the Act constitutionally invalid.
115. The parties have been before the courts. They have, in accordance with due process, had their opportunity to rely on the law and the Constitution and the matter has been decided. Once finality has been reached and the parties have in the context of each case exhausted their actual or potential remedies the judicial decision must be deemed valid and lawful.

116. Save in exceptional circumstances, any other approach would render the Constitution dysfunctional and ignore that it contains a complete set of rules and principles designed to ensure ‘an ordered society under the rule of law’ in the words of O’Flaherty J.”

He added at para. 117 the following comment:
“I am quite satisfied that the Constitution never intended to visit on that ordered society the potential unravelling of judicial decisions over many decades when a particular Act is found unconstitutional solely on the consideration of the ab initio principle to the exclusion of all others.”
18. Counsel on behalf of the appellant has made the observation that the reference in para. 116 of the judgment of Murray C.J. in the case of A. to “exceptional circumstances” appears to have had an influence on McDermott J. in the course of his judgment in Clarke which led him into error. It was pointed out that the reference to “exceptional circumstances” in the judgment of Murray C.J. is to circumstances when the “finality principle” will not be a bar to relief. In other words, it is only in exceptional circumstances that the finality principle will not apply. Therefore, the general proposition is that once a party to the proceedings has exhausted their remedies and the court decision is final then a subsequent declaration of invalidity or inconsistency with the Constitution will not avail that party. Insofar as this submission is concerned, I am satisfied that counsel for the appellant is correct in saying that the reference to “exceptional circumstances” by Murray C.J. is to circumstances when the “finality principle” will not be a bar to relief.
19. The second decision of importance in this regard is the case of The People (DPP) v. Cunningham . In that case Mr. Cunningham had been convicted on a number of counts of money laundering. The relevant evidence had been found during a search of his dwelling house on foot of a warrant pursuant to s. 29 of the Offences Against the State Act 1939 as amended (the Act of 1939). Following his conviction, Mr. Cunningham appealed against his conviction. His appeal was extant at the time that the Supreme Court in the case of Damache v. Director of Public Prosecutions [2012] 2 I.R. 266 was decided in which it was concluded that the procedure provided for in s. 29 of the Act of 1939, as amended, was repugnant to the Constitution. It was held in that case by the Court of Criminal Appeal that where there was a right of appeal provided by law, finality could not be said to attach to the decision of the court that was subject to that appeal unless and until the appeal had been concluded or no appeal had been taken within the time limited for doing so. It was also held that as the appeal remained extant and had not reached finality, Mr. Cunningham was entitled to rely upon a declaration of inconsistency made subsequent to his conviction. Further it was held that he was not debarred from relying on the declaration of inconsistency made subsequent to his conviction by reason of the fact that he did not himself institute proceedings seeking the said declaration. It was further held that a provision that had been declared unconstitutional was void ab initio from the date of its enactment, though any such invalidity crystallised only with a formal declaration of invalidity by which the law in question was judicially adjudged to be invalid or annulled. Such a finding must also apply to third parties outside the litigation seeking to impugn the relevant provision. That a finding of unconstitutionality applied only to persons who commenced litigation or their privies was inconsistent with existing jurisprudence and established practice. Finally, it was held that an applicant might be debarred by his own conduct from taking advantage of a finding of unconstitutionality in the event that he had acquiesced or benefited from or elected to proceed with a state of affairs that either directly or indirectly acknowledged the validity of the particular course of conduct or law that was subsequently put at issue. In coming to its conclusion in that case the Court of Criminal Appeal applied the decision of the Supreme Court in the case of A. v. Governor of Arbour Hill Prison.

20. The decisions in A. v. Governor of Arbour Hill Prison and The People (DPP) v. Cunningham are of significant importance in any consideration of the effect of a finding of invalidity of a statutory provision relevant to a conviction of a criminal offence.
Clarke v. The Governor of Mountjoy Prison
21. The decision in this case formed an important part of the consideration of the learned trial judge in this case and thus must be considered in some detail. It concerned an application for an inquiry pursuant to Article 40.4.2° of the Constitution of Ireland. Mr. Clarke pleaded guilty to a number of counts on three Bills of indictment. The indictments concerned a number of counts including counts of robbery and the possession of firearms amongst other things. On the first Bill, a sentence of five years imprisonment in respect of robbery and possession of a firearm was imposed. On the second Bill a sentence of eight years was imposed with the final seven years suspended. In respect of a further count on that indictment relating to possession of a firearm, Mr. Clarke was sentenced to seven years imprisonment all of which was suspended. The sentences on that Bill were said to be consecutive to that imposed on the first Bill. Finally, Mr. Clarke pleaded guilty to a further count of robbery for which a term of five years imprisonment with the final four years suspended was imposed. That sentence was also to be served consecutively to that imposed on the first Bill. Terms and conditions were imposed on Mr. Clarke in relation to the suspension of the relevant sentences. Having served the custodial element of the sentences, Mr. Clarke was released from custody in October 2013 but was, of course, subject to the conditions imposed in relation to the suspended elements of the sentences concerned. Subsequently during the period of suspension of the sentences previously imposed, and contrary to the conditions entered into as a condition of the suspension of those sentences, Mr. Clarke came before the District Court on the 9th September, 2014. He pleaded guilty to charges relating to incidents involving cars on the 10th February and the 2nd April, 2014 including driving without insurance or a licence, failing to produce documents when required and driving a vehicle with a bald tyre. He was remanded in custody by the District Court to Dublin Circuit Court on the 10th September, 2014 under the provisions of s. 99(9) and (10) for a determination as to whether the suspended portions of the sentences should be revoked. Ultimately, the application to revoke the suspended terms of the sentences concerned were determined by Judge McCartan in the Circuit Court on the 4th November, 2014. He reactivated all the sentences that had been previously suspended, directing that they should run concurrently from the 30th April, 2014. Mr. Clarke was then remanded back to the District Court on the 5th November, 2014 for the imposition of sentence in respect of the road traffic offences. A five month sentence of imprisonment, itself suspended, and a thirty year driving ban were imposed in respect of driving without insurance and the other charges were marked as having been taken into consideration.

22. A notice of appeal in respect of the sentences imposed on the 4th November, 2014 was lodged with the Court of Appeal on the 21st November, 2014. It was noted by the learned trial judge in Clarke that although an appeal was lodged with the Court of Criminal Appeal no grounds of appeal had been filed at the time of the hearing of the Article 40.4.2° application and it was accepted that the position was that the jurisdiction of the Court of Criminal Appeal had been invoked and accordingly that the appeal must be regarded as pending.

23. Given the judgment in Moore , Mr. Clarke sought to rely on the retrospective application of that decision to the facts of his case and thus he contended that he was unlawfully detained. Accordingly, he brought an application pursuant to the provisions of Article 40.4.2° as mentioned above.

24. The learned trial judge (McDermott J.) considered the jurisprudence to be found in cases such as A. v. Governor of Arbour Hill Prison and The People (Director of Public Prosecutions) v. Cunningham . He also referred to the cases of The State (Byrne) v. Frawley [1978] I.R. 326 and de Burca v. Attorney General [1976] I.R. 38 amongst others. Having reviewed the relevant authorities, he stated at para. 41 of the judgment as follows:

“The applicant lays particular emphasis on the fact that the criminal proceedings in his case have not been finalised or concluded in the Court of Appeal since his appeal against sentence under s. 99(12) is still pending. I am satisfied that this is so and that the applicant is not precluded from raising a point concerning the invalidity of the statute under which he was returned to the Circuit Court under s. 99(9) and (10). He is entitled to advance all such arguments and evidence to establish a claim that he is entitled to benefit from the declaration. I am satisfied that this conclusion is also in accordance with the decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Cunningham [2012] IECCA 65. However, I am not satisfied, as is made clear in the above authorities, that the finality argument must always prevail against all others in determining the retroactivity of such a declaration, or indeed must prevail in this application: the behaviour of the applicant and the other circumstances of the case must also be considered.”
25. A number of other authorities were considered by the learned trial judge, namely The Director of Public Prosecutions v. O’Connor [2014] IECCA 4, The People (Director of Public Prosecutions) v. Bolger [2013] IECCA 6 and The People (Director of Public Prosecutions) v. Hughes [2013] 2 I.R. 619 all of which concerned the effect of the finding in Damache . Having reviewed those authorities, he concluded as follows at para. 51:
“Therefore, it has been clear by the Court of Criminal Appeal in a number of cases that a finding of unconstitutionality may be relied upon in appeals to a pending when the issue governed by the invalidity was raised in the trial court. The reality of the prejudicial effect of the reliance upon material obtained on foot of the s. 29 warrants in procuring a plea of guilty or as evidence in the course of trial was also considered. If the substantive fairness of the trial process was not demonstrably affected by reliance upon the material obtained or the appellant had declined to challenge the admissibility of such evidence, they were not permitted to rely on the declaration of invalidity retrospectively. It did not inexorably follow that a court must entertain an application to set aside a verdict on the basis of the inadmissibility of evidence obtained on foot of warrant of the type impugned in Damache . It considered all circumstances relevant to the application such as the acquiescence, behaviour or strategy adopted by the accused during the course of the trial and in particular, whether the matter had been raised as an issue during the trial. Though the court was invited to permit reliance upon the finding of invalidity, it did not do so in the cases of O’Connor , Hughes and Bolger . It was careful to apply general principles relating to acquiescence and conduct. It also applied the principles set out in The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] 4 IR 329 which enabled the court to permit a ground to be argued that was not previously advanced at trial: such grounds would be permitted only in circumstances where the court was of the view that, due to a fundamental injustice or some substantial error or oversight a fundamental injustice may have occurred. In that regard an explanation would have to be furnished as to why it was not so argued. In considering the retrospective application of the declaration in this case all of these factors are relevant.
52. I do not consider that there is any evidence to support a submission that the applicant in this case suffered any fundamental injustice or that there is any basis upon which one might apprehend that he has suffered any unfairness or unfair prejudice in the re-entry or hearing concerning the revocation of the suspension of the sentence.”

The learned trial judge then considered the appellant’s conduct and circumstances in that case and concluded at para. 58 as follow:
“I am satisfied that the procedures under s. 99(9) and (10) were relied upon by the State in good faith in that they were regarded as having the force of law at the time. These procedures were not and could not have been successfully impugned by the applicant because he could not have demonstrated any prejudice or fundamental injustice or inequality of treatment in the manner in which they were applied to his case. I am satisfied that where no demonstrable injustice of a fundamental nature has occurred in the applicant’s case he should not be regarded as a person in respect of whom release must be ordered. I do not consider that there are any circumstances, exceptional or otherwise, in this case which required that the declaration made in the Moore case should have a retrospective effect, much less the blanket effect suggested.”
He concluded at para. 62 as follows:
“The retrospective application of the declaration of invalidity is not warranted in this case. The applicant pleaded guilty to the original offences charged on indictment. He was lawfully sentenced. He agreed the conditions of the suspended sentence. He breached those conditions. He admits the breaches. He was returned to court. He failed to object to the procedure adopted in doing so. He pleaded guilty to the offences in the District Court as a result of which he was returned to the trial court. He evinced no intention then or now of appealing those convictions to the Circuit Court. He could not have succeeded in a challenge to s. 99(9) and (10) on the same basis as the Moore applicants. His application is without merit and is based entirely on the happenstance that the law under which he was returned to the trial court was declared invalid seventeen months after his suspended sentence was revoked. In the meantime, he has appealed to the Court of Criminal Appeal: his appeal against the revocation is still pending but he has failed to lodge grounds or take steps directed by that court in order to advance his appeal.”
In the circumstances, the learned trial judge in Clarke concluded that Mr. Clarke was detained in accordance with law.
26. The decision of the High Court in that case was then appealed to the Court of Appeal. Judgment was delivered by that Court on the 28th July, 2016 upholding the decision of the High Court and dismissing the appeal.
The judgment of the Court of Appeal in Clarke
27. Delivering judgment, Birmingham J. examined the judgment of the learned High Court judge. He referred at para. 20 and made the following observations:

“Much time has been spent on both sides of the Court addressing the significance of A. v. Governor of Arbour Hill Prison [2006] 4 IR 88, perhaps, more time than was strictly necessary as McDermott J. was clear that an appeal under s. 99(12) had been lodged and was still pending and that as a result the applicant was not precluded from raising a point concerning the invalidity of the statute under which he was returned to the Circuit Court under s. 99(9) and (10).
21. In effect, the judge in the High Court was satisfied that Mr. Clarke had won what might be described as the finality argument, but as he made clear at para. 41 of his judgment, he was not satisfied that the finality argument must always prevail against all others in determining the retroactivity of such a declaration or indeed that it must prevail in this application. The behaviour of the applicant and the other circumstances of the case also had to be considered. The applicant was in principle entitled to the benefit of the Moore decision, but the Court also had to inquire into, in the words of Henchy J. in The State (Byrne) v Frawley [1978] I.R. 326, whether by reason of other facts and circumstances the applicant had lost the competence to lay claim to the right guaranteed by the Constitution in the circumstances of the case.”

The Court of Appeal then proceeded to consider the transcripts of the hearing before the Circuit Court and the ruling of the Circuit Court judge in the course of sentencing. Having done so the judgment continued at para. 30:
“It seems to me that consideration of this issue by the Circuit Court expanded beyond the confines of subs. (10) and that the Court was having regard to all of the information that was emerging on foot of inquiries that it set in motion. I acknowledge that the Court did not indicate whether in doing so it was exercising its wider function under subs. (17) but it seems to me that the reading of the two transcripts would suggest that is what was happening. In forming that view I do not lose sight of the fact that the reference in subs. (10) to ‘unjust in all the circumstances of the case’ makes clear that the Court when dealing with a matter under subs. (10) is not confined to a consideration of the facts of the triggering offence.”
The Court continued at para. 31:
“However, that notwithstanding, it seems to me that what happened here was that the Court decided to take a broader view as it was entitled to do under subs. (17). The relevance of this of course, is that it is not a precondition to the exercise of a subs. (17) jurisdiction that the person be brought before the court pursuant to subs. (9). Insofar as subs. (17) is a broad and general jurisdiction it seems to me that the route by which the appellant was brought before the Circuit Court is not material and that accordingly The State (Attorney General) v. Fawsitt and DPP (Ivers) v. Murphy line of authority is applicable. In these circumstances I would take the view that the appellant is not in unlawful custody and so would dismiss the appeal.
32. If I am wrong about that I would in any event follow the reasoning of McDermott J. in the High Court. I accept, as he did, that a notice of appeal was lodged, which means that Mr. Clarke’s position is to be distinguished from that of A. v. Governor of Arbour Hill Prison. However, like McDermott J., I do not believe that the fact that because an appeal was lodged and accordingly that matters had not been finalised before judgment in Moore that it follows automatically that Mr. Clarke is entitled to be released. The position is that Mr. Clarke committed offences of the utmost gravity. He persuaded the Circuit Court to deal with him in a very lenient fashion indeed and then very shortly after his release, having served the custodial element of his sentence, he breached the conditions of his suspended sentences in a number of respects. There was a full and fair hearing in the Circuit Court over two days which addressed the issue of whether the sentence should be activated. The judge in the Circuit Court decided to activate the sentence. Mr. Clarke has a right of appeal from that decision and has invoked that right by lodging a notice of appeal. On the hearing of that appeal Mr. Clarke can argue that the activation of the sentences in full was an excessive and disproportionate response.”

In the circumstances, the Court of Appeal concluded that the reasoning of the High Court was compelling and that the appeal should be dismissed.
The People (DPP) v. Cunningham
28. It is relevant to point out that the precise issue that arose in Moore did not arise in the case of Mr. Clarke. Given his pleas of guilty in respect of both the original sentence and his plea of guilty in relation to the subsequent offence, he was not at risk of having a suspended sentence reactivated following his conviction on a subsequent offence in circumstances where the conviction on the subsequent offence might be overturned on appeal. Therefore, he was not someone who could have raised the precise point that arose in Moore in the course of the pending appeal. However, it has never been in dispute that at the time of the Moore decision, there was a pending appeal in respect of the sentences imposed on him. The position of the appellant in this case is the same. Thus, as is not in dispute, his appeals were not final and the question to be considered and decided by this Court is whether or not he is in some way debarred from relying on the decision in Moore as to the invalidity of the relevant sections of s. 99(9) and (10).

29. Both the High Court and the Court of Appeal in the Clarke case placed much reliance on the decision of this Court in The State (Byrne) v. Frawley [1978] I.R. 326. The facts of that case are set out in para. 39 of the judgment of the learned trial judge where it was stated as follows:

“The consequences for prior criminal trials of the Supreme Court’s declaration that elements of the Juries Act 1927 were inconsistent with the provisions of the constitution in the de Burca case were considered in The State (Byrne) v. Frawley (cited above). In Byrne’s case the prosecutor had been tried by a jury selected under the provisions of the Juries Act 1927 and was convicted and sentenced to seven years penal servitude. The conviction occurred in December 1975 and the decision in de Burca was delivered during the course of his trial. No point was taken in respect of this decision and the prosecutor proceeded with the jury which had been empanelled even though counsel for Byrne also acted in de Burca . Though he appealed to the Court of Criminal Appeal he did not raise the issue of the unconstitutional composition of the jury. Thereafter he applied for release under Article 40.4.2 on the grounds that he was not being detained in accordance with law thereby asserting the same rights which arose from the declaration of inconsistency made in de Burca . The Supreme Court rejected the application. Henchy J. (delivering the judgment of the court), stated that the applicant made an informed and deliberate decision to turn down the opportunity to challenge the composition of the jury during the course of his trial.”
The learned High Court judge then quoted from the judgment and in particular a passage at p. 350 of the judgment of Henchy J.:
“Because the prisoner freely and knowingly elected at his trial to accept the empanelled jury as competent to try him, I consider that he is now precluded by that election from claiming that the jury lacked constitutionality … The prisoner’s approbation of the jury was affirmed by his failure to question its validity when he formulated grounds of appeal against his conviction and sentence, and when his application for leave to appeal was argued in the Court of Criminal Appeal. It was not until some five months after his trial that he first put forward the complaint that the jury had been formed unconstitutionally. Such a volte face is impermissible. Having by his conduct led the Courts, the prosecution (who were acting for the public at large) and the prison authorities to proceed on the footing that he accepted without question the validity of the jury, the prisoner is not now entitled to assert the contrary. The constitutional right to a jury drawn from a representative pool existed for his benefit. Having knowingly elected not to claim that right, it would be contrary to the due administration of justice under the Constitution if he were to be allowed to raise that claim in the present proceedings when, by deliberate choice, it was left unasserted at the trial and subsequently in the Court of Criminal Appeal. What has been lost in the process of events is not the right guaranteed by the Constitution but the prisoner’s competence to lay claim to it in the circumstances of this case.
In basing this judgment on the special circumstances of this case, I do not wish to imply that the prisoner would be entitled to succeed in his claim if those particular circumstances did not exist.”

Notwithstanding the clear position of this Court as set out in the judgment of Murray C.J. in A. v. Governor of Arbour Hill Prison to which reference has been made previously, the learned High Court judge in Clarke concluded that he was not satisfied that the finality argument must always prevail against all others in determining the retroactivity of a declaration of unconstitutionality. He was of the view that it was necessary for the behaviour of the applicant before the Court and the other circumstances of the case to be considered. That approach was endorsed by the Court of Appeal.
30. The decision of this Court in the case of A. v. Governor of Arbour Hill Prison made it clear that a finding that an act or part thereof is constitutionally invalid will not result in final decisions made in judicial proceedings being set aside solely by reason of the decision declaring the legislation concerned to be constitutionally invalid. As the Court said:

“Once finality had been reached and the parties have in the context of each case exhausted their actual or potential remedies the judicial decision must be deemed valid and lawful.”
The logic of that approach is, to my mind, unarguable. Clearly, however a different approach can be discerned where finality has not been reached.
31. A singular feature of the discussion in the decision in A . is the effect of finality of proceedings notwithstanding a subsequent finding of unconstitutionality of legislation. Hardiman J. in the course of his judgment in that case, at para. 236 summarised the consequences of a finding of unconstitutionality by reference to a number of cases dealing with this issue and observed, inter alia , at sub-para. (3):

“(3) In applying the considerations mentioned in the preceding paragraph, ‘… it has been found that considerations of economic necessity, practical convenience, public policy, the equity of the case and such like matters may require that force and effect be given in certain cases to transactions carried out under the void statute’.
(4) Such force and effect may have to be given ‘… because of a person’s conduct or because of the irreversible course events have taken, or for any one of a number of other reasons…’; because ‘[t]he irreversible progressions and by-products of time, the compulsion of public order and the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality – even irreversibility – that tends to attach to what is becoming inveterate or has been widely accepted and acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional law, or otherwise void, into an acceptable part of the corpus juris’ ; because ‘[q]uestions of rights claimed to have become vested, of status, of prior determinations deemed to have finality, and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination’.”

Hardiman J. went on to consider the facts of the particular case and concluded at p. 189 as follows:
“That passage puts part of the applicant’s difficulties squarely. He has not been able to allege any departure from natural justice in the way he has been treated. He acknowledges his guilt and that his claimed release would be a ‘windfall’. On the other hand, it must be manifest that his release would be a great injustice to others. But it is not necessary to decide the case on that basis. The applicant is here attempting to do what no one has done before: to set up a declaration based on the right of a third party in order to invalidate a past and closed transaction , his criminal trial. This cannot be done because, on the long established and unchallenged jurisprudence the trial and sentence are things which require to be given continued force and effect. The applicant’s release would require a departure from that line of authority which I am satisfied there is no warrant for doing. I am satisfied, in other words, that the applicant is now and always has been detained in accordance with law.” (emphasis added)
32. That brings me to a consideration of the decision in The People (DPP) v. Cunningham to which reference has been made previously. In that case, the Court of Criminal Appeal was dealing with an appeal from the appellant’s conviction on ten counts of money laundering. A significant sum of money was found during a search of the appellant’s dwelling house. A search warrant had been issued pursuant to the provisions of s. 29 of the Offences Against the State Act 1939 as inserted by s. 5 of the Criminal Law Act 1976. It was agreed between the parties on the hearing of the appeal that the validity of the warrant would be dispositive of the appeal against the conviction on count ten of the indictment. Count ten concerned the finding of the sum of Sterling £2,400,000 in the appellant’s dwelling house. Before the appeal came on for hearing in the Court of Criminal Appeal, Denham C.J. gave judgment for the Supreme Court in the case of Damache v. The DPP, Ireland and the Attorney General . In that case, a declaration was granted to the effect that s. 29(1) of the Offences Against the State Act 1939 as amended was repugnant to the Constitution. The appellant had appealed his conviction some three years before the Supreme Court judgment in Damache and one of the grounds of appeal made reference to the status of the warrant. Two points were made, namely that the warrant was defective because it did not identify the appellant’s residence as the place to be searched and further because it was “merely a ‘colourable device’ to avoid the necessity of making an application for a warrant to a judge”. Subsequent to the decision in the Damache case the appellant in Cunningham brought an application for bail on the basis of the Damache case and lodged supplemental submissions relying heavily on that case. In addition, he sought liberty to amend the original grounds of appeal to rely expressly on the fact that s. 29 of the Offences Against the State Act was declared to be repugnant to the Constitution as a result of which evidence procured on foot of the warrant was unconstitutionally obtained and inadmissible in law. Leave was granted to amend the grounds of appeal as sought.
33. It appears that the question of the constitutionality of s. 29 was referred to in the appellant’s first set of written submissions before the decision in Damache was handed down.

34. In the course of his judgment in that case, Hardiman J. considered the question of “finality”. The State had argued in that case that the decision in respect of the appellant was final, a verdict having been given by the jury. This argument was rejected by the Court of Criminal Appeal when Hardiman J. said as follows at p. 20:

“The decision of the Circuit Court in this case is plainly still subject to review by this Court. It is accordingly not yet ‘final’.
. . . In Dalton v. Minister for Finance [1989] ILRM 519 the Supreme Court per Finlay C.J. stated that ‘It is of the essence of litigation that subject to a proper right of appeal , as provided by law, the judgment of a court is a final judgment’. (Emphasis supplied).

This, of course, is entirely consistent with the dictum of Murray C.J. in A. v. The Governor of Arbour Hill Prison , quoted above, that finality may be achieved on appeal or otherwise.”

The Courts whose decisions are thus invested with finality and conclusivity are the Supreme Court and the Court of Criminal Appeal, both primarily appellate courts. The finality attaching to the judgments of other courts are, as Chief Justice Finlay expressed it ‘subject to a proper right of appeal as provided by law’. It therefore appears that where there is (as in this case) a right of appeal provided by law, finality cannot be said to attach to the decision of a court which is subject to that right of appeal unless and until the appeal has concluded or no appeal has been taken within the time limited for doing so.”

35. Accordingly, the Court of Criminal Appeal rejected the submission of the State that the criminal case against the appellant was finally concluded by the verdict of the jury. It has to be said that in this case, the learned trial judge acknowledged the fact that there was an appeal extant, as did the High Court and the Court of Appeal in Clarke , and that it had not reached finality.
36. The Court in Cunningham went on to consider the effect of the finding on constitutionality on third parties such as the appellant in that case. An argument was made to the effect that the appellant should not be allowed to raise the issue given that he had not commenced proceedings challenging the constitutionality of s. 29 either before or even after his conviction and therefore was debarred from obtaining the benefit of the decision in Damache . Thus, the Court in that case considered whether the appellant was debarred from relying on Damache . The Court considered this issue under two headings, namely whether he was debarred from his own conduct from relying on Damache and secondly the question of retrospective or alternatively, the prospective application of the finding of unconstitutionality. In the context of the question of debarring by his own conduct the Court considered a number of authorities, namely Corrigan v. Irish Land Commission [1977] I.R. 317, The State (Byrne) v. Frawley [1978] I.R. 326 and A. v. Governor of Arbour Hill Prison [2006] 4 IR 88. As Hardiman J. pointed out:

“. . . these were all cases where the applicant had either acquiesced, in or benefited from, or elected to proceed with, a state of affairs which either directly or indirectly acknowledged the validity of the particular course of conduct or law which was subsequently put at issue.”
37. As none of those factors were present in the case of the appellant in the Cunningham case, it was concluded that he was not debarred by his conduct from taking advantage of the finding of unconstitutionality.
38. The second issue considered by the Court in Cunningham was the effect of a declaration of unconstitutionality. The Court reviewed a number of authorities in that regard including Murphy v. The Attorney General [1982] I.R. 241, McDonnell v. Ireland [1998] 1 I.R. 134, and stated:

“Yet, once that invalidity does crystallise with a declaration of unconstitutionality, it is plain so far as the State, society and the citizenry is concerned that the law in question is no longer operative: see in this regard the comments of O’Flaherty J. in McDonnell ([1998] 1 I.R. 134, 143). It is inherent in the principle of unconstitutionality contained in Article 15.4.2 that any such declaration has erga omnes effect. In other words, such a declaration is not merely confined to a specific judicial ruling of unconstitutionality inter partes which binds third parties simply and only by reason of the doctrine of precedent and the fact that the earlier ruling will (in all probability) be applied in future similar cases.”
Reference was also made to the decision in the case of Muckley v. Ireland [1985] I.R. 472. The Court concluded at p. 38 of the judgment:
“The key point here is that all of this – i.e., either the enactment of s. 21 of the Act of 1980 or the decision in Muckley itself – would have been quite unnecessary had the position been as Mr. O’Connell urged. It follows, therefore, that, in principle, at least the accused can claim the benefit of Damache unless the criminal proceedings have been finalised.”
39. Muckley was a case which resulted from the decision of the Oireachtas to enact legislation to deal with the outcome of the Murphy v. Ireland tax case in relation to the income of married couples.
40. Thus it is clear from the decision of the Court of Criminal Appeal in Cunningham that a third party can benefit from the finding of unconstitutionality notwithstanding that they themselves have not sought to challenge the constitutionality of the legislation at issue themselves in their proceedings provided that he or she is not estopped from relying on the finding of invalidity by factors such as those identified in the cases of Corrigan , Byrne and A. referred to above and providing of course, that the proceedings have not been finalised. Indeed, the Court of Criminal Appeal emphasised that in saying that:

“. . . absent a knowing and deliberate election – such as, in Byrne , deliberately electing to proceed with an unconstitutional jury – we do not think that the fact an accused can be faulted if he or she elects to proceed in the first instance by means of an appeal to this Court.”
In other words, the fact that someone has not themselves raised an issue as to the unconstitutionality of a particular piece of legislation is not, of itself, something that will amount to an election to proceed with the proceedings notwithstanding the possibility that the particular process or procedure provided for by the legislation is unconstitutional.
41. The Court of Criminal Appeal in the case of Cunningham concluded as follows:

“For the reasons set out above, we are satisfied that the appellant is entitled to invoke the judgment of the Supreme Court to the effect that s.29(1) of the Offences Against the State Act, 1939 is inconsistent with the Constitution. This is primarily because his appeal to this Court was extant at the time of the delivery of that judgment on the 23rd February, 2012. We are also of the view, again for the reasons set out above, that the appellant is not debarred from relying on the judgment in the Damache case by reason of the fact that he did not himself institute proceedings to have s.29(1) declared unconstitutional.”
42. The Court in that case went on to say that they would not comment on situations that would arise in other circumstances. One could indeed envisage a situation where a party who had pleaded guilty to an offence could have been precluded from relying on Damache in relation to the validity of a search warrant in circumstances where they had pleaded guilty to the offence or had accepted the validity of the search warrant in the course of trial. An example of such a situation arose in the case of DPP v. O’Connor [2014] IECCA 4, a decision of the Court of Criminal Appeal referred to by McDermott J. in Clarke . Mr. O’Connor sought to rely on the Damache decision in the course of an application to amend the Notice of Appeal to add, inter alia , a ground based the finding of unconstitutionality in Damache . He was permitted to add the ground and judgment was delivered refusing the appeal on the 23rd January, 2014. He then made an application for leave to appeal pursuant to s. 29 of the Courts of Justice Act 1924. McKechnie J. at para. 28 of the judgment said:
“…it will be recalled that when the prosecution indicated its intention of calling the relevant evidence with regard to the validity of the s.29 warrant, Counsel on his behalf immediately placed on the record that he was in a position “to concede that Sgt. Grant …applied for a search warrant in accordance with law,…” and that he adopted this course so as to release unnecessary witnesses to prove “the kind of formality” which would be involved. This can only be described as an express declaration of the appellant’s stated position on the issue at that time, a position which the Court does not criticise….It would, in this Court’s view, be entirely inconsistent with that stance to permit him now in effect to reverse his position in such a diametric way and to argue that his arrest and detention were unlawful. The situation as it had been had moved irreversibly by the end of the trial, and even though an extant appeal remains, the consequences therefrom cannot be undone.”
In the circumstances the application pursuant to s.29 was refused.
43. The position in this case is that the appellant sought judicial review by way of certiorari in order to quash the order of the Circuit Court whereby the appellant’s three year custodial sentences together with the two six month concurrent sentences were activated following the commission of the subsequent offence by the appellant. This is not a case where the appellant’s proceedings are finalised. His appeal remains outstanding. It is correct to say that he could not have relied on the point that arose in Moore given that he pleaded guilty to the first offences at issue and also to the triggering offence. Nevertheless, as the criminal proceedings have not been finalised as an appeal is extant, could he be debarred from relying on the finding of invalidity of s. 99(9) and (10) made in Moore in the course of his appeal?

44. The learned trial judge placed reliance on the decision of the High Court and the Court of Appeal in Clarke which, in turn, relied on, inter alia , the decision in The State (Byrne) v. Frawley [1978] I.R. 326 to argue that one could be debarred from relying on a finding of unconstitutionality by reason of conduct. I have set out above the circumstances of that case and undoubtedly, there are circumstances in which one might be debarred from relying on a finding of unconstitutionality, one such circumstance being the fact that the case concerned has reached finality It is important to bear in mind, that the proceedings in Byrne had in fact reached finality. Secondly, the issue that was subsequently relied on and which gave rise to the finding of invalidity related to the composition of the jury panel which flowed from the findings as to the inconsistency of provisions of the Juries Act 1927 with the provisions of the Constitution as found in de Burca . As was pointed out previously, the decision in de Burca was given in the course of the trial of Mr. Byrne. Mr. Byrne raised no issue in the course of his trial as to the validity of the jury and the panel from which it was selected to try him notwithstanding the decision in de Burca and following his conviction, he did appeal but did not raise any ground in relation to the composition of the jury. It was only after his unsuccessful appeal that he sought to raise an issue as to the composition of the jury by means of an application pursuant to Article 40.4.2°. In those circumstances there is nothing surprising in the fact that Mr. Byrne by his conduct was deprived of the right to argue the issue of unconstitutionality. The conduct at issue in cases such as Byrne is very much related to the tactical decisions made in the course of the trial and, in that case, in the subsequent appeal. Mr. Byrne had an opportunity to challenge the composition of his jury following on from the decision in de Burca and chose not to do so.

45. A similar question arose after the finding of unconstitutionality of s. 29 of the Offences Against the State Act in Damache as described in the case of O’Connor which is referred to above. A further example is the case of DPP v. Bolger [2013] IECCA 6. No formal objection was taken to the legality of the search warrant in that case. The Court of Criminal Appeal in it’s judgment (Denham C.J. ) observed:

“Once a strategy has been taken by an accused in a trial, then another approach may not be taken on appeal.”
46. Thus, I think that there can be no doubt that a defendant who adopts a particular course of conduct or strategy in the course of a criminal trial or could be said to have acquiesced in a particular course cannot adopt a different approach on appeal to make an argument that was not made in the court of trial or which is inconsistent with the approach taken in the court of trial to take advantage of a finding of unconstitutionality made during or after the trial but before an appeal has been concluded.
47. It is important to emphasise that the type of conduct which is at issue relates to the conduct or strategy adopted in the course of the proceedings. Thus, in the cases of O’Connor and Bolger, the conduct at issue was the approach taken in the course of the trial to the question of the validity of the search warrant. The parties in those cases were not allowed, following the Damache decision, to do a volte face in relation to the validity of the search warrants concerned. Such conduct will preclude a party from relying on a subsequent finding of unconstitutionality, albeit that finality has not been reached by reason of the fact that an appeal is outstanding.

48. I have already set out the conclusions of the learned trial judge in this case at para. 57 of her judgment. It seems to me that in looking at the conduct of the appellant and the issue of acquiescence, the emphasis was to a large extent on the conduct of the appellant by reference to “the merits” of the case. Accordingly, she concluded by following the decision in Clarke , that the appellant was not entitled to the relief sought.

49. I find it impossible to reconcile that conclusion of the learned trial judge with the decision of this Court in cases such as A. v. Governor of Arbour Hill Prison and indeed, the decision of this Court in The State (Byrne) v. Frawley . It is undoubtedly the case that on the 18th May, 2015 the Circuit Court dealt in good faith with the appellant in accordance with the law as then understood to be applicable. No one at that stage doubted the validity of s. 99(9) and (10). However, the decision in Moore changed that understanding of the law. There was a finding of invalidity.

50. None of the factors identified in cases such as A ., Byrne , Cunningham , Bolger or O’Connor are present on the facts of this case. The appellant did not adopt any strategy or engage in any conduct in the course of the proceedings which could debar him from relief. Further, he did not acquiesce in a process which he knew or understood to be unconstitutional. The process by which he was brought back before the Court to have the original suspended sentence revoked has been found to be unconstitutional. It is not so much a question of examining the merits of the particular facts and circumstances of the applicant and the offence concerned to decide whether or not he is entitled to rely on the finding of invalidity. Rather, it is a question of looking at the conduct of the proceedings and the decisions taken in the course of those proceedings to see if, by reason of any steps taken, the individual is debarred from relying on the finding of invalidity. There is no apparent reason why the appellant could not rely on that finding of invalidity. For those reasons, I am satisfied that there has been a want of due process of law in that the learned Circuit Court judge lacked jurisdiction to revoke the suspended sentence at issue by reason of the method by which the appellant was brought before the Court and that he is entitled to the relief sought.

51. For completeness I want to make reference briefly to the decision of this Court in the case of C v. Minister of Social Protection & Anor . [2018] IESC 57 in which judgment was delivered on the 28th November, 2018. As can be seen by the date of the delivery of judgment the decision in C was given subsequent to the hearing of the appeal by this Court in this case. That case arose in the context of a civil claim. I have had the opportunity of reading in draft form the judgment of Finlay Geoghegan J. in these proceedings in which she comes to a different conclusion on the outcome of this appeal. In the course of her judgment she has referred to the decision in C and cited in particular a number of passages from the judgment of O’Donnell J. (with which the majority of the Court in that case concurred). Having referred at para. 35 of his judgment to the decisions in A. v. Governor of Arbour Hill Prison and The State (Byrne) v. Frawley , he observed at para. 37 as follows:

“These cases are very important, since they establish beyond question that there is no automatic rule of consequential invalidity, and that certain matters, such as the finality of a conviction, or the failure to take a challenge, may preclude reliance on any invalidity subsequently established. However, both these cases occurred in the field of criminal law and involved attempts by a third party to claim the benefits of an invalidity established in other proceedings. Here, it is the appellant who has succeeded, and who claims for what he contends is consequential relief in the self- same proceedings, which are civil in nature. This, therefore raises slightly different issues.”
52. As can be seen from the discussion above, it follows that as has been said before, that there is no automatic rule of consequential invalidity and that as O’Donnell J. noted, certain matters may preclude reliance on any invalidity subsequently established. The extent to which someone may be debarred from relying on the finding of invalidity is something which will depend on the circumstances of any given case. In the earlier discussion in the course of this case, a number of circumstances have been referred to which will have a bearing on such a consideration. It is not necessary to refer to those authorities again. Suffice it to say, a finding of unconstitutionality in respect of legislation which has a bearing on criminal proceedings does not mean that steps taken in reliance on the legislation subsequently found to be unconstitutional will necessarily render the criminal proceedings invalid. A variety of factors will require to be considered as can be seen from the case law discussed above.
53. I indicated previously that I would return to the issue of s. 99(17) of the Act. The terms of s. 99(17) have been set out above. There is no doubt that the provisions of s. 99(17) have not been affected by the finding of unconstitutionality in Moore and that it is open to a court to consider the activation of a suspended sentence as provided for in that sub-section. It might be observed that the provisions of s. 99(9) and (10) were procedural in nature in that they set out the steps that had to be taken for a person to be brought before the court and the sequence in which sentencing was to be carried out following a subsequent “trigger” offence. Those procedures are no longer valid but that does not preclude a matter being brought back before the appropriate court for consideration of the question as to whether or not a suspended sentence should be revoked. There is no reason why that cannot be done in the event of a breach of the terms upon which the suspended sentence was imposed, if appropriate. In that regard, it is important to bear in mind the provisions of s. 99(13) and (14) which make provision for members of the Gardaí, prison governors, probation and welfare officers where there are reasonable grounds to believe that a person has contravened the condition(s) attached to a suspended sentence to apply to the Court to fix a date for the hearing of an application for an order revoking the suspension.

54. It should be noted that in this case, the challenge brought to the sentence of five and a half years imposed on the appellant in respect of the offence of dangerous driving causing death has not been pursued. Having said that, it should be borne in mind that that sentence was imposed in circumstances where the learned Circuit Court judge had regard to the earlier sentence and thus had regard to the principles of proportionality when reactivating the earlier sentences and imposing the sentence of five and a half years. In other words, the sentence of five and a half years was one which was arrived at having taken into account the fact that the suspended sentences of three years together with concurrent sentences of six months were being reactivated. In circumstances where this Court is of the view that it is appropriate to quash the orders of the Circuit Court revoking the suspended sentences, it may be considered appropriate to consider the question of remitting the issue of sentence in respect of those offences back to the Circuit Court for further consideration. It is a matter for the DPP to consider whether or not she wishes to do this having regard to the provisions of s. 99(17). The Court will hear the parties further on the question of remission.
Conclusion
55. By way of a brief conclusion:

(i) The decision of this Court in A. v. Governor of Arbour Hill Prison makes it clear that a finding that an act or part thereof is constitutionally invalid will not result in final decisions made in judicial proceedings being set aside by reason of the decision declaring the legislation concerned to be constitutionally invalid.
(ii) A defendant who adopts a particular course of conduct or strategy in the course of a criminal trial cannot adopt a different approach on appeal to make an argument that was not made in the court of trial (or which is inconsistent with the approach taken in the court of trial) to take advantage of a finding of unconstitutionality made during or after the trial but before an appeal has been concluded.

(iii) It is not a question of examining the merits of the particular facts and circumstances of an applicant and the offence concerned to decide whether or not an individual is entitled to rely on the finding of invalidity. Rather it is a question of looking at the conduct of the proceedings and the decisions taken in the course of those proceedings to see if by reason of any steps taken, the individual is debarred from relying on the finding of invalidity.

56. In all the circumstances, and for the reasons set out above, the Court will allow the appeal.

 

Judgment of Ms. Justice Finlay Geoghegan delivered on the 20th day of December, 2018.
1. This appeal is from a refusal of the High Court (Faherty J.) delivered on 16 June 2017 ([2017] IEHC 391) of an application primarily for an order of certiorari quashing an order made by Her Honour Judge Mary Ellen Ring (as she then was) in the Circuit Court on 18 May 2015 on Bill No. 298/2012 and other consequential reliefs. The order made by the Circuit Court on that day was:-

“THE COURT HEREBY ORDERS in accordance with Section 99(10) of the above-mentioned Act [Criminal Justice Act 2006] that the suspension of the sentence of this Court aforementioned be revoked and that the accused shall serve “the entire of the period of imprisonment originally imposed by this Court” being a sentence of three years on Count No 1 and six months on each of Counts 6 and 7 such sentences to run concurrently and to date from the 27th day of January 2015.”

2. Dunne J. has set out in full both the factual and legal context in which this appeal arises. I adopt same with gratitude. I only wish to record in summary the following facts, which are relevant to my conclusion on the legal issues.

3. The appellant pleaded guilty to charges on Bill No. 298/2012 on 18 February 2013. He was sentenced by Her Honour Judge Ring on 14 November 2013. The custodial sentences imposed were suspended in full for 3 years. Unfortunately, on 29 May 2014, the appellant was the driver of a vehicle which was involved in a serious accident, as a result of which one of his passengers died and another was seriously injured. The appellant was subsequently charged in respect of that incident on Bill No. 99/2015 on two counts, the second of which was a charge of dangerous driving causing death and serious bodily harm.

4. The appellant was himself injured in the accident. Following charge, he went into custody on those charges on 27 January 2015.

5. On 22 April 2015, the appellant was arraigned before the Circuit Court (His Honour Judge Nolan) and pleaded guilty to Count 2 on Bill No. 99/2015. He was remanded in custody to appear before Her Honour Judge Ring on 18 April 2015 for the purposes of sentencing on Count 2 on Bill No. 99/2015. A nolle prosequi was entered on Count 1.

6. The Circuit Court was informed of the prior suspended sentences and an order made remanding him to appear before Her Honour Judge Ring on the following day on Bill No. 298/2012. Whilst not referred to in the Circuit Court order, it is not in dispute that this order was made pursuant to s. 99(9) of the Criminal Justice Act 2006 (“the 2006 Act”).

7. On 23 April 2015, Judge Ring adjourned the s. 99 matter to 18 May 2015 for “s. 99 re-entry”. The accused was remanded in custody.

8. The Court has had access to the transcript of the hearing before Judge Ring on 18 May 2015 and her ruling on the sentencing on Bill No. 99/2015 and on the re-entry of Bill No. 298/2012. I will refer in greater detail to this below as it is relevant to the conclusions which I have reached.

9. In summary, the position of the appellant before Judge Ring on 18 May 2015 was as follows:-

(i) He was in custody on the charges on Bill No. 99/2015 since 27 January 2015. Having been arraigned and pleaded guilty to Count 2, he had been remanded in custody to appear for sentencing before Judge Ring on Count 2 on Bill No. 99/2015.
(ii) He had also been remanded in custody to appear before Judge Ring under s. 99(9) of the 2006 Act for the re-entry of Bill No. 298/2012.

10. On 18 May 2015, in relation to Bill No. 298/2012 the Circuit Judge purported to exercise a jurisdiction under s. 99(10) to revoke in full the suspension of the custodial sentences imposed in 2013. On Bill No. 99/2015, the Circuit Court imposed a custodial sentence for a period of five years and six months on Count 2 “…such sentence to date from the lawful termination of the re-activated sentence of three years on Count 1 and 6 months on each of Counts 6 and 7 this day imposed on Bill No. 298/2012”.
11. On 20 May 2015, the appellant, in person, lodged a notice of appeal against his sentence only. He refers to the sentence as being one of “eight and a half years”. It is clear that he was appealing against the sentences imposed in respect of Bills No. 298/2012 and 99/2015. The grounds of appeal are simply “I feel this sentence was to [sic] harsh as it was an accident and other sentences for the same charge have been a lot more lenient”.

12. On 19 April 2016, in Moore & Ors v. D.P.P. [2016] IEHC 244, Moriarty J. declared sub-ss. 99(9) and (10) of the 2006 Act to be unconstitutional.

13. Leave was granted in these judicial review proceedings on 9 May 2016.

14. The essential and simple point made on behalf of the appellant in the High Court and this Court is that the effect of the declaration of unconstitutionality of subss. 99(9) and (10) is that they are void ab initio and in consequence, Her Honour Judge Ring did not have the statutory power which she purported to exercise on 18 May 2015 to revoke the suspension of the custodial sentences imposed in respect of Bill No. 298/2012.

15. The High Court rejected the application for judicial review in reliance in particular upon the judgments of the High Court and Court of Appeal in Clarke v. Governor of Mountjoy Prison [2016] IEHC 278 and [2016] IECA 244 and in Foley v. Governor of Portlaoise Prison [2016] IEHC 334 and [2016] IECA 411 and upon other judgments of the High Court on applications affected by the declaration of unconstitutionality in Moore .
The Law
16. Dunne J. has set out with great clarity and detail the law in relation to the consequences of declarations of invalidity of statutes pursuant to Article 15 of the Constitution and in particular the consequences of such declarations for criminal proceedings.

17. The consequences for acts which are carried out pursuant to legislation declared unconstitutional have been considered most recently in judgments delivered by the Supreme Court in C. v. Minister for Social Protection [2018] IESC 57 on 28 November 2018, albeit in the context of a civil claim. In referring to this decision, I am not seeking to suggest that the consideration given in the majority judgments to the earlier cases relied upon by the parties in this appeal in relation to the consequences for criminal proceedings differs in any way from the law at the date of hearing the appeal, but I do believe that the judgments in C. helpfully summarise some aspects of the position. O’Donnell J. in his judgment (with which a majority of the Court concurred) commences a consideration of a number of prior decisions including The State (Byrne) v. Frawley [1978] I.R. 326 and A. v. The Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, by stating at para 31:-

“31. In a number of important cases, this court has held that while the general rule is that a declaration of invalidity will also render null and void actions taken on foot of the impugned provision, the declaration of invalidity did not always necessarily nullify transactions or steps taken or even convictions arrived at on the basis of, or pursuant to procedures established, by legislation subsequently declared invalid.”
18. Later, having referred to de Burca v. Attorney General [1976] I.R. 38 and its subsequent application in The State (Byrne) v. Frawley , he concluded in relation to the latter at the end of para. 34:-
“…The case therefore established an important and more broad-ranging, principle. Although a person convicted must be able to challenge a conviction on the grounds of the unconstitutionality of the legislation creating the offence, or controlling the mode of trial, and if successful the conviction would be quashed. It did not follow that such a conclusion must be reached in all cases for all those affected, even those whose factual circumstances may be identical to those of the successful claimant. This was a far-reaching decision, the implications of which were not necessarily recognised at the time.”
And continued at para. 35:-
“35. Although the decision that any person convicted by a jury empanelled under the 1927 Act could not challenge their conviction might now sit comfortably with the well-known decision of this court in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, that final convictions cannot be challenged on the basis of a subsequent determination of invalidity of a legislative provision, it is important to recognise it was not decided on that basis. Instead, it was treated as a case where the plaintiff was precluded from asserting, and could not benefit from, the invalidity even when such invalidity had already been established by the same court. It is notable that the proceedings in State (Byrne) v. Frawley [1978] I.R. 326 were State-side proceedings seeking an order of certiorari quashing the conviction, but that the conviction itself was separately under appeal. The decision of the court suggests emphatically, however, that if the point had been raised on the appeal, it would not have availed the applicant there either, even though the proceedings had not been concluded, and the conviction could not be treated as final, and thus falling within the principle established by A. v. Governor of Arbour Hill Prison. The decision of the Supreme Court in State (Byrne) v. Frawley is therefore clear authority that there is no absolute rule that once the constitutional invalidity of legislation is established, that all steps taken under it must be treated as a nullity.
36. The decision in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, discussed in more detail in the judgment of MacMenamin J., is a more elaborate treatment of the issue generally. That case established that even in the area of criminal law, the finding that a criminal offence, in that case created by the Criminal Law (Amendment) Act 1935, was inconsistent with the Constitution, did not mean that a person imprisoned on the basis of the conviction for that offence, could assert the nullity of the conviction, and claim release.

37. These cases are very important, since they establish beyond question that there is no automatic rule of consequential invalidity, and that certain matters, such as the finality of a conviction, or the failure to take a challenge, may preclude reliance on any invalidity subsequently established. However, both these cases occurred in the field of criminal law and involved attempts by a third party to claim the benefits of an invalidity established in other proceedings. Here, it is the appellant who has succeeded, and who claims for what he contends is consequential relief in the self- same proceedings, which are civil in nature. This, therefore raises slightly different issues.”

Issue for Decision
19. I am in agreement with Dunne J. that on the facts of this appeal the issue which has to be decided, as she puts it at para. 41 of her judgment, is whether the appellant could “be debarred from relying on the finding of invalidity of subss. 99(9) and (10) made in Moore in the course of his appeal”. The appeal being referred to is, I understand, the appeal against sentence to the Court of Appeal, which remains pending.
20. As appears from the judgment of Dunne J., the identification of the question arises from the principles contained in the judgments of this Court in inter alia The State (Byrne) v. Frawley and A. v. Governor of Arbour Hill Prison and judgments of the Court of Criminal Appeal in The People (D.P.P.) v. Cunningham [2012] IECCA 64, [2013] 2 I.R. 631 (” D.P.P. v Cunningham “), The People (Director of Public Prosecutions) v. Bolger [2013] IECCA 6 (” D.P.P. v Bolger “) and The Director of Public Prosecutions v. O’Connor [2014] IECCA 4 (” D.P.P. v O’Connor “).

21. Each of the above decisions of the Court of Criminal Appeal concerned whether the appellant in question was entitled to rely in his appeal upon the declaration of unconstitutionality of s. 29 of the Offences Against the State Act 1939, as inserted by s. 5 of the Criminal Law Act 1976, issued by the Supreme Court in Damache v. Director of Public Prosecutions [2012] IESC 11, [2012] 2 I.R. 266 (” Damache “). The purpose of doing so in each appeal was to challenge the validity of a warrant issued under s. 29 and hence the admission at trial of evidence obtained thereunder. In each case, the appellant had pleaded not guilty to the offences, had been convicted in advance of the judgment in Damache and had an appeal pending against conviction at the time the judgment in Damache .

22. These proceedings are judicial review proceedings. However, I am in agreement with Dunne J. that the entitlement of the appellant to an order of certiorari in the judicial review proceedings is dependent on the answer to the question as to whether he would be entitled to challenge the order made by the Circuit Court that the suspension of the sentence imposed on the 14 November 2013 on Bill No. 298/2012 be revoked and that the appellant serve the entire of the period of imprisonment originally imposed by the Court, on the ground that the Circuit Judge had no jurisdiction to make the order by reason of the invalidity of subss. 99(9) and (10) of the 2006 Act. This appears to follow firstly from the fact that orders made under the invalid subsections are not automatically rendered null and void. Second, from the clear principle from A. v. Governor of Arbour Hill Prison that if criminal proceedings are finally concluded then final convictions (and sentences) cannot be challenged upon the basis of a subsequent determination of invalidity of a legislative provision. Third, from a comparison of the position of the appellant in these proceedings with a person in exactly the same position as at the date of the judgment in Moore , save that he had not lodged an appeal against the severity of sentence as the appellant had done. Such a person, if he commenced judicial review proceedings similar to those commenced by the appellant, would fail in accordance with the decision in A. v. Governor of Arbour Hill Prison .

23. Accordingly, it is the existence of the appellant’s appeal that permits him to argue that his criminal proceedings have not reached finality. The appellant pleaded guilty to the 2012 offences and the 2015 offences and obviously lodged no appeal against conviction and hence, his convictions have reached finality. It is only the custodial sentences imposed on 18 May 2015 which are not final.

24. The judgments of the Court of Appeal in D.P.P. v Cunningham , D.P.P. v Bolger and D.P.P. v O’Connor are helpful in identifying the extent to which the criminal proceedings which have been determined in the Circuit Court but where there is an extant appeal are not finally determined and also in identifying the principles according to which an appellant may be entitled in his appeal to rely upon a relevant declaration of invalidity of legislation made subsequent to the decision of the Circuit Court appealed against. D.P.P. v Cunningham is of particular assistance to the first of these questions.

25. In D.P.P. v Cunningham , the Court of Criminal Appeal (Hardiman, Moriarty and Hogan JJ.), in a judgment delivered by Hardiman J. on 11 May 2012, considered a submission made on behalf of the Director that the verdict of the jury convicting the applicant was itself final, notwithstanding the existence of an appeal and hence, in accordance with the judgments in A. v. Governor of Arbour Hill Prison , the Damache declaration of invalidity could not be relied upon as a ground of appeal. That submission was rejected. Hardiman J., having referred to A. v. Governor of Arbour Hill Prison and to the then relevant constitutional and statutory provisions relating to the Supreme Court and the Court of Criminal Appeal, stated at para. 51:-

“51. The courts whose decisions are thus invested with finality and conclusivity are the Supreme Court and the Court of Criminal Appeal, both primarily appellate courts. The finality attaching to the judgments of other courts are, as Finlay C.J. in Dalton v. Minister for Finance [1989] 1 I.L.R.M. 519 expressed it, at p. 273,”subject to a proper right of appeal as provided by law”. It therefore appears that where there is (as in this case) a right of appeal provided by law, finality cannot be said to attach to the decision of a court which is subject to that right of appeal unless and until the appeal has concluded or no appeal has been taken within the time limited for doing so.”
26. In D.P.P. v Cunningham , during the trial in the Circuit Court, counsel for the accused had challenged the validity of the warrant issued under s. 29(1) of the Act of 1939 on grounds other than the Damache point. He had never, accordingly, accepted the validity of the warrant.
27. On the facts of D.P.P. v Cunningham , the Court concluded ultimately that the appellant was not precluded from relying upon Damache in his appeal. The Court at para. 71, having referred again to A. v. Governor of Arbour Hill Prison and The State (Byrne) v. Frawley , then stated:-

“71. … None of these factors particular to cases such as Corrigan v. Irish Land Commission [1977] I.R. 317, The State (Byrne) v. Frawley and A. v. Governor of Arbour Hill Prison [2006] IEHC 169, [2006] IESC 45, such as election, acquiescence and estoppel by conduct, apply to the position of the present applicant. It can thus be said that the present applicant is not debarred by his own conduct from taking advantage of the finding of unconstitutionality.
28. Next, in D.P.P. v Bolger , the Court of Criminal Appeal (Denham C.J., DeValera and McGovern JJ.) in a judgment delivered by Denham C.J. on 14 March 2013, reached on its facts the opposite conclusion. On the facts of that case, there had been no formal challenge to the legality of the search warrant during trial, nor would it appear that any reference was made to the possibility of any infirmity in the legislation unlike in two other cases, The People (Director of Public Prosecutions) v. Kavanagh & ors [2012] IECCA 65, and The People (Director of Public Prosecutions) v. O’Brien [2012] IECCA 68, to which reference was made.
29. The Court, having referred to the now well known passage from Murray C.J. in A. v. Governor of Arbour Hill Prison in relation to finality, then stated from para. 20:-

“20. The finality of a trial is at its conclusion. In this case the applicant’s appeal was pending and so it had not reached finality. Thus, applying this principle the Court permitted the applicant to raise and argue the Damache case.
21. However, there is another relevant principle which is also applicable, that relates to the issues which may be raised on an appeal.

22. This court hears an appeal from a trial. After a trial an accused has a right of appeal. However, the issues which may be raised on appeal relate to those raised at the trial. That is the applicable general principle. However, as is clear from our jurisprudence, if there has been demonstrated some error of substance, such as to ground an apprehension that a real injustice has occurred, and an explanation as to why the point was not taken, then the Court may permit a point not made at trial to be argued on appeal.

23. In The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] IESC 9, [2006] 4 IR 329, referred to as Cronin (No. 2), Kearns J. (as he was then) stated at 346, paragraph 46:-

“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner.”
There was re-enforcement of this point in State (Director of Public Prosecutions) v. O’Regan [2007] IESC 38, [2007] 3 IR 805 at 821, paragraphs 55 to 56, where Kearns J. stated:

24. Thus, in general, in deciding whether an issue may be raised on appeal, it is necessary to consider the trial to see if the matter was raised and, if so, whether there was a decision by the court of trial.”
30. Later in the judgment, the Court summarised these principles at para. 34 and identified that, by reason of the failure to raise the issue at trial, ” prima facie this is not a case where the Damache decision may be raised”. However, the Court then indicated that it heard submissions on the evidence obtained pursuant to the s. 29 warrant, and the other grounds of appeal, to determine if a fundamental injustice had been done or there existed a reasonably explained substantial error leading to an apprehension of real injustice. It concluded on the facts that this was not the case. It thus appears from D.P.P. v Bolger that it is not sufficient for an appellant simply to establish that there is a pending appeal so as to entitle that person to raise a ground of appeal in reliance upon a declaration of invalidity of a statute, subject to the finalisation of the criminal proceedings in the Circuit Court. He must also be able to satisfy the Court that, in accordance with the Cronin No. 2 principles, they are entitled to raise the relevant issue on appeal.
31. In the third of the judgments of the Court of Criminal Appeal, The Director of Public Prosecutions v. Paul O’Connor (Unreported, Court of Criminal Appeal, McKechnie J., 4th February, 2013) the Court (McKechnie, DeValera and McGovern JJ.) refused permission to allow the appellant to rely upon the Damache point. The main points of that judgment are set out in a subsequent judgment of the same court in D.P.P. v O’Connor refusing a certificate under s. 29 of the Courts of Justice Act 1924. As appears from paras. 8 to 13 of the later judgment, the Court considered it rejected the application to argue the Damache point on appeal on two separate grounds, one that it had not been raised at trial and secondly, that a concession made by counsel on behalf of the accused that the search warrant had been applied for in accordance with law and granted in accordance with law precluded the applicant from taking an inconsistent approach on appeal.
Hearing of 18 May
32. I now turn to the approach taken by the appellant, through his counsel, at the hearing on 18 May 2015 before Her Honour Judge Ring. No challenge was made to the jurisdiction of Judge Ring to deal both with the re-entry pursuant to s. 99 of the matters on Bill No. 298/2012 and sentencing on Bill No. 99/2015. The appellant could not, of course, on the facts of his case, have raised the type of constitutional objection to s. 99(9) & (10) which was raised in Moore. However, in my view nothing turns on that fact in particular. In accordance with D.P.P. v Cunningham, if an objection had been made to the jurisdiction of the Circuit Judge to deal with both matters on the day or if there had been an objection to the fairness of procedures, then it may well be that the appellant should be entitled to raise grounds on appeal in relation to the decision to lift the suspension of the sentences on Bill No. 298/2012, which would include a lack of jurisdiction of the Circuit Judge by reason of the invalidity of subss. 99(9) and (10).

33. However, factually, matters went further than a simple absence of any objection. The High Court judge at para. 55 of her judgment concluded that the appellant had submitted to the jurisdiction of the Circuit Court and “acquiesced” in the exercise by the Circuit Court of its jurisdiction under ss. 99(9) and (10), either by the order of 22 April 2015, or at the hearing on 18 May 2015 and the order made on that day. I respectfully agree.

34. The appellant, through his counsel, expressly asked the Court to observe the principle of totality in dealing with both the s. 99 matter in relation to Bill No. 298/2012 and sentencing on Bill No. 99/2015 at the same hearing. His counsel set out a number of relevant facts in relation to the appellant and his circumstances and then stated (at p. 16 of transcript):-

“…I think that is as much as can be said. I would ask obviously the Court to balance the competing interest of doing justice as between the parties and also Mr. Wansboro. He is a young man. He is going to be released into the community at some stage. It is obviously the case that consequential orders will flow and the Court will be considering this in light of the section 99 matter. I am simply asking the Court to observe the principle of totality in that regard. It is clear that the Court can if it so minded impose all of the sentences of imprisonment previously imposed, … or the Court can, I suppose impose such element of it as it feels is appropriate and then marry that with the sentence will obviously impose in relation to this incident…”

35. The trial judge, in delivering her sentencing decision, dealt firstly with the facts pertaining to the charge on Bill No. 99/2015, Mr. Wansboro’s own injuries suffered in the incident and certain other prior convictions. Turning to Bill No. 298/2012 and, having referred to the sentences imposed, their suspension and the warning given to Mr. Wansboro in November 2013 that if she saw him again within the suspended period, she would impose the three years, the Circuit Judge stated that she was lifting their suspension.

36. She then turned to the sentence on Count 2 of Bill No. 99/2015 and initially stated:-

“..[t]he sentence on bill 99/2015 is required by law to be consecutive to the three year sentence. I must have regard, in imposing a consecutive sentence, to the totality principle, but it seems to me that in light of the short period of time before Mr. Wansboro offended, that regard is limited…”

37. She then referred to a number of other matters and returned to this towards the end of her decision, saying (at p.21 of the transcript):-

“…I have to have regard to the totality principle in the light of the matters on bill 298/2012 in sentencing. However, in this case I cannot overlook the fact that Eric Wansboro was fully aware of what was at risk and took the risk regardless. Had Eric Wansboro not pleaded not [sic] guilty the appropriate sentence would have been one of six and a half years. Taking these matters into consideration and weighing the limited mitigation in this case and having regard to the totality principle, I find that the appropriate sentence on Count 2 on bill 99/2015 is one of five and a half years. This will commence at the lawful expiration of the sentence imposed on bill 298/2012. …”

38. Having regard to the approach taken at the sentencing hearing on 18 May, I have concluded that the appellant has not established that he would be permitted to raise at his sentencing appeal any ground of objection to the manner in which he was brought before the Circuit Court under s. 99 or to the jurisdiction of the Circuit Judge to consider and determine the revocation of the suspended sentence under s. 99, unless, in accordance with the principles in Cronin (No. 2) , if he were not permitted to do so would ground an apprehension that a real injustice had occurred. This is in accordance with the approach in D.P.P. v. Bolger and D.P.P. v. O’Connor .

39. Further, on the facts it may properly be considered that the appellant, not only in acquiescing to the jurisdiction of the Circuit Court in dealing with both the s. 99 re-entry of Bill No. 298/2012 and the sentencing on Bill No. 99/2015 together, but also in seeking to have the sentence on Bill No. 99/2015 reduced by reference to the totality principle and thereby obtaining some benefit, is now debarred on appeal from taking an approach inconsistent with that conduct. In so concluding, I am not suggesting that the factual position is similar to that in The State (Byrne) v. Frawley , given that it could not be concluded that the appellant acquiesced in a process which he knew or understood to be unconstitutional. Rather, he acquiesced in the process and jurisdiction of the Court and sought by his conduct to obtain some benefit for himself in terms of mitigating the sentence to be imposed in respect of the offence to which he had pleaded guilty on Bill No. 99/2015.

40. I do not consider that the facts give rise to an apprehension of a real injustice having occurred. This is principally for two reasons. First, the appellant was lawfully before the Circuit Judge having been remanded in custody on Bill No. 99/2015 for sentencing, pursuant to the order of the Circuit Court (His Honour Judge Nolan), made on 22 April 2015, following his plea of guilty to Count 2 on Bill No. 99/2015. Having so pleaded and been convicted on Bill No. 99/2015, it was open to inter alia the Gardaí to seek to have the Circuit Judge deal with the matter of revocation of the suspended sentences on Bill No. 298/2012 pursuant to s.99(13). Further, s. 99(17) gives a statutory jurisdiction to the Court to revoke a suspension which is not dependent on the procedures envisaged by s. 99(9). Hence, when the appellant was lawfully before Her Honour Judge Ring on 18 May 2015, having been remanded for sentencing on Bill No. 99/2015, the Circuit Judge could have considered and decided upon the suspension pursuant to s. 99(17). This provides:

“(17) A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and where the court revokes that order, the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order.”
41. Hence, if any objection had been taken to the procedures under ss. 99(9) and (10), the Circuit Judge could have considered exercising the statutory jurisdiction under s. 99(17) as the appellant was lawfully before her on Bill No. 99/2015 and had pleaded guilty to the trigger offence. I note that there does not appear in s. 99(17) to be an express obligation to make the sentence imposed on Bill No. 99/2015 consecutive to any order made under s. 99(17) that a prior suspension be lifted and the person now serve all or part of the sentence previously imposed. No issue was raised in relation to this in this judicial review or appeal. Whether or not this is a matter which may be taken into account by the Court of Appeal in the appeal against severity remains for the Court of Appeal.
42. For these reasons, I am unable to agree with the conclusion reached by Dunne J. that the appellant did not adopt any strategy or engage in a conduct in the course of the proceedings which would debar him from relying upon the declarations of unconstitutionality of sub-ss. 99(9) & (10) of the 2006 Act in his appeal against sentence imposed on 18 May 2015 on Bill No.298/2012. Accordingly, I would dismiss the appeal.

 

The Director of Public Prosecutions -v- Vajeuskis

[2014] IEHC 265 (23 May 2014)

Neutral Citation: [2014] IEHC 265

THE HIGH COURT
Record Number: 2013 No. 1762 SS

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

 

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA NIALL COGAVIN)
PROSECUTOR
AND
AIGARS VAJEUSKIS

DEFENDANT

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 23rd DAY OF MAY 2014:
1. This is a Consultative Case Stated dated 2nd October 2013 by Judge Seamus Hughes of the District Court arising out of a prosecution of the defendant for certain offences under the Road Traffic Acts, and in respect of which the defendant was convicted by him on 27th June 2012 at Athlone District Court.

2. According to the Case Stated submitted, Judge Hughes decided, following conviction, that the defendant was a suitable candidate for imprisonment, but that he should be allowed an opportunity to demonstrate his remorse and to mark the seriousness of the offences. Accordingly, on 27th June 2012 he imposed fines amounting to the sum of €1500, directed also a contribution to the court poor box in a further sum of €1500, and adjourned the case until 25th July 2012 to enable the defendant to do so.

3. The matter came back before the District Court on 25th July 2012, and on that date the defendant made the payments as ordered. Judge Hughes proceeded to disqualify the defendant from driving for a period of six years, and sentenced him also to 4 months imprisonment, but suspending that sentence for a period of two years pursuant to the provisions of section 99 (1) of the Criminal Justice Act 2006.

4. According to the Case Stated, on 25th May 2013 the defendant was convicted of further offences committed during the period of this suspension, those matters coming before a different District Judge, namely Judge Denis McLoughlin, at Galway District Court.

5. Given the existence of the suspended sentence already imposed, Judge McLoughlin adjourned the case before him, and, as provided in section 99, remanded the defendant back to Athlone District Court so that Judge Hughes could consider whether the suspended sentence should be activated pursuant to the provisions of section 99 (10) of the Criminal Justice Act, 2006.

6. The matter came back before Judge Hughes for that purpose on 5th June 2013 when Counsel for the defendant raised an issue as to whether the District Court has jurisdiction to suspend a sentence of four months for a period of two years, i.e. to suspend the sentence for a period longer than the sentence itself.

7. Judge Hughes seeks the opinion of this Court on the following questions:

1. Is the jurisdiction of the District Court to suspend a sentence, limited to its maximum sentencing jurisdiction in a given case?
2. Cognisant that the sentencing jurisdiction of the District Court is limited to one year, or two years on two offences where the sentence is made consecutive and the charges arise from separate events, does that jurisdiction extend to the suspension of a sentence for the period greater than two years?

3. In the absence of special circumstances, am I correct in law to suspend a sentence for a period longer than the length of the sentence that is actually imposed?

4. In reference to the existing jurisprudence, particularly the judgment of Chief Justice Keane in the People (DPP) v. Hogan (unreported, Court of Criminal Appeal, 4 March 2002) what constitutes “special circumstances”, and am I correct in law in finding that a third conviction constitutes a special circumstance?

8. Before addressing the submissions of the parties, and reaching any conclusions, I should set forth the relevant provisions of Section 99, sub-sections (1), (9) and (10) of the Act of 2006:
(1) where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence, that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognizance to comply with the conditions of, or imposed in relation to, the order.
(9) where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, being an offence committed after the making of the order under subsection (1), the court before which proceedings for the offence brought shall, before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order.

(10) a court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1) unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody (other than a period spent in custody by the person in respect of an offence referred to in subsection (9) pending the revocation of the said order.

9. James Dwyer BL for the prosecutor has first of all submitted that Judge Hughes ought not to have stated a case for determination by this Court, since in his submission the judge is functus officio as far as the sentence imposed is concerned, and cannot now revisit it even if it is a sentence which he was not entitled to suspend for a two year period. In this regard, Mr Dwyer has referred to the provisions of the Courts (Supplemental Provisions) Act 1961 which provides the statutory basis for a Case Stated to this Court. That section provides:
“52 (1) – A justice of the District Court shall, if requested by any person who has been heard in any proceedings whatsoever before him (other than proceedings relating to an indictable offence which is not being dealt with summarily by the court) unless he considers the request frivolous, and may (without request), refer any question of law arising in such proceedings to the High Court for determination”. [emphasis added]
10. In the light of section 52, Mr Dwyer submits that the questions now posed in the Case Stated have not “[arisen] in such proceedings” before the District Judge on the revocation application, and arose if at all in the proceedings previously before him on 25th July 2012 when he imposed the sentence and suspended it. He submits that the only question arising on the matter before the District Judge on the 5th June 2013 when the defendant was before him for the purpose of section 99 (10) of the Act of 2006 was whether it would be unjust in all the circumstances to revoke the suspension – otherwise the suspension shall be revoked. It is submitted where the imposition of a suspended sentence for a period longer than the sentence itself was never challenged by way of appeal or judicial review, this Court should answer the questions posed in the Case Stated by saying that the questions asked are not “arising in such proceedings” since what is then before the court is simply an application to revoke the suspension of sentence under section 99 (10) the Act.
11. In relation to whether the judge was ‘functus officio’ once he has passed sentence, Mr Dwyer has referred to the judgment of O’Daly J. ( as he then was) in A-G v. Simpson (No.2) [1959] I.R. 335 at p. 346, where, in a dissenting judgment, but in any event by way of obiter dictum, he stated:

“The Justice here, even if he had, in conformity with Rule 55 of the District Court Rules, immediately entered up his ruling that the evidence sought in cross-examination was admissible, would nonetheless, up to the moment of making his order sending forward for trial or refusing informations, have been free to state a case on a question of law. Every question of law may be said to be “arising” in the case while the justice is still not functus officio.”
Mr Dwyer submits that it is clear therefore that once the District Judge imposed the sentence of four months imprisonment, and suspended it for two years, he is thereafter ‘functus officio’ as far as any consideration of whether it was a lawful sentence is concerned, and that thereafter, the sentence imposed may be re-visited only by way of appeal or judicial review, neither of which has occurred in this case. He has submitted also that this is consistent with the dicta of Hardiman J. in cases such as Cleary v. DPP [2012] IESC 43, 1 ILRM 449, and People (DPP) v. Stewart, unreported, Court of Criminal Appeal, 12 January 2004.
12. Micheál P. O’Higgins SC for the defendant has submitted that on the application to revoke the suspension, the District Judge was not ‘functus officio’ as far as these proceedings are concerned. He describes the revocation application as one “to lock a person up on foot of a previous sentence”, and accordingly submits that it must be seen as arising from the proceedings, and therefore that the District Judge is perfectly entitled to consider issues arising from the imposition of the original sentence, and to seek the guidance of this Court.

13. Mr O’Higgins notes that where a sentence of four months is imposed, but is suspended for a period of two years, the sentence is hanging over the head of the defendant for six times the length of the sentence itself, and that this must be considered to be disproportionate. He urges that point in the context that under section 99 (10) of the Act of 2006 the District Judge is required to revoke the suspension of sentence unless he considers that it would be unjust to do so in all the circumstances. One example of where a judge might consider that it would be unjust that a suspension of a sentence should be revoked (or in other words that the sentence be activated) would be where the so-called ‘trigger offence’ was committed during the period of suspension, but towards the very end of that period. But Mr Higgins submits that even in the present case, the District Judge would be entitled to take the view that the length of the suspension period (two years) in the context of a sentence of four months, is disproportionate and therefore unjust, and would be entitled to decide that he should exercise his discretion not to revoke the suspension.

14. Mr O’Higgins submits also that the issue raised as to the length of the suspension of a four-month sentence is not confined simply to whether the District Judge is entitled to suspend a sentence for longer than the length of the sentence itself, but that it goes to the question of jurisdiction in relation to the revocation application under section 99 (10) as did the issue in DPP v. Carter, unreported, O’Malley J, 21st March 2014. The issue in that case arose from the fact that whereas section 99 (9) of the Act of 2006 provides that the judge dealing with a ‘trigger offence’ shall remand the person “to the next sitting” of the court that imposed the suspended sentence, for the purpose of the revocation application, the defendant was remanded to that court, but to one sitting one week later than the next sitting. O’Malley J. was satisfied that section was mandatory, the wording was clear and did not permit of any discretion to remand the defendant to any sitting other than “the next sitting” no matter how reasonable or short the period of time beyond that next sitting the matter was remanded to. In this regard, she concluded:

“The question here is ultimately one of jurisdiction. The issue is not whether the defendant was properly brought before the District Court, but whether a lawful foundation had been laid for the exercise by the District Court of its powers under subs. (10) of the Act. It seems to me that this issue must be approached on the basis that the powers in relation to suspended sentence are now entirely governed by statute, and that the statutory power to revoke such a sentence under subs. (10) of the Act depends on a valid order having been made under subs. (9). I propose therefore to follow Devine and hold that in this case the District Court had no jurisdiction to deal with the applicant. I do so on the basis that Devine is a decision of the Court of Criminal Appeal directly concerned with the proper interpretation of the statutory provisions in issue in this case.”
15. Mr O’Higgins submits that in the present case also, the lawfulness of the suspended sentence goes to the question of jurisdiction of the District Court to consider a revocation of the suspension under section 99 (10), since it cannot be said that a District Judge would have jurisdiction to make an order the effect of which would be to incarcerate a person on foot of the sentence the suspension of which was unlawful. He submits that at a minimum there is a question mark over the validity of the sentence which was imposed. I do not accept that submission as correct. In the present case, the issue which has been raised in this regard does not go to jurisdiction. The District Judge passed sentence and suspended it and did so within jurisdiction. That sentence was not appealed or otherwise challenged. It was a lawful sentence for reasons which will appear below. The matter was therefore properly before Judge Hughes on the 5th June 2013.
16. Writing in the year 2000 and therefore before the Oireachtas provided a statutory basis for the imposition of a suspended sentence and for its revocation in section 99 of the Act of 2006, Prof. Thomas O’Malley in his work entitled Sentencing: Law and Practice [2000] Round Hall noted that the suspended sentence has been endorsed as being “a valid and proper form of sentence”, and one “so well established in our legal system as not to require any elaboration”, and one which “is obviously a very beneficial one for judges to possess”. In that regard he footnoted In re McIlhagga, unreported, Supreme Court, July 29 1971, O’Dalaigh J., and O’Brien v. Governor of Limerick Prison [1997] 2 ILRM 349. The learned author goes on to state at paragraph 9 – 52:

“Because suspended sentences are unregulated by statute, there are no limits to the length of sentence that may be suspended, the length of time for which it may be suspended or the conditions that may be attached to it”.
He went on in the same paragraph to note that the Law Reform Commission in its Report on Sentencing [L.R.C 53 -1996] “has recommended a limit of three years on the length of sentence that may be suspended and, as had been envisaged by the Criminal Justice Bill 1967, the same limit on the length of time for which a sentence may be suspended”. He noted also that “these are sensible recommendations which should be implemented by legislation”.
14. Nevertheless one finds that nowhere within the provisions of section 99 of the Act of 2006 has any provision been made for any maximum length of sentence which may be suspended, or any limit to the length of any such suspension. Subsequently the Oireachtas has twice enacted amendments to section 99 of the Act of 2006, and on neither occasion did it take the opportunity to include any limitation on the maximum length of sentence which may be suspended, nor the length of any such suspension. In such circumstances, it seems to me necessary to conclude that the intention of the Oireachtas is clear, namely that there should be no such limitations imposed by statute, despite the urgings of the Law Reform Commission in that regard and, one might say, the views expressed by Prof. O’Malley above. I agree with the comment of O’Malley J. in Carter above, that the regime for the suspension of sentences is one now entirely regulated by statute.

15. I agree with Mr Dwyer’s submission that on the revocation application it is not open to the District Judge who imposed the suspended sentence to enter then upon the question of whether the sentence imposed is a lawful one. That question must be dealt with by way of an appeal or else by way of judicial review. As far as the sentence itself is concerned, there could be no question of the judge reconsidering the sentence. To that extent he is functus officio as far as any reconsideration of the sentence is concerned. In my view it would follow that when he is considering whether it would be unjust to revoke the suspension because another offence has been committed during the period of suspension, he must disregard for that purpose any question of whether the suspended sentence was lawfully or appropriately imposed. He must look to other facts and circumstances when deciding whether it would be unjust to revoke the suspension, and it would not be appropriate to set forth in any manner whatever the variety of facts and circumstances which might render it unjust to revoke, as each case will be individual as is each convicted person.

16. On the issue of whether the particular questions asked in this Case Stated are questions “arising in such proceedings” for the purpose of section 52(1) of the Act of 1961, Mr Dwyer is strictly speaking correct given my conclusion that on the revocation application the District Judge may not reconsider in any way the lawfulness or appropriateness of the suspended sentence imposed. Nevertheless, I do not rule out that in another case an issue may arise upon an application to revoke a suspended sentence and which does arise from the proceedings in which the suspended sentence was imposed. I cannot envisage what that issue or issues might be, but I would not wish this judgment to be regarded as authority for any proposition that on an application to revoke a suspended sentence a District Judge may never submit a Case Stated for the consideration of the High Court.

17. Given my conclusion that the courts’ jurisdiction to impose a suspend a sentence, and in certain circumstances to revoke that suspension, and the relevant procedures in that regard, are now provided for by statute alone, the previous regime which was based on the common law is obsolete and replaced entirely by section 99 of the Act of 2006 and its amendments. Accordingly, it seems to me that the reliance which Mr O’Higgins has placed on certain dicta from cases pre-dating these enactments no longer have the relevance that they once did.

18. It follows also in my view, in so far as it is relevant at all (but it may be helpful generally to say this), that Judge Hughes was not restricted as to the length of time for which he could suspend the sentence of four months which he imposed, and that it is not the law of this State that a sentence may not be suspended for any period longer than the sentence itself. The Act is silent in that regard and as to the maximum length of any such suspension. That is what the Oireachtas has decided the law should be. In so far as any convicted person might consider that any sentence imposed and suspended is not a lawful and appropriate sentence, he/she must address that issue by way of appeal as to severity of sentence, or perhaps in an appropriate case by way of judicial review. But it is not appropriate to try and have the issue dealt with a part of the consideration as to whether it is unjust that the suspension should be revoked.

19. Having reached these conclusions I should answer the questions asked upon this Case Stated as follows:

(i) Is the jurisdiction of the District Court to suspend a sentence, limited to its maximum sentencing jurisdiction in a given case?

Answer: No, because the Act of 2006 is silent on the matter.

(ii) Cognisant that the sentencing jurisdiction of the District Court is limited to one year, or two years on two offences where the sentence is made consecutive and the charges arise from separate events, does that jurisdiction extend to the suspension of a sentence for the period greater than two years?

Answer: Yes, because the Act provides no limit to the period of the suspension.

(iii) In the absence of special circumstances, am I correct in law to suspend a sentence for a period longer than the length of the sentence that is actually imposed?

Answer: Yes, because section 99 of the Act of 2006 makes no reference to special circumstances.

(iv) In reference to the existing jurisprudence, particularly the judgment of Chief Justice Keane in the People (DPP) v. Hogan (unreported, Court of Criminal Appeal, 4 March 2002) what constitutes “special circumstances”, and am I correct in law in finding that a third conviction constitutes a special circumstance?

Answer: Does not arise.

O’Brien v. Governor of Limerick Prison

[1997] 2 I.L.R.M. 349 (SC)
O’Flaherty J
On 17 December 1996, the court allowed the appeal of Michael O’Brien against the judgment and order of the High Court (Geoghegan J) of 31 July 1996; the court ordered his release pursuant to Article 40.4 of the Constitution and said it would give its reasons later. Geoghegan J held that the applicant’s detention was lawful but he thought it desirable that an appeal should be brought to the court with some degree of expedition because of a lack of certainty in the law as a result of a number of decisions which he found difficult to reconcile.

There follow the reasons for the court’s decision to allow the appeal and order the release of the appellant.

Background facts
The appellant appeared before Lavan J at the Central Criminal Court on 18 June 1993, when he pleaded guilty on a count of burglary as well as a count of aggravated sexual assault. On that date he was sentenced to ten years’ imprisonment on each of the counts, such sentences to be concurrent and to date from 18 June 1993. The learned trial judge went on to order that the last six years of the said sentence should be suspended. The relevant part of his order was as follows:

To be imprisoned for ten years on each of counts one and three such sentences to be concurrent and to date from 18 June 1993, and the court doth further order that the last six years of the above sentence be suspended on condition that the accused enters a bond in the sum of £100 to keep the peace and be of good behaviour towards all the people of Ireland from 17 June 1997 to 17 June 2003, and further that he will not attend at the village of Doon or the townland of Kilmoylan in the County of Limerick upon his release from custody on 17 June 1997, and further that on the commission by the accused of any offence, either while in custody or during the six years’ suspension, the accused will come up to serve the balance of his sentence suspended upon him entering this recognisance, [and] the accused acknowledged himself so bound.

From a perusal of the transcript of proceedings at the trial court (reproduced in the judgment of Geoghegan J) it is quite clear that Lavan J intended that the accused would serve four years, without any remission.

The accused did not appeal to the Court of Criminal Appeal. Instead, he asserted that the custodial part of his sentence, viz. four years, should attract the usual remission of one quarter. It was conceded, in the course of the hearing in this Court, that if that contention was correct then he would be entitled to a quarter remission and should be set free.

Rules for the Government of Prisons 1947
It is agreed on both sides that this case is concerned with the proper construction of Rule 38(1) of the Rules for the Government of Prisons 1947, which were made pursuant to the Prisons (Ireland) Act 1907, s. 1 of which is as follows:

Provision may be made by prison rules for enabling a prisoner sentenced to imprisonment, whether by one sentence or cumulative sentences, for a period prescribed by the rules, to earn by special industry and good conduct a remission of a portion of his imprisonment, and on his discharge his sentence shall be deemed to have expired.

Rule 38(1) provides:

A convicted prisoner sentenced to imprisonment, whether by one sentence or cumulative sentences, for a period exceeding one calendar month, shall be eligible, by industry and good conduct, to earn a remission of a portion of his imprisonment, not exceeding one-fourth of the whole sentence, provided that the remission so granted does not result in the prisoner being discharged before he has served one month.

The question was whether the appellant was entitled to remission of one quarter on the custodial part of his sentence, or whether the effect of the order of the Central Criminal Court was that he had to serve a full term of four years without remission. That in turn raised for debate and resolution whether, if that was the effect of the order, it entrenched on the entitlement of the executive to grant a remission of punishment, pursuant to its powers under Article 13.6 of the Constitution.

The suspended sentence
It is not proposed to set forth here the history of the suspended sentence. It has been done by Professor Osborough in his article: ‘A Damocles’ Sword Guaranteed Irish’(1982) Irish Jurist 221. As the title to the article indicates, the development of the suspended sentence was an invention of the Irish judiciary.

The use of a straightforward suspended sentence is so well established in our legal system as not to require any elaboration here except to note that it is obviously a very beneficial jurisdiction for judges to possess. However, in the 1960s there emerged a variant of the suspended sentence which was that the latter part of it would fall to be suspended in certain circumstances and, nowadays, it is very common for sentences to carry a proviso that the latter part of it will be suspended. The court does not propose to pass any general judgment on the desirability, or otherwise, of this jurisdiction: except to note that it is there and provided it is used for some tangible purpose such as to effect the reintegration of the accused into society, or to protect certain members of society from certain forms of crimes, or some such object, the matter should be left reside in the individual discretion of the judge of trial being subject, of course, to the appellate jurisdiction of the Court of Criminal Appeal to order otherwise.

A particular type of part suspended sentence, for which Butler J of the High Court is said to have been responsible, took the form that the prisoner was sentenced to a period of imprisonment but the trial judge would direct that, after he had served an initial period, he should be brought back before the court and that, in the event of his progress being satisfactory, the trial judge would consider suspending the balance of the sentence. This form of order was held to be undesirable by the Court of Criminal Appeal in the case of People (DPP) v. Cahill [1980] IR 8, but when the question was revisited, this Court in People (DPP) v. Aylmer (1986) [1995] 2 ILRM 624 upheld the validity of this form of order. The desirability of such form of order was touched upon only to a degree in some of the judgments in the latter case.

Walsh J (at p. 630) pointed out that the power of the executive is a power to commute sentences, not to suspend them. He went on to say:

As for the suggestion that the late Butler J’s order would in some way impede the executive from exercising its power of commuting a sentence, I think it was abundantly clear the effect of the order was that at the end of the 36 months [that was the period specified in the case] the appellant had the right to apply to the court for a suspension. It was clear that the order postulated the continued existence of the sentence. There is no way in which it could be construed as a direction expressed or implied to the executive not to exercise the powers of commuting the sentence. The sentence imposed by Butler J in no way involved an encroachment by the judicial arm of government upon the executive power. The sole power to impose a sentence is vested in the judicial arm of government and the sole arm to attach conditions to it is the judicial arm. The executive cannot impose a sentence of any description nor can it attach any conditions to a sentence. Its power in respect of sentences is one of commuting and remitting sentences imposed by a court exercising criminal jurisdiction.

But the hallmark of the type of suspended sentence imposed by Butler J was that the judiciary retained seisin of the case. The prisoner was to be brought before the trial judge again on a specific date and the trial judge was to decide what was to be done.

The court here deals with a different form of suspended sentence. Here the trial judge has disposed of the case by imposing a sentence which consists of a period of imprisonment followed by a period during which the imprisonment is suspended.

The judge is functus officio. The executive power to commute the sentence remains intact. But it is hard to see how the executive power of remission for good conduct under the Rules for the Government of Prisons 1947, may properly be exercised. It cannot be exercised in respect of the initial period of imprisonment without defeating the clear intention of the trial judge. If, on the other hand, it is to be exercised in respect of the whole sentence a well behaved prisoner may not be in prison long enough to earn any remission. This can hardly have been the intention of the legislature in enacting the Prisons (Ireland) Act 1907, or of the minister in making the Rules for the Government of Prisons 1947.

Another paradox follows from the form of sentence in the present case. If the prisoner were to be released after four years he would undoubtedly have the ‘sword of Damocles’ in the form of a suspended sentence of six years hanging over him in the event of his committing a further crime. But would he have a ‘credit’ of one year’s remission to set off against this? It is not surprising that this form of sentence has created difficulties for judges.

In State (Beirnes) v. Governor of the Curragh Military Detention Barracks [1982] ILRM 491 Carroll J was concerned with a sentence which was imposed by the Special Criminal Court in the following terms:

… in respect of the offences upon which Patrick Beirnes stands convicted he be imprisoned for a period of ten years on each of counts one and two, the said sentences to be concurrent and to date from 1 March 1977, the final four years of such sentences suspended on the condition that he be of good behaviour towards all the people of Ireland and does not consort with known criminals and further that he will come up at any time within the said ten years to serve the said final four years of the said sentence of the court this day imposed upon him if called upon to do so.

Carroll J, who was dealing with a regulation made under a different instrument but which was to the same effect as regards the granting of remission, held that prima facie the prosecutor was entitled to be released after six years and the suspension of the last four years of the sentence was not dependant in any way on his behaviour during the first six years. She held that it could not have been in the judgment of the Special Criminal Court that any pronouncement in relation to remission would mean, for example, that remission earned during the six year period, could only be applied to the four year suspended sentence if the prosecutor was called on to serve it.

The learned judge, having referred to Cahill’s case at p. 11, concluded (at p.493):

Therefore it would not have been permissible for the Special Criminal Court to seek to regulate the remission applicable to the sentence imposed by it.

The Supreme Court appears to have taken a different view in State (Cronin) v. Governor of Portlaoise Prison Supreme Court, 10 November 1967 and to have held that the relevant period for considering questions of remission was the whole length of the sentence including both the custodial and the suspended parts. But, unfortunately, there are no judgments extant in that case. Moreover, it is clear that the case was merely an ex parte application and that the court had not the advantage that the members of the present court have had of hearing the matter fully argued.

Conclusion
At the heart of what the court had to decide in this case was whether the direction by the trial judge that the appellant was to serve four years without remission breached Article 13.6 of the Constitution which provides:

The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities. (cf. s. 23 of the Criminal Justice Act 1951)

It needs to be emphasised that the learned trial judge had the best of motives in making the order that he did because he was desirous of giving the appellant a chance but, equally, he was determined that he should serve a realistic sentence. The course that he proposed met with the approbation of the accused’s then counsel at the trial court. If the learned trial judge had used a formula, such as that which had been used by Butler J and which would have made clear that he was retaining seisin of the case, then there would have been no implied clash with the executive’s entitlement to grant remission of sentence. This Court is satisfied that when the learned trial judge, having suspended six of the ten years’ imprisonment imposed by him, indicated that that was all the remission the accused was going to get, he did not mean to pre-empt the executive’s power of remission but rather to indicate that the accused had received every leniency to which he could possibly be entitled. Nevertheless, the fact remains that the form of order made by the learned trial judge creates very great difficulties for governors of prisons and other persons who have to administer the system of remission on the grounds of good conduct created by the Prisons (Ireland) Act 1907 and the Rules for the Government of Prisons 1947.

It is necessary to emphasise that the matter comes before this Court on an application for release under Article 40.4 of the Constitution. This Court is not in the position of the Court of Criminal Appeal which could replace the order of the Central Criminal Court by an order which it considered more appropriate. Our only task must be to decide whether at the time of his application to court the appellant was being detained in accordance with law.

The court’s problem was that the Prisons (Ireland) Act 1907, and the Rules for the Government of Prisons 1947, do not appear to contemplate a sentence of imprisonment such as that imposed in this case. The 1907 Act provides that provision may be made by prison rules for enabling a prisoner ‘sentenced to imprisonment’, for a period prescribed by the rules, to earn by special industry and good conduct a remission of a portion of his ‘imprisonment’. This clearly contemplates that the period of imprisonment should be identical with the period of the sentence. Likewise the Rules for the Government of Prisons 1947, contemplate that the period of the sentence should be identical with the period of the imprisonment. Rule 38(1) of the rules provides as follows:

A convicted prisoner sentenced to imprisonment … shall be eligible, by industry and good conduct, to earn a remission of a portion of his imprisonment.

…

Moreover the Act goes on to provide that on the discharge of a prisoner ‘his sentence shall be deemed to have expired’. Such a provision appears to be inconsistent with the period of imprisonment remaining suspended over a prisoner’s head after his release pursuant to the provisions of the rules and the Act.

The learned trial judge intended to impose a sentence of ten years’ imprisonment of which the last six years were to be suspended, unless something unexpected took place. The real question is whether a sentence, in this form, can properly be reconciled with the provisions of the Prisons (Ireland) Act 1907, and the Rules for the Government of Prisons 1947. In the opinion of this Court such a sentence cannot be reconciled with the Act and with the rules and should not therefore be imposed. At the same time the order of the learned High Court judge must be regarded as valid insofar as it imposed a sentence of four years’ imprisonment. That, accordingly, is the period of imprisonment in respect of which remission must be calculated. As already related, it was conceded that if that contention was correct then the appellant had earned his remission of one quarter for good conduct and was entitled to be set free. In these circumstances, since the court was not satisfied that the appellant was being detained in accordance with law it directed his release under Article 40.4 of the Constitution.

People (DPP) v Lee

[2017] IECA 152
JUDGMENT of the Court delivered 12th of May 2017 by Mr. Justice Edwards.
Introduction
1. The appellant pleaded guilty to three counts of burglary and one count of trespass. He was sentenced to one year of imprisonment in respect of the trespass offence and five years with the final two years suspended in relation to the burglary counts. As a condition of the suspension of those sentences the sentencing judge barred him from entering the towns of Laytown and/or Bettystown and their environments for a period of five years from the date of sentence without the consent in writing of the Chief Superintendent for the relevant Garda district. The appellant now seeks a review of the said sentences on the grounds that they were unduly severe and disproportionate in all the circumstances. In circumstances where he has at this stage served the sentence for the trespass offence this appeal is concerned only with the sentences for the burglary offences.
The Circumstances of the Case and the Impact on the Victims
2. On the morning of the 30th of August 2015 the appellant broke into McDonagh’s bar in Bettystown by removing a number of roof tiles and entering through the ceiling causing extensive damage totalling approximately €4,500. Donal McDonagh – the pub’s proprietor – is a man in his early eighties who lives alone adjacent to the pub. He told the Court in a victim impact statement that when the alarm went off it “frightened the life out of” him and he thought that the burglar would not be able to access the safe on the premises and therefore would try to gain access to his room in order to force him to open it. He had to wait for Mr Lee to leave, unable to use his phone as he was shaking with fear. As he lives alone, he still wakes up in the middle of the night if he hears any noise from outside and he is in constant fear of burglars returning. The pub is a listed building and is therefore difficult to get insurance for. For that reason Mr McDonagh had to cover the cost of the repairs to his pub himself because, had he claimed under his insurance, he probably would not have been able to renew the insurance and would therefore have had to close his business. The appellant was interviewed and identified himself from the CCTV footage taken from the premises.

3. On the 20th of May 2015 Mr Roger Pritchett, who owns a number of holiday cottages, noticed that the rear entrance to one of the cottages was open. From CCTV footage, he observed a man entering via that entrance and leaving some minutes later. Mr Lee was identified by Gardaí from that footage.

4. On the 19th of August 2015 the appellant committed a burglary at Tara House Bed & Breakfast, Strand Road, Laytown, Co. Meath. At approximately 6 a.m. two occupants were disturbed and found Mr Lee. They restrained him before the proprietor, Ms Nuala O’Reilly, came down and identified the appellant. The appellant had entered the premises by breaking a back window causing €544.80 worth of damage. In a victim impact statement Ms O’Reilly, who lives alone, told the court that the incident has had a serious impact on her life. In the immediate period afterwards she was left in total shock and could not sleep for weeks. She still feels vulnerable and intimidated and at the slightest noise at night has to call her family to come and check for signs of intruders around her home. She also has ongoing medical bills as a result. The appellant knew Ms O’Reilly, referring to her as “Mrs O”, and accepted his involvement in the crime when interviewed by Gardaí.

5. On the 30th of July 2015 Sister Margaret O’Riordan was staying with a group at Anam Áras, a nun’s retreat centre. She was in another room when she heard and then saw a person running, and when she went down to her bedroom she noticed €500 was missing from her handbag which was on her bed. She said she may have left a window open. The burglar was the appellant who volunteered information concerning his involvement in this crime in the course of being interviewed by Gardaí about the other matters some weeks later. The appellant did not cause any damage other than the theft of €500. Sister O’Riordan declined to make a victim impact statement but said she would pray for the appellant. However, at hearing it was noted that Sister O’Riordan is over the age of 70.
The Appellant’s Personal Circumstances
6. The appellant was born on the 1st of December 1995 and accordingly he attained his majority on the first of December 2013. At the time of sentencing the appellant had 88 previous convictions, 45 of which were for burglaries. His first conviction dated from the 2nd of September 2011 at which time he was 15 years old and at the date of his sentencing his most recent previous conviction was dated the 22nd of June 2015. All of his previous convictions had been dealt with in the District Court, the majority of them when he was a juvenile. The convictions to which the present appeal pertains were all in respect of offences committed after he had attained his majority and represent his first convictions in the Circuit Court.

7. The appellant admitted his involvement to gardaí when questioned, identified himself from CCTV in relation to the McDonagh’s pub burglary and acknowledged his intent to steal in respect of the various incidents. He further entered a guilty plea at the first available opportunity and consented to an additional charge being added to the indictment a day after his arraignment so that the DPP did not have to bring separate proceedings in respect of the burglary at Anam Áras. He also wrote a letter expressing remorse.

8. The appellant was 19 years old at the time he committed the index offences. He had a troubled childhood. His mother was 19 when he was born, and his father left the family home when he was relatively young. Mr Lee had a fraught relationship with his mother’s subsequent partner. In court, his mother accepted this was “not an ideal environment.” At the age of four and a half, two months before he was due to start school he suffered a traumatic experience as described in a psychologist’s report submitted to the court. He then had a number of difficulties at school. Experts differed as to whether he had ADHD, but his mother told the court that she “never believed he had ADHD.” He was prescribed medication, namely Ritalin, to treat his possible ADHD. His mother told the court that this medication had serious side-effects on him, stating:

“A. To me it overstimulated him, it disagreed with him. He developed an eating disorder, memory loss which caused a lot of problems in school. He had very — he couldn’t remember his own name most of the time.
Q. And I think unfortunately, as a result of those difficulties he didn’t get much an education in the schooling system as a small child?

A. Yes, he had little to no education in primary school.”

9. The appellant’s difficulties escalated. His mother noticed a change in him and had him tested for drugs. He tested positive for cannabis. The court was told he developed a drugs addiction between the ages of eight and ten and this was a way for him to self sooth for the trauma he had suffered at age four and half. He had never received counselling or treatment in relation to that incident. While being detained at Oberstown Detention Centre, he received therapy and took his Junior Certificate, in which he performed exceptionally well for a juvenile detainee.
10. The appellant’s peer group in the local community was seen as a negative influence, and according to the psychological evidence he is gullible and easily led. His mother told the court that on release she hoped to relocate with him to get him away from his old peer group and give him a second chance.

11. A psychological report detailed how the appellant falls just within the borderline range of mild intellectual disability. The appellant has an IQ of 75, indicating that he would be more intelligent than only approximately 5% of his peers. The psychological report described this as a significant finding, as it could in part lead to an explanation for his difficulties with therapy inputs. In particular, he is a man with low verbal comprehension abilities and low non-verbal problem solving capacity.

12. In his plea in mitigation, the appellant’s counsel told the sentencing judge that he had met with an addiction counsellor. He had also met with Fr Peter McVerry of the Peter McVerry Trust and Fr McVerry had indicated that he would be willing to help him. Counsel for the appellant, while acknowledging that he would receive a custodial sentence, asked the court to consider structuring the sentence so as to give him an opportunity to reintegrate into the community.

13. Under cross-examination by the appellant’s counsel, Garda Gavin Flood told the sentencing court that he had noticed a change in the appellant’s attitude. He had begun pursuing an apprenticeship in carpentry and was evidencing more interest in himself and his future. He was anxious that he be sentenced early so that he could avail of educational opportunities in prison.
The Issue of the Suspended Sentence
14. In the course of hearing evidence concerning the appellant’s previous record the sentencing judge became alert to the possibility that the offences in question, or at least one of them, had been committed during the currency of a suspended sentence. Prosecuting counsel explained that while that might be so, it was his belief that the reason there had been no-re-entry under s.99 of the Criminal Justice Act 2006 was because the conviction had been recorded after the expiry of the period of suspension. The sentence judge indicated that notwithstanding that there had been no re-entry under s. 99, once he had become aware of the breach of the bond to keep the peace he was entitled to take it into account. In the circumstances he sought further details of the relevant conviction and sentence.

15. On a subsequent date to which the matter had been adjourned the Court heard the following evidence from Garda Gavin Flood:

Q. Garda Flood, to the best of your knowledge on the 22nd of June 2015, the accused man was convicted of an attempt to commit an indictable offence contrary to common law and received a nine-month suspended sentence; is that correct?
A. That is correct, Judge.

Q. That was suspended on the condition that he enter into a peace bond for a period of two years; is that correct?

A. That’s my understanding, Judge, yes.

16. On the basis of that information, which indicated a nine month sentence conditionally suspended for two years, it was clear that that prosecuting counsel’s belief that the offences in question had been committed after expiry of the suspended period could not be correct. It was equally clear that each of the burglary offences the subject matter of the present appeal, but not the trespass offence, had been committed during the currency of the two year period in respect of which the appellant had entered a bond to keep the peace and be of good behaviour.
The Sentence Imposed
17. In sentencing the appellant, the trial judge stated that:

“Burglary is an insidious crime which offends against the constitutional right to property and the victims of such crimes find that the crimes perpetrated on their homes is a life-changing event for them. Their sense of security which they’ve taken for granted is stripped away from them and they find that their enjoyment of their houses and homes is something that they can no longer experience. They suffer a deep sense of unease and apprehension together with hypervigilance, which can linger on for many years after the crime. The accused has pleaded guilty to three counts of burglary, each of which carry a maximum sentence of 14 years imprisonment, and one count of trespass which carries a maximum sentence of 12 months imprisonment. In sentencing the accused, in this matter, I have considered the nature and gravity of the offences and intend to impose a sentence that meets the particular circumstances of the offences and the offender. The offences carry maximum sentences, and in determining what is in this case a proper sentence I must decide where this particular offence and these offences lie within the range of sentences imposed and similar offences and having regard to the range of offences that are available to the Court. The Court must have regard not only offence and the offender in this case, but to the type and range of cases involving sentence in this type of offence, while consistently in sentencing is desirable, consistency cannot and must not override the proper exercise of discretion where the circumstances of a particular case require. The Court must consider all possible sanctions available and will not, as a matter of either principle or practice, rule out any of these. In short, in deciding what is a proper and proportional sentence in this case, I have considered the nature of the offences, the impact that these offences have had on the victims and on society and the personal circumstances, including the history of the offender. In this regard, I thank counsel for the accused for the helpful and professional information that has been led on behalf of the offender. A proper sentence is one that reflects the gravity of the offences and balances this with the other purpose of criminal sanction; these are the punishment of the offender for the offence, the expression of the revulsion of society and the hope for the rehabilitation of the offender.
The Court has had the benefit of reports from a psychological report from Dr Kevin Lamb dated the 19th of February 2016, which in ease of the accused I will not detail here, but I have taken its contents fully into account. A letter of the accused expressing remorse, the victim impact statement of Donal McDonagh, the victim impact statement of Nuala O’Reilly, a letter from Merchants Quay dated the 29th of January 2016, a letter from the Peter McVerry trust dated the 26th of February 2016 and the oral evidence of the accused’s mother. I propose, unless I’m urged otherwise, to read the redacted and amended victim impact statement of Nuala O’Reilly so that the accused can be fully aware of the impact that his offences have had on this particular victim. She states; “The effects of this intrusion on my privacy has not only had an affect at the time of the event but continues on. On being confronted by someone in my own residence in the middle of the night, who was an intruder, left me in total shock and I could not lead my normal life for weeks and continue to have nightmares about it. After the intrusion I could not sleep at night for worry and today, I still do not get a proper sleep at night. At the slightest sound I wake up and I’m awake all night. It impacted on my family and still does. Immediately after the break-in, some of my family had to stay at night with me, disrupting their own family life. As a result of what I was confronted with I no longer feel safe. In fact, I feel vulnerable and intimidated and this continues to be part of my life. My whole quality of life is now much less, lack of sleep at night leaves me with no energy during the day to enjoy the simple things in life. My family continue to have their lives disrupted because I live alone and at the slightest noise in the night I’m so upset and nervous that I have to call one of them to come down and check around my home, as I will not leave my room. This is especially the case if the alarm goes off, it is a constant worry to them in their lives and I continue to have ongoing medical bills as a result”. Signed Nuala O’Reilly.

The factors relevant to the assessment of the proper range of sentence for this particular offence are the guilty plea of the accused, counsel’s plea in mitigation, the strength of the prosecution case and the gravity of the crimes and I assess the gravity of the crimes as being midrange and in my view the circumstances of the burglary offences warrant tariffs of five years imprisonment. Thus having set the tariff, I have considered factors which aggravate or mitigate the gravity of this case in order to decide if there are grounds to depart from this tariff in fixing the appropriate sentence. The aggravating factors in this matter are that the accused has 88 previous convictions, 45 of which are for burglary offences, mostly committed in the Laytown and Bettystown area and this record of previous burglary convictions for such a young man, now 20 years old, can only be described as appalling and outrageous and the accused is clearly a prolific burglar. All three of the accused victims were at home on the premises when the offences were committed which has caused significant continuing psychological trauma to Mr McDonagh and Mrs O’Reilly, both of whom are in their 80s. Mr McDonagh suffered significant financial loss as a result of the damage caused to his premises by the accused as did the victim at the nuns’ retreat in count 7 and the victim in count 5 also suffered financial loss. The offences in respect of which Mr McDonagh and Ms O’Reilly were committed were in the early hours of the morning when the occupants were asleep at home and the accused knew or ought to have known that somebody would be on the premises. The offences were committed while the accused was subject to a suspended sentence.

The mitigating factors are the relative youth of the accused, the accused has expressed remorse, the matters referred to in the psychological report, the early pleas of guilty, which have particular mitigating value as Mr McDonagh and Ms O’Reilly would not have to go through the trauma of giving evidence at a trial and confronting the accused in Court, together with the admissions he made at interview. The accused has a long standing cannabis addiction from a very early age, the accused had amassed drug debts. The accused’s mother has indicated that upon the accused’s release she intends to move away from the area to provide a fresh start for him and her family and the accused consented to count 7 being joined in the indictment without going through the formal procedures. Bearing in mind my duty to impose a sentence as proportionate to the crimes and the personal circumstances of the accused and having weighed the aggravating factors with the mitigating factors and in the hope that the accused can be rehabilitated and become a contributing member of society and to give the accused some light at the end of the tunnel, on counts 1, 5 and 7, being the burglary counts, I sentence him to five years’ imprisonment on each count, and on count 4 being the trespass count, I sentence him to 12 months’ imprisonment. All sentences to run concurrently and I’ll deal with the commencement date of those sentences in a moment. In respect of counts 1, 5 and 7, I will suspend the final two years of the five year sentence imposed on the following conditions; one, that the accused be placed under the supervision of the probation and welfare services for a period of five years from today’s date and abides by all and any conditions imposed upon him. Two, the accused enter a bond to keep the peace and be of good behaviour for a period of five years from today’s date in his own bond of €100 and three, the accused not enter the towns of Laytown and/or Bettystown and their environments for a period of five years from today’s date without the consent in writing of the Chief Superintendent for the relevant garda district. I have imposed the last condition to give some comfort to the elderly victims of the accused so that for at least five years they will not face the prospect of seeing, meeting or being confronted by the accused in a relatively and tight-knit communities such as Laytown and Bettystown.”

The Refusal to Backdate
18. After the sentence had been announced defence counsel asked the judge if he would backdate the sentences to the date when the appellant first went into custody, which was the 30th of August 2015 when he was arrested following his burglary of McDonagh’s bar, rather than to the date the pleas were entered which was what the judge was proposing to do. This request gave rise to the following exchange:
JUDGE: No I’m not going to reward the accused for committing offences while on foot of a — subject to a suspended sentence. I would normally do that but I’m not going to reward him in this instance.
MS BUCKLEY: But it’s somewhat unusual when the prosecution haven’t pursued the matter being sent back.

JUDGE: They don’t have to pursue a section 99 for me to take into account in sentencing that the accused man was subject to a suspended when he committed these offences.

MS BUCKLEY: I’m not sure

JUDGE: What date did he enter his pleas?

MR HANAHOE: The 2nd of February, Judge.

MS BUCKLEY: It’s just I’m not sure that the prosecution are putting forward the factor that the Court is taking into account.

JUDGE: I’ve heard evidence of it.

MS BUCKLEY: Well the Court is taking it into account, so be it.

JUDGE: Yes, I must. The 2nd of February, is it?

MR HANAHOE: I thought it was the 2nd of February.

JUDGE: Well, let’s just clarify that date .

MS BUCKLEY: The 2nd of February is the earliest plea to account in respect of the matter.

JUDGE: Yes, very well I’ll back date the sentences, all sentences to run concurrently and to be backdated to the 2nd of February 2016.

Grounds of Appeal
19. In written submissions on behalf of the appellant, counsel for the appellant lists 14 grounds of appeal, which are as follows.
 The sentencing judge erred in principle in imposing a sentence that was excessive in the context of this offence and this offender.
 The sentencing judge erred in not backdating the sentence of the appellant so as to give him credit for the time that he had already spent in custody on remand where there was undisputed evidence that he had been in custody from the 29th of August 2015 until the sentence date of the 9th of March 2016 on charges arising from the incidents the subject matter of the Indictment.

 The sentencing judge erred in taking into account that the offences were committed in breach of a suspended sentence imposed pursuant to Section 99 of the Criminal Justice Act 2006 as amended where the prosecution evidence was that this was not the case.

 The sentencing judge assessed the offences as being in the “mid- range” and as attracting a tariff of five years. The sentencing judge having set a tariff of five years for the offending behavior erred in not departing from that tariff at all having taken into account the guilty plea, the co-operation and the circumstances of the offender and the need to encourage rehabilitation and leave the offender with hope for the future.

 The sentencing judge erred in not affording the appellant appropriate credit for his early plea of guilty.

 The sentencing judge erred in not affording the appellant appropriate credit for his co-operation and his admissions. The co-operation extended to consenting to Count 7 which was a charge unrelated to the events described in the book of evidence being added to the indictment which could not have occurred without his consent and which relieved the DPP from the obligation of preparing a separate book of evidence in respect of that matter.

 The sentencing judge erred in failing to taking into account sufficiently the appellant’s level of maturity and young age. The appellant was 19 at the time of the commission of the offences and was 20 on the date of sentence.

 The sentencing judge erred in failing to take into consideration in the context of his consideration of the previous convictions of the appellant that all related to District Court matters when he was a Juvenile and this was particularly so where the Judge indicated that he considered the previous convictions to be an aggravating factor

 The sentencing judge erred in failing to take into consideration sufficiently the uncontested evidence that the appellant had experienced significantly traumatic events in his early life which was a relevant consideration in sentencing due to the resulting vulnerability of the appellant. The sentencing judge erred in failing to apportion appropriate weight to the evidence of Garda Flood, the appellant’s mother and the Psychological Report of Dr. Lambe in this context.

 The sentencing judge erred in failing to take into consideration the finding in the Psychological Report of Dr. Lambe that the appellant was performing just within the Borderline Range of Mild Intellectual Disability.

 The sentencing judge erred in placing disproportionate weight on the punitive and deterrence principles of sentencing and in having insufficient regard to the necessity to structure a sentence that would leave the appellant with sufficient hope to encourage continued rehabilitation.

 The sentencing judge erred in not striking an appropriate balance in his weighing of the offending behavior and any aggravating factors against the mitigating and personal circumstances of the appellant.

 The sentencing judge erred in imposing a disproportionate condition as part of the suspended two year element which condition required that the appellant stay out of the Bettystown and Laytown areas of County Meath for a period of five years unless he had the permission of the Chief Superintendent of that area to enter. Whilst there was evidence that the appellants mother would consider moving from the area in question on the appellants release from custody the condition imposed was disproportionate particularly where other members of the family resided in the area.

 Without prejudice to the foregoing grounds regarding the length of the sentence imposed the sentencing judge erred in not suspending a greater proportion of the sentence in all of the circumstances of this case.

The Appellant’s Submissions
20. The appellant takes no issue with the offence’s placement at the mid-range on the scale of such offences. Nor is any issue taken with the finding that five years would be an appropriate headline sentence. However the appellant submits that the sentencing judge erred in failing to depart from the headline sentence for the purpose of reflecting the available mitigation. While it is acknowledged that the final two years was suspended it was contended that a suspended sentence is still a sentence and it was a wholly inadequate way of reflecting the available mitigation in a case such as this, and particularly given the onerous conditions attached to it.
21. The appellant relies on The People (Attorney General) v. O’Driscoll [1972] 1 Frewen 351 wherein Walsh J declared at page 359 that:

“The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the Courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard to the particular crime but in regard to the particular criminal.”
22. The appellant further submits that the sentencing judge erred in not recognising and affording the appellant appropriate credit for his early plea of guilty as is required by Section 29 of the Criminal Justice Act 1999 which provides:
29.—(1) In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court, if it considers it appropriate to do so, shall take into account—

(a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and
(b) the circumstances in which this indication was given.

23. The appellant submits that the trial judge placed disproportionate emphasis on the offence and failed to have sufficient regard to the appellant’s early guilty plea, his co-operation and his admissions. The appellant submits that the trial judge erred in placing heavy emphasis on the nature of the offending behaviour and failed to have adequate regard to his circumstances, particularly the appellant’s vulnerabilities. In this regard, the appellant relies on the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Alexiou [2003] 3 IR 513, where at p. 519 Murray J stated:
“Vulnerability can take many forms and it is also a question of degree but mere vulnerability can never be an alibi, exonerating a person convicted of a criminal offence from culpability. It is simply a descriptive term of a very general nature relating to whole range of discrete facts or circumstances said to have influenced an accused in deciding to commit an offence which he may not otherwise have been inclined to do. Financial difficulties, family circumstances, poor circumstances, lack of education, low intelligence, to name but a few, are matters which may be raised to mitigate the wilfulness of an accused or to suggest that he or she is not a person who is deliberately pursuing a career in crime.”
24. In relation to the appellant’s early plea of guilty, the appellant relies on The People (Director of Public Prosecutions) v. Tiernan [1988] IR 250. In that case Finlay CJ stated at page 255:
“ … an admission of guilt made at an early stage in the investigation of the crime which is followed by a subsequent plea of guilty can be a significant mitigating factor. I emphasise the admission of guilt at an early stage because if that is followed with a plea of guilty it necessarily makes it possible for the unfortunate victim to have early assurance that she will not be put through the additional suffering of having to describe in detail her rape and face the ordeal of cross-examination.
Such an admission of guilt may, depending upon the circumstances under which it is made and the extent of the evidence apparent to an accused person as being available against him, also be taken in some circumstances as an indication of remorse and therefore as a ground for a judge imposing sentence to have some expectation that if eventually restored to society, even after a lengthy sentence, the accused may possibly be rehabilitated into it.”

25. Counsel for the appellant acknowledges that Finlay CJ was speaking specifically about rape cases, but contends that the principle he was enunciating has general application.
26. Counsel for the appellant further submits that there was evidence that the appellant could be rehabilitated and this was not given appropriate consideration. In other words, the sentence imposed did not provide for sufficient “light at the end of the tunnel” as it was described by Egan J in The People (Director of Public Prosecutions) v M [1994] 3 IR 306 at page 314. While the appellant concedes the final two years of the headline five years was suspended, it is submitted that the failure to reduce the headline sentence at all from five years indicates that the suspended sentence was intended primarily to reflect mitigation rather than rehabilitation.

27. Moreover, the appellant contends that the sentencing judge erred in refusing to backdate the sentence so that the Mr Lee received full credit for time he served on remand. The sentencing judge erred when he took into account as an aggravating factor that the offences were committed in breach of a suspended sentence imposed pursuant to s. 99 of the Criminal Justice Act 2006 as amended where the prosecution was not pursuing a reactivation application. The appellant submits that prosecution counsel made it clear that s. 99 of the Criminal Justice Act 2006 did not apply. The appellant submits that the sentencing judge further erred in not backdating the sentence to give the appellant credit for time already spent in custody in circumstances where he had been in custody continuously from the 29th of August 2015 until sentencing on the 9th of March 2016 on charges arising from the relevant incidents. The sentencing judge’s reason for refusing to give the appellant credit for time served was because he believed the offences were committed in breach of a suspended sentence. The appellant says that the refusal of the court to give the appellant such credit meant the court was endeavouring of its own volition to put the appellant in the same position as if the suspended sentence had been reactivated pursuant to s. 99 of the Criminal Justice Act 2006. The appellant relies on the judgment of Moriarty J in Moore v Director of Public Prosecutions [2016] 4 JIC 1905 in which the said section was ruled incompatible with the Articles 40.4.1 and 41 of the Constitution.

28. Finally, the appellant submits that the sentencing judge erred in imposing a disproportionate condition barring the appellant from entering the Bettystown and Laytown areas of Co. Meath for a period of five years without the permission of the Chief Superintendent. While there was evidence that the appellant’s mother would consider moving from the area on the appellant’s release the condition is disproportionate in circumstances where other members of the appellant’s family reside in the area. It is submitted that its operation would present practical difficulties for the appellant who has significant intellectual limitations.
The Respondent’s Submissions
29. While the appellant’s submissions are advanced on the basis that the sentencing judge identified a headline sentence of five years in circumstances where in his assessment the gravity of the burglary offences put them in the mid range, the respondent submits that the tariff of five years was the net sentence arrived by the judge after he had considered both the aggravating and mitigating factors. The suspension of the final two years may therefore be inferred to have been intended to incentivise rehabilitation.

30. Having regard to the sensitive nature of the psychological report the sentencing judge had declined to recite its contents in open court. However it cannot be deduced that he did not have regard to its contents. The sentencing judge is not to be criticised for respecting the appellant’s privacy in not rehearsing the detail of the report. On the contrary, the judge’s approach was a humane approach.

31. The respondent rejects the appellant’s position that the sentence imposed must be assessed without regard to the suspended portion. He submits that do so would be entirely artificial and that notwithstanding the punitive element of a suspended sentence a suspended sentence cannot be treated as being equivalent to a period of imprisonment.

32. While the respondent takes no issue with the appellant’s submissions as to the law relating to the mitigating effects of an early plea and co-operation with the investigation, the respondent does take issue with the emphasis placed on the appellant’s youth and vulnerability. It was submitted that notwithstanding his intellectual difficulties there was no suggestion that his cognitive function was impaired or that he did not appreciate the moral quality of his actions. While the respondent accepts that youth and vulnerability might amount to a significant mitigating feature they cannot be relied on indefinitely. The appellant has 88 previous convictions and of these, 45 were for burglary. The respondent says it is reasonable to infer that a similar appeal or appeals had been made on his behalf in the past, and that he had an appreciation of the harm of his actions. The respondent relies on a passage from O’Malley, Sentencing Law and Practice (2nd Ed.) at para 6-52:

“The weight to be attributed to youth will often depend on the presence or absence of previous convictions. Some offenders will have accumulated dozens of previous convictions by the time they reach their late teens or early twenties. In such case, the previous convictions are likely to nullify any credit that might otherwise be given for youth.”
33. The respondent submits that the aggravating features were appropriately identified and unimpeachable. The respondent submits that the role of previous convictions in burglary is slightly different than in respect of other offences in that multiple previous convictions for burglary might be considered an aggravating factor and this is one such case. This position is considered in O’Malley, Sentencing Law and Practice, (2nd Ed.) at para 14-06.
“As argued in an earlier chapter, progressive loss of mitigation is probably the best way of dealing with previous convictions. This would still allow for appropriate distinctions to be made between first-time and repeat offenders. However, the character of the offender is a relevant personal circumstance and the accused may clearly be a professional burglar who has persisted in that way of life despite several previous warnings and sentences. In such exceptional cases, character might properly be treated as an aggravating factor, though not one that should attract a significant increment of punishment in light of the sentences already served for previous offences.”
34. In relation to the conditions preventing the appellant from entering Bettystown and Laytown, the respondent submits that it should be noted that it was advanced on the appellant’s behalf that the he would be leaving the Bettystown or Laytown area. Secondly, while the appellant submits this would place undue hardship on him having regard to his intellectual capacity, this appears to assume that he is incapable of independent living and no evidence was advanced of this fact. In those circumstances the respondent submits that the condition does not result in undue hardship.
35. In response to the appellant’s ground in relation to s. 99 of the Criminal Justice Act 2006, the respondent submits that the provisions of s.99 were not invoked, and the failure to do so did not mean that a sentencing judge, who had become aware of the breach, was not entitled to take into consideration that an offence was committed during the currency of a suspended sentence when the accused was bound to the peace and had entered a bond in that regard.

36. Regarding the trial judge’s refusal to backdate the sentence, the respondent accepts that in the normal course, credit should be given for time spent on remand. However, that may be done in a number of ways and does not always involve backdating a sentence. It may in fact be reflected in the sentence imposed. In the instant case, the respondent submits that it is clear that the sentencing judge gave the commencement date of the sentence careful consideration.
Analysis and Decision
37. It is complained that the sentencing judge having set a tariff of 5 years for the offending behaviour erred in not departing from that tariff at all having taken into account the guilty plea, the co-operation and the circumstances of the offender and the need to encourage rehabilitation and leave the offender with hope for the future. It is acknowledged by counsel for the appellant that the final two years of the sentence was suspended but she suggests that a suspended sentence is still a sentence and that proportionality would have required a straight discount from the headline sentence to reflect the uncontroversial mitigating factors, and then the suspension of a further period to incentivise rehabilitation. We do not agree. It is entirely a matter within the sentencing judge’s discretion as to how he or she structures their sentence, providing it is consistent with established sentencing principles. It does not represent an error of principle to use the mechanism of the partial suspension of a sentence for the dual purpose of reflecting mitigation and incentivising mitigation.

38. It is suggested that insufficient credit was afforded for the early plea of guilty, the appellant’s admissions and co-operation, and his young age. In addition, it is said, the adversities in his early life, his vulnerability, his cognitive and psychological difficulties and his addiction problem did not receive sufficient attention.

39. It has to be borne in mind, however, that the effect of suspending two years of the five year headline sentence, meant that if the appellant stayed on the straight and narrow he could expect to have to serve no more than the equivalent of a three year custodial sentence. This amounted to a 40% discount on the headline sentence. We are not persuaded that an effective discount of that order represented an insufficient allowance for the mitigating factors that were available in this case. Moreover, it is clear from the sentencing judge’s remarks that he was fully alive to all of the mitigating circumstances in the case.

40. In so far as the incentivisation of rehabilitation was concerned, the fact that the appellant received the benefit of a suspended sentence at all, in circumstances where the judge characterised him, quite fairly, as “a prolific burglar”; in circumstances where he had amassed 88 previous convictions in total, of which 45 were also for burglary; in the teeth of clear evidence that he had breached the terms of a previous suspension; manifestly indicates that the sentencing judge had in mind that it should act, in part, as an incentive to the appellant to stay out of trouble. The sentencing judge referred expressly to his hope “that the accused can be rehabilitated and become a contributing member of society” and his desire “to give the accused some light at the end of the tunnel”. We therefore have no hesitation in rejecting this complaint.

41. Much has been made by counsel for the appellant of the fact that the sentencing judge was not impressed by the fact that the crimes were committed in breach of an earlier bond to keep the peace and be of good behaviour entered into as a condition on foot of which an earlier sentence was suspended. It is accepted that s.99 of the Criminal Justice Act 2006 had not been invoked, but that did not preclude the sentencing judge from taking it into account in the manner in which he structured his sentence. A judge has a discretion whether or not to backdate any sentence to take account of time spent on remand. He was perfectly entitled to take the view that it would be inappropriate to backdate in full the sentence(s) he had decided to impose in this case on the basis that to do so would be to effectively reward the appellant notwithstanding that he had breached his bond. Solemn sworn undertakings given to a court have to be taken seriously, and if they are breached there may indeed be consequences for the party in default. We do not consider that the judge erred in the exercise of his discretion on the backdating issue.

42. In conclusion we do not regard the sentence imposed as excessive or unduly severe.

43. Notwithstanding that this is our view we have decided of our own motion that the conditions attaching to the part suspension of the sentence by the court below should be somewhat varied. We acknowledge that the condition that the appellant may not enter the towns of Laytown and/or Bettystown without the prior permission in writing of the Chief Superintendent of the relevant garda district is an onerous one. While we do not consider it disproportionate in the light of the evidence that the appellant’s mother intends to re-locate, we recognise that it could potentially be so in the event of the intended move not proceeding. Therefore we will vary the existing conditions to this extent. Upon being released from prison the appellant must notify the Chief Superintendent of the relevant garda district of the address where he will be residing, and of any subsequent change of residence. The aforementioned condition requiring the prior permission in writing of the Chief Superintendent of the relevant garda district in order to enter the Laytown and/or Bettystown area shall not become operative during the period of the suspension of the sentence for so long as the appellant’s mother continues to reside in that area. For so long as she continues to do so, the appellant shall instead be subject to a curfew during which he must remain indoors within his notified place of residence from 7pm each evening until 7am on the following morning. If and when the appellant’s mother does move out from the area in question with a view to taking up residence in another area the original condition shall become active and the curfew shall no longer apply.

44. The appeal against severity of sentence is dismissed.

 

 

DPP v Broszczack

[2016] IECA 121
udgment of the Court delivered on the 19th day of April, 2016, by Mr. Justice Edwards
Introduction
1. This is a case in which, on the 29th of October, 2014, the appellant pleaded guilty before Cork Circuit Criminal Court to one count of being in possession, on the 5th of February, 2014, of a controlled drug amounting to €13,000 or more, to wit, Cannabis, for the purpose of selling or otherwise supplying the said drug to another, contrary to section 15A of the Misuse of Drugs Act 1977 (the Act of 1977) as amended.

2. The appellant was sentenced to seven years imprisonment to date from the 6th of February, 2014, with the final three years of the said sentence suspended on conditions.

3. The appellant now appeals against the severity of his sentence.
The Facts of the Case
4. According to evidence led from Detective Garda Andrew Manning, members of An Garda Síochána had received a report of suspicious activity on the 29th of January, 2014, at Field’s car park, Carrigfadda in Skibbereen, where the occupants of a Renault Mégane were observed to be engaged in some form of transaction with a man from Skibbereen, who was a known drug dealer. A surveillance operation was put in place. The following week, the same car arrived at the same location, and the same drug dealer from Skibbereen was observed to approach the car. He was observed receiving a package from the occupants of the car, following which he attempted to depart the scene. He was stopped by Gardaí, as were the occupants of the car, and all were searched. The package that had been handed over contained €6,000 worth of cannabis, and approximately €2,855 was found in the car.

5. The occupant’s of the car were identified as two foreign nationals, the appellant Mr. Jerzy Broszcack and a Mr. David Majewski. They were both arrested on suspicion of having been in possession of drugs for sale or supply, and taken to Bandon Garda Station. They were detained there for the proper investigation of the offence for which they had each been arrested.

6. Both men were interviewed while in detention. Both, in the course of being interviewed, volunteered information that there was a large quantity of cannabis at Mr. Majewski’s home at Crookstown, Pullerick, Co Cork. Mr. Majewski claimed that such cannabis was not his, and the Gardaí subsequently became satisfied that this assertion was correct. Following receipt of the information concerning a possible large quantity of cannabis at Mr. Majewski’s home, Gardaí proceeded to that location and conducted a search of it. A quantity of cannabis was in fact found at that location, worth approximately €18,000.

7. Both men were charged with various drugs offences arising out of these events. The s. 15A offence to which the appellant pleaded guilty, which plea was acceptable to the respondent who later entered a nolle prosequi in relation to all other charges against the appellant, related to the finding of drugs at Mr. Majewski’s home at Crookstown, Pullerick, Co Cork.

8. Mr. Majewski separately pleaded guilty to a charge of possession of drugs for the purpose of sale or supply contrary to s. 15 of the Act of 1977. This related to the incident in Field’s car park. Again this plea was acceptable to the respondent, who later entered a nolle prosequi in relation to all other charges against Mr. Majewski. It was accepted at Mr. Majewski’s sentencing that he had played a minor part in the enterprise. It was accepted that his role had been limited to allowing the appellant to keep his (the appellant’s) drugs in his house and that he had driven the appellant to Skibbereen to sell cannabis. The evidence was that he was due to receive very little for his participation, and had been a pawn in the enterprise.

9. On the 4th day of November, 2014, Mr. David Majewski had been sentenced to a period of eighteen months imprisonment fully suspended on condition that he enter into a bond to be of good behaviour and keep the peace for a period of eighteen months.

10. In the present case, the sentencing court heard that the appellant was a 25 year old Polish national who had been in the jurisdiction for eight months prior to his arrest. The court was told that he had not worked in this country, was presently unemployed and was not in receipt of social welfare. He had no previous convictions. He was said to have a seven year old daughter in Poland. Both his parents had died when he was a young. The court was told he had only recently lost his 19 year old brother, who had died some weeks previously in a violent incident in Poland.
The Judge’s Sentencing Remarks
11. In sentencing the appellant, the sentencing judge stated:-

“Mr. Broszcak has pleaded guilty to an offence of section 15A, the value of the drugs being approximately €18,000. Ms Farrelly is correct in that the value of the drugs is a relevant matter and it is not hugely over the threshold for a section 15A but it is a section 15A case. More importantly from my point of view, this man was selling drugs as a business venture, and he was doing that after eight months in this country. It’s an achievement to get within eight months of arrival to a car park in Skibbereen selling drugs. It’s not a great achievement but it’s an achievement that takes an amount of preparation and knowledge which I believe he had. There is no doubt that the level of his cooperation, admitting his guilt to this offence and cooperating about the amount and the placement of the drugs in the house is valuable and those two factors alone are sufficient to allow me to depart from the otherwise what’s called the mandatory 10 year sentence. To impose a 10 year sentence in this case would in all the circumstances be unjust. I also have to regard the man’s personal circumstances. He has no previous convictions. This is his first drugs conviction. And he’s from Poland, now distant from family and he has had some tragedy in his family make up and background. I’ll take all that into consideration. It is, however, a very serious offence to get involved in this level of dealing and I make no distinction in relation to the type of drug. I don’t think I would be legally permitted to do that. I think the appropriate sentence with a deduction is one of seven years. I will suspend the final three years if on his release he departs from this country and remains outside of the country for a period of seven years from the date of his release.”

Grounds of Appeal
12. The appellant appeals against the severity of his sentence on the following grounds:
(i) That the learned sentencing judge erred in all the circumstances in making it a condition of the suspension of a portion of the sentence that the Appellant enter into a bond to depart from the country and remain outside for a period of seven years from the date of release;
(ii) That the learned sentencing judge did not give sufficient weight and balance to the evidence adduced in mitigation of sentence;

(iii) That the learned sentencing judge did not give sufficient weight to the appellant’s plea of guilty;

(iv) That the learned sentencing judge did not give sufficient weight to the material assistance given by the appellant;

(v) That the learned sentencing judge failed to give sufficient weight to the fact that the appellant had no previous convictions;

(vi) That the learned sentencing judge failed to distinguish properly between the appellant and his co-defendant in imposing sentence;

(vii) That the sentence imposed by the learned sentencing judge was, in all the circumstances, unduly severe.

Submissions on Behalf of the Appellant
13. In oral submissions before this Court, counsel for the appellant conceded that his client would have had no problem if the sentencing judge had sentenced him to seven years imprisonment with the last three years thereof being suspended on the usual terms of entering into a bond to keep the peace and be of good behaviour for a specified period. However, the appellant contends that the sentence actually imposed was disproportionate and unduly severe because the condition imposed in order to avail of the suspended portion of the sentence, that he should immediately leave the country upon his release and remain outside the country for a period of seven years, was unduly onerous. Counsel indicated that whilst he was not abandoning any of his other formal grounds of appeal, they were all being advanced in the context of his central complaint concerning the structuring of his sentence so as to include a portion to be suspended subject to his agreement to comply with the objectionable condition previously referred to.
14. The appellant has drawn the Court’s attention to the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Alexiou [2003] 3 I.R. 513. He has done so for the purpose of seeking to distinguish his case from the Alexiou case, which indeed counsel for the respondent relies upon in her submissions as supporting her client’s position.

15. The Alexiou case had concerned a South African national who had pleaded guilty in the Circuit Criminal Court to the offence of unlawful possession of a controlled drug for the purpose of selling or otherwise supplying the drug. He was sentenced to four years imprisonment suspended on the condition that he leave the State immediately. The Director of Public Prosecutions sought a review of the sentence on the grounds of undue leniency. Giving judgment on behalf of the Court of Criminal Appeal, dismissing the application, Murray J. stated inter alia (at pp. 524-527): (1) that the condition that the accused leave the State was not an executive act in the nature of the deportation order but was a condition of a suspended sentence which was within the discretion of the trial judge to impose; and (2) that there were no defined limits on the kind of conditions the courts could impose on a suspended sentence but they did usually reflect something which the accused was bound to do in any case or something which the court wished him to do and the condition imposed in this case was appropriate where the accused had no prior connection with this country and had expressed a wish to return home. However, Murray J. acknowledged (at p. 527) that it would have been better practice for the trial judge to have prescribed a defined period of time within which the accused could not return to the State.

16. The appellant contends that his case can be distinguished from that of Alexiou on four grounds:

(a) The appellant had evinced no desire to return to his home country. On the contrary, he had formed the intention to settle in Ireland and make it his permanent home;
(b) The sentencing judge had given no prior indication that he was considering such a condition, and had not invited submissions on the issue from the appellant’s counsel;

(c) The appellant had not been apprehended at point of ingress to the State unlike Mr. Alexiou;

(d) The appellant is an EU citizen, unlike Mr. Alexiou and he lays emphasis on Murray J’s comment at p. 525 in his judgment in the Alexiou case that:-

“Different considerations obviously arise in relation to citizens and European Union nationals.”
17. In development of the last point, the appellant places reliance on the concept of European citizenship introduced by the Maastricht Treaty of 1992 and now governed by the Treaty on the Functioning of the European Union (Part Two). Every national of an EU member state is automatically a citizen of the European Union. Article 21(1) of the Treaty on the Functioning of the European Union provides:-
“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”
18. It was further submitted that the sentencing judge, in making the suspension of a portion of the sentence imposed conditional upon the appellant departing from the State upon his release, and remaining outside the State for seven years, acted in disregard of the citizenship rights conferred upon the appellant by the Treaty on the Functioning of the European Union.
19. Grounds (ii) to (v) inclusive can be addressed together. In summary, they allege that while the sentencing judge was entitled to seek to reflect mitigation by suspending a portion of the sentence, the very onerous condition attaching to the proposed suspended portion greatly devalued the benefit being conferred, and did so to such an extent as to result in insufficient weight being afforded to the mitigating factors in the case, including the plea of guilty, the appellant’s material assistance and the absence of previous convictions.

20. Finally, in so far as it is complained that the sentencing judge failed to have regard to the principal of parity between offenders, whilst it is accepted on behalf of the appellant that he was culpable to a greater degree than that of his co-accused, and that the offence which he had pleaded guilty to was an offence contrary to section 15A whereas his co-accused had pleaded guilty to an offence contrary to section 15, it was submitted that these distinguishing characteristics were insufficient to justify the strikingly different sentences imposed on the two co-accused. Neither accused had any previous convictions; both pleaded guilty at an early stage, and both were of relatively similar age and background. It was submitted that the sentence imposed by the sentencing judge, containing as it did a suspension of the last three years upon the objectionable condition that the appellant should leave the country upon his release and not return for seven years, was disproportionately severe relative to that imposed on his co-accused.
Submissions on Behalf of the Respondent.
21. Counsel for the respondent has argued in response that the decision in The People (Director of Public Prosecutions) v. Alexiou [2003] 3 I.R. 513 establishes that the sentencing judge certainly had power to impose the condition which the appellant finds so objectionable.

22. On the secondary question as to whether the sentencing judge ought, in the circumstances of this case, to have imposed that condition in part suspending the sentence, particularly having regard to the appellant’s status as an EU citizen with Free Movement rights, it was submitted that the imposition of such a condition was not the equivalent of, or tantamount to, an expulsion or deportation by a host member state. The appellant was not obliged to agree to it.

23. The point was further made that even under European Parliament and Council Directive 2004/38/EC of 29th April, 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states [2004] O.J. L158/77, which seeks to give practical effect to Article 21(1) of the Treaty on the Functioning of the European Union, an EU citizen is required to be resident in a host member state for 10 years before they get enhanced protection. Even then, the expulsion of EU citizens and their family members from host states is permitted in certain limited circumstances.

24. In illustration of this, the Court’s attention was drawn to the decision of the European Court of Justice (ECJ) in Land Baden-Württemberg v. Panagiotis Tsakouridis [2010] ECR I-11979, the circumstances of which concerned a Greek citizen with an unlimited residence permit in Germany who, having been charged, inter alia, with trafficking in narcotics as part of an organised group, was convicted in that member state on eight counts of dealing in substantial quantities of controlled drugs. The accused was sentenced to six and a half years in prison. German law provides that a foreign national resident in that state who is sentenced to a term of imprisonment of five years or greater is liable to expulsion from Germany. Shortly after that sentence was imposed upon him, the German state then sought to expel and return him to his country of origin, namely Greece. Germany sought to justify his expulsion on the grounds that he represented a genuine threat to public security. Mr. Tsakouridis challenged his proposed expulsion before the German courts, inter alia, on the grounds that he had been resident in Germany for more than ten years and therefore had enhanced protection under Directive 2004/38/EC. In the course of dealing with the case the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court of Baden-Württemberg) requested a preliminary ruling from the ECJ concerning a number of issues, including asking under what conditions can the right to enhanced protection against expulsion be lost?

25. The ECJ held, inter alia, that Article 28(3) of Directive 2004/38 must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is capable of being covered by the concept of “imperative grounds of public security” which may justify a measure expelling a European Union citizen who has resided in the host member state for the preceding ten years.

26. The respondent submitted that an offence under s. 15A of the Act of 1977 represents criminal conduct that seriously offends against strongly stated public policy in this jurisdiction and, in the particular circumstances of this case where the appellant had only the most tenuous links to this State, that the sentencing judge was justified in attaching the condition in question to his proposed part suspension of the sentence imposed on the appellant.

27. It was further submitted that the appellant received an appropriate discount in mitigation in circumstances where he had not just avoided the presumptive mandatory minimum sentence of ten years by a margin of some three years, the sentencing judge having considered himself at liberty on account of the appellant’s early plea and material assistance to depart from the presumptive mandatory minimum, but in addition had been afforded the opportunity of not having to serve the final three years of the remaining seven years identified by the sentencing judge as being the appropriate headline sentence.

28. Moreover, it was pointed out that the sentencing judge, in passing sentence, expressly made reference to the appellant’s plea of guilty, to his co-operation, and to his absence of previous convictions.

29. Dealing with the claim that the sentencing judge had failed to differentiate sufficiently between the appellant and Mr. Majewski in passing sentence, the respondent submitted that the differentiation was justified on the basis that the appellant and his co-accused had pleaded guilty to different offences. Moreover, there was evidence that Mr. Majewski had played a much lesser role than the appellant in the overall scheme giving rise to the charges against both men.
Discussion and Analysis
30. It is clear from the decision of the Court of Criminal Appeal in the case of The People (Director of Public Prosecutions) v. Alexiou [2003] 3 I.R. 513 that a sentencing court has jurisdiction, in deciding to partly suspend a sentence, to impose a condition such as that imposed in this case, and which the appellant finds objectionable.

31. As to whether it was appropriate to impose such a condition in the circumstances of this case, the following passages from the judgment of Murray J. in the Alexiou case (at pp. 525-526) are of considerable assistance:-

“When imposing a suspended sentence, courts invariably attach a condition that the accused be of good behaviour for a specified period of time. In addition there may be conditions of a more general nature. Those conditions usually reflect some course of action which the accused has told the court he proposes to follow, in mitigation of his circumstances, such as his intention to undergo a particular course of treatment or participate in a particular form of rehabilitation, or that he has concrete plans to move and take up work elsewhere away from the locality or persons which had an influencing effect on him becoming involved in the crime. Frequently, the courts adjourn final sentence in order to ascertain whether the accused follows through with his proposed course of action and sometimes a suspended sentence is imposed on condition that the accused follows such a course of action. As Mr. O’Malley observes in Sentencing Law and Practice (2000), there do not exist defined limits, as such, as to the kind of conditions which can be imposed.
The court is only concerned with the circumstances of this case and not with an abstract review of the kind of conditions which can be imposed when a sentence is suspended. However, for the purposes of this case it may be said that conditions which are attached to suspended sentences usually reflect either something which the accused is bound to do in any case, such as to be of good behaviour and observe the law, or something which he has told the court he intends or wishes to do. This approach undoubtedly reflects a prudent concern on the part of the courts to avoid the risk of imposing a condition which would be tantamount to imposing a penalty not envisaged by the law. This could arise in the case for example of a non-national who was habitually resident in the State and in which he had worked for many years and raised his family. Where the only penalty prescribed by law was a fine or imprisonment, a suspended sentence conditional on such a person leaving the State against his express wishes, could be considered so extraneous to the penalties imposed by law and beyond the discretionary powers of sentencing vested in a trial judge. If, in such a case, the nature of the offence appeared to the judge to be one which called in question the appropriateness of the accused being permitted to reside in the country, then he would have available to him the statutory power to make a recommendation to the Minister for Justice, Equality and Law Reform that he be deported. It would then be for the Minister, in his executive discretion, to decide on that matter.

Different considerations arise where an accused, who, prior to his conviction, had little or no connection with this country and he is required, as a condition of a suspended sentence, to return to the country of which he is a citizen or in which he has been habitually resident. Although it may be a subsidiary part of the trial judge’s considerations, such an order does have the advantage of further eliminating the risk that the offender might commit further offences in this country or be a further burden on the tax payer. Of course all these matters depend on the circumstances of the case including any declared intention of an accused to return to his own country as soon as he is free to do so.”

(This Court’s emphasis)

32. It is clear from the Alexiou judgment that there is a requirement of reasonableness and proportionality in the attachment of conditions to suspended sentences. That it should be so is hardly surprising, having regard to constitutional and indeed European law requirements.
33. Although we are not concerned here with an expulsion or deportation by the executive, but rather the attachment of a condition to the suspension of a sentence by a judge in the exercise of his judicial function, the practical effect of what the sentencing judge did in this case is, in certain respects, broadly analogous to an expulsion or deportation.

34. In expulsion or deportation cases considerations of reasonableness and proportionality also apply. Given this Court’s acceptance that the practical effect of what the sentencing judge did in this case is, in certain respects, broadly analogous to an expulsion or deportation, it may be of relevance in considering whether the impugned condition was in fact proportionate and reasonable in the circumstances of the case to have regard to the factors which the law requires the executive to take into account in considering an expulsion or deportation.

35. As has been pointed out by counsel for the respondent, Directive 2004/38/EC, as interpreted by the ECJ in Tsakouridis [2010] ECR I-11979, does allow for the expulsion of a person, notwithstanding that he/she has enhanced status as an EU citizen, on the grounds of public policy or public security. However, before it can avail of that possibility the host member state is required by Article 28(1) of the said Directive to

“take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host member state and the extent of his/her links with the country of origin.”
Directive 2004/38/EC has been transposed into Irish law by the European Communities (Free Movement of Persons) (No.2) Regulations 2006, S.I. 656/2006, as amended by S.I. 310/2008 and S.I. 146/2011, and the reasonableness and proportionality requirements of Article 28(1) of the Directive are reflected almost word for word in Regulation 20(3)(a) of those regulations.
36. The first thing to be said about the appellant in this case is that, although he is an EU citizen, he does not enjoy enhanced status as a foreign national resident in this country. He had not been resident here for 10 years at the date of sentencing, or anything remotely approaching it. The evidence before the sentencing judge was that he had been resident here for eight months, approximately.

37. The appellant is 25 years of age, and accordingly is not a person who, by virtue of his age, is likely to have particular adjustment difficulties in the event of moving back to his country of origin. He will have none of the exceptional adjustment difficulties that either the very young or the very old can sometimes experience on account of their age when required to cope with disruptive change.

38. There is nothing in the evidence before the Circuit Judge to suggest that the appellant has any health difficulty.

39. As regards the appellant’s family situation, the evidence was that he has no family in this jurisdiction. To the extent that he has any family at all, the only evidence in that regard was that he has a seven year old daughter, who is in Poland. There was no evidence at all as to whether or not he is in contact with her, or as to whether he is contributing to her support.

40. As regards the appellant’s economic situation, he has no visible means of support. He is currently unemployed, and there is no evidence that he has ever had a job in this country. Moreover, he has not been in receipt of social welfare. The Garda stated his belief that the appellant had been in the business of selling drugs. It was put to the prosecuting Garda in cross-examination that he had been working from time to time in the “black economy”. However, the Garda said he had no knowledge of this and was not prepared to accept it. The appellant did not offer any evidence concerning his means of support during the sentencing hearing, or as to any efforts that he had made to find work.

41. There was no evidence of any social or cultural integration by the appellant in the eight months while he was in Ireland. There was no evidence that he had formed any friendships, had joined any clubs, societies or organisations, participated in any sports, participated in any church or religious activities, or participated in education or training.

42. Finally, although it was contended on behalf of the appellant at the sentencing hearing that he had cut his ties with Poland and that he wished to make his home in Ireland, the fact remains that he is Polish by nationality, and is ethnically and culturally Polish. It is understood that he speaks predominantly Polish (although there was no evidence as such concerning his language skills, his defence counsel informed the sentencing judge that his English was relatively poor). He grew up in Poland. Most importantly, his sole living relative as identified to the Circuit Court, namely his seven year old daughter, currently resides in Poland.

43. In summary therefore, there was no evidence before the sentencing judge that he had put down any meaningful roots in this country. On the contrary, the evidence was all the other way. In the circumstances we are satisfied that the Circuit Court judge had all the necessary information to enable him to make a proportionate judgment concerning whether or not to impose a condition, such as that which the appellant seeks to impugn, in deciding to suspend part of the appellant’s sentence. We are satisfied that the imposition of such a condition was reasonable and proportionate in the circumstances of the present case. The fact that the appellant had expressed no desire to return to Poland, and indeed did not wish to do so, is immaterial in the particular circumstances of this case where his links to this jurisdiction were of the most tenuous nature.

44. Further, we do not consider that the sentencing judge was obliged to canvas the views of the appellant before proceeding to set such a condition. Until the appellant had actually entered into the bond, it was open to him to have addressed the court through his counsel, and to have requested an amelioration or variation of the proposed condition, if he considered it to be disproportionate or unreasonable. It was also open to him to refuse to enter into the required bond. The transcript reveals that no application for an amelioration or variation was made. Rather, after sentence was pronounced, the proposed terms of the bond having been indicated in the course of that pronouncement, all that occurred was that some discussions took place between counsel and the judge concerning ancillary orders being sought by the prosecution for the forfeiture of the monies seized at the time of the arrests, and for the destruction of the drugs. The appellant was then invited by the court to enter into the proposed bond, and he did so without demur.

45. Proceeding then on the basis that the sentencing judge had jurisdiction to impose the condition in question, and also on the basis that it was a proportionate and reasonable measure in the circumstances of the case, it remains to be considered whether, taking into account that the ultimate sentence comprised both a custodial element of four years duration and a suspended element of three years duration, subject inter alia to the condition that the appellant should leave this country and not return for seven years, the sentencing judge had adequately reflected the mitigating factors in the case. In considering this issue, this Court bears in mind counsel for the appellant’s concession that if his client had received a seven year sentence, with the last three years thereof suspended on the usual terms of an undertaking to keep the peace and be of good behaviour, he could have had no objection. We do not consider that the imposition of the condition that the appellant should leave this country and not return for seven years was so onerous as to fundamentally impact upon, and undermine, the exercise that the sentencing judge had been engaged in, i.e., seeking to adequately reflect the mitigating circumstances in the case by the suspension of the final three years of the headline sentence. We are satisfied that in all the circumstances of this case an effective three year discount, even with such a condition attached, was sufficient bearing in mind the margin of appreciation which must be afforded to the sentencing judge to adequately reflect the mitigating factors in the case, all of which mitigating factors were correctly identified and expressly mentioned by the sentencing judge in his remarks.

46. As regards the final point, namely that the sentencing judge had failed to differentiate sufficiently between the appellant and Mr. Majewski in passing sentence, this Court finds itself in complete agreement with submissions made by counsel for the respondent. The differentiation was justified on the basis that the appellant and his co-accused had pleaded guilty to different offences. Moreover, there was evidence that Mr. Majewski had played a much lesser role than the appellant in the overall scheme giving rise to the charges against both men.

47. In the circumstances, we are satisfied that the appellant has not demonstrated that the sentencing judge committed any error of principle and we dismiss the appeal on all grounds.

 

People (DPP) v Wall

[2018] IECA 366

JUDGMENT of the Court delivered ex tempore by Mr. Justice Tony Hunt on the 22nd of October 2018.

(1) Introduction
1. On 5th October, 2016, on a plea of guilty to a count of burglary contrary to s. 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001, the Dublin Circuit Criminal Court imposed a sentence of two years imprisonment suspended entirely pursuant to s. 99(1) of the Criminal Justice Act 2006, as amended, on the appellant acknowledging in open court to bound by the following conditions:-

(i) that he would keep the peace and be of good behaviour to all the People of Ireland for a period of two years and six months from that date;
(ii) that he would place himself under the supervision of the Probation Service for a period of two years from that date, attend all appointments, continue to address his offending behaviour, remain drug free, continue to address his training and employment needs with IASIO Officer;

(iii) notify the Probation Service of any change in his contact details; and

(iv) come up if called on to do so at any time within the said period of two years and six months to serve the sentence imposed, but suspended on him entering into that recognisance.

2. On the 24th of October, 2017, the matter was re-entered before the learned sentencing judge by the Probation Service pursuant to the provisions of s.99(14) of the 2006 Act, on the basis that the appellant had failed to comply with certain of the conditions of suspension acknowledged by him on 5th October, 2016.
3. The revocation application was heard on 20th November, 2017. The evidence of the probation officer, Ms. Clarke, was to the effect that shortly after the date of sentence in 2016, the appellant informed the Probation Service that he was moving to Cork, and Ms. Clarke transferred his case to the Cork Supervision Team in November of that year. By January 2017, he had not attended appointments, and the Cork office issued him with some warning letters. The appellant then informed the supervision team in Cork in March 2017 that he was moving to Dublin, so the case came back to Ms. Clarke. She sent him appointment letters throughout May, June, July and August, giving him some leeway to make contact.

4. As there was no contact by September 2017, Ms. Clarke re-entered the case. She indicated that since the case was transferred back to her in March 2017, she had no contact with Mr. Wall whatsoever, whether of a formal or informal nature. The appellant was not available on a mobile number that Ms. Clarke had from phone conversations that the appellant had with a probation officer in Cork. The appellant had a number of periods of probation supervision prior to the order in this case.

5. Having heard the evidence, the learned sentencing judge expressed the view that she was not in the business of supervising probation orders, and the appellant had shown no genuine commitment to engaging with the Probation Service since she suspended the sentence. Although the appellant had offered to engage with the Probation Services whilst serving a short sentence at that time of the revocation application, the learned sentencing judge did not feel that this offered any comfort in terms of his likely compliance once he was at liberty again. Therefore, she decided to revoke the suspension and impose the sentence in full.

6. Counsel on behalf of the appellant then requested the learned sentencing judge not to activate the sentence in full, given the elapse of time between the imposition of the sentence in October 2016 and the hearing of the re-entry application in November 2017. The learned sentencing judge stated that as a rule of thumb, where she imposed a suspended sentence for a particular period of time, and if the person went off the rails or did not comply at some point, she would generally give them some credit for period where they had, in fact, complied. However she noted that in this particular case, there had been no compliance from the outset. Therefore, she was not inclined to reduce the period of activation, and she proceeded as previously indicated, giving the appellant credit for any time that he had already spent in custody in respect of the matter.
(2) Grounds of Appeal
7. In essence, the appellant complains that the decision of the learned sentencing judge to reactivate the entirety of the two years and six months’ imprisonment originally imposed was disproportionate.
(3) Appellant’s Submissions
8. It is submitted that the appellant had abided by the fundamental requirement of the suspension of the sentence, which was to keep the peace and be of good behaviour. The terms actually breached by the appellant were characterised by the appellant as imposed by the learned sentencing judge with a view to ensuring that he maintained a particular minimum level of non-offending behaviour. Where the appellant had, in fact, been of good behaviour, it was submitted that the learned sentencing judge could have, on that basis, considered re-imposing only part of the suspended sentence, rather than the entirety of it.

9. It was suggested that the learned sentencing judge did not properly consider such a course of action. The appellant relied on the following extract from the decision of the learned sentencing judge:-

“I am of the view that a suspended sentence is just that. It is suspended subject to conditions, and if the conditions are not observed, and if there is not some reasonable and compelling justification for non-compliance as far as this Court is concerned, the basis for the suspension is gone and the sentence should be served.”
The learned sentencing judge went on to observe that she did not see any evidence from the probation report to support the idea that the appellant had ever intended to keep the conditions of suspension as undertaken by him on 5th October, 2016.
10. It was submitted that because the learned sentencing judge had not given express or cogent reasons why she considered the mitigating factors to be insufficient in the instant case to support only partial reactivation of the suspended sentence, the conclusion should be drawn that she did not consider those factors either properly or at all. It was argued that the learned sentencing judge focused on the aggravating factors, and that her decision was affected by her apparent failure to equally consider the mitigating factors. It was claimed that the learned sentencing judge had failed to consider the totality of the factors, and operated a de facto policy excluding proper consideration of the alternatives of allowing the suspension to continue, or of partial reactivation of the suspended sentence.
(4) Respondent’s Submissions
11. The respondent referred back to concerns expressed by the learned sentencing judge when the matter first came before the court for sentence. She expressed the view that having heard the evidence and the extent of the appellant’s previous convictions, the appellant was coming to the end of the line in terms of lenient treatment, as such treatment in the past had little or no apparent effect on his behaviour. Counsel for the appellant indicated in response that the appellant was very much aware that he was “looking down the barrel in this matter” . The respondent pointed out that by April 2016, the learned sentencing judge received a report that was, in the words of the learned sentencing judge, “not what would have been hoped for in the context of the previous convictions and the remarks I made on the last occasion” . However, she adjourned the matter to allow a final opportunity for Mr. Wall to engage with the Probation Services. In putting the matter back to October 2016, the learned sentencing judge observed that “the situation is very tenuous for Mr. Wall’s point of view and if the matter is re-entered it’s simply a case of imposing a prison sentence” .

12. The respondent also relied on the expressions and reasoning set out by the learned sentencing judge in imposing the suspended sentence on 5th October, 2016. Her remarks made it clear to the appellant that he was expected by her to demonstrate real motivation and commitment in addressing all of the difficulties which caused him to offend in the past. The respondent submitted that the failure to submit contact details was not a simple breach of a minor condition, but had the result that the other conditions were set at naught, because the appellant could not and did not engage with Probation Services in circumstances where they had no possibility of maintaining contact with him. It was submitted that there was no error on the part of the learned sentencing judge, where the appellant was given clear conditions to follow, and the breaches of the order had the effect that the majority of the terms and conditions of suspension could not be addressed by either the Probation Services or the appellant.
(5) Conclusion
13. We have carefully considered the transcript of the sentence hearing and the written and oral submissions in this Court. In the first instance, any s. 99 revocation hearing must be considered in the context of the record of the sentencing process as a whole. In this case, the applicant had a bad previous record, in that he had previously been the subject of a number of suspended sentences. Although none of these sentences had been activated for breach of a bond condition, they did not have the desired effect of inducing the appellant to desist from further offending.

14. In the original sentencing hearing in relation to this matter, the learned sentencing judge was understandably reluctant to travel the suspended sentence route again, having regard to the appellant’s previous record and his less than full previous cooperation with the Probation Services. Notwithstanding her justifiable reservations, she very fairly gave the appellant a last chance, and in doing so, warned him in clear terms of the necessity of demonstrating concrete motivation and commitment to addressing his personal difficulties.

15. On the disposal of the reactivation application, the learned sentencing judge did, in fact, consider whether some less stringent approach than full activation was appropriate and, in all of the circumstances, declined so to do. She particularly referred to the fact that there was no compliance at all with the conditions of the bond that she had previously set in relation to probation supervision.

16. In all of the circumstances of this case, the learned sentencing judge had ample evidence before her to justify taking the view that she did, when regard is had to the sentencing process taken as a whole. Section 99(17) requires that in considering an application under s.99(14), where it is satisfied that there has been breach of a probation condition, a court shall revoke the probation order and activate the entire of the sentence imposed, or such part thereof as it considers just in all of the circumstances of the case, less any time spent in custody.

17. The learned sentencing judge considered all of the relevant circumstances of the particular case under the applicable statutory provision. She specifically considered the alternative to full revocation and decided against that course of action. In the circumstances, the appellant has not identified any error of principle in the approach adopted by the learned sentencing judge, and his appeal is accordingly dismissed.

 

 

McCabe -v- Ireland & Ors

[2014] IEHC 435 (30 September 2014)

JUDGMENT of Mr. Justice Gerard Hogan delivered the 30th day of September, 2014
1. Where an accused receives a suspended sentence from the Circuit Court on appeal from the District Court and that sentence is later re-activated following a conviction for a subsequent offence, is he or she constitutionally entitled to appeal against the decision to re­ activate that sentence? This is essentially the issue which is presented in these proceedings in which the plaintiff has challenged the constitutionality of key portions of s. 99 of the Criminal Justice Act 2006 (as amended) (“the 2006 Act”).

2. The plaintiff in these proceedings was originally convicted by the District Court on 24th June, 2013, of the offence of driving a motorcycle without insurance. He received a five months prison sentence in the District Court. Mr. McCabe appealed that sentence to the Circuit Court. On 29th October, 2013, the sentence was increased to six months, but, critically, it was suspended in its entirety for two years. Having regard to the scheme posited by s.99 of the 2006 Act it is accepted that the Circuit Court is now the first court for this purpose, i.e., it was the Circuit Court (albeit sitting in its appellate capacity when hearing an appeal from the District Court) which imposed the suspended sentence.

3. The plaintiff was, however, subsequently convicted in the District Court on 26th May, 2014, of an offence under s. 6(1) of the Criminal Justice (Public Order) Act 1994. That Court then remanded the applicant back to the Circuit Court in accordance with s. 99(9) of the 2006 Act. On the following day the Circuit Court then revoked the suspended sentence with immediate effect, so that the applicant commenced to serve his prison sentence of six months in relation to the original no insurance offence. It is pursuant to this sentence that the applicant is now in custody. Sentencing on the second charge has now been adjourned by the District Court pending the outcome of this and associated legal challenges.

4. The plaintiff originally sought to challenge the legality of his detention on a range of non-constitutional grounds in Article 40.4.2 proceedings. I rejected that challenge in a judgment delivered on 3rd June, 2014: see McCabe v. Governor of Mountjoy Prison [2014] IEHC 309. While there was some debate as to whether the plaintiffs constitutional challenge should be heard in those proceedings or whether it might not be better to have separate plenary proceedings with pleadings, it was ultimately agreed that the plaintiff should be at liberty on bail in the Article 40.4.2 proceedings pending the outcome of this constitutional challenge in these separate plenary proceedings.

5. As I observed in the first judgment, the question of the re-activation of suspended sentences in the manner envisaged by s. 99 of the 2006 Act has not been without its difficulties. The Oireachtas has indeed intended to address some of these problems of interpretation and application by two further amendments of the 2006 Act, namely, s. 60(1)(a) of the Criminal Justice Act 2007 (“the 2007 Act”) and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009 (“the 2009 Act”).

6. The scheme envisaged by s. 99 of the 2006 Act is clear enough. Section 99(9)(as amended by s. 60(a) of the 2007 Act) envisages that where an accused has been “convicted of an offence” for which he has received a suspended sentence and he subsequently commits a further offence during the currency of that suspended sentence, the court (which I shall term for ease of reference “the second court”) before which proceedings for the second offence are brought “shall before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order”.

7. It should be noted that, as originally enacted, s. 99(10) provided that the second court should impose sentence prior to sending the matter back to the original court for consideration in relation to the suspended sentence. Following the change effected by the 2007 Act, the second court is now required to remit the matter to the first court (i.e., the court which originally imposed the suspended sentence) prior to imposing sentence. Section 99(10) provides that the court to which the accused has been remanded shall revoke the suspension of the sentence “unless it considers that the revocation of that order would be unjust in all the circumstances of the case.”

8. Section 99(12) further provides that:

“Where an order under subsection 1 is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction or, or sentence imposed on, a person for an offence by the court that revoked the order.”
9. The dilemma which was presented for the plaintiff was that as the suspended sentence in his case was imposed by the Circuit Court, the decision to re-activate that sentence was taken by that Court. The difficulty, however, is that in summary prosecutions, the decision of the Circuit Court on appeal is final and unappealable. There is, of course, a statutory right of appeal from the Circuit Court to the Court of Criminal Appeal, but this is in respect of prosecutions on indictment only: see s. 63 of the Courts of Justice Act 1924 and s. 31 of the Criminal Procedure Act 2010.
10. Against the background, it is agreed that the first question, therefore, which must be considered is whether the Constitution requires the existence of a right of appeal against the re-activation of a suspended sentence by the Circuit Court when it is agreed that such an appeal would lie had but the suspended sentence been imposed in the first instance by the District Court.
Does the Constitution require the existence of a right of appeal in these circumstances?
11. The plaintiff advances two fundamental arguments in support of his contention that the Constitution requires the existence of a right of appeal. First, he says that he has such a right by virtue of Article 34.3.4 of the Constitution which provides:

“The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law.”
12. Second, he argues that a failure to provide a right of appeal against the re-activation of the suspended sentence when that suspended sentence was itself imposed by the Circuit Court on appeal when a right of appeal against the re-activation of the sentence is provided when the suspended sentence was originally imposed by the District Court would be fundamentally arbitrary and contrary to the equality guarantee in Article 40.1.
13. I propose now to deal with these arguments in reverse order.
A right of appeal and equality before the law
14. It is clear that, so far as the plaintiff is concerned, the fact that the suspended sentence was imposed by the Circuit Court rather than the District Court is a purely accidental factor which should be immaterial in any consideration of whether the decision to re-activate that sentence should itself be capable of being appealed. If, then, the plaintiff enjoys no right of appeal against the re-activation of the sentence, it might be asked why he should be placed at a disadvantage by reason of the fact that he was obliged in the first place to appeal to the Circuit Court in order to ensure that the sentence was actually suspended? If, of course, that suspended sentence had been imposed by the District Court in the first instance, then, upon re-activation of that sentence by the District Court, that decision (i.e., the decision to re­ activate) could in turn have been appealed to the Circuit Court.

15. It must also be recalled that the policy expressed by the Oireachtas in s. 99(12) is that the re-activation of every suspended sentence should be capable of being appealed to a higher court. In these circumstances, it is not possible to discern any possible justification for the radically different treatment of persons whose suspended sentences for minor offences have been re-activated by the Circuit Court as distinct from the District Court. The equal treatment of similarly situated persons within the criminal justice system is at the heart of the concept of equality before the law which, as the language of that provision makes clear, is one of the fundamental objectives of Article 40.1: see, e.g., Cox v. Ireland [1992] 2 I.R. 305, SM v. Ireland (No.2) [2007] IEHC 280, [2007] 4 IR 369, BG v. Ireland (No.2) [2011] IEHC 445, [2011] 3 IR 748 and Byrne v. Director of Oberstown School [2013] IEHC 562, [2014] 1 I.L.R.M. 346. This is especially so given that the fundamentally different treatment with regard to sentencing which would then obtain would so greatly impact on the core constitutional right to liberty under Article 40.4.1.

16. In this context it must also be stressed that s. 99(10) does not provide for the automatic re-activation of a particular sentence, since it recognises that there may be circumstances where the re-activation of a suspended sentence might be unjust. This is precisely why the right of appeal provided for by s. 99(12) in respect of the re-activation of a sentence is of such vital importance.

17. In these circumstances, the denial of the right of appeal to one category of litigant simply because of the essentially accidental fact that the suspended sentence which has now been re-activated was imposed on appeal by the Circuit Court rather than at first instance by the District Court has the inherent capacity to work a considerable injustice and unfairness. I say “essentially accidental” advisedly, because the question of whether an accused has the right of appeal against the re-activation of a sentence should not depend on whether the original sentence was imposed at first instance or whether it was imposed following an appeal to the Circuit Court.

18. This conclusion is, moreover, re-inforced by a consideration of the Supreme Court’s judgment in The People v. Foley [2014] IESC 2. In that case the accused had originally received a sentence of 8 years’ imprisonment, the entirety of which was suspended by the trial judge. Following an undue leniency appeal by the Director of Public Prosecutions to the Court of Criminal Appeal, that Court varied the sentence by suspending only five of the eight years. When the accused committed further offences in breach of the conditions attaching to the suspended sentence, the issue arose as to what the appropriate court which should determine the re-activation issue actually was: was it the Circuit Court or was it the Court of Criminal Appeal?

19. The Supreme Court held that the re-activation issue should be determined by the Court of Criminal Appeal, since it was that Court which had effectively set aside the decision of the Circuit Court and replaced it with what Denham C.J. described as a “new sentence.” It followed that a right of appeal existed from the re-activation decision of that Court to the Supreme Court, albeit under the limited conditions contained in s. 29 of the Courts of Justice Act 1924. Critically, however, the Supreme Court rejected the argument that this constituted an unfair discrimination as between different categories of appeals, whether appeals against severity or appeals against undue leniency. As Denham C.J. observed:

“In fact…convicted persons in both such appeals, namely, those under s. 2 of the Criminal Procedure Act 1993 [undue leniency] and s. 3 of the Criminal Procedure Act 1993 [severity] are subject to a similar power of the [Court of Criminal Appeal] to quash the sentence of the trial judge and to impose a new sentence. Thus, I would dismiss this ground of appeal [unfair discrimination] also.”
20. The clear implication from this passage, of course, is that had matters been otherwise, Article 40.1 would have been breached.
Conclusions on the Article 40.1 issue
21. Given that in the present case the significantly differing treatment of otherwise similarly situated accused so far rights of appeal are concerned is incapable of objective justification- and, let it be recalled, no such justification has really been advanced – the conclusion that such a state of affairs plainly offends the guarantee of equality before the law in Article 40.1 is, accordingly, inescapable. We can consider presently the implications of that particular conclusion.
Whether Article 34.3.4 requires the existence of a right of appeal?
22. As the Circuit Court is a court of local and limited jurisdiction, it is plain that Article 34.3.4 is, in principle, at least applicable to a decision to re-activate a sentence. Counsel for the defendants, Mr. Barron S.C., argued that the decision to re-activate a suspended sentence was in this instance no more than the exercise of a statutory power which was ancillary to the pre-existing appellate jurisdiction. In effect, therefore, the argument was that this decision was simply part and parcel of the appellate jurisdiction which had already been exercised when Mr. McCabe persuaded the Circuit Court to suspend the sentence on appeal from the District Court.

23. While this argument was attractively put, I do not think that this, with respect, can be regarded as a realistic analysis of what actually occurred in the Circuit Court. Certainly, the decision to re-activate the sentence is treated by s. 99(10) as an autonomous, free standing exercise of a new jurisdiction, requiring the application for the first time of separate statutory tests, necessitated in turn by the presence of new facts which are themselves the basis on which this jurisdiction was to be exercised. Any other conclusion is, in any event, contra­ indicated by the very wording of s. 99(12) itself which creates a right of appeal from the decision to re-activate the suspended sentence. The language, structure and form of this sub­ section necessarily pre-supposes that the decision to re-activate is a decision taken at first instance, even if the court which exercised that re-activating jurisdiction was itself originally exercising an appellate jurisdiction when the decision to impose the suspended sentence first came before it. This is further underscored by the comments of Denham C.J. in Foley which strongly support the view that the re-activation of the suspended sentence pursuant to s. 99(10) represents a new exercise of a statutory jurisdiction.

24. Next, it was argued that there is in fact an appeal from the decision of the Circuit Court in that s. 16 of the Courts of Justice Act 1947 allows for a case to be stated by the Circuit Court to the Supreme Court. That section provides in material part as follows:

“A Circuit Judge, may, if an application in that behalf is made by any party to any matter…pending before him, refer, on such terms on such terms as to costs or otherwise as he thinks fit, any question of law arising in such matter to the Supreme Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his judgment or order in the matter pending the determination of such case stated.”
25. It will be seen that s. 16 of the 1947 Act provides for a case stated procedure and not for a right of appeal. The ultimate decision continues to rest with the judge who made the reference to the Supreme Court, namely, the Circuit Court judge. Section 16 cannot thus be regarded as an “appeal” within the meaning of Article 34.3.4, which necessarily implies that there will be an independent determination of the case by a higher court, even if the scope of any such appeal is itself subject to conditions imposed by law.
26. Turning now to the construction of Article 34.3.4 itself, is clear from the judgment of Finlay J. in The State (Hunt) v. O’Donovan [1975] I.R. 39 that the right of appeal envisaged by Article 34.3.4 is one which requires statutory vesture. It is equally clear from that judgment that Article 34.3.4 does not contemplate a universal right of appeal in all cases. As Finlay J. observed ([1975] I.R. 39, 48):

“I have no difficulty in interpreting [Article 34.3.4] as prohibiting the constitution of a court of local and limited jurisdiction from which there was no appeal at all; but there is a very large gap between that interpretation and one which excludes the right of the law to determine from which precise decision an appeal will lie.”
27. In Hunt the applicant had pleaded guilty to the commission of an indictable offence in the District Court and in accordance with the provisions of s. 13 of the Criminal Procedure Act 1967 he was sent forward to the Circuit Court for sentence. As the law then stood, there was no right of appeal against the imposition of a sentence by the Circuit Court following such a plea of guilty in the District Court, although, as Finlay J. pointed out, had the accused withdrawn the plea before the Circuit Court and was subsequently found guilty, he would have had a right of appeal against sentence in such circumstances. (The right of appeal against sentence was in fact subsequently restored by s. 1 of the Criminal Procedure (Amendment) Act 1973).
28. In the light of his finding that Article 34.4.3 did not confer a universal right of appeal, Finlay J. concluded that the legislation was not unconstitutional by reason of an incompatibility with Article 34.3.4. Finlay J. also went to dismiss the argument that the 1967 Act thereby violated Article 40.1 ([1975] I.R. 35 at 50-51):

“A person can never be dealt with under that section unless he so wishes. There is no moral or legal duty on a person, when charged with an indictable offence before the District Court, to signify his desire to plead guilty to that charge. Unless he does so, the provisions of s. 13 of the Act of 1967 never come into operation. Even after he has been sent forward by the District Court on a plea of guilty (if he makes one), the accused having been sentenced by the Circuit Court must be asked if he wishes to withdraw that plea; if he does withdraw his plea he is indicted and to that indictment he may plead guilty or not guilty and, if sentenced, he has a statutory right of appeal against that sentence. However, to take a hypothetical case, each of two persons might be charged with the same type of crime but one of them might be sent forward for sentence on his plea of guilty which does not withdraw while the other might be convicted, or plead guilty on indictment; in such circumstances it is undoubtedly true that one had the right of appeal against severity of sentence while the other has not that right. I must ask myself whether this result, on the principles laid down in the cases to which I have referred, constitutes an invidious discrimination or a failure to protect adequately the rights of the individual.
The person who has been sent forward for sentence on his plea has the opportunity to withdraw that plea up to the very last moment; in addition such person is sentenced, after due submission in evidence, by a constitutional court with an independent judge subject to legal maximum standards as to the penalty he may impose. In these circumstances I do not consider that these provisions are repugnant to either s. 1 of Article 40 or s. 3 of that Article of the Constitution.

It is important to note that the choice to which I have referred is not an illusory one. Practitioners are well accustomed to using an unequivocal admission of an offence as a plea in leniency, and it often succeeds. Furthermore, there is a brevity in speed in the procedure under s. 13(2)(b) of the Act of 1967 which may constitute an advantage to an accused person. Therefore, I refuse these applications.”

29. This passage invites a number of comments. First, one might respectfully doubt whether this analysis of the proper scope of Article 40.1 would be followed today. In the early case-law dealing with Article 40.1 the term “invidious discrimination” seems to have been borrowed from the US case-law dealing with the equal protection clause of the 14th Amendment. The US jurisprudence had been developed in a context where the US Supreme Court frequently encountered legislation which was “invidiously” discriminatory in this sense in that there was legislative discrimination on the basis of race or colour. One would be hard pressed to identify any legislation enacted by the Oireachtas which was “invidious” in this particular sense. The scope of Article 40.1 is, however, far broader than this and it is perhaps for this reason that the Supreme Court has subsequently observed that the use of this term (“invidious discrimination”) “in discussing Article 40.1 is more likely to mislead than to help”: see Murphy v. Attorney General [1982] I.R. 241, 286, per Kenny J.
30. Second, as O’Donnell J. noted in his judgment in Murphy v. Ireland [2014] IESC 19, [2014] 1 I.L.R.M. 457, 481, it is clear that the modem case-law on Article 40.1 endeavours to avoid any formalistic analysis such as might have been a feature of the equality jurisprudence of the 1970s and 1980s. The emphasis is instead rather on ensuring that the substance of the guarantee is upheld and, in particular, that any “significant differentiation between citizens….may still fall foul of the provision if they cannot be justified”: see [2014] 1 I.L.R.M. 457, 481-482, per O’Donnell J.

31. While it is true that, returning to the precise question at issue in Hunt, there are differences between the case of the accused who elects to plead guilty in the District Court and who is sent forward for sentence on the one hand and the accused who either pleads guilty following a return for trial in the Circuit Court or who is found guilty following a trial on indictment on the other, it is nonetheless hard to see how those differences could justify such a strikingly different treatment in terms of appellate remedies regarding sentence. Viewed through the prism of the modern Article 40.1 case-law, I very much doubt whether the actual result in Hunt would nowadays be regarded as correct. Indeed, it may be significant that in Todd v. Murphy [1999] 2 IR 1, Geoghegan J. already said as much.

32. In any event, so far as the present case is concerned, I do not think that the fact that an accused found himself obliged to appeal to the Circuit Court in order to secure a suspended sentence in the first place should be the critical fact which could justify the failure to provide for a right of appeal from the decision to re-activate that sentence.

33. With regard to the interpretation of Article 34.3.4, I agree with Finlay J. that this provision does not confer or guarantee a universal right of appeal. This point was also illustrated by the decision of Geoghegan J. in Todd v. Murphy [1999] 2 IR 1. In that case the applicant had challenged the validity of legislation which provided that the decision of the Circuit Court not to transfer a trial from one venue to another was unappealable. Geoghegan J. expressed approval for the general principles enunciated by Finlay J. in Hunt, without “necessarily endorsing the particular application of that principle” in that case. He went on to say that it was clearly open to the Oireachtas to bar an appeal from a preliminary decision of this kind, adding ([1999] 2 IR 1, 4):

“It would seem to me to be peculiarly in the interests of a fair and efficient administration of justice that there should not be a right of appeal from a decision of a trial judge as to the venue of a trial made before the trial commences. Such an appeal is likely to delay the proceedings and is open to much abuse.”
34. The right of appeal is subject to “law”, but it is now clear- in a way which was not perhaps quite the case in 1972 at the time when Hunt was decided – that where this phrase appears in the Constitution, it does not simply refer to positive law only in the sense of a statute enacted by the Oireachtas. It is rather the case that any such “law” as is envisaged by Article 34.3.4 must comply with the principles subsequently articulated by Henchy J. in King v. Attorney General [1981] I.R. 233, 257, so that the law “must [not] ignore the fundamental norms of the legal order postulated by the Constitution.” This principle was recently re­ affirmed by O’Donnell J. in Murphy in the context of Article 38.3.1 and the establishment “by law” of the Special Criminal Court. The application of the King principle meant that the question in that case thereafter became whether the provisions of the Offences against the State Act 1939 providing for the establishment of that Court were “compatible with the dictates of fairness postulated by the Constitution.”
35. If the matter is looked at this way it may be said that the existence of a right of appeal against a purely procedural ruling of a trial judge in matters relating to venue is not intrinsic to the fundamental norms postulated by the Constitution and nor is it central to the criminal justice system. As Geoghegan J. pointed out, the existence of a right of appeal against decisions in respect of venue would be likely to prove disruptive to the smooth and orderly administration of justice.

36. The right of appeal of an accused against sentence is an entirely different matter. As a matter of history, a right of appeal on the part of the accused against sentence has been a fundamental feature of the criminal justice system since the Constitution was first enacted. Indeed, leaving aside for a moment the issues raised in these proceedings, it might be said that the only example since 1937 of where an accused was not afforded a right of appeal against sentence was in the interval between the enactment of the Criminal Procedure Act 1967 and the Criminal Procedure (Amendment) Act 1973, i.e., the issue which formed the background to the issue raised in Hunt. Even then it might be said that this particular omission was an unintended by-product of the manner in which the 1967 Act had been drafted, rather than a deliberate policy on the part of the Oireachtas. To that extent, therefore, this legislative omission seems to have been regarded as something of an anomaly and the omission was, in any event, swiftly rectified by the Oireachtas once the problem came to light.

37. In view of the centrality of sentencing to the criminal justice system and given that the protection of liberty, the trial of offences in due course of law and the existence of a right of appeal are themselves all fundamental norms expressly safeguarded by the Constitution, it is difficult to see how a law which did not provide for a right of appeal against sentence imposed by a court of local and limited jurisdiction could be said to be a law which respected those fundamental norms, so that it was a “law” in the sense identified by Henchy J. in King and by O’Donnell J. in Murphy (2014). It is, perhaps, unnecessary to decide whether Article 34.3.4 requires the existence of a right of appeal against sentence on the part of an accused in every single case. It is, however, to say that the denial of a right of appeal against a sentence imposed by a court of local and limited jurisdiction is something which, at the very least, requires to be objectively justified.

38. For all of these reasons, I do not think that either aspects of the reasoning nor the actual decision in Hunt would be followed today. In arriving at this view, I do not overlook the fact that the Supreme Court dismissed an appeal from the decision of Finlay J.: see [1975] I.R. 39, 53. As no reasons were given by that Court in respect of the single judgment delivered on the constitutional question, its precedential value is difficult to discern. But even if – which is by no means clear – that decision is regarded as having endorsed the reasoning of Finlay J. in this Court, the decision in Hunt could still no longer hold as an authority because the judgment is based on a doctrinal analysis of Article 34.3.4 and Article 40.1 which has since been overtaken by a series of much later Supreme Court decisions.
Conclusions on the Article 34.3.4 issue
39. Can it be said that such objective justification is present here? For the reasons already stated with regard to the equality argument in Article 40.1, one must doubt whether such justification is or could be present. After all, to return to a point already made in that latter context, the underlying policy expressed ins. 99(12) is that the re-activation of a suspended sentence following a further conviction is not automatic. Furthermore, as is apparent from the language of s. 99(12), the Oireachtas appears to have contemplated that there should be a universal right of appeal against sentence.

40. In summary, therefore, for the reasons I have already stated, it follows that the legislative failure to provide an accused a right of appeal against the re-activation of a suspended sentence imposed by the Circuit Court amounts to a breach of Article 40.1 and Article 34.3.4.
What relief is available to the plaintiff!
41. In these proceedings the plaintiff has claimed a declaration that s. 99 is unconstitutional. It is true that in one sense the plaintiff is affected by the operation of s. 99(12) in that it is pursuant to those provisions that the suspended sentence was thereafter activated. But this is not the real source of his complaint, since the objection to s. 99 is not really to that which it contains, but rather in respect of what it does not contain. The two separate findings of unconstitutionality (in respect of both Article 34.3.4 and Article 40.1) relate to a legislative failure to provide a right of appeal for an accused person whose sentence has been re-activated.

42. In these circumstances, given that the identified unconstitutionality relates to a legislative lacuna, an order declaring the section to be unconstitutional would generally be inappropriate. Just as I observed in BG v. Ireland (No.2) [2011] IEHC 445, [2011] 3 IR 748, 767 (where a similar unconstitutional lacuna had come to light), a finding of unconstitutionality would serve no real purpose in the present case “other than a Samson-like collapsing of the legislative pillars which gave rise to the unconstitutionality in the first instance.” At the same time, the court must fashion an effective remedy to address the legislative lacuna if it is to be faithful to the constitutional command contained in Article 40.3.1 to “defend and vindicate the personal rights of the citizen”, so far as it is practicable to do so. It is in these particular circumstances that the court “will feel obliged to fashion its own remedy”: see McDonnell v. Ireland [1998] 1 I.R. 134, 148, per Barrington J.

43. Similar views were expressed by Murray C.J. in Carmody v. Minister for Justice [2009] IESC 71, [2010] 1 IR 635, 668- where an unconstitutional legislative lacuna of this kind has been identified- to the effect that in this type of case the court enjoys a constitutional jurisdiction “to grant such remedy as it considers necessary to vindicate the right concerned.” In that case the applicant contended that the fact that he had no right to apply for criminal legal aid in a District Court trial which would provide him with representation by counsel as well as a solicitor and therefore no right to be granted such legal aid where the essential interests of justice so require. The Supreme Court held while that the Criminal Justice (Legal Aid) Act 1962 was not unconstitutional, the failure to make provision in suitable cases for the present of counsel at a criminal trial was, objectively, a breach of the accused’s entitlement under Article 38.1 to trial in due course of law. Viewed thus, Carmody is really a classic example of an unconstitutional lacuna where the invalidation of the underlying legislation is neither an appropriate or a necessary remedy.

44. What, then, should the remedy in the present case actually be? In Byrne v. Director of Oberstown School [2013] IEHC 562, [2014] 1 I.L.R.M. 346 I noted that that, in theory, at any rate, “once an unconstitutional omission is judicially identified then the solution generally best lies with the legislative branch” and that since the constitutional command related to equality before the law ([2014] 1 I.L.R.M. 346, 358):

“in the wake of such a judicial determination the choice rests with the Oireachtas to decide whether to level up or level down so that the precepts of Article 40.1 are thereby satisfied.”
45. I continued by noting that in practice matters may not be quite that simple ([2014] 1 I.L.R.M. 346 at 358-359):
“What, then, is the situation in the present case? In theory, perhaps, the Oireachtas and the Minister could bring about equality by abolishing the remission regime for all offenders. In practice, however, this would be all but impossible, certainly insofar as such an equalising measure purported to operate retroactively by removing the existing legal entitlements and expectations of serving prisoners to remission. Such a retroactive measure would be open to a host of objections and given that the entire criminal justice system has been heretofore premised on the understanding that (the special cases of murder and persons imprisoned for contempt of court aside) all other prisoners are eligible for and have an entitlement to remission….one may doubt whether the retroactive removal of remission in this fashion would survive constitutional scrutiny.
Just as in Carmody and SM, therefore, there is no realistic option open other than to find that the failure to provide for the same remission regime at Oberstown as applies to offenders detained at St. Patrick’s Institution violates the precept of equality in Article 40.1. This means in turn that the failure to afford the applicant the same remission entitlements as other young offenders violates his constitutional rights.

. . ..In these circumstances it must be adjudged that by reason of the continued application to him of this unconstitutional legislative omission, the applicant’s continued detention at Oberstown is not in accordance with law. In accordance, therefore, with the requirements of Article 40.4.2 of the Constitution, it follows that I must direct his release from that custody.”

46. The present case is different again. Even though I have found that the denial to the plaintiff of a right of appeal is a violation of both Article 34.3.4 and Article 40.1, the parameters of such a right of appeal are entirely a matter of legislative policy which is committed to the Oireachtas alone. Specifically, the unconstitutionality cannot, perhaps, be as readily cured in the same manner as happened in cases such as SM (No.2) and BG (No.2). These were both sentencing cases where specific classes of defendants were unconstitutionally exposed to the prospect of a higher maximum sentence than other similarly situated defendants. In both cases it was held that the legislative omission could be cured by declarations which ensured that there was only one uniform maximum sentence.
47. In the present case, the equivalent remedy might be to create a right of appeal for the accused persons in the same position as the plaintiff. In that hypothetical scenario, all accused persons would enjoy equivalent rights of appeal following the re-activation of suspended sentences which had been imposed in respect of summary offences, thus satisfying the requirements of both Article 34.3.4 and Article 40.1. That, however, is a remedy which lies far beyond the judicial capacity to effectuate or to create. It would be a matter for the Oireachtas to determine by law how such a right of appeal might be exercised, not least the identity and composition of the court which might be assigned jurisdiction to hear such an appeal.

48. In Byrne the unconstitutional discrimination consisted of the failure to apply the same type of sentence remission to similarly situated categories of young offenders depending on the identity of the institution in which they were detained. In those circumstances, I found that the only practical way of curing this unconstitutionality and providing an effective remedy for this violation was to treat the remission rules applicable to offenders detained at St Patrick’s Institution as being also applicable to those detained at Oberstown School.

49. More importantly, a similar solution was devised by the Supreme Court in Carmody where, as we have seen, the lacuna stemmed from the failure of the Criminal Justice (Legal Aid) Act 1962 to allow for the provision of counsel in certain types of cases. On this basis the applicant in that case had claimed that s. 2(1) of the Act was repugnant to the Constitution. Dealing with the question of remedy Murray C.J. stated ([2010] 1 IR 635, 668-670):

“The Court has already determined that the denial of an opportunity to apply for and be granted, where appropriate, such legal aid is a denial of a constitutional right. He is entitled to have that constitutional right vindicated. Article 40.3 of the Constitution imposes on the organs of government of the State the duty to defend and vindicate the personal rights of the citizen……
The Court is satisfied that it would be unjust and contrary to the appellant’s right to a trial “in due course of law” as required by Article 38.1 of the Constitution if the prosecution of the charges brought against him were allowed to proceed while he is denied the right to apply for legal aid to include solicitor and counsel and have that application determined on its merits. To allow a trial to proceed without any possibility of determining whether it was essential to a fair hearing that the defendant be represented by solicitor and counsel would be, in the words of O’Higgins C.J., in [The State (Healy) v. Donoghue [1976] I.R. 325, 351] “to tolerate injustice”.

………..Accordingly the Court will grant a declaration that the appellant has a constitutional right to apply, prior to being tried, for legal aid in the criminal proceedings brought against him in the District Court and to have that application heard and determined on its merits. It will also make an order prohibiting the prosecution from proceeding in respect of the criminal charges referred to in these proceedings unless and until the appellant is afforded that right.”

50. I propose to apply by analogy the solution devised by the Supreme Court in Carmody to the present case. Compliance with the obligations placed on this Court by Article 40.3 to vindicate the constitutional rights of the plaintiff requires that he is nonetheless entitled to a real remedy in order to ensure that these rights are not further infringed.
51. Accordingly, for so long as sentenced persons such as the plaintiff are denied a right of appeal against the re-activation of the sentence for a summary offence by the Circuit Court, the only effective yet practicable remedy which can be devised to ensure that this unconstitutionality is adequately mitigated is to declare that it would be unconstitutional to give effect to the re-activated sentence in the absence of a legally conferred right of appeal.
Conclusions
52. It remains only to summarise my principal conclusions:

53. First, the starkly different treatment of the rights of appeal of convicted persons whose suspended sentence in respect of summary offences was originally imposed by the Circuit Court rather than the District Court is not objectively justifiable and amounts to a breach of the equality guarantee in Article 40.1. This is especially so given that s. 99(12) of the 2006 Act (as amended) pre-supposes that all such offenders will enjoy a right of appeal against the re-activation of such a sentence and as s. 99(10) makes it clear that such re-activation was not intended to operate automatically in every single case.

54. Second, the failure to provide a right of appeal against the re-activation of a suspended sentence by a court of local and limited jurisdiction involves a failure to provide a right of appeal in the manner determined “by law” for the purposes of Article 34.3.4, at least, where, as here, no objective justification for such failure has been supplied. By failing to providing for such a right of appeal, the Oireachtas has failed to comply with fundamental constitutional norms in the sense identified by Henchy J. in King and, more recently, by O’Donnell J. in Murphy.

55. Third, given the unconstitutionality which has been just identified relates not to what is contained ins. 99 of the 2006 Act, but rather to that which it does not contain, it would be both inappropriate and unnecessary to make a formal declaration of unconstitutionality invalidating s. 99 itself.

56. Fourth, the plaintiff is nonetheless entitled to a real remedy to ensure that his constitutional rights are not further infringed. In these circumstances, adapting by analogy the solution devised by the Supreme Court in Carmody in respect of the unconstitutional legislative omission identified in that case, I propose to grant an order declaring that it would be unconstitutional to give effect to the re-activated sentence in the absence of a statutorily conferred right of appeal against the decision of the Circuit Court to re-activate the sentence.

 

DPP -v- Gordon Ryan

[2009] IECCA 21 (20 March 2009)

Neutral Citation: [2009] IECCA 21

Court of Criminal Appeal Record Number: 190/07

Date of Delivery: 20 March 2009

Court: Court of Criminal Appeal

Composition of Court: Finnegan J., Herbert J., deValera J.

Judgment by: Finnegan J.

Status of Judgment: Approved

Judgments by
Result
Finnegan J.
Other (see notes)

Notes on Memo: Grant leave to proceed under Section 99(12) of the Criminal Justice Act 2006

 

 

 

COURT OF CRIMINAL APPEAL

CCA No. 190/07

Finnegan J.
Herbert J.
de Valera J.

 

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

.v.

GORDON RYAN

APPLICANT

Judgment of the Court delivered on the 20th day of March 2009 by Finnegan J.

The applicant was charged and convicted on one count of wounding with intent to do grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861 the particulars of the offence being that he did between 10 p.m. on the 11th September 1995 and 1 a.m. on the 12th September 1995 at O’Connell Street in the City of Limerick unlawfully and maliciously wound one Anthony O’Mahony with intent to do grievous bodily harm to the said Anthony O’Mahony. On the 23rd March 2000 he was sentenced to a term of imprisonment of twelve years with the last six years of that term suspended on terms that he keep the peace and be of good behaviour. He was released from prison having served that sentence on the 26th April 2003. On the 19th April 2005 the respondent applied to have the suspended portion of the sentence reactivated. On that date, the learned trial judge having been appointed to the High Court, an issue arose as to who should hear the application. For that and other reasons the application was adjourned from time to time but was ultimately heard on the 21st December 2005.

The evidence was that the applicant had committed a number of offences. He was charged with obstructing a Garda contrary to section 29(5) of the Offences against the State Act 1939 the date of the offence being the 24th July 2003. He was remanded on bail but failed to answer to his bail on the 21st April 2004. Bail having been reinstated he again failed to answer to his bail on the 8th September 2004. A bench warrant was issued and on the 21st September 2004 he pleaded guilty to the offence and the matter was adjourned to the 6th October 2004 the applicant being again remanded on bail. He failed to answer to his bail on the 6th October 2004 and a further bench warrant was issued. The offence of obstructing a Garda was finally dealt with on the 1st March 2005 and a sentence of imprisonment for one month was imposed. On the 1st March 2005 the applicant also faced two charges under section 13 of the Criminal Justice Act 1984 of failing to answer to his bail, one relating to the 8th September 2004 and the other to the 2nd October 2004. He was convicted and sentenced to one month imprisonment on each count. All three terms were to run concurrently. Two offences under the Criminal Justice (Public Order) Act 1994 one under section 6 and one under section 4 were taken into consideration.

The circumstances of the offence of obstruction are that on the 24th July 2003 while Gardai were executing a search warrant at premises in Ballinacurra, Weston, Limerick, the applicant removed a plastic sachet from his pocket and threw it into an open fire. A Garda went to remove the sachet from the fire and the applicant prevented him from doing so and it was consumed by the fire.

On the application it was conceded by the prosecution that the applicant’s failures to answer to his bail would not of themselves justify the reactivation of the suspended portion of the sentence. It was, however, submitted that those offences taken in conjunction with the offence of obstructing a Garda and the Public Order offences constituted sufficient grounds for reactivation. The learned trial judge exercised his discretion on the basis that to reactivate the six year portion of the twelve year sentence which had been suspended would be disproportionate where the offences relied upon were prosecuted in the District Court and resulted in an effective term of imprisonment of one month.

A further application to reactivate the suspended portion of the sentence was brought on the 6th February 2007, was adjourned from time to time and ultimately dealt with on the 25th July 2007. On this occasion the application relied on five convictions as follows:-
1. On the 16th December 2005 he was convicted at Nenagh District Court of an offence contrary to section 12 of the Criminal Justice (Theft and Fraud) Offences Act 2001 and sentenced to a term of imprisonment of eleven months.

2. On the same occasion he was convicted of failure to give his name and address or giving a name and address that was false or misleading contrary to section 107 of the Road Traffic Act 1961: this offence was taken into consideration.

3. On the 20th October 2006, arising out of the same events as the convictions mentioned at 1 and 2 above, he was convicted of fraudulently using the registration mark of a vehicle contrary to section 115 of the Road Traffic Act 1961: this offence was taken into consideration.

4. On the 20th December 2006 he was convicted at Limerick City District Court of theft of cigarettes contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, the offence having been committed on the 27th November 2005: he was sentenced to four months imprisonment.

5. On the 11th January 2007 at Limerick City District Court he was convicted of the theft of a computer screen contrary to section 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001: he was sentenced to five months imprisonment.
Counsel on behalf of the applicant submitted that as a result of the Criminal Justice Act 2006 section 99 the court, if it considers that to revoke the suspension would be unjust in all the circumstances, should not revoke the suspension but otherwise could require that the entire of the sentence originally imposed be served or

such part thereof as the court considers just having regard to all the circumstances of the case. The section was commenced on the 2nd October 2006. The sentence sought to be reactivated was imposed on the 23rd March 2000. The application to reactivate came before the court on the 6th February 2007 after the commencement of the Criminal Justice Act 2006 section 99. For the respondent it was submitted that as the sentence with portion thereof suspended had been imposed prior to the commencement of section 99 of the Criminal Justice Act 2006 the application to reactivate was governed by common law and having regard to the decision in The People (Director of Public Prosecutions) v Alan Murray, unreported, Court of Criminal Appeal 18th March 2003 the court’s discretion was limited to revoking the suspension or refusing to revoke it. The learned trial judge held that he was bound by the decision in The People (Director of Public Prosecutions) v Alan Murray and reactivated the entire of the suspended portion of the sentence. He did not take into account the convictions relied upon on the application to reactivate determined on the 21st December 2005. Leave to appeal was refused.

In The People (Director of Public Prosecutions) v Alan Murray, Court of Criminal Appeal, unreported 18th March 2003 the facts were as follows. The applicant was convicted on guilty pleas in respect of two offences contrary to section 5 of the Non-Fatal Offences against the Person Act 1997. The second offence was committed on bail. A sentence of four years imprisonment was imposed in relation to the first offence and three years imprisonment in relation to the second offence the sentences being consecutive. A portion of the sentences was suspended on conditions which were not complied with and the sentences were reactivated. In the course of the judgment McCracken J. said:-

“She (the learned trial judge) clearly took the view that this was a material and serious breach of the conditions in respect of residing where he is supposed to reside and visiting Mrs Kennedy. It is suggested in some way that reactivating the entire sentence is unjust, but no authority has been quoted to this court, and none of us are aware of any authority, whereby in a situation like this, where there has been a breach of a condition on which a sentence was suspended, that there is any discretion in the trial judge to do anything other than treat it as de minimis and simply almost ignore it and allow the suspension to continue, or else reactivate the entire sentence.
The sentence has already been passed and it is not open to a sentencing judge to give a second sentence. The suspension has been granted with conditions and if the conditions are broken, we are not aware of any authority, and it does not seem to be logical, that there should be a further discretion in the learned trial judge.”

Again in The People (D.P.P.) v Stewart, unreported, Court of Criminal Appeal, 12th January 2004, Hardiman J. said:-

“There is power to activate the sentence but it is not mandatory to do so in that a judge may decline to do so if the court considers that the breach might be described as trivial or de minimis. In the view of this court this breach in the circumstances in which it occurred could not possibly be so described.

The second issue was whether the sentences could be partially, not totally, activated. The terms in which the sentences were suspended clearly indicate that the applicant must ‘come up if called upon to do to serve the sentence of the court this day imposed but suspended on your entering into this bond’.

Mr Maguire has referred us to English statutory authority for the proposition that the sentence may be re-imposed, if it is to be re-imposed, in whole or in part. There is no Irish equivalent. It therefore seems to us that Judge Dunne was constrained to act as she did.”

The Criminal Justice Act 2006 was commenced on the 2nd October 2006, that is after sentence was imposed but prior to the same being activated on the 25th July 2007. Section 99 of the Act provides as follows:-
“99(1) Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognizance to comply with the conditions of, or imposed in relation to, the order.
(2) It shall be a condition of an order under subsection (1) that the person in respect of whom the order is made keep the peace and be of good behaviour during-
(a) the period of suspension of the sentence concerned, or
(b) in the case of an order that suspends the sentence in part only, the period of imprisonment and the period of suspension of the sentence concerned,
and that condition shall be specified in the order concerned.
(3) The court may, when making an order under subsection (1), impose such conditions in relation to the order as the court considers-
(a) appropriate having regard to the nature of the offence, and
(b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence,
and any condition imposed in accordance with this subsection shall be specified in that order.
(4) In addition to any condition imposed under subsection (3), the court may, when making an order under subsection (1) consisting of the suspension in part of a sentence of imprisonment or upon an application under subsection (6), impose any one or more of the following conditions in relation to that order or the order referred to in the said subsection (6), as the case may be:
(a) that the person co-operate with the probation and welfare service to the extent specified by the court for the purpose of his or her rehabilitation and the protection of the public;
(b) that the person undergo such-
(i) treatment for drug, alcohol or other substance addiction,
(ii) course of education, training or therapy,
(iii) psychological counselling or other treatment,
as may be approved by the court;
(c) that the person be subject to the supervision of the probation and welfare service.
(5) A condition (other than a condition imposed, upon an application under subsection (6), after the making of the order concerned) imposed under subsection (4) shall be specified in the order concerned.
(6) A probation and welfare officer may at any time before the expiration of a sentence of a court to which an order under subsection (1) consisting of the suspension of a sentence in part applies, apply to the court for the imposition of any of the conditions referred to in subsection (4) in relation to the order.
(7) Where a court makes an order under this section, it shall cause a copy of the order to be given to-
(a) the Garda Siochána, or
(b) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Siochána.
(8) Where a court has made an order under subsection (1) and imposes conditions under subsection (4) upon an application under subsection (6), it shall cause a copy of the order and conditions to be given to-
(a) the probation and welfare service, and
(b) (i) the Garda Siochána, or
(ii) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Siochána.
(9) Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, the court before which proceedings for the offence were brought shall, after imposing sentence for that offence, remand the person in custody or on bail to the next setting of the court that made the said order and
(10) A court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1) unless it considers that the revocation of the order would be unjust in all the circumstances of the case and where the court revokes that order the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody (other than a period during which the person was serving a sentence of imprisonment in respect of an offence referred to in subsection (9)) pending the revocation of the said order.
(11) (a) A sentence (other than a sentence consisting of imprisonment for life) imposed-
(i) in respect of an offence committed by a person to whom an order under subsection (1) applies, and
(ii) during the period of suspension of sentence to which that order applies,
shall not commence until the expiration of any period of imprisonment that the person is required to serve of the sentence referred to in paragraph (b) either by virtue of the order under subsection (1) or a revocation under subsection (10).
(b) This subsection shall not affect the operation of section 5 of the Criminal Justice Act 1951.
(12) Where an order under subsection (1) is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoked that order.
(13) Where a member of the Garda Siochána or, as the case may be, the governor of the prison to which a person was committed has reasonable grounds for believing that a person to whom an order under this section applies has contravened the condition referred to in subsection (2) he or she may apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).
(14) A probation and welfare officer may, if he or she has reasonable grounds for believing that a person to whom an order under subsection (1) applies has contravened a condition imposed under subsection (3) or (4), apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).
(15) Where the court fixes a date for the hearing of an application referred to in subsection (13) or (14), it shall, by notice in writing, so inform the person in respect of whom the application will be made, or where that person is in prison, the governor of the prison, and such notice shall require the person to appear before it, or require the said governor to produce the person before it, on the date so fixed and at such time as is specified in the notice.
(16) If a person who is not in prison fails to appear before the court in accordance with a requirement contained in a notice under subsection (15), the court may issue a warrant for the arrest of the person.
(17) A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all the circumstances of the case it would be unjust to do so and where the court revokes the order the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order.
(18) A notice under subsection (15) shall be addressed to the person concerned by name, and may be given to the person in one of the following ways:
(a) by delivering it to the person;
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;
(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.
(19) This section shall not affect the operation of-
(a) section 2 of the Criminal Justice Act 1960 or Rule 38 of the Rules for the Government of Prisons 1947 (S.R. & O. No. 320 of 1947), or
(b) subsections (3G) and (3H) of section 27 of the Misuse of Drugs Act 1977.”

The Criminal Justice Act 2007, section 60, amended section 99 of the Act of 2006 the amendments not being relevant to this application. The issue on this appeal is whether the provisions of section 99 of the Act of 2006 have application to the reactivation of the applicant’s sentence.

Applying the law as stated in The People (Director of Public Prosecutions) v Alan Murray it is possible to envisage cases where a suspended portion of a sentence is caused to be reactivated by the commission of offences which could not be regarded as de minimis breaches of the terms of the suspension but yet the reactivation could be seen as disproportionate and accordingly unjust. It is to such a situation that section 99 is addressed and it enables the court to respond appropriately and proportionately by reactivating the sentence in part. That being the intention of the Oireachtas it is necessary to consider section 99 and the totality of its provisions to ascertain the true intention of the Oireachtas as to whether the provisions of section 99 are to be prospective only or whether they are to apply to suspensions imposed prior to the commencement of the section.

Section 99(1) can be read as no more than a restatement in statutory form of the position at common law rather than as the creation of a statutory jurisdiction. The remaining provisions of the section must be looked at to determine the true intention: the true intention is to be ascertained from the other provisions of the section.

Section 99(2) requires the imposition of a specific condition in an order made under section 99(1) that the person in respect of whom the order is made keep the peace and be of good behaviour. This provision must be prospective only. There will be cases in which prior to the commencement of section 99 conditions other than those specified have been imposed and the conditions specified have not been imposed: indeed the latter was the situation in The People (Director of Public Prosecutions) v Alan Murray. The fact that this provision is prospective only will not of necessity prevent other provisions of section 99 having retrospective effect. The same is true in relation to the provisions contained in subsections (3), (4), (5), (6), (7), (8), (11), (13), (14), (15), (16), (18), and (19) in so far as they may in any subsequent case be found to be prospective only.

Central to the interpretation of the section are the provisions of subsections (9), (10) and (17). Subsection (9) provides that where a person to whom an order under subsection (1) applies is during the period of suspension convicted of an offence, the court before which proceedings for the offence is brought shall, after imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the order. This did not happen, or certainly did not invariably happen, prior to the commencement of section 99. Subsection (9) has no application where there is a breach of a condition other than a condition to keep the peace and be of good behaviour, and will apply only where the person the subject of the order is convicted of an offence. Subsection (10) applies only to a person who has been remanded under subsection (9). It empowers the court to revoke the order, or if it considers that revocation would be unjust not to revoke the order, and also to reactivate the sentence in part. This provision could have no application where the conviction leading to the revocation of the suspension occurred prior to the commencement of the Act as the requirements of subsection (9) will most likely not have been complied with. On conviction for an offence during the period of suspension it is unlikely, or at least will not always be the case, that the respondent on an application to reactivate will have been remanded in custody or on bail for the purposes of the reactivation. When one then turns to subsection (17) identical provisions are therein contained to those in subsection (10) but without any reference to subsection (9) and referring, not to a conviction, but to a breach of a condition of the order. There is nothing in the wording of subsection (17) to exclude from its operation a breach of a condition to keep the peace and be of good behaviour. The wording of subsection (17) confers a benefit on those who have been sentenced with the entire or a portion of the sentence suspended and where subsection (9) has not operated or has no application. However section 99(1) is merely a statutory restatement of the common law. The object of the section as a whole is to deal with a perceived injustice where reactivation of a suspended sentence or a suspended portion of a sentence could be perceived as disproportionate in the absence of a power in the court to reactivate the sentence in part. There is nothing in the wording of subsection (17) to impose a temporal restriction on the jurisdiction thereby conferred so that only those whose sentences are imposed after the commencement of section 99 should benefit. To give full effect to the ordinary meaning of the wording of subsection (17) and to the statutory intention it is appropriate that it should apply to post-commencement applications to reactivate where subsection (9) has no application. It is also consistent with the scheme of the statute that the power conferred by subsection (17) should apply where there has been a breach of condition, including a breach of a condition to keep the peace and be of good behaviour, on an application for reactivation of a suspended sentence or portion of a sentence where the condition was imposed prior to commencement of section 99 but the application to reactivate is made after commencement of the section. In such circumstances the court is given power, additional to those powers which existed at common law, to treat the breach as de minimis or to reactivate the sentence in full, to reactive in part a suspended sentence.

Having regard to the foregoing the court has power to reactivate the suspended portion of a sentence in part notwithstanding that the sentence was imposed prior to the commencement of section 99 of the Criminal Justice Act 2006.

The matter, procedurally, comes before the court as an application for leave to appeal against the original sentence of twelve years with six years suspended imposed by the Circuit Court. However section 99(12) creates a power of appeal. Notwithstanding the procedure adopted the court will hear submissions as to whether the matter should proceed as an application for leave to appeal against sentence (see The People (Director of Public Prosecutions) v Lonergan, unreported, Court of Criminal Appeal 1st February 1999) or as an appeal pursuant to section 99(12) to the Circuit Court.