Clarke v Governor of Mountjoy Prison

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Birmingham
Judgment Date28 July 2016
Neutral Citation[2016] IECA 244
Docket NumberAppeal Number: 2016/270
Date28 July 2016

[2016] IECA 244

THE COURT OF APPEAL

Birmingham J.

Appeal Number: 2016/270

Birmingham J.

Sheehan J.

Edwards J

Paul Clarke
Appellant
And
Governor of Mountjoy Prison
Respondent

Crime & sentencing – Prisons – Prisoner seeking release – Article 40 of Constitution – S 99 Criminal Justice Act 2006

Facts: The appellant had been convicted on a number of counts relating to firearms offences and robbery. He was sentenced to a term of imprisonment, followed by a suspended element of the sentence. He had been recalled to prison following a breach of the conditions attached to the suspended element. He sought his release from Mountjoy under art 40 of the Constitution but the High Court had refused. He now sought to challenge that refusal before the Court of Appeal.

Held by Mr Justice Birmingham, the other Justices concurring, that the appeal would be dismissed. Having considered the provisions of art 40 and s 99 of the Criminal Justice Act 2006, the Court was satisfied that the appellant had had a fair hearing regarding the reactivation of his sentence, and it could not be said that the reactivation was disproportionate or unconstitutional. Moore and Others v. DPP, Ireland and the Attorney General [2016] IEHC 244 considered, State (Attorney General) v Fawsitt [1955] IR 39, DPP (Ivers) v Murphy [1999] 1 IR 98 applied

JUDGMENT of the Court delivered on the 28th day of July 2016 by Mr. Justice Birmingham
Mr. Justice Birmingham
1

This is an appeal from a decision of the High Court (McDermott J.) of the 27th May, 2016, refusing the applicant an order directing his release pursuant to Article 40 of the Constitution.

2

The background to this case is that on 7th July, 2010, the appellant was before the Dublin Circuit Court for sentence on a number of counts on three indictments, being Bill No. 1498/2008, Bill No. 1383/2009 and Bill No. 699/2010. On Bill 1498/2008, the appellant pleaded guilty to offences of robbery and possession of a firearm. A sentence of five years imprisonment was imposed. On Bill No. 1383/2009, the appellant pleaded guilty to a count of robbery of €25,000, none of which was recovered. During the course of the robbery a sawn off shotgun was discharged in order to blast away a glass barrier surrounding the area in which staff worked. On this Bill, a sentence of eight years imprisonment was imposed with the final seven years suspended. There was also a count in relation to possession of a firearm and on that count a sentence of seven years imprisonment was imposed, suspended in its entirety. These sentences were consecutive to those imposed on Bill No. 1498/2008.

3

The applicant also pleaded guilty to a count of robbery on Bill No. 699/2010. This involved the robbery of a shop when accompanied by an accomplice, the use of two knives and an imitationfirearm. He was sentenced to five year imprisonment with the final four years suspended. This sentence was also to be served consecutively to that imposed on Bill No. 1498/2008.

4

What is of significance in the context of the present proceedings is that arising from the sentence hearing on the 7th July, 2010, the applicant/appellant was subject to a suspended sentence of seven years imprisonment which was operative once the custodial element of the sentences was served. The sentences were suspended on condition that:

(a) The applicant keeps the peace and be of good behaviour towards all the people of Ireland for a period of seven years from the date of his release from prison;

(b) That he place himself under the supervision of the Probation Service for a period of two years from the date of his release;

(c) That he would abide by all the directions of the Probation Service including attendance at a drug treatment course (residential or otherwise) and provide urine samples for testing as necessary;

(d) That he would come up, if called upon to do so, at any time within the period of seven years to serve the balance of the sentence imposed.’

5

Having served the custodial element of the sentences, the applicant was released from custody in October 2013. Thereafter he breached the conditions applicable to the suspended sentence.

6

The question of whether the suspended sentences should be activated was brought before His Honour Judge Patrick McCartan who on the 4th November, 2014, reactivated all of the sentences that had previously been suspended and directed that they should run concurrently from the 30th April, 2014. The activation of the suspended sentences is central to the present appeal. The sequence of events is that having served the custodial element of the sentences, the appellant was released from prison in October 2013, but he remained subject to the suspended sentence element. On the 9th September, 2014, the applicant appeared before Cloverhill District Court and pleaded guilty to a number of charges arising out of two separate road traffic incidents that had occurred on the 10th February, 2014 and the 2nd April, 2014. The charges included driving a mechanically propelled vehicle without insurance. When the appellant pleaded guilty to the charges that he faced in the District Court he was remanded in custody to Dublin Circuit Criminal Court.

7

The matter first came before the Circuit Court on the 10th September, 2014, the activation/reactivation process was not completed on that occasion and the issue was finally determined by Judge McCartan on the 4th November, 2014, when the judge activated all of the sentences that had previously been suspended in full and directed that they should be served concurrently and dated from the 30th April, 2014.

8

Thereafter the appellant was remanded back to Cloverhill District Court in order to impose sentence in respect of the road traffic matters and on the 5th November 2014, a five month prison sentence was imposed. This five month sentence was itself suspended. There was also a 30 year driving ban.

9

By notice of appeal dated the 17th November, 2014, the applicant appealed against the sentences imposed on the 4th November, 2014. It was stated that grounds of appeal would be supplied by the appellant's solicitor, but in fact no grounds were provided up to the time when the Article 40 application came on for hearing in the High Court. It is understood that grounds have been provided in recent weeks.

10

On the 19th April, 2016, Moriarty J. delivered judgment in the case ofMoore and Others v. DPP, Ireland and the Attorney General [2016] IEHC 244. The applicant/appellant claims that by reason of this judgment he is entitled to be released and moved for this relief on the day after the judgment was delivered. He says that the mechanisms whereby he was sent back to the court of trial which then dealt with his undoubted breaches of conditions and lifted the suspension and activated the sentences was held to be repugnant to the Constitution and invalid in Moore and Others v. DPP and that accordingly his detention is unlawful.

11

This case is but the latest that involves consideration of the operation of s. 99 of the Criminal Justice Act 2006. For ease of reference it is appropriate to set out that section in full:-

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 recognisance 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 Síochána, or

(b) in the case of an order...

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5 cases
  • Wansboro v DPP
    • Ireland
    • Supreme Court
    • 20 December 2018
    ...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 ......
  • Larkin v Governor of Mountjoy Prison
    • Ireland
    • High Court
    • 25 November 2016
    ...278 (herein ‘ Clarke’). But counsel for the applicant said the decision of the Court of Appeal in the Clarke case that is reported at [2016] IECA 244 is, in at least one respect, significantly in the applicant's favour, and that was because the Court of Appeal confirmed the correctness of ......
  • O'Mahony v DPP
    • Ireland
    • High Court
    • 13 October 2017
    ...McDermott J. delivered judgment on 27th May, 2016. That was appealed to the Court of Appeal who delivered judgment on 28th July, 2016: [2016] IECA 244, and ultimately the Supreme Court on 10th October, 2016, refused a certificate: [2016] IESC 122. The Applicant seeks to differentiate the l......
  • Kennedy v Governor of Portlaoise Prison
    • Ireland
    • High Court
    • 23 June 2017
    ...ex debito justitiae. The order in question is legally unsound and therefore, the applicant should be released. How does Clarke v. Governor of Mountjoy Prison [2016] IECA 244 apply to the present case? 17 Counsel pointed out that a number of other s. 99 challenges have come before the courts......
  • Request a trial to view additional results

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