Collins v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 04 December 2018 |
| Neutral Citation | [2018] IECA 381 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [C.A. No. 36 of 2018],Neutral Citation Number: [2018] IECA 381 Record Number: 2018/36 |
| Date | 04 December 2018 |
[2018] IECA 381
THE COURT OF APPEAL
JUDICIAL REVIEW
Kennedy J.
Edwards J.
McCarthy J.
Kennedy J.
Neutral Citation Number: [2018] IECA 381
Record Number: 2018/36
Crime & sentencing – Judicial review –Sentencing for handling stolen property – Appeal against refusal of relief
Facts: The appellant had pled guilty to counts of handling stolen property and sentenced to a term of imprisonment. He contended that the Circuit Court had exceeded its jurisdiction by suspending a portion of the term, but the High Court had refused his application for relief. He now appealed.
Held by the Court, that the appeal would be dismissed. The period of the suspension and the term of imprisonment were within the range available to the sentencing judge.
This is an appeal by the appellant against the judgment and orders made in the High Court by Mr. Justice Barrett (hereinafter ‘the trial judge’) refusing orders of certiorari and declaratory relief in relation to orders of His Honour Judge Hickson at Wexford Circuit Court on the 9th December 2016. A number of grounds were put forward before the trial judge; including that the Circuit Court, in exercising its appellate jurisdiction, exceeded that jurisdiction by suspending a portion of the prison sentence imposed on the appellant for a period of five years. The appellant also contended that in suspending a portion of the sentence for a longer period than the actual term imposed, the Circuit Court failed to have regard to the issue of proportionality.
The facts are set out in the judgment of the trial judge delivered on the 21st December 2017 and this Court does not propose to rehearse them save to the extent necessary.
On the 1st February 2015, the appellant was found in possession of stolen power tools and two bicycles. The appellant was charged with three counts of handling stolen property contrary to s. 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and on the 10th December 2015 following his guilty plea before the District Court, he was sentenced to an accumulative sentence of ten months” imprisonment. The appellant appealed against the severity of the sentence and on the 9th December 2016, the final four months of that sentence were suspended for a period of five years and the appellant was disqualified from driving for a period of two years.
Whilst the appellant appeals the refusal of an order of certiorari to quash the sentence of ten months with the final four months suspended for a period of five years and the refusal of a declaratory order that such a sentence was in excess of jurisdiction, he does not appeal the refusal of an order of certiorari regarding the disqualification order.
It is contended on behalf of the appellant that the trial judge erred in finding that the sentence imposed was within the jurisdiction of the Circuit Court on appeal from the District Court and was proportionate in the manner that term is understood in Heaney v. Ireland [1996] 1 IR 580. It is contended that there must be some jurisdictional limitation in respect of the length of a suspended sentence which the District Court may impose having regard to the fact that the maximum aggregate sentence which the District Court may impose is two years” imprisonment. The appellant contends that the length of the suspended period of the sentence is disproportionate and that the District Court and the Circuit Court on appeal ought to have regard to the jurisdictional limit on custodial sentences in order to give effect to the principle of proportionality and indeed this is the gravamen of his appeal.
The respondent opposes the application on all grounds.
The trial judge noted correctly that the power to suspend a sentence is governed by s. 99 of the Criminal Justice Act, 2006 (as amended). He referred to the decision of DPP v. Murray [2015] IEHC 782 and he observed that the determination of O'Malley J. in that decision was consistent with her judgment in the case of DPP v. Carter [2014] IEHC 179 which decision was upheld on appeal to the Supreme Court in DPP v. Carter, DPP v. Kenny [2015] IESC 20. Barrett J. in addressing s. 99 quoted from the Murray decision as follows:-
‘…It is clear from the provisions of the section that the legislature's intention was to regulate the suspended sentence by putting it on a statutory footing. In so doing, the objective was to provide a complete code in so far as the minimum conditions of suspension, the supervision of offenders, the enforcement powers of the court and the discretion in relation to activation are concerned. It is also important to note that the section does not in any way interfere with the objectives of the judiciary in relation to suspended sentences…
In these circumstance there is no scope for a ‘parallel jurisdiction’ to be operated outside the statute.’
In considering the issue before him; that being as to whether there is jurisdiction pursuant to s. 99 to suspend a sentence for a longer period than the actual sentence, Barrett J. had regard to the decision of Peart J. in DPP v. Vajeuskis [2014] IEHC 265. Barrett J. concluded, following his consideration of Vajeuskis, that the Circuit Court judge was not confined to suspending the sentence for a maximum period of two years and that the period of the suspension was not so disproportionate as to render it unfair, void, contrary to law or in excess of jurisdiction.
By notice of appeal dated the 31st January 2018, the appellant relies on six separate grounds to challenge the determination as follows: -
(i) that the learned High Court judge erred in holding that the sentence of ten months with the final four months suspended for a period of five years was within the jurisdiction of the District Court;
(ii) that the District Court must be limited in its jurisdiction to impose a suspended sentence and in particular must be limited in terms of the duration of the suspension period;
(iii) that the learned judge erred in holding that the failure by the appellant's counsel to raise the issue that the Circuit Court on appeal was exceeding jurisdiction by suspending four months of the sentence for a period of five years was of any consequence or that it could serve to deny the appellant relief by reason of acquiescence;
(iv) that the learned High Court Judge erred in law and ruled incorrectly by holding that suspending four months of the suspended sentence for a period of five years is not disproportionate and that this sentence was valid in law;
(v) that the learned High Court judge erred in law by holding that there had been no failure to provide reasons for the imposition of the suspended sentence of four months for a period of five years; and
(vi) in all the circumstances of the case the learned High Court Judge erred in holding the suspended sentence to be valid, within jurisdiction and not disproportionate.
The appellant submits that given the maximum sentences which can be imposed by the District Court and to which the Circuit Court on appeal is confined, the period for which a sentence is suspended cannot exceed the prescribed maximum or that at the very least a court should have regard to the prescribed maximum period in considering the issue of proportionality. It is further argued that there must be a limit to the jurisdiction of the District Court and the position adopted by the respondent, in failing to place any such limit on the period for which a sentence may be suspended, fails to respect the rights of the appellant and disregards the issue of proportionality.
The appellant relies upon the decision of People (DPP) v. Hogan (CCA, ex tempore judgment of the court delivered by Keane CJ, 4th March 2002.) The Court in considering a sentence of 3 years which was suspended for 5 years stated as follows:
‘The court does not want to lay down any fast or hard rule in relation to this. It may be possible to envisage circumstances in which that is an appropriate course, namely, to suspend the sentence for a longer period than the sentence actually imposed. But it would need special circumstances because after all, a person who is the subject of a suspended sentence and then spends 3 years or whatever period it is without getting into any trouble of any sort with the law and takes the chance that he is being offered by the court and honours, as it were, that chance that he is being given, is entitled, in general terms, to have a line drawn under the matter at that stage. The court is not satisfied that, in general, it is a desirable practice to do what was done in this case and suspended for a longer period than the actual term imposed’
The foregoing reflects the common law position and the 2006 Act now governs the imposition of...
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Mooney vs DPP
...afresh and to impose a more appropriate disqualification, if so minded.” 24 The second case, Collins v. Director of Public Prosecutions [2018] IECA 381, involved a challenge to the conditions imposed upon a suspended sentence. The principal issue on the appeal was whether the time period fo......