Collins v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 21 December 2017
• Neutral Citation: [2017] IEHC 779
• Court: High Court
• Docket Number: 2016 No. 958 JR
• Date: 21 December 2017

[2017] IEHC 779

THE HIGH COURT

Barrett J.

2016 No. 958 JR

Between:

Michael Collins

Applicant

- and -

The Director of Public Prosecutions

Respondent

Crime and Sentencing - S. 17 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 - S. 99 of the Criminal Justice Act 2006 - Suspension of sentence for long period - Jurisdiction of Circuit Court - Unfettered sentencing power

Facts: In the present application, the applicant sought an order of certiorari for quashing the order of the Circuit Court whereby the Circuit Court affirmed the order of the District Court for imposition of a 10-month sentence of imprisonment but suspended the final four months for a period of five years. The applicant objected to the suspension of his sentence for a period longer than the sentence itself. The applicant contended that the learned Circuit Court acted in excess of its jurisdiction while enhancing the period of suspension of sentence. The applicant also sought an order of certiorari for quashing the order of the Circuit Court whereby the applicant was disqualified from driving for a period of two years.

Mr. Justice Max Barrett refused to grant the desired reliefs to the applicant. The Court held that the Circuit Court possessed the statutory power under s. 27 of the Road Traffic Act, 1961 to impose disqualification from driving. The Court observed that the Circuit Court had statutory power under s. 99 of the Criminal Justice Act 2006 to suspend a sentence either in its entirety or in part. The Court opined that under the Act of 2006, the jurisdiction of the Circuit Court was not limited to impose a maximum two-year suspension. The Court noted that the applicant failed to point out any illegality or prejudice that the applicant was likely to suffer by imposition of long suspension of sentence.

JUDGMENT of Mr Justice Max Barrett delivered on 21st December, 2017.

I Facts

(i) General.

1 On 1st February, 2015, Mr Collins was found in possession of almost €7,000-worth of stolen power tools and two high-quality bicycles that were worth a total of just under €2,000 between them. The tools and bicycles had been stolen in Dublin a few days previously. The circumstances in which the tools came to be found in the possession of Mr Collins feature in the following extract from a transcript of the later Circuit Court appeal proceedings which has been exhibited before the court:

'Garda: …I received a call from…Enniscorthy station saying that Mr [H]…had contacted the station saying that he had been burgled a couple of days previous. It was a Sunday morning and he had travelled to the…market in Enniscorthy where he [Mr H] observed a number of tools that were stolen which belonged to him. He identified a vehicle…a red Ford transit which was parked….I met with Mr [H]… outside the market and he…pointed out the van where the tools were…. He said he was able to recognise them because [for] a lot of the power tools he had made extension cords with yellow cable and these yellow cables were still on the power tools.'

2 On 10th December, 2015, Mr Collins was sentenced in the District Court to a cumulative sentence of ten months' imprisonment in respect of three counts of handling stolen property contrary to s.17 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (ten months for handling the tools and two concurrent six-month sentences for the bicycles). Mr Collins lodged an appeal in respect of this sentence to the Circuit Court. That appeal was heard and decided by Hickson J. on 9th December, 2016. Hickson J., having heard the submissions before him and considered matters thoroughly, (i) affirmed the ten-month sentence but suspended the final four months of it for a period of five years, (ii) marked the two other offences as having been taken into consideration in lieu of the two six-month sentences, and (iii) disqualified Mr Collins from driving for a period of two years.

(ii) The Suspended Sentence.

3 When it comes to the imposition of the suspended sentence, the key segment of the transcript of the Circuit Court hearing indicates the learned Circuit Court judge to have said as follows:

'Judge…. He [Mr Collins] has been interviewed by the probation service and the report is as I described it on the last occasion, like the curate's egg it is good in parts….[T] he probation officer who is experienced…in assessing risk assesses Mr Collins as [presenting] a moderate risk of re-offending in the next 12 months. There are three categories, low, moderate and high. Notwithstanding that he has been caught red-handed he is assessed as a moderate risk. Like his wife he has been bereaved by having three deaths in the family of children…. There are two [surviving] sons, one I am told aged 28 and the other 22, and they live locally. Mr Collins is not a man who works and undoubtedly he has limited income. The receipt of stolen property is a huge temptation for him. But I am satisfied that he is a significant player in the off-loading of stolen property. I adjourned this case and I remanded him in custody to consider my options and if at all possible to deal more leniently with Mr Collins. I have to conclude that no error was made by the District Court judge in imposing a custodial sentence. It is appropriate that a custodial sentence be imposed on Mr Collins. I do that with the greatest regret and the greatest sympathy for the plight in which his wife finds herself…. What I am going to do is as follows. I will reduce the term of imprisonment from 10 months to six months. I will suspend the last four months for a period of five years upon him entering into a bond to keep the peace and be of good behaviour. The bond should be measured in the sum of €100. In addition, because he was using his own van for the purpose of handling stolen property, I am going to disqualify him from driving for a period of two years.'

4 Notably, although the learned Circuit Court judge concluded ' that no error was made by the District Court judge in imposing a custodial sentence', he "softened the blow" somewhat by reducing the term of imprisonment from ten months to six months, suspending the last four months for five years. The reduction so effected appears to have come about in response to the argument of Mr Collins' own counsel on appeal who stated, inter alia:

'With respect to the submissions before the court my submission would be that he has put his hands up, he has come clean. He is a man whom, I submit, on my reading of the probation report…the probation officer does not see…as someone who is likely to go out and get into trouble again…. And I think that should permit the court to take a certain approach with regard to holding him to his word with regard to giving him an opportunity to keep his nose clean. [This, it appears to the court, is "code" for a suspension of sentence.] His record is pretty good….I think he deserves a chance, Judge, to stay out of jail, and to prove to this court that he can keep on the straight and narrow. That is my submission, Judge.'

II Reliefs Sought

5 Notwithstanding that Hickson J. suspended a portion of Mr Collins' sentence, and that no objection was made by Mr Collins to the period of suspension upon the revision of sentence, Mr Collins now comes to court complaining that the length of the suspension of sentence was ultra vires...