Director of Public Prosecutions (Purtill) v Murray

JurisdictionIreland
JudgeMs. Justice Iseult O'Malley
Judgment Date11 December 2015
Neutral Citation[2015] IEHC 782
Docket Number[2015 No. 312 SS]
CourtHigh Court
Date11 December 2015

[2015] IEHC 782

THE HIGH COURT

O'Malley J.

[2015 No. 312 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 GARY H. PURTILL)
PROSECUTOR
AND
JOHN MURRAY
DEFENDANT

Crime & Sentencing – Practice & Procedures – S. 52 of the Courts (Supplemental Provisions) Act 1961 – S. 99 of the Criminal Justice Act 2006 – Repeal by implication

Facts: In the present proceedings, the District Judge had sought the opinion of the Court on the question as to whether the power of the District Court at common law to suspend sentences of imprisonment survived the enactment of s. 99 of the Criminal Justice Act 2006 as amended. The prosecutor submitted that by enacting the Act of 2006, the legislature had clearly and unambiguously repealed the common law powers.

Ms. Justice Iseult O'Malley held that the power of the District Judge at common law to suspend sentences of imprisonment would not survive the enactment of s. 99 of the Criminal Justice Act. The Court opined that the power of the District Court to suspend a sentence pre-2006 was the creation of the judiciary and that discretion was to be exercised in accordance with the law. The Court observed that the creation of parallel jurisdictions for resolving the same issue based on either the existing statute or the common law remedy would be impermissible under the constitution and it would be like an encroachment upon the role of the Oireachtas.

JUDGMENT of Ms. Justice Iseult O'Malley delivered 11th day of December 2015.
Introduction
1

This is a consultative case stated by District Judge Constantine O'Leary pursuant to s.52 of the Courts (Supplemental Provisions) Act 1961.

2

The opinion of this court is sought on the following question:

‘Did the power of the District Court at Common law to suspend sentences of imprisonment survive the enactment of Section 99 of the Criminal Justice Act 2006 as amended?’

3

The section referred to, which has been the subject of extensive litigation and amendment, deals with suspended sentences. It is common case that it does not expressly abolish the common law powers of a court to impose such sentences, and the issue is whether those powers have survived its enactment or whether the jurisdiction must now be seen as deriving wholly from, or regulated wholly by, statute.

The consultative case stated
4

The consultative case stated, dated 19th February, 2015, reads in full as follows:

1. The defendant is accused of and has pleaded guilty to an offence that he did unlawfully have in his possession a controlled drug to wit, diamorphine, at Blarney Road, Cork, on 24 January 2014.

2. I am minded to impose a penalty in the form of a sentence of imprisonment, to be suspended on his entering a bond in the sum of €500 conditioned on his keeping the peace for a period of 12 months.

3. I am aware of the statutory provisions for the suspension of sentences under the provisions of Section 99 of the Criminal Justice Act 2006 as amended.

4. I am aware of the views expressed by the High Court in the cases of Director of Public Prosecutions v Carter [2014] IEHC 179 and Director of Public Prosecutions v Vajeuskis [2014] IEHC 265 which I understand to mean that sentences may now be suspended only in accordance with the provisions of said Section 99.

5. I am aware of the extensive discussion on the issue of whether suspended sentences at common law survived the enactment of S.99 of the Criminal Justice Act 2006 at pages 355-364 of the thesis submitted by Judge David Riordan of the Circuit Court entitled ‘The Role of the Community Service Order and the Suspended Sentence in Ireland: A Judicial Perspective’, in pursuit of the degree of Doctor of Philosophy.

6. I am uncertain of the present law given the succinct nature of the reasons given for the conclusions expressed in Director of Public Prosecutions v Carter [2014] IEHC 179 and in the Director of Public Prosecutions v Vajeuskis [2014] IEHC 265.

7. The opinion of the High Court is respectfully sought on the following question.

‘Did the power of the District Court at Common law to suspend sentences of imprisonment survive the enactment of Section 99 of the Criminal Justice Act 2006 as amended?’

Preliminary issue
5

Counsel for the prosecutor, Mr. O'Malley BL, has raised an issue concerning the factual background to the case. He informed this court that, according to the garda report, the defendant was, at the time he appeared before the learned trial judge, subject to subsisting suspended sentences from the Circuit Court. Counsel submits that before imposing any sentence for the current offence, the judge was required, under the terms of section 99(9) of the Criminal Justice Act 2006, to remand the defendant to the Circuit Court so that a decision on the reactivation of the suspended sentences could be taken. Under the statutory scheme, that court would deal with those matters and then remand him back to the District Court to be sentenced for the current offence. Counsel submits that since none of this has happened in the present case, the point has not yet been reached where the judge has to decide on the sentence for the current offence.

6

DPP (Madden and Hynes) v. Carter [2015] IESC 20 is relied upon as authority for the strict requirement imposed by s.99 (9) to remand the defendant to the ‘ next sitting’ of the court that imposed the suspended sentence.

7

The court is referred to the Supreme Court decision of DPP (Travers) v. Brennan [1998] 4 I.R. 67 as to the procedure to be followed for a consultative case stated:

‘The proper procedure leading to the stating of a consultative case for the opinion of the Superior Courts is for the District Judge to hear all the evidence relevant to the point of law arising, to find the facts relevant to such point of law in the light of such evidence, then to state the case posing the questions appropriate to elucidate the point of law and finally, on receiving the answers to those questions to decide the matter before him on the basis of those answers.’

8

The prosecutor submits that it is not clear that the judge has heard all the evidence relevant to the selection of sentence, since he cannot as yet be aware of what will transpire in the Circuit Court.

Conclusion on the preliminary issue
9

The requirements of DPP (Travers) v. Brennan are met if the case stated sets out with sufficient particularity the facts giving rise to the question of law. The case stated in the instant case, albeit brief, does set out the matters considered by the learned District Judge to be relevant to the question. It is clear that he wishes to impose a suspended sentence in relation to a minor offence, and he asks whether he has power to do so without operating the s.99 procedures.

10

It does not appear to be open to the parties in a case stated procedure to supplement the facts as set out with oral submissions (or, indeed, affidavit evidence) as to those facts. Whether or not the trial judge can, in the light of the circumstances of the case, take any particular course is a separate matter to be ventilated before him.

The section
11

Section 99 of the Criminal Justice Act 2006 has, as already noted, been extensively amended since its original enactment. The following is an unofficially consolidated version.

12

Subsections (1) to (5) deal with the imposition of a suspended sentence and the conditions upon which it is to be based. The convicted person must enter into a recognisance. There are specified minimum terms as to the content of the order, coupled with a discretion to add further specified conditions.

(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...

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4 cases
  • Collins v DPP
    • Ireland
    • Court of Appeal (Ireland)
    • 4 December 2018
    ...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 [201......
  • DPP v D. W
    • Ireland
    • Court of Appeal (Ireland)
    • 2 June 2020
    ...(Suspended Sentences of Imprisonment) Act, 2017 (“the Act of 2017) – see Director of Public Prosecutions (Garda Purtill) v Murray [2015] I.E.H.C.782 where it was held that the common law power to suspend a sentence of imprisonment did not survive the enactment of s. 99 of the Act of 2006. H......
  • DPP v A.S.
    • Ireland
    • Court of Appeal (Ireland)
    • 28 November 2017
    ...Held by the Court that, applying the same logic as was applied by O'Malley J in Director of Public Prosecutions (Garda Purtill) v Murray [2015] IEHC 782, it was clear that the common law power to suspend a sentence of imprisonment did not survive the enactment of the 2001 Act, and in partic......
  • Collins v DPP
    • Ireland
    • High Court
    • 21 December 2017
    ...statute, specifically by s.99 of the Act of 2006, as amended. That this is so is clear, inter alia, from the judgment in DPP v. Murray [2015] IEHC 782 where O'Malley J. states, inter alia as follows in respect of s.99, at paras. 99-100: '99….[I] t is clear from the provisions of the section......

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