DPP (Garda Moloney) v O'Callaghan
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 20 March 2015 |
| Neutral Citation | [2015] IEHC 165 |
| Court | High Court |
| Date | 20 March 2015 |
[2015] IEHC 165
THE HIGH COURT
BETWEEN
AND
Criminal – Violation of Finance Act 2005 (as amended) – S. 99 of the Criminal Justice Act (2006) – Consultative case.
Facts: Following a conviction by the District Court, the defendant submitted that she had already been convicted by another District Court where her sentence was suspended under s. 99(1) of the Criminal Justice Act 2006 on account of her own bond of keeping peace and good behaviour. The defendant was remanded back to the suspending District Court on bail before sentencing for a hearing under s. 99(1) of the Criminal Justice Act 2006. The defendant pleaded before the suspending District Court that it had discretion under the aforementioned s. 99 (9) of the Criminal Justice Act 2006 to not revoke her suspension and requested to be remanded back to the other court so that she could appeal her triggering offence. The suspending District Court held that the defendant would not be allowed to appeal her triggering offence in the first court prior to being sentenced by the sentencing District Court. The case went now for consultation on the applicability of s. 99 of the Criminal Justice Act 2006 by two courts at the same jurisdictional level.
Ms. Justice Faherty proposed that where a defendant had been remanded back to the suspending District Court under s. 99(9) of the Criminal Justice Act 2006 for the purposes of consideration to revoke a suspended sentence, the District Court under s. 99 (10A) of the Criminal Justice Act 2006 could make an order to revoke the suspended sentence in full or in part thereafter remanding the defendant back for sentence to the court where the conviction for the triggering offence occurred. The Court proposed that the suspending District Court could remand the defendant back to the District Court where he was being convicted having declined to order the revocation of any of the suspended sentence. The Court further observed that s. 99 (9) and (10) together clearly mandated that a decision on revocation, regardless of its nature had to be made before a convicting Court imposed sentence. The Court observed that it would be in accordance with the defendant's right to fair procedures, liberty and due course of law.
1. This is a consultative case stated by then District Judge Catherine Murphy, pursuant to s. 52(1) of the Courts (Supplemental Provisions) Act 1961. Essentially, the questions concern the interaction between the procedures for the reactivation of a suspended sentence set out in s. 99 of the Criminal Justice Act 2006 (as amended) (the 2006 Act) and an appeal from the conviction which triggers the reactivation process.
2. Section 99 of the Act of 2006 provides a complete codification governing the use of suspended sentences in this jurisdiction and it replaced the more informal common law system which had operated prior to the enactment of the 2006 Act. The particular provisions of the 2006 Act which are the focus of these proceedings are s. 99-s.99(10A) and s.99(12).
3. The facts are taken from the consultative case stated. The defendant appeared before Judge Ann Watkin at the Dublin Metropolitan District Court on foot of national charge sheet number 12752627 at the suit of the prosecutor to answer the compliant that she committed an offence contrary to s. 78 (3) of the Finance Act 2005 (as amended).
4. On 17 th September 2012, District Judge Watkin sitting in court 17, Criminal Courts of Justice, Parkgate Street, Dublin 8 convicted the defendant of the above mentioned offence following a contested trial. Judge Watkin was informed that the defendant had been convicted by Judge Murphy of two offences on the 4 th January 2012 and that Judge Murphy had imposed a sentence of three months imprisonment on the defendant the entirety of which was suspended under s. 99(1) of the Criminal Justice Act 2006 (as amended) for a period of 12 months on the defendant entering into her own bond to keep the peace and be of good behaviour in the sum of €200. The defendant duly entered into the bond before the count.
5. Having regard to the provisions of s. 99 (9) of the 2006 Act, on 17 th September 2012, Judge Watkin remanded the defendant on bail to court 18 before Judge Murphy (the suspending court) in the Criminal Courts of Justice.
6. On the 17 th September 2012, Judge Murphy found that the defendant was properly before her for the purpose of the s.99 hearing. Judge Murphy was informed by the defendant's solicitor that the defendant had immediately instructed her that she wished to appeal her conviction on the triggering offence.
7. Judge Murphy was of the view (and so stated) that the defendant could not appeal her conviction for the triggering offence until such time as the matter had been finalised and the defendant sentenced by Judge Watkin (the convicting court). In support of her view, Judge Murphy relied on the Judgment of McCarthy J. in Muntean v. Hamill [2010] IEHC 391 Judge Murphy remarked that pursuant to s. 99 of the Act, as amended, the defendant could not be sentenced on the triggering offence until such time as the s. 99 hearing had been dealt with by her.
8. The defendant's solicitor made a submission that Judge Murphy had discretion not to revoke the suspended sentence on 17 th September 2012 and she requested that Judge Murphy remand the matter back to Judge Watkin so that the defendant could be sentenced for the triggering offence and so that recognisances could then be fixed for her to appeal her conviction. She also submitted that Judge Murphy had discretion to remand the s. 99 application to a date in the future, pending the outcome of the appeal and that the s. 99 application could be dealt with once the appeal had been finalised. It was submitted that if this course was not followed, the defendant would effectively be deprived of her right to appeal in that she would have to be dealt with on the s. 99 hearing before being able to appeal the conviction on the triggering offence. The argument was made that if the defendant were to successfully appeal the triggering offence, then a "grave injustice" would flow from her having been dealt with on the s. 99 hearing, as that application could not have been brought without a conviction for the triggering offence. The defendant's solicitor relied on Sharlott v Collins 2010 IEHC 482.
9. Following a number of remands, the matter was again before Judge Murphy on 17 th October 2012. On that occasion, having heard the arguments made on behalf of the defendant, the solicitor for the prosecutor invited Judge Murphy to finalise the matter pursuant to s. 99(9) and indicated that it was a matter for Judge Murphy to exercise her discretion whether to revoke the suspended sentence in full, in part or not at all. It was also argued that Judge Murphy would have to deal with the s. 99 hearing prior to the defendant being sentenced for the triggering offence and prior to Judge Watkin being able to fix recognisances for appeal.
10. Counsel for the defendant submitted that pursuant to s. 99 of the 2006 Act, Judge Murphy in fact had discretion not to revoke the suspension at all if the court considered that the revocation of that order would be unjust in all the circumstances of the case.
11. Being of the opinion that questions of law arose, Judge Murphy referred the following questions for determination:-
2 "1. Where a Defendant has been remanded to the District Court under section 99 (9) of the criminal Justice Act 2006 (as amended) for the purpose of considering whether to revoke a suspended sentence, does the Court, on being advised by Solicitor or Counsel for the defence that the Defendant is considering or wishes to appeal the conviction for the triggering offence - in those circumstances is the Court entitled and does the Court have jurisdiction to proceed to revoke the suspended sentence before remanding the Defendant back to the other Court under section 99 (10A).
2. In such circumstances where a Defendant has been remanded to the District Court under section 99 (9) of the Criminal Justice Act 2006 (as amended) for the purpose of considering whether to revoke a suspended sentence is the court, before remanding the Defendant back to the other court under section 99 (10A) required to defer making a decision on the revocation and for that purpose to adjourn the matter generally and where should the appeal not proceed to hearing, the matter will, in effect fall into limbo.
2 3(a) If the answer to the above is yes - what are the consequences for the court to which the Defendant is remanded back and which is precluded from sentencing (which must predate any appeal) under such time as the initial offence has been finalised by the first court?
3 3(b) If the answer to the above is yes then what are the consequences where the period of suspension has expired in the interim and where, should the appeal not proceed to hearing - the matter will, in effect, fall into limbo?
4. What orders can the District Court make when a Defendant has been remanded to it under section 99 (9) of the Criminal Justice Act 2006 (as amended)?"
At this juncture, it is apposite to set out the salient provisions of the legislation with which the court is primarily concerned.
12. Section 99 of the Criminal Justice Act 2006 (as amended by section 60 of the Criminal Justice Act 2007 and section 51 of the Criminal Justice (Miscellaneous provisions) Act 2009) provides, in part, as follows:-
" (1) Where a person is sentenced to a term of...
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