DPP v Abdulakim Yusuf

• Jurisdiction: Ireland
• Judge: Kearns J.
• Judgment Date: 13 March 2008
• Neutral Citation: [2008] IECCA 37
• Date: 13 March 2008
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A.

DPP v Yusuf

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

ABDULAKIM YUSUF

APPLICANT

[2008] IECCA 37

Kearns J.

Herbert J.

Hedigan J.

[C.C.A. No. 153 of 2007]

COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Sentence

Consecutive and concurrent sentences - Multiple offences committed while on bail - Cumulative consecutive sentences - Totality principle - Whether consecutive or concurrent sentences apply to each offence committed while on bail - People (DPP) v Cole (Unrep, CCA, 31/7/2003) followed - Criminal Justice Act 1984 (No 22), s 11 - Bail Act 1997 (No 16), s 10 - Sentence varied (153/2007 - CCA - 13/3/2008) [2008] IECCA 37

People (DPP) v Yusuf

CRIMINAL JUSTICE ACT 1984 S11

CRIMINAL JUSTICE ACT 1984 S11(1)

BAIL ACT 1997 S10

MISUSE OF DRUGS ACT 1977 S5

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1984 S6

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S23

MISUSE OF DRUGS ACT 1984 S12

DPP v COLE UNREP CCA 31.7.2003 2003/14/3112

CRIMINAL JUSTICE ACT 1984 S11(4)

BENNION STATUTORY INTERPRETATION: A CODE 4ED 2002 PART XXI 831 - 832

1 JUDGMENT of the Court delivered on the 13th March 2008 by Kearns J.

2 This appeal raises an important point in relation to the appropriate interpretation to be placed on section 11 of the Criminal Justice Act, 1984.

3 Section 11(1) of the Act provides as follows:-

"Any sentence of imprisonment passed on a person for an offence committed after the commencement of this section while he was on bail shall be consecutive on any sentence passed on him for a previous offence or, if he is sentenced in respect of two or more previous offences, on the sentence last due to expire, so however that, where two or more consecutive sentences as required by this section are passed by the District Court, the aggregate term of imprisonment in respect of those consecutive sentences shall not exceed two years."

4 The issue which arises in this appeal is to determine whether the section requires that, in a case where more than one sentence of imprisonment is being imposed in respect of each of a number of offences committed while the offender was on bail, each such sentence must be consecutive to the previous sentence or whether the section only requires that the last such sentence to be imposed should be consecutive to sentences imposed for a previous offence or offences. In other words, does the section require cumulative consecutive sentences to be imposed?

5 In construing the section the Court must bear in mind s.10 of the Bail Act 1997, which inserted the following paragraph into section 11 of the Criminal Justice Act, 1984:-

"(4) Where a court -"

(a) is determining the sentence to be imposed on a person for an offence committed while he or she was on bail

(b) and

6 (b) is required by subsection (1) to impose two or more consecutive sentences, then, the fact that the offence was committed while the person was on bail shall be treated for the purpose of determining the sentence as an aggravating factor and the court shall (except where the sentence for the previous offence is one of imprisonment for life or where the court considers that there are exceptional circumstances justifying its not doing so) impose a sentence that is greater than that which would have been imposed in the absence of such a factor."

BACKGROUND

7 On five separate occasions between 23rd September, 2006 and 4th January, 2007 in the City of Cork the applicant was found in possession of the controlled drug diamorphine (heroin). On each occasion the applicant was in possession of the controlled drug, diamorphine, for the purpose of selling or otherwise supplying it to another in contravention of Misuse of Drugs Regulations 1988 and 1993 made under s.5 of the Misuse of Drugs Act 1977, and contrary to s.15 and s.27 (as amended by s.6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act, 1977. The applicant made admissions of these offences on each occasion and also admitted to being in possession of the same controlled drug, diamorphine, for his own use contrary to s.3 and s.27 (as amended by s.6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

8 Evidence regarding the nature of the offences was heard before His Honour Judge Patrick Moran at the Circuit Criminal Court in Cork on 26th and 27th June, 2007. The applicant was sentenced on 27th June, 2007. He had been in custody from 4th January, 2007.

9 This series of offences may be summarised as follows:-

10 a (A) On 23rd September, 2006, during the course of a search of the applicant's home pursuant to search warrant, garda found five packages, each containing eleven individual packs of heroin. The applicant was co-operative and made full admissions. The total weight of the heroin found was 6.5g having a street value of €1,300.00. The Circuit Court judge imposed a prison sentence of three years to commence on 4th January, 2007.

11 b (B) On 6th November, 2006, following a surveillance operation, the applicant was searched pursuant to s.23 of the Misuse of Drugs Act 1977 (as amended by s. 12 of the Misuse of Drugs Act 1984). The garda found eleven individual packs of heroin concealed in his mouth. On the same date a follow-up search was conducted of his flat and one deal of heroin was found and also a larger bag was found concealed in the flat. Again, the applicant made admissions. The total weight of heroin found was 26g having a street value of €5,200.00. In respect of this offence, the applicant was sentenced to one year imprisonment concurrent with the three year sentence referred to at paragraph (A) above.

12 c (C) On 11th November, 2006 (some five days after being granted bail in relation to matter (B)) during the course of a search of the applicant's home pursuant to search warrant, gardai entered and found the applicant in the process of "bagging" heroin into individual deals. The applicant was co-operative and made full admissions. The total weight of heroin found was 12.6g having a street value of €2,500.00. For this offence he was sentenced to two years imprisonment consecutive to the three years referred to at paragraph (A) above.

13 d (D) On 26th December, 2006, during the course of a search at the applicant's home pursuant to search warrant, garda entered and found one package of heroin. Again the applicant made admissions. The total weight was 10.5g having a street value of €2,100.00. In respect of this offence the applicant was given a sentence of three years imprisonment consecutive to the sentence described at (C) above.

14 e (E) On 4th January, 2007, during the course of a search of the applicant's home pursuant to search warrant, garda entered and found the applicant in the process of "cutting up" and "bagging" heroin. When searched the applicant was found to be in possession of 133 individual deals of heroin. Again, the applicant made admissions to selling...