DPP v Ahearne

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 14 December 2015
• Neutral Citation: [2015] IECA 292
• Docket Number: Record No: CCA181/14
• Court: Court of Appeal (Ireland)
• Date: 14 December 2015

The People at the suit of the Director of Public Prosecutions

Respondent

and

David Ahearne

Appellant

[2015] IECA 292

Record No: CCA181/14

THE COURT OF APPEAL

Crime & sentencing – Sentencing – Suspended sentence – Reactivation of suspended sentence on basis of failure to comply with bond conditions

Facts: The appellant been convicted for assault. An element of the sentence was suspended. Upon his release he initially engaged with the Probation Service, but then failed to continue his engagement. The Probation Service therefore applied to the Circuit Court to have the suspended sentence reactivated. The appellant now sought to appeal that reactivation on multiple grounds

Held by Edwards J, that the appeal would be allowed. The Court, having considered the evidence and submissions of the parties, was satisfied that the Circuit Court did not have the full picture before it, and on that basis the Judge had fallen into error. On that basis a fresh order wold be made.

Judgment of the Court delivered on the 14th day of December, 2015 by Mr. Justice Edwards

Background to the Appeal:

1 In this case the appellant appeals against the reactivation of a suspended sentence, on the several grounds set forth in his Notice of Appeal.

2 The appellant was originally sentenced on the 8th of July 2008 at Clonmel Circuit Criminal Court to three years imprisonment in respect of an offence of assault causing harm contrary to s.3 of the Non Fatal Offences Against the Person Act 1997 committed on the 24th of February 2007, and six months imprisonment for assault contrary to s. 2 of the Non Fatal Offences Against the Person Act 1997 also committed on the 24th of February 2007, both sentences to be concurrent inter se but consecutive to a sentence of three years imposed on him for a further offence of assault causing harm contrary to s.3 of the Non Fatal Offences Against the Person Act 1997, committed on the 19th of August 2006. The last three years of the total or aggregate sentence of six years was suspended for five years on condition that the appellant enter into a bond to keep the peace and be of good behaviour for a period of five years from his release from prison, and to engage with the Probation Service and to comply with it's directions.

3 The offences committed on the 24th of February 2007 had involved two victims, a Mr James Cosgrove who was subjected to the s.3 assault, and a Mr Graham Johnson who was subjected to the s. 2 assault.

4 The circumstances of the assault on Mr Cosgrave were that a dispute had arisen between Mr Cosgrave and the appellant arising out of Mr Cosgrave having been refused admission to a house party in Clonmel being held by the appellant and others. In the course of this dispute the appellant had produced a knife and had stabbed Mr Cosgrave three times in the chest, causing a left sided haemothorax for which he required the surgical insertion of a chest drain, following which he spent three weeks in hospital. The assault on Mr Johnson, which occurred on the same occasion, had involved him being subjected to multiple kicks to the head and face, leaving him briefly unconscious and with bruising and abrasions to his face and head and with a query nasal fracture.

5 The offence committed on the 19th of August 2006 had involved a single victim, a Mr Aidan Phelan. On that occasion the appellant entered a flat in Clonmel in which a party was being held by the occupier and went over to the seat where Mr Phelan, a guest at the party, was sitting, pulled him out of his chair and subjected to repeated violent blows and punches to his face and body, as a result of which Mr Phelan sustained a broken nose, broken jaw and a broken right arm.

6 The appellant was released from prison in November of 2011, and engaged with the Probation Service up until April 2012, but at that point ceased to engage any further and ceased contact with his probation officer.

7 On the 22nd of April 2014 the Probation Service pursuant to s. 99(14) of the Criminal Justice Act 2006 (hereinafter the Act of 2006) re-entered the matter before His Honour Judge Teehan at Clonmel Circuit Criminal Court and sought to have the sentence re-activated on the basis that the appellant had breached a condition of his bond. The conditions of his bond had been that he would keep the peace and be of good behaviour and that he would engage with the probation and welfare service for a period of five years post release. The court heard brief evidence concerning the alleged breach, which was specified to be his failure to engage with the probation and welfare service. However, as the appellant was not present, the judge having been informed that he was in Cork Prison, the matter was adjourned to the 24th of July 2014 to afford the appellant an opportunity to be heard, and to enable it to be clarified concerning in what circumstances he was in Cork Prison as it was potentially relevant, and for further evidence and submissions.

8 When the matter came on again on the 24th of July 2014 the appellant was present and was represented by counsel. His counsel sought to proffer an explanation for his client's non engagement with the probation service. He stated that as a result of the behaviour that had resulted in the sentence of the 8th of July 2008 the appellant's family home was targeted quite violently for a period of time, and the appellant had concluded that the best course of action to ensure his family's safety was to remove himself from the situation. However, it was accepted that he did not notify the probation services that he was changing address nor did he inform his family of where he was going as he felt it necessary to completely remove himself from the situation. The court heard that the appellant lived elsewhere in this country for a period of time, and then went to Holland for a period, and subsequently to England where had remained until his return to Ireland. Counsel went on to make a plea ad miseracordiam that while his client had dealt with his difficulties inappropriately, he had absented himself for worthy motives, and particularly for the protection of his family, and the court was urged in the circumstances not to require the appellant to serve the suspended portion of the sentence.

9 The court was further briefly told that the appellant was in custody at that time on foot of a sentence of three year and six months imprisonment, with the final six months suspended, imposed earlier that year at Waterford Circuit Criminal Court. However, His Honour Judge Teehan was provided with no further details.

10 While the transcript of the proceedings before the Circuit Court on the 24th of July 2014 was vague as to the circumstances of the appellant's return from England, and contained no details as to the circumstances in which the sentence imposed upon him at Waterford Circuit Court had arisen, this Court has since ascertained the exact position having bespoken a transcript of the proceedings before Waterford Circuit Court on the 5th June 2014.

11 The position is that the appellant was returned to Ireland on the 5th of March 2014 on foot of a European arrest warrant to face trial before Waterford Circuit Criminal Court arising out of events that had occurred on the 9th of April 2012 when a Mr John Michael Lawlor was seriously assaulted at a party in an apartment in Waterford by being slashed across the neck with a Stanley knife. The appellant pleaded guilty on the 21st of May 2014 to assaulting Mr Lawlor on the occasion in question, causing him harm, contrary to s. 3 of the Non Fatal Offences Against the Person Act, 1997 and also pleaded guilty to production of an article capable of inflicting serious injury in the course of a dispute, contrary to s.11 of the Firearms and Offensive Weapons Act, 1990. On the 5th of June 2014 Her Honour Judge Codd sentenced the appellant to three years and six months imprisonment, with the final six months thereof suspended, in respect of the s.3 assault and to two years imprisonment in respect of the s.11 offence, both sentences to run concurrently and to date from the 5th of March 2014.

12 It emerged in the course of the evidence at the sentencing hearing before Judge Codd that the appellant's whereabouts in the UK had become known to the Irish authorities because he had also run foul of the law there, and had been imprisoned there on foot of sentences, of twelve months and eighteen months, respectively, to run consecutively, imposed on him at the Inner London Crown Court on the 11th of March 2013 for offences of robbery and wounding with intent. It was in those circumstances that he was rendered amenable to being recovered on foot of the aforementioned European arrest warrant. It is unclear how he came to be surrendered as early as the 5th of March 2014 in circumstances where he commenced an aggregate sentence of 30 months on the 11th of March 2013. It may possibly have been a conditional surrender, something which is provided for in the European arrest warrant framework decision should a state wish to opt to provide for it in its transposing domestic legislation; however, that is not something that is of any direct relevance to the proceedings before this Court

13 Returning to the proceedings before Clonmel Circuit Criminal Court on the 24th of July 2014, his honour Judge Teehan, having considered the evidence adduced and the parties' submissions, lifted the suspension on the last three years of the total or aggregate sentence of six years imposed on the 8th of July 2008 and ordered the unserved balance to run consecutively to the further three years then being served on foot of the sentence imposed by Her Honour Judge Codd at Waterford Circuit Criminal Court on the 5th of June 2014.

14 In so deciding, His Honour Judge Teehan stated:

‘Well, when these matters come back before the Court, having been...