DPP v Cian O'Leary

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 02 March 2023
• Neutral Citation: [2023] IECA 48
• Court: Court of Appeal (Ireland)
• Docket Number: [2022 No. 89]

In the Matter of Section 16 of the Courts of Justice Act 1947

Between

The People at the Suit of the Director of Public Prosecutions

Prosecutor

and

Cian O'Leary

Defendant

[2023] IECA 48

The President

McCarthy J.

Kennedy J.

[2022 No. 89]

THE COURT OF APPEAL

CIVIL

Consultative case stated – Sentencing – Children Act 2001 s. 144 – Circuit Court judge stating a case for the opinion of the Court of Appeal – What were the sentencing options available to the Court in sentencing the defendant?

Facts: The Circuit Court judge signed a consultative case stated dated 8th April 2022, and posed a number of questions for answer by the Court of Appeal. The questions posed were: (i) What are the options available to the court in sentencing the defendant, Mr O’Leary? (ii) Does the court have any power to sentence the defendant in light of s. 144(11) of the Children Act 2001, in circumstances where the resumed hearing date nominated under s. 145(5) has now passed? (iii) Where the deferment date occurred when the defendant was a child, but the resumed hearing date occurred when the defendant was 18 years of age, does the court have the jurisdiction to impose a period of detention under s. 144(9) of the 2001 Act on the defendant? (iv) Where the deferment date occurred when the defendant was a child, but the resumed hearing date occurred when the defendant was an adult, does the court have the jurisdiction to suspend the whole or a portion of the period of detention on the defendant? (v) If the answer to (iv) is yes, do the provisions of s. 99 of the Criminal Justice Act 2006 govern the suspension of the period of detention? (vi) In the alternative, if the answer to (iv) is no, does the court have an inherent jurisdiction to impose terms and conditions on the suspended period of detention? The defendant took as his starting point that there was no difficulty in making a detention order and that the Circuit Court had got itself unnecessarily and wrongly caught up in considerations of how a sentence of detention would be implemented, something, which it was said, was exclusively a matter for the executive. The Director of Public Prosecutions took the position that the person before the court had turned 18, was an adult, and said that, accordingly, the court had the full range of powers available to it, as are available when an adult is before the court for sentence.

Held by the Court that the effect of s. 144 of the 2001 Act is to provide the court with a menu of a restricted choice of options. The Court held that the custodial options available pursuant to statute were the imposition of the period of detention which had been deferred, or a shorter period, with the option to suspend any period of detention in whole or in part; the section does not provide a basis for imposing a longer period of detention and it does not provide for the imposition of a period of imprisonment. The Court noted that the section adverts to the possibility of the deferred hearing taking place after the child has turned 18, but no additional options are made available to the court for dealing with a young person in that situation. The Court held that the only option available to a court is to consider a community sanction; however, while s. 115 of the 2001 Act has some ten community sanctions, all but one of these, a probation order under s. 2 of the Probation Act 1907, were unavailable, either because the defendant was not a child of 16 or 17 years, or was not a child.

The Court answered the questions posed as follows: (i) The only option available to the court is to make an order pursuant to s. 2 of the 1907 Act. (ii) The court does not have any power to sentence, apart from the making of a probation order pursuant to s. 2 of the 1907 Act. (iii) In the circumstances, the Court does not have a power to impose a detention order. (iv) In circumstances where the Court does not have power to impose a detention order, the question of suspension in whole or in part does not arise. (v) In circumstances where the Court does not have a jurisdiction to impose a detention order, the question of suspension in whole or in part pursuant to any inherent jurisdiction of the Court does not arise. (vi) In circumstances where the Court does not have the power to impose a detention order, the question of imposing terms and conditions on the suspended period of detention does not arise.

Case stated.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of the President delivered on the 2 ^nd day of March 2023 by Birmingham P.

Introduction

1 . Her Honour Judge Melanie Greally (as she then was), signed a consultative case stated dated 8 ^th April 2022, and has posed a number of questions for answer by this Court. The questions posed are:

• (i) What are the options available to the Court in sentencing the defendant?

• (ii) Does the Court have any power to sentence the defendant in light of s. 145(11) of the Children Act 2001, in circumstances where the resumed hearing date nominated under s. 145(5) has now passed? (The reference to s. 145(11) would appear to be an error and the reference ought to have been to s. 144(11)).

• (iii) Where the deferment date occurred when the defendant was a child, but the resumed hearing date occurred when the defendant was 18 years of age, does the Court have the jurisdiction to impose a period of detention under s. 144(9) of the Children Act 2001 on the defendant?

• (iv) Where the deferment date occurred when the defendant was a child, but the resumed hearing date occurred when the defendant was an adult, does the Court have the jurisdiction to suspend the whole or a portion of the period of detention on the Defendant?

• (v) If the answer to (iv) is yes, do the provisions of s. 99 of the Criminal Justice Act 2006 govern the suspension of the period of detention?

• (vi) In the alternative, if the answer to (iv) is no, does the Court have an inherent jurisdiction to impose terms and conditions on the suspended period of detention?

Background

2 . The actual background to the decision to state a case is set out fully and clearly in the case stated. What emerges is as follows.

3 . The defendant was born on 4 ^th February 2004. Along with a co-accused, he was returned for trial to Dublin Circuit Criminal Court in relation to various offences that were alleged to have been committed on 23 ^rd September 2020, in Dublin city centre. In essence, it was alleged that he and another teenager who were passengers in a taxi, threatened the driver thereof, and demanded money, whereupon the driver fled from his vehicle. The taxi was then unlawfully seized by the defendant who drove it a short distance before coming to a stop. The defendant and his co-accused then fled on foot, but both were apprehended by Gardaí a short distance from the vehicle. They were arrested and detained. The defendant was interviewed and made admissions. On 27 ^th July 2021, the defendant, having been sent forward for trial, entered pleas of guilty. He was remanded on continuing bail for sentence and the preparation of a probation report was directed, as was required by s. 99 of the Children Act 2001 (the “2001 Act”). It should be noted that at this time, the defendant was detained pursuant to a High Court special care order, having been so detained since 1 ^st April 2021, in order to protect his welfare, and he remained so detained until 7 ^th October 2021. The High Court made the special care order against a background of severe drug abuse.

4 . On 11 ^th August 2021, the case was listed for sentence, but sentence was adjourned and a further probation report was directed. On 25 ^th August 2021, the case was listed once more for sentence and was further adjourned. On 4 ^th October 2021, the case was listed for sentence, and the judge heard evidence, remanded the defendant on bail, and directed the preparation of an updated probation report. The defendant was required inter alia to engage in treatment for substance misuse.

5 . On 3 ^rd November 2021, the case was re-entered by the Probation Service in circumstances where inter alia the defendant was suspected of re-engaging in substance abuse. At this stage, he had been discharged from special care and was living in a residential unit provided by Tusla by way of aftercare. Bail was revoked and the case was adjourned for three weeks. At this stage, the defendant was remanded in custody to Oberstown Detention Centre. On 26 ^th November 2021, the case was listed again in the Circuit Court, this time for the purpose of updating the Court on the assessment process. On 30 ^th November 2021, the defendant was again remanded in custody until 20 ^th December 2021. The Circuit Court judge asked the Probation Service to suggest a list of conditions that might apply to a deferred sentence order if she were to impose one. On 18 ^th January 2022, the matter proceeded to sentence. The judge indicated that she saw the aggravating factors as including premeditation, as well as the fact that a box-cutter knife was used to threaten the driver. The seizure of the car was further aggravated by the dangerous driving, although there was no great excess of speed. In mitigation, the judge noted that the defendant had no previous convictions and that he was 16 years of age at the time of the offence. He had a difficult family life and had been exposed to violence and drugs. He also had adverse experiences while in care. The defendant appeared motivated to change. He had managed to become drug-free and had, in the main, behaved well while in detention.

6 . The Circuit Court judge indicated an intention to impose a detention order in the following terms, which she deferred pursuant to s. 144(3) and (5) of the 2001 Act:

“(a) Count 3 – (Unlawful seizure of a vehicle) 30 months detention i.e. 2 and a half years

(b) Count 4 – (Production of an article capable of inflicting serious injury) 12 months detention

(c) Count...