DPP v Devine

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 19 October 2011
• Neutral Citation: [2011] IECCA 67
• Court: Court of Criminal Appeal
• Date: 19 October 2011

[2011] IECCA 67

COURT OF CRIMINAL APPEAL

Finnegan J.

Budd J.

O'Keeffe J.

Record No. 92CJA/07

DPP v Devine

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

ROBERT DEVINE

RESPONDENT

FIREARMS ACT 1964 S27(A)(1)

CRIMINAL LAW JURISDICTION ACT 1976 S8

CRIMINAL JUSTICE ACT 1993 S2

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S4

CRIMINAL JUSTICE ACT 1984 S13

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

ROAD TRAFFIC ACT 1961 S98

CRIMINAL JUSTICE ACT 2006 S99

CRIMINAL JUSTICE ACT 2007 S60

CRIMINAL JUSTICE ACT (MISC PROVISIONS) ACT 2009 S51

CRIMINAL JUSTICE ACT 2006 S99(9)

CRIMINAL JUSTICE ACT 2007 S60

CRIMINAL JUSTICE ACT 2007 S10(A)

PEOPLE (AG) v GRIMES 1955 IR 315

CRIMINAL JUSTICE ACT 1993 S2(3)

CRIMINAL JUSTICE ACT 2006 S99(1)

CRIMINAL LAW

Sentence

Suspension - Revocation - Review - Partially suspended sentence in CCA - Accused before District Court - Whether District Judge had jurisdiction to sentence accused - Whether District Judge ought to have adjourned sentence pending outcome of CCA review - Whether CCA had jurisdiction to review sentence where statute not complied with - Criminal Justice Act 2006 (No 26), s 99(1) - Criminal Justice Act 2007 (No 29) s 60 - Criminal Justice (Miscellaneous Provisions) Act 2009 (No 28), s 51 - No order made (92/2007 - CCA - 19/10/2011) [2011] IECCA 67

People (DPP) v Devine

Facts On 31 October 2006 the respondent pleaded guilty to possession of a firearm and was sentenced to two years imprisonment. However upon an application for review of sentence by the applicant herein this court in substitution for the sentence imposed by the learned trial judge imposed a sentence of four years imprisonment with the last two years suspended for a period of two years from 10 December 2007. Subsequently the respondent appeared before the District Court charged with a number of public order matters all committed between March and December 2011. The respondent pleaded guilty to all matters and was sentenced to three months imprisonment. The respondent was remanded in custody with consent to bail to this court for the purposes of determining pursuant to section 99 of the Criminal Justice Act, 2006 whether to activate the suspended sentence previously imposed

Held by the C.C.A.; Finnegan J. (Budd, O'Keeffe JJ) in making no order: That section 99 of the 2006 Act was amended by section 60 of the Criminal Justice Act, 2007 and was further amended by section 51 of the Criminal Justice (Miscellaneous Provisions) Act, 2009. Having regard to the amendment of section 99 by section 60, what ought to have occurred in the District Court is that before imposing sentence the respondent ought to have been remanded to this court so that this court could consider reinstating in whole or in part the suspended portion of the sentence imposed. However, this was not done. The amendment to section 99 was not brought to the District judge's attention. Both the Court of Criminal Appeal and the District Court are creatures of statute and have such jurisdiction as is conferred upon them by Statute. The District Court had no jurisdiction to impose sentence on the respondent without first complying with the provisions of section 99(9) as amended. This Court only had jurisdiction to revoke the suspended portion of the respondent's sentence where the respondent was remanded to this court in accordance with section 99(9). As that was not done in this case the court had no jurisdiction to carry out the function envisaged under section 99(10) and (10A) of the 2006 Act as amended.

Reporter: L.O'S.

1 Judgment of the Court delivered on the 19th day of October 2011 by Finnegan J.

2 On the 31 ^st October 2006 the respondent pleaded guilty to a charge of possession of a firearm contrary to the Firearms Act 1964 section 27(A)(1) as substituted by the Criminal Law Jurisdiction Act 1976 section 8 and amended by the Criminal Justice Act 1984, the Firearms and Offensive Weapons Act 1990 and the Offences Against the state (Amendment) Act 1998. He was sentenced to two years imprisonment. The Director of Public Prosecutions applied to the Court of Criminal Appeal for a review of that sentence on the grounds that it was unduly lenient pursuant to the Criminal Justice Act 1993 section 2. On the 10 ^th December 2007 the Court of Criminal Appeal in substitution for the sentence imposed by the learned Circuit Court judge imposed a sentence of four years imprisonment the last two years thereof to be suspended upon the respondent entering into a bond to keep the peace and be of good behaviour for a period of two years from the 10 ^th December 2007.

3 The respondent appeared before Clonmel District Court on the 22 ^nd April 2008 charged with a number of offences as follows:

4 i i. An offence contrary to the Criminal Justice (Public Order) Act 1994 section 4 on the 5 ^th March 2008.

5 ii ii. An offence contrary to the Criminal Justice (Public Order) Act 1994 section 4 on the 26 ^th December 2008.

6 iii iii. An offence contrary to section 4 of the Criminal Justice (Public Order) Act 1994 section 4 on the 5 ^th March 2008.

7 iv iv. An offence contrary to section 4 of the Criminal Justice (Public Order) Act 1994 section 4 on the 14 ^th December 2007.

8 v v. An offence contrary to section 4 of the Criminal Justice (Public Order) Act 1994 section 4 on the 21 ^st January 2008.

9 vi vi. An offence contrary to the Criminal Justice Act 1984 section 13 on the 11 ^th March 2008.

10 vii vii. An offence contrary to the Criminal Justice Act 1984 section 13 on the 8 ^th April 2008.

11 viii viii. An offence contrary to the Criminal Justice (Public Order) Act 1994 section 6 on the 26 ^th December 2008.

12 ix ix. An offence contrary to the Criminal Justice (Public Order) Act 1994 section 6 on the 26 ^th December 2008.

13 x x. An offence contrary to section 98 of the Road Traffic Act 1961 on the 5 ^th March 2008.

14 The respondent pleaded guilty to all charges and in respect of the first mentioned offence was sentenced to a term of imprisonment of three months the remaining offences being taken into consideration. The respondent was remanded in custody with consent to bail to this court for the purposes of the Criminal Justice Act 2006 section 99.

The statutory provisions

15 Section 99 of the Criminal Justice Act 2006 was amended by section 60 of the Criminal Justice Act 2007. It was further amended by the Criminal Justice (Miscellaneous Provisions) Act 2009 section 51. The statutory provisions are as follows:

Criminal Justice Act 2006.

16 Section 99(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 recognizance to comply with the conditions of, or imposed in relation to, the order.

17 (2) It shall be conditional that the order under subsection (1) that the person in respect of whom the order is made keep the peace and be of good behaviour during -

18 (a) the period of...