DPP v Foley

JurisdictionIreland
JudgeFinnegan J.
Judgment Date21 December 2011
Neutral Citation[2011] IECCA 100
CourtCourt of Criminal Appeal
Date21 December 2011

[2011] IECCA 100

COURT OF CRIMINAL APPEAL

Finnegan J.

Hanna J.

O'Keeffe J.

Record No. 202/CJA2006
DPP v Foley
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
.v.
ANTHONY FOLEY
RESPONDENT

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S17

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S15

CRIMINAL JUSTICE ACT 1993 S2

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S15(1)

CRIMINAL JUSTICE ACT 2006 S99

CRIMINAL JUSTICE ACT 2007 S60

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S51

CRIMINAL JUSTICE ACT 2006 S99(1)

CRIMINAL JUSTICE ACT 2006 S99(2)

CRIMINAL JUSTICE ACT 2006 S99(9)

CRIMINAL JUSTICE ACT 2006 S99(10)

CRIMINAL JUSTICE ACT 2006 S99(11)

CRIMINAL JUSTICE ACT 2006 S99(12)

CRIMINAL PROCEDURE ACT 1993 S3

COURTS OF JUSTICE ACT 1924 S34

CRIMINAL JUSTICE ACT 1993 S2(3)

AG, PEOPLE v CAROLAN 1943 IJ 49

AG, PEOPLE v GRIMES 1955 IR 315 1 FREWEN 496

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL JUSTICE ACT 2006 S22

DPP v MCCARTHY & ORS UNREP CCA 16.6.2010 2010/16/3808 2010 IECCA 51

CRIMINAL JUSTICE ACT 1993 S2(2)

HOWARD & ORS v CMRS OF PUBLIC WORKS IN IRELAND 1994 1 IR 101

DPP v FLANAGAN 1979 IR 265

GREY & ORS v PEARSON & ORS 10 ER 1216 1857 6 HL CAS 61

MCGRATH v MCDERMOTT (INSPECTOR OF TAXES) 1988 IR 258

NESTOR v MURPHY 1979 IR 326 1979/12/2065

CONSTITUTION ART 34.3

1

Judgment (ex tempore) delivered on the 21st day of December 2011 by Finnegan J.

2

The respondent came before the Circuit Criminal Court, Dublin, for sentence on the 11 th October 2006 in respect of three offences as follows:-

3

1. Handling stolen property, contrary to section 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The offence was committed on the 25 th January 2005 and the property in question was a Volvo motor car.

4

2. False imprisonment contrary to section 15 of the Non-Fatal Offences Against the Person Act 1997. The offence was committed on the 12 th October 2005 and related to one Raymond McLure.

5

3. False imprisonment contrary to section 15 of the Non-Fatal Offences Against the Person Act 1997. The offence was committed on the 12 th October 2005 and related to one William Farrell.

6

The second and third mentioned offences were committed while the respondent was on bail in respect of the first mentioned offence. The respondent pleaded not guilty to the first mentioned offence and at trial was convicted: to the second and third mentioned offences he pleaded guilty. In relation to the first mentioned offence the learned Circuit Court judge imposed a sentence of twelve months. In relation to the second and third mentioned offences he imposed sentences of seven years consecutive to the sentence of twelve months imposed in respect of the first mentioned offence. All three sentences were suspended on conditions including a condition that he keep the peace and be of good behaviour for a period of five years.

7

The Director of Public Prosecutions applied to the Court of Criminal Appeal pursuant to section 2 of the Criminal Justice Act 1993 for review of the sentences. Judgment of the Court of Criminal Appeal was delivered on the 19 th April 2007 the relevant part of the judgment being in the following terms:-

"The court won't interfere with the sentence that was imposed, the seven years imprisonment consecutive to the twelve months imposed on the first offence. The total that was arrived at was eight years. The learned trial judge suspended the entirety of the eight years but this court will suspend five of the eight years of the sentence so that the suspension will he on the same conditions that were fixed by the learned Circuit Court judge."

8

The relevant part of the warrant issued out of the Court of Criminal Appeal to the Governor, Mountjoy Prison, reads as follows:-

"And whereas the said application was granted this day by the Court of Criminal Appeal which quashed the said concurrent sentences of seven years imprisonment (suspended as aforesaid) and imposed in lieu a sentence of seven years imprisonment on each of the said counts to run concurrently and to commence at the legal termination of the sentence imposed on Bill No. DU367/05 the final five years thereof to be suspended on the said Anthony Foley entering into a bond in the sum of €100 before the Governor of the prison in whose custody for the time being he shall be to keep the peace and be of good behaviour for a period of five years from the date of his release from lawful custody."

9

The respondent was convicted before the District Court of a number of offences as follows:-

10

1. On the 7 th July 2009 he was convicted of eight offences contrary to the Road Traffic Acts. The offences were committed on the 13 th February 2007.

11

2. On the 19 th August 2009 he was convicted of handling stolen property contrary to section 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The offence was committed on the 25 th January 2009 the property in question being various cartons of cigarettes.

12

3. On the 16th September 2009 he was convicted of having in his possession an article, a screwdriver, with the intention that it be used in connection with the theft of property from a mechanically propelled vehicle contrary to section 15(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001. The offence was committed on the 14 th June 2009.

13

In relation to the said convictions the District Judges having regard to the provisions of the Criminal Justice Act 2006 section 99 as amended before imposing sentence for the offences remanded the respondent to the Court of Criminal Appeal.

The statutory provisions
14

Section 99 of the Criminal Justice Act 2006 created a statutory basis for suspended sentences and 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 relevant statutory provisions are as follows:-

15

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.

16

(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 -

(a) the period of suspension of the sentence concerned, or
17

(b) in the case of an order that suspends the sentence in part only the period of imprisonment and the period of suspension of the sentence concerned

18

and that condition shall be specified in the order concerned.

19

(9) Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, the court before which proceedings for the offence were brought shall, after imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order.

20

(10) A court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1) unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all the circumstances of the case, less any period of that sentence already served in prison or any period spent in custody (other then a period during which the person was serving a sentence of imprisonment in respect of an offence referred to subsection (9)) pending the revocation of the said order.

21

(11) (a) A sentence other than a sentence consisting of imprisonment for life) imposed:-

22

(i) in respect of an offence committed by a person to whom an order under subsection (1) applies, and

23

(ii) during the period of sentence to which that order applies,

24

shall not commence until the expiration of any period of imprisonment that the person is required to serve of the sentence referred to in (b) either by virtue of the order under subsection (1) or a revocation under subsection (10).

25

(b) This subsection shall not affect the operation of section 5 of the Criminal Justice Act 1951.

26

(12) Where an order under subsection (1) is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoke that order.

Criminal Justice Act 2007
27

Section 60.

Section 99 of the Act of 2006 is amended:-
28

(a) In subsection 9 by the substitution of "the court before which proceedings for the offence are brought shall, before imposing sentence for that offence" for "the court before which proceedings for the offence were brought shall after imposing sentence for that offence",

29

(b) In subsection (10) by the substitution of "other than a period spent in custody by the person in respect of an offence referred to in subsection (9)" for "other than a period during which the person was serving a sentence of imprisonment in respect of an offence referred to in subsection (9)."

30

(c) By the insertion of the following subsection after subsection (10): "(10A) The court referred to in subsection (10) shall remand the person concerned in custody or on bail...

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