DPP v Kirwan

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 27 June 2019
• Neutral Citation: [2019] IECA 176
• Date: 27 June 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA 176 Record Number: 2019/90

[2019] IECA 176

THE COURT OF APPEAL

Whelan J.

Birmingham P.

Whelan J.

McCarthy J.

Neutral Citation Number: [2019] IECA 176

Record Number: 2019/90

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

- AND –

WILLIAM KIRWAN

DEFENDANT

Sentencing – Attempted robbery – Case stated – Circuit Court judge seeking to state a case – Whether Circuit Court judge was correct in law in finding that s. 99(8A) of the Criminal Justice Act 2006 (as inserted by s. 2 of the Criminal Justice (Suspended Sentences of Imprisonment) Act 2017) required her to remand the defendant to Dublin District Court arising from the suspended sentence imposed in that court on 21st March, 2018

Facts: The defendant, Mr Kirwan, on 8th July, 2018, committed an offence of attempted robbery contrary to common law at Northumberland Road in Dublin. He was charged with same on 26th July, 2018. He was sent forward for trial to Dublin Circuit Criminal Court on 16th October, 2018. On 9th November, 2018, he was arraigned and pleaded guilty to attempted robbery. At the sentencing hearing on 17th January, 2019 the Circuit Court judge was informed that the defendant had a previous conviction (the first offence) in the Dublin Metropolitan District Court on 21st March, 2018, for theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The first offence was committed on 28th January, 2018. The District Court judge had imposed a term of six months’ imprisonment suspended in its entirety for a period of eighteen months pursuant to s. 99(1) of the Criminal Justice Act 2006. The defendant duly entered into a bond before the District Court to keep the peace and be of good behaviour during the period of suspension. Thus, the offence committed on 8th of July, 2018 triggered the operation of s. 99 of the 2006 Act, it having been committed within the period of suspension of the first sentence and during the currency of the bond. On 18th January, 2019, the Circuit Court judge sentenced the defendant on the triggering offence to five years’ imprisonment with the final eighteen months suspended for a period of eighteen months and he duly entered a bond. She determined that she was required to remand the defendant back to Dublin Metropolitan District Court pursuant to s. 99(8A) of the 2006 Act. In her view, the changes effected by the Criminal Justice (Suspended Sentences of Imprisonment) Act of 2017 to s. 99 were not substantive in nature and that there was no unfairness caused to the defendant by them. She indicated that she did “not consider that the changes in s.99 constituted retrospective penalisation”. Counsel for the defendant requisitioned the Circuit Court judge to refer a question of law to the Court of Appeal by way of consultative case stated pursuant to s. 16 of the Courts of Justice Act 1947. At the hearing of the application it appeared that “Counsel for the defendant indicated that, in the event of a case stated, no issue would be taken in due course in relation to vires of the court to make a s.99(8A) order in the event that the Court of Appeal held it was appropriate to make such an order in relation to the defendant.” On 7th March, 2019, the Circuit Court judge signed the consultative case stated which asked: “Was I correct in law in finding that s.99(8A) of the Criminal Justice Act 2006 (as inserted by S. 2 of the Criminal Justice (Suspended Sentences of Imprisonment) Act 2017) required me to remand the defendant to Dublin District Court arising from the suspended sentence imposed in that court on March 21st 2018?”

Held by the Court that the Circuit Court judge was correct in law in finding that s. 99(8A) of the 2006 Act (as inserted by s. 2 of the 2017 Act) required her to remand the defendant to Dublin District Court arising from the suspended sentence imposed in that Court on 21st March, 2018.

The Court held that the answer to the case stated is yes.

Case stated (question answered).

JUDGMENT of the Court delivered by Ms. Justice Máire Whelan on the 27th day of June 2019

Introduction

1 This is a consultative case stated referred by Her Honour Judge Melanie Greally, judge of the Circuit Court, dated the 7th day of March, 2019. She seeks the opinion of the court on an issue of law arising in a matter involving William Kirwan, the defendant herein.

Factual background

2 On 8th of July, 2018, the defendant committed an offence of attempted robbery contrary to common law at Northumberland Road in Dublin. He was charged with same on the 26th of July, 2018. He was sent forward for trial under Bill No. DUDP1087/2018 to Dublin Circuit Criminal Court on the 16th of October, 2018.

3 The case was listed for mention before Dublin Circuit Criminal Court on the 9th of November, 2018. On that date the defendant was arraigned and pleaded guilty to attempted robbery, the sole count on the indictment. The case was then adjourned for sentence to the 17th of January, 2019.

4 At the sentencing hearing on the 17th of January, 2019 the Circuit Court judge was informed that the defendant had a previous conviction (the first offence) in the Dublin Metropolitan District Court on the 21st of March, 2018, for theft of a pair of sunglasses from Brown Thomas store in Grafton Street, Dublin contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

The First Offence

5 The first offence was committed on the 28th of January, 2018. On the 21st March, 2018, the District Court judge imposed a term of six months' imprisonment suspended in its entirety for a period of eighteen months pursuant to s.99(1) of the Criminal Justice Act 2006. The defendant duly entered into a bond on the said date before the District Court to keep the peace and be of good behaviour during the period of suspension.

6 Thus, the offence committed by the defendant on the 8th of July, 2018, triggered the operation of s.99 of the Criminal Justice Act 2006 (as amended), it having been committed within the period of suspension of the first sentence and during the currency of the bond.

Moore decision

7 The reactivation of suspended sentences is governed by the provisions of Criminal Justice Act 2006 and in particular s.99. However, on 19th April, 2016, in the case of Moore v DPP & Others[2016] I.E.H.C. 244 the High Court held that s.99 (9) and (10) of the Criminal Justice Act 2006 were repugnant to the Constitution by reason that their operation in the reactivation of a suspended sentence resulted in inconsistency which was incompatible with the requirements of Article 38 of the Constitution that no person should be tried on a criminal charge save in due course of law, with the guarantee in Article 40.4.1 that no citizen shall be deprived of his liberty save in accordance with law, with the principle of equality before the law declared in Article 40.1 and with the guarantee in the said article to defend and vindicate the personal rights of citizens.

In Wansboro v DPP[2018] I.E.S.C. 63 Mr. Justice O'Donnell at para. 3 identifies the constitutional frailty that had led to s.99(10) being struck down thus: -

‘The basic and insurmountable difficulty posed by s. 99(10) was that it required the sentencing court to revoke the suspension unless it considered it to be unjust, and furthermore required that step to be taken before sentence was imposed for the trigger offence. However, this procedure did not provide for the possibility that the trigger offence conviction might be set aside on appeal, in which case the suspended sentence ought not to have been reactivated, with consequent injustice to the individual.’

Criminal Justice (Suspended Sentences of Imprisonment) Act of 2017

8 The legislature moved to address the lacuna that inexorably followed from the said determination in Moore. The Criminal Justice (Suspended Sentences of Imprisonment) Act of 2017 (the 2017 Act) was enacted in response to the Moore decision with the objective of putting in place constitutionally compliant procedural rules in lieu of s.99 subs. (9) and (10) for the reactivation of the suspended part of any earlier sentence where a person commits a further offence during the period of suspension. Section 2 (c) of the 2017 Act inserted subsection 8A into s.99 of the 2006 Act, the following parts of which are in particular relevant to this application: -

‘(8A) (a) Where a person to whom an order under subsection (1) applies—

(i) commits an offence after the making of that order and during the period of suspension of the sentence concerned (in this section referred to as the “triggering offence”), and

(ii) subject to subsection (8B), is convicted of the triggering offence,

the court before which proceedings for the triggering offence are brought shall, after imposing sentence for that offence, remand the person in custody or on bail to a sitting of the court that made the said order to be held—

(I) no later than 15 days after such remand, or

(II) if there is no sitting of that court within that period, to the next sitting of that court thereafter,

and, if there is no sitting of that court on the day to which that person has been remanded, he or she shall stand so remanded to the sitting of that court next held after that day.

(b) The remand of a person in custody or on bail under paragraph (a) to a sitting of the court that made the order under subsection (1) concerned applying to the person may be to a sitting of that court other than a sitting thereof referred to in paragraph (c).

(c) Subject to paragraph (b), references in paragraph (a) to a sitting of a court shall be construed as references to a sitting of the court at a place and time appointed or fixed for sittings of that court by or under statute.

(8B) Subsection (8A) applies to a conviction of a person for an offence if proceedings for the offence are instituted against the person during the period of suspension of the sentence concerned...