DPP v A.S.

JurisdictionIreland
JudgeMr Justice John Edwards
Judgment Date28 November 2017
Neutral Citation[2017] IECA 310
Date28 November 2017
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2017] IECA 310 Record No: 2017/220

[2017] IECA 310

THE COURT OF APPEAL

Edwards J.

Birmingham J

Mahon J.

Edwards J.

Neutral Citation Number: [2017] IECA 310

Record No: 2017/220

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor
V
A.S.
Accused

Case stated – Criminal Justice Act 2006 – Jurisdiction – Circuit Court Judge seeking to state a case for the opinion of the Court of Appeal – Whether Circuit Court Judge has jurisdiction pursuant to s. 99 of the Criminal Justice Act 2006, or otherwise, to suspend in part a sentence of detention on a child

Facts: The Circuit Court judge, on the 25th of July 2014, sentenced the accused, who at that time was child as defined by the Children Act 2001, to four years detention, to date from the 21st of March 2014, in a children detention centre for the offence of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, with the final two years of that sentence suspended upon the conditions of a bond entered into by the accused, and expressed to be for the purposes of s. 99(1) of the Criminal Justice Act 2006, that the accused would keep the peace and be of good behaviour towards all the people of Ireland during his period of detention and for a period of four years from the date of his release from detention. On the 14th of February 2017 the matter was re-entered by the prosecutor before the Circuit Court Judge, purportedly pursuant to s. 99(13) of the 2006 Act, in circumstances where the prosecutor was contending that the accused had breached the conditions of his bond. In light of the evidence the Circuit Court Judge was satisfied that the accused had breached the terms of the bond on foot of which the sentence imposed on him on the 25th of July 2014 had been part suspended. By this time the accused had attained his majority. The Circuit Court Judge indicated that in the circumstances he was disposed in principle to require the accused to serve some, or perhaps all, of the suspended portion of the sentence. However, in the course of hearing submissions on what precisely he should do in that regard prosecuting counsel raised a concern as to whether the court in fact had power to activate the suspended portion of the part suspended sentence of detention in a child detention centre imposed on the 25th of July 2014, having regard to the nature of the bond entered into (which was expressed to be for the purposes of s. 99 of the 2006 Act) and also having regard to the status of the accused at the time of the re-entry (he was by then no longer legally a child). In the light of the concerns raised by counsel, the Circuit Court Judge stated a case for the opinion of the Court of Appeal as follows: (i) Did I have jurisdiction pursuant to s. 99 of the 2006 Act, or otherwise, to suspend in part a sentence of detention on a child? (ii) If so, do I now have power in this case to activate some or all of the suspended sentence?

Held by the Court that, applying the same logic as was applied by O'Malley J in Director of Public Prosecutions (Garda Purtill) v Murray [2015] IEHC 782, it was clear that the common law power to suspend a sentence of imprisonment did not survive the enactment of the 2001 Act, and in particular Pt 9 thereof.

The Court held that the first question posed in the case stated must be answered in the negative. The Court held that it was not necessary in those circumstances to address the second question posed in the case stated.

Case stated (question answered).

JUDGMENT of the Mr Justice John Edwards delivered 28th of November 2017
Introduction
1

The matter comes before the court on foot of a consultative case stated referred by his honour Judge Thomas Teehan, a judge of the Circuit Court, and dated the 9th of March 2017, in which he seeks the opinion of the Court of Appeal upon a number of issues of law that have arisen in a case involving A.S., the accused herein.

2

The Circuit Court judge had previously on the 25th of July 2014 sentenced the accused, who at that time was child as defined by the Children Act 2001(the Act of 2001) to four years detention, to date from the 21st of March 2014, in a children detention centre (within the meaning of s.95 of the Act of 2001), to wit Trinity House, in the County of Dublin, for the offence of robbery contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, with the final two years of that sentence suspended upon the conditions of a bond entered into by the accused, and expressed to be for the purposes of s.99(1) of the Criminal Justice Act 2006 (the Act of 2006) as amended, that the accused would keep the peace and be of good behaviour towards all the people of Ireland during his period of detention and for a period of four years from the date of his release from detention.

3

The accused was 15 years of age at the date of his sentencing, having been born on the 8th of February 1999. The aforementioned offence of robbery was committed on the 20th of March 2014. The accused had pleaded guilty to the said offence.

4

On the 14th of February 2017 the matter was re-entered by the prosecutor before the Circuit Court Judge, purportedly pursuant to s.99(13) of the Act of 2016, as amended, in circumstances where the prosecutor was contending that the accused had breached the conditions of his bond.

5

The Circuit Court Judge heard evidence, which the accused did not contest, that on the 25th of July 2015 the accused had escaped from detention. Further, on the 3rd of August 2015 while he was unlawfully at large following his said escape he committed a robbery on the Dublin Luas Light Rail System in the course of which he had stolen two mobile phones. He was later identified by Gardai as the perpetrator, and was arrested and charged with robbery and was subsequently convicted of that offence before the Dublin Circuit Criminal Court. He was also separately charged and prosecuted in the District Court with escaping from lawful custody, and he had also been convicted of that offence. The case stated is silent as to the penalties imposed for those offences.

6

The Circuit Court Judge also heard evidence that on the 27th of May 2016 the accused pleaded guilty before the Dublin Circuit Criminal Court to yet another robbery, and the 23rd of June 2016 pleaded guilty, again before the Dublin Circuit Criminal Court, to the further offence of causing criminal damage. He was sentenced in respect of both of these matters on the 27th of July 2016, when he received two years in detention for the robbery offence and one year in detention for the criminal damage offence.

7

In the light of this evidence the Circuit Court Judge was satisfied that the accused had indeed breached the terms of the bond on foot of which the sentence imposed on him on the 25th of July 2014 had been part suspended.

8

By this time the accused had attained his majority.

9

The Circuit Court Judge indicated that in the circumstances he was disposed in principle to require the accused to serve some, or perhaps all, of the suspended portion of the sentence. However, in the course of hearing submissions on what precisely he should do in that regard prosecuting counsel raised a concern as to whether the court in fact had power to activate the suspended portion of the part suspended sentence of detention in a child detention centre imposed in this case on the 25th of July 2014, having regard to the nature of the bond entered into (which was expressed to be for the purposes of section 99 of the Act of 2006) and also having regard to the status of the accused at the time of the re-entry (he was by then no longer legally a child).

10

In the light of the concerns raised by counsel, the Circuit Court Judge has stated a case for the opinion of the Court of Appeal as follows:

i. Did I have jurisdiction pursuant to s.99 of the Act of 2006 (as amended), or otherwise, to suspend in part a sentence of detention on a child?

ii. If so, do I now have power in this case to activate some or all of the suspended sentence?

11

Clearly the first question must be addressed come what may. However, the second question will only require to be addressed if the first question has been answered in the affirmative.

12

There are two components to the first question. The first component is concerned with whether s.99 of the Act of 2006 provided the judge with the suggested jurisdiction? The second component is concerned with whether the judge otherwise possessed the suggested jurisdiction. It is proposed to consider each component separately.

Did s.99 of the Act of 2006 as amended provide the suggested jurisdiction?
13

Section 99 of the Act of 2006, as amended (up to the date of the consultative case stated, and excluding subss (9) and (10) which were held to be repugnant to the Constitution in Moore and others v. Director of Public Prosecutions, Ireland and the Attorney General [2016] IEHC 244), is in the following terms:

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 recognisance to comply with the conditions of, or imposed in relation to, the order.

(2) It shall be a condition of an 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

(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,

and that condition shall be specified in the order concerned.

(3) The court may, when making an order under subsection...

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3 cases
  • DPP v P. McC
    • Ireland
    • Court of Appeal (Ireland)
    • 3 October 2018
    ...sentenced the respondent, she did not have the benefit of this Court's judgment in The People (Director of Public Prosecutions) v A.S [2017] IECA 310 (Edwards J, 28th of November, 2017, with Birmingham J [as he then was] and Mahon J, nem diss) in which it was held that, as a consequence of......
  • B v Director of Oberstown
    • Ireland
    • Supreme Court
    • 29 April 2020
    ...must be noted, was concerned only with adults, whose sentences were clearly covered by the section. However, in The People (DPP) v. AS. [2017] IECA 310 the Court of Appeal determined that as far as children were concerned the 2001 Act completely replaced the pre-existing law, including resi......
  • DPP v D. McD
    • Ireland
    • Court of Appeal (Ireland)
    • 9 June 2020
    ...in a situation where the normal route of considering part-suspension was not an option (see the decision of this Court in DPP v. AS [2017] IECA 310). The sentence hearing proceeded on the basis that s. 151 was available, although submissions advanced on behalf of the Director in other cases......
1 books & journal articles

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