Foley -v- The governor of Portaloise Prison, [2016] IEHC 334 (2016)

Docket Number:2016 473SS
Party Name:Foley, The governor of Portaloise Prison
 
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THE HIGH COURT[2016 No. 473 SS]

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2. OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN

ANTHONY FOLEYAPPLICANTAND

THE GOVERNOR OF PORTLAOISE PRISONRESPONDENT

JUDGMENT of Mr. Justice McDermott delivered on the 14th day of June, 2016

1. This is an application for an inquiry under Article 40.4.2 of the Constitution. The applicant is detained pursuant to a warrant issued by the Court of Criminal Appeal on 12th November, 2012 whereby a suspended sentence which had been imposed by the court was revoked following an application made pursuant to sections 9 (9) and (10) of the Criminal Justice Act 2006 as amended. This application arises directly as a consequence of the decision of the High Court (Moriarty J.) in Moore & Ors. v the Director of Public Prosecutions, Ireland & The Attorney General [2016] IEHC 244 declaring that ss. 99 (9) and (10) of the 2006 Act were repugnant to the constitution and invalid on 19th April, 2016. It is submitted that because the applicant’s detention is dependent upon the exercise of the statutory power which is now declared invalid there has been a default of fundamental requirements leading to his detention as a result of which he is entitled to his release under Article 40.

Chronology of Events

2. The applicant was convicted of a number of offences. These are fully described in the judgment of the Court of Criminal Appeal delivered on the 12th November, 2012 as follows:

“On 11th October 2006 the respondent was sentenced at the Dublin Circuit Criminal Court in respect of three offences as follows. Firstly, handling stolen property contrary to s. 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001; that offence was committed on 25th January 2005. Secondly, false imprisonment contrary to s. 15 of the Non- Fatal Offences Against The Person Act 1997; that offence was committed on 12th October 2005. Thirdly, false imprisonment contrary to s. 15 of the Non- Fatal Offences Against The Person Act 1997, the offence was committed on 12th October 2005. The first offence involved the handling of a Volvo motorcar; the second and third offences were committed during what is being described as an attempted cigarette heist, where two workers delivering cigarettes were falsely imprisoned for a period of time. The respondent received from the Circuit Court a twelve month sentence on the first offence and a seven year sentence for the second and third offences respectively, the second and third being concurrent to each other. The second and third offences were committed when the respondent was on bail for the first offence; therefore the seven year sentence was to run consecutive to the twelve month sentence. However the full eight year sentence was suspended by the Circuit Court in its entirety on condition that the respondent keep the peace and be of good behaviour for a period of five years from the date of the sentence. The Director of Public Prosecutions applied to this court pursuant to s. 2 of the Criminal Justice Act 1993 for a review of those sentences on the grounds of undue leniency and by judgment of this court delivered on 19th April 2007 the court refused to interfere with the overall duration of the eight year sentence but varied the suspended element of the sentence so that only five years of the total sentence was suspended. Thus the respondent had to serve three years imprisonment and the balance of the sentence, that is five years, was suspended on condition that the respondent keep the peace and be of good behaviour for five years from the date of his release.”

3. The applicant was released from prison on 20th December, 2007. He entered a bond before the Prison Governor to keep the peace and be of good behaviour from that date.

4. Subsequently, the applicant was convicted of two further offences before the District Court. On 11th February, 2009, he handled stolen property namely various cartons of cigarettes to a value of €2,546.62 knowing that they were stolen, or reckless as to whether they were stolen. He was convicted on 19th August, 2009, and was thereafter remanded to the Court of Criminal Appeal under s. 99(9) of the 2006 Act. The cigarettes recovered by the Gardaí in respect of that offence had been stolen from a DHL delivery van in Tullamore at approximately 1.45pm on 11th February, 2009.

5. He was also convicted on 16th September, 2009, that on 14th June, 2009, at Inchicore Road, Dublin 8, he had in his possession a screwdriver with the intention that it be used in connection with the theft of property from a motor vehicle in which he was found. Following his conviction on that matter he was remanded to the Court of Criminal Appeal under the same section.

6. A point was taken on the referral to the Court of Criminal Appeal, that the appropriate court to which the referral ought to have been made was the Circuit Court which had imposed the original sentences on the respondent in 2006. On 19th October, 2011, the Court of Criminal Appeal determined (Finnegan P.) that the court of Criminal Appeal had jurisdiction to determine the matter. The application was then considered by the Court of Criminal Appeal on 12th November, 2012, following which the court in an ex tempore judgment revoked the suspended sentence.

7. The court in revoking the sentence accepted that its jurisdiction was described in s. 99(10). Finlay J. stated:-

“… Well its jurisdiction at this point is described in subs. 10, already referred to. Its position is in effect that it shall revoke the suspended sentence unless, firstly, it considers that it would be unjust to now in the circumstances of the case and secondly if it does decide to revoke the sentence, it still has to decide what part would be just to require the respondent to serve, less any period already served. In this situation this court is put in the position of acting effectively as a first instance sentencing court and without any appeal other than an appeal through the mechanisms of s. 29 of the Court of Justice Act 1924 as amended.”

8. The court considered the evidence offered by the two investigating Gardaí in respect of the two District Court convictions. However no evidence was advanced as to the personal circumstances or the behaviour of the respondent since his release or how he had fared since that release. The court, therefore, considered that it was not in a position to exercise any measured consideration of the sentence that should be imposed by virtue of his behaviour or any aspects of his character. It therefore concluded that, having regard to the seriousness of the original offences, it ought to activate the entirety of the five year sentence, to take effect from that date. The applicant has therefore been serving the sentence as activated since 12th November, 2012.

9. At the conclusion of the hearing before the Court of Criminal Appeal the court granted a certificate under s. 29 of the Courts of Justice Act 1924, certifying that the case involved a point of law of exceptional public importance namely:

“Where the court of Criminal Appeal has varied a sentence pursuant to s. 2 of

the Criminal Justice Act 1993 by wholly or partly suspending it, is the Court of Criminal Appeal the appropriate court vested with jurisdiction to consider the revocation of the suspended sentence pursuant to s. 99 (10) of the Criminal Justice Act 2006, as amended?”

10. It was submitted on behalf of the applicant in the Supreme Court that the Court of Criminal Appeal as an appellate court was functus officio once it had made its order varying the sentence imposed by the Circuit Court judge. Furthermore, it was submitted that s. 99(12) of the 2006 Act provided for an appeal against such a revocation. Thus if a suspended sentence were revoked by the District Court, there was an appeal to the Circuit Court. If it were revoked by the Circuit Court an appeal lay to the Court of Criminal Appeal. However, if a suspension were to be revoked by the Court of Criminal Appeal the only appeal available was the more limited form of appeal to the Supreme Court pursuant to s. 29 of the Courts of Justice Act 1924, as amended. Therefore it was submitted that s. 99 should be read as granting a full right of appeal where a suspension is revoked by allowing the revocation of a suspension by the Court of Criminal Appeal to be dealt with in the Circuit Criminal Court thereby giving an effective appeal to the Court of Criminal Appeal rather than simply an appeal with leave to the Supreme Court under section 29. Though the original alteration of sentence in the case arose as a result of an appeal against undue leniency brought by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, it was also submitted that it would be an unjustifiable discrimination to treat the respondent differently to a person whose sentence was suspended on foot of an appeal against the severity of their sentence pursuant to s. 3 of the Criminal Procedure Act 1993.

11. It was submitted on behalf of the Director of Public Prosecutions that s. 99(12) provided for a right of appeal where a suspended sentence order is revoked “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 revoked the order”. It was submitted that this should be read in conjunction with an earlier clause in s. 99(12) which refers to the suspended sentence order under s. 99(1) being “revoked in accordance with this section”. It was therefore contended that the plain meaning of the section was that the suspended sentence order must be revoked by the appropriate court, in this instance, the Court of Criminal Appeal. The prosecutor accepted that there was no distinction between cases that originate as appeals against undue leniency under s. 2 and those falling under s. 3 of the Criminal Procedure Act 1993.

12. The Supreme...

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