Gheorge Pasare (application for Habeas Corpus)

JurisdictionIreland
JudgeMs. Justice Stewart
Judgment Date09 June 2016
Neutral Citation[2016] IEHC 312
Docket Number[2016] No. 11 SSP
CourtHigh Court
Date09 June 2016

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION AND IN

THE MATTER OF AN

APPLICATION FOR HABEAS CORPUS BY

GHEORGE PASARE

AT PRESENT IN CUSTODY IN CASTLEREA PRISON

[2016] IEHC 312

[2016] No. 11 SSP

THE HIGH COURT

Constitution – Art. 40.4.2 of the Constitution – Habeas corpus – Lawfulness of detention – S. 3 of the Non Fatal Offences Against the Person Act 1997 – S. 99 of the Criminal Justice Act 2006 – s. 15(1) and s. (5) of the Criminal Justice (Theft and Fraud Offences) Act 2001 – Reactivation of suspended sentence

Facts: The applicant sought a conditional order of habeas corpus and also an inquiry into the lawfulness of his detention. The applicant was detained in prison after being convicted and sentenced for committing an offence contrary to s. 15(1) and s. (5) of the Criminal Justice (Theft and Fraud Offences) Act, 2001, and to serve an already suspended sentence for an offence under s. 3 of the Non Fatal Offences Against the Person Act, 1997. The applicant argued that since s. 99 and s. 10 of the Criminal Justice Act 2006 had been declared unconstitutional by Moriarty J in Moore v. DPP [2016] IEHC 244, the detention of the applicant was thus not lawful.

Ms. Justice Stewart refused to direct an inquiry pursuant to art. 40.4.2 of the Constitution into the legality of the detention of the applicant. The Court held that the applicant had not engaged with the facts to show that there was a manifest error of law in his trial or conviction to invoke the benefit of unconstitutionality declared in Moore v. DPP. The Court found that since the applicant had neither disclosed his nature of plea in the underlying offence nor attempted to appeal his second conviction, the decision rendered in Moore v DPP would be of no avail to him.

JUDGMENT of Ms. Justice Stewart delivered on the 9th day of June 2016.
1

This is an application for a conditional order of habeas corpus made in writing by the applicant, who is in post-conviction custody and seeking an inquiry into the lawfulness of his detention.

2

On 8th November, 2012, the applicant was convicted on three counts under s3 of the Non-Fatal Offences Against the Person Act 1997 at the Circuit Court sitting in Galway. He was sentenced to five years imprisonment, to commence from 13th December, 2011, with the final two and a half years suspended on certain conditions. Eighteen months of this suspended sentence were reactivated on the 9th July, 2015, following a breach of these conditions. The applicant was convicted in the District Court sitting in Galway for an offence contrary to s15 (1) and (5) of the Criminal Justice (Theft and Fraud Offences) Act 2001. A sentence of six months was handed down on the 13th July, 2015, for the s15 offence, which was reduced to three months following an appeal to the Circuit Court sitting in Galway. This sentence and the re-activated section of his previous sentence are to be served...

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1 cases
  • Heaphy v DPP
    • Ireland
    • High Court
    • 31 July 2017
    ...including Clarke v. The Governor of Mountjoy Prison [2016] IEHC 278 (27th May 2016), Gheorge Pasare (application for habeas corpus) [2016] IEHC 312 (9th June 2016), Edward O'Sullivan (application for habeas corpus) [2016] IEHC 311 (9th June 2016), Foley v. The Governor of Portlaoise Pris......

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