O'Mahony v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice White |
| Judgment Date | 13 October 2017 |
| Neutral Citation | [2017] IEHC 794 |
| Docket Number | [2016 No. 365 J.R.] |
| Court | High Court |
| Date | 13 October 2017 |
[2017] IEHC 794
THE HIGH COURT
JUDICIAL REVIEW
White Michael J.
[2016 No. 365 J.R.]
Crime & Sentencing - S. 15 of the Misuse of Drugs Act 1977 - S. 99 (9) and (10) of the Criminal Justice Act 2006 - Revocation of suspended sentence - Certiorari - Multiple convictions - Ex debito justitiae
Facts: The applicant sought an order of certiorari for quashing the order of the District Court for remanding the applicant to appear before the Circuit Court. The applicant also sought an order of certiorari for quashing the order of the Circuit Court for revoking the suspended sentence and directing him to serve four years of suspended sentence. The applicant contended that since he had appealed the order of the Circuit Court before the Court of Appeal, the ratio of the High Court in Moore v. Ireland [2016] IEHC 244 applied and both the District Court and the Circuit Court were devoid of jurisdiction in making the said orders.
Mr. Justice White refused to grant the desired relief to the applicant. The Court noted that the applicant had pleaded guilty to the triggering offence and failed to appeal that decision and thus, the applicant did not come within the ambit of constitutional injustice that was present in Moore. The Court noted that the applicant had pleaded guilty to a majority of his offences and fully engaged in the original sentencing regime. The Court held that the applicant had breached the conditions imposed upon him for the suspension of his sentence and thus, the learned Circuit Court was within its jurisdiction while making an order for the committal of the applicant in prison. The Court noted that the applicant did not allege any breach of fair procedures or unfair prejudice at any stage of the trial and merely sought to seek the technical benefit of the declaration of unconstitutionality of the statue.
The Applicant was granted leave to bring judicial review proceedings
(i) seeking an Order of Certiorari quashing the order of Clonmel District Court made on 17th November, 2015, pursuant to s. 99(9) of the Criminal Justice Act 2006, remanding the Applicant in custody to appear before Clonmel Circuit Court on 18th November, 2015; and
(ii) an Order of Certiorari quashing the order of Clonmel Circuit Court made on 3rd December, 2015, pursuant to s. 99(10) of the Criminal Justice Act 2006, whereby the suspension of six years imprisonment backdated to 22nd July, 2014, and imposed upon the Applicant on 18th November, 2014, was revoked and he was ordered to serve four years of the suspended sentence.
On 25th July, 2014, the Applicant pleaded guilty to various offences on indictment before Clonmel Circuit Criminal Court.
On Bill No. TY39/2011, he pleaded guilty to count 1 in the indictment, possession of a controlled drug, cannabis resin on 3rd October, 2009, at 47 Wilderness Grove, Clonmel for the purposes of supply contrary to the provisions of ss. 15 and 27 of the Misuse of Drugs Act 1977, as amended. The street value of the drugs was €2,205.
On Bill No. TY40/2011, he pleaded guilty to count 1, possession of Diamorphine for the purposes of supply contrary to the provisions of the Act on 3rd February, 2011, at 47 Wilderness Grove, Clonmel. The street value of the drugs was €2,591. On count 3, he pleaded guilty to simple possession of cannabis herb with a street value of €26 at 47 Wilderness Grove, Clonmel.
On Bill No. TY25/2012, he pleaded guilty to count 1 of unlawful possession for the purposes of sale and supply of cannabis herb on 5th June, 2010,, with a street value of €2,279, at 47 Wilderness Grove, Clonmel.
On Bill No. TY26/2012, he pleaded guilty to count 1 possession of cannabis resin, value €48 for the purposes of sale and supply and count 3 possession of Diamorphine, at 47 Wilderness Grove, Clonmel on 29th June, 2011.
On Bill No. 27/2012, he pleaded guilty to count 1 possession of cannabis pollen for sale or supply on 8th November, 2010, with a street value of €584.70 at 7 Church View, Lisonagh, Clonmel and on count 3 unlawful possession of Diamorphine, street value €5 contrary to s. 3 of the Misuse of Drugs Act.
The court ordered a Probation and Welfare report and a Governor's report. The Applicant was remanded in custody for sentence.
A further Bill No. TY61/2004 was before Clonmel Circuit Criminal Court on 28th October, 2014. The Applicant pleaded guilty to Count 1 and 2, allegations of handling stolen property on 21st September 2011 at 47 Wilderness Grove Clonmel. contrary to s. 17 of the Theft and Fraud Offences Act, the property being a Sony laptop valued at €550 and an Xbox, valued at €249.
The sentence hearing proceeded on 13th and 18th November, 2014. The court was informed that the Applicant had three previous convictions
- 20th October, 2009, Clonmel Circuit Criminal Court, assault causing harm sentenced to four years imprisonment, suspended on conditions from 20th October, 2009 for a period of four years.
- Two public order offence convictions at Clonmel District Court on 9th September, 2008, when a fine was imposed.
The Court was informed that bench warrants had been issued for the Applicant on 24th February, 2012, and 9th March, 2012, on certain Bill numbers and a warrant had been issued in Clonmel District Court on 29th February, 2012. The warrants were executed on 22nd July, 2014, when he returned from Australia. He had a dependency on morphine and heroin.
The learned Circuit Court Judge imposed the following sentences.
- On Bill TY39/2011, he imposed a sentence of four years imprisonment;
- on Bill No. TY40/2011, on count 1 he imposed a sentence of four years imprisonment; and on count 3 a sentence of six months imprisonment.
- On Bill TY25/2012, on count 1 he imposed a sentence of four years imprisonment. Those separate periods of imprisonment were operated concurrently.
- On Bill TY26/2012, on count 1, he imposed a sentence of one year consecutive on the four year concurrent sentences and on count 3, a six month sentence on simple possession which ran concurrent with the sentence imposed on count 1 on Bill TY26/2002.
- On Bill TY27/2012, he imposed a sentence on count 1 of one year's imprisonment and count 3, six months imprisonment and those were concurrent with Bill 26/2002 but consecutive to the sentences of four years.
- On Bill No. 61/2014, he imposed a sentence of one year on each count concurrently but consecutive on both other sentences.
The effective sentence imposed on the Applicant was six years from 22nd July, 2014 suspended from 18th November, 2014, on strict conditions. The Applicant was bound to keep the peace for five years, and attend addiction services. He was placed under the supervision of the Probation Service for two years. He gave two sworn undertakings to the court to pay €1,000 a year to Aiseiri Cahir, a drug treatment centre, and to train young persons in the sport of kickboxing.
The sentences were not appealed. Subsequently, the Applicant was charged with an offence of theft of a sports jersey from Lifestyle Sports in Clonmel on 10th June, 2015, valued €74. The Applicant appeared before Clonmel District Court on 4th August, 2015. The matter was remanded on bail to 15th September, 2015. It was further adjourned to 20th October, 2015, when he indicated he was pleading guilty to the offence. On 3rd November, 2015, facts were given before the court about the offence and the matter was then adjourned to 17th November, 2015, in order for the applicant to refund the cost of the sports jersey.
On 17th November, 2015, when it came to the attention of the learned District Court Judge that there had been a previous suspended sentence imposed by Clonmel Circuit Criminal Court and that the suspension period was still current, the Applicant was remanded to appear before Clonmel Circuit Criminal Court on 18th November, 2015. When the matter came before the court on 18th November, 2015, the Applicant applied for an adjournment and sought the preparation of a Probation Service report. The matter was adjourned to 1st December, for the purpose of that report and then further adjourned to 3rd December, 2015. An application was made on behalf of the Director of Public Prosecutions to revoke the original suspended sentence. Evidence was tendered by Garda John Downey of the offence on 10th June, 2015.
The learned presiding judge noted that the Applicant had not complied fully with the requirements of the Probation Service as noted from the probation report. The Applicant's undertaking to pay the sum of €1,000 to Aiseiri Cahir by 18th November, 2015, had not been complied with.
When sentencing the Applicant, the learned judge stated:-
'He has shown a disregard for his obligation to engage with the Probation Service. He has saved not a penny despite his ability to go drinking on the occasion when he says this offence occurred... Even if such an offence had not been committed, if the matter had been re-entered by the Probation Service, then the Court would be left with little option but to impose a custodial sentence. But the commission of this crime on top of all those other matters leave the court with no alternative but to impose a custodial sentence here today.'
He substituted a sentence of four years in custody suspending the final two years of the original six year sentence on conditions. The Applicant lodged an appeal to the Court of Appeal against the decision to revoke the suspended sentence on 23rd December, 2015.
The relevant provisions of s. 99 of the Act are
99(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...
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