McManus v Judge Terrence O'Sullivan

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 05 March 2007
• Neutral Citation: [2007] IEHC 50
• Court: High Court
• Date: 05 March 2007

[2007] IEHC 50

THE HIGH COURT

[No. 465 JR/2006]

MCMANUS v JUDGE O'SULLIVAN

JUDICIAL REVIEW

BETWEEN

MARK McMANUS

APPLICANT

AND

HIS HONOUR JUDGE TERRENCE O'SULLIVAN

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S4

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994S6

DPP (COMISKEY & GOVERN) v TRAYNOR 2007 1 ILRM 311 2005 22 4603 2005 IEHC 295

PROBATION OF OFFENDERS ACT 1907 S1(1)

PROBATION OF OFFENDERS ACT 1907 S6(3)

DCR O.25 r3

DCR 0.25 r4

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 P463

CRIMINAL LAW

Sentencing

Probation bond - Bond expired - Whether Circuit Court having jurisdiction to impose or reactivate suspended sentence on applicant outside period of suspension - Whether sentence can be reactivated outside period of bond - Whether applicant entitled to order prohibiting imposition by Circuit Court of suspended sentence outside period of suspension - DPP v Traynor [2005] IEHC 295 (Unrep, Murphy J, 27/7/2005) distinguished - Relief granted (2006/465JR - Dunne J - 5/3/2007) [2007] IEHC 50

McManus v O'Sullivan

Facts: The applicant pleaded guilty to public order offences in the District Court and was sentenced to one month’s imprisonment for each of two charges. The applicant appealed to the Circuit Court and the sentence imposed was suspended and a bond entered into. A different Circuit Court judge refused to adjourn subsequent alleged breaches of the bond to the original judge and the case was adjourned outside the operative period of the bond. The question arose as to whether or not the Circuit Court had jurisdiction to impose or reactivate the suspended sentence on the applicant outside the period of the suspension.

Held by Dunne J. that there appeared to be no circumstances precluding such a course of conduct and the Court would not direct that the matter be remitted to the Circuit Court for further hearing.

Reporter: E.F.

1 Ms. Justice Dunnedelivered on the 5 day of March 2007

2 Leave to apply for judicial review was granted herein on the 24 ^th April, 2006 by order of the High Court (MacMenamin J.) in respect of the following reliefs:

3 1. A declaration that the decision of the respondent to refuse to adjourn the prosecution entitled Director of Public Prosecutions at the suit of Garda Shane Curran and Other v Mark McManus where the sentencing judge's attention was inappropriate and in excess of jurisdiction where another judge retained seisin of the proceedings.

4 2. A declaration that the Circuit Court if it retains a jurisdiction at this point to deal with an application to activate a custodial sentence in the proceedings against the applicant is obliged to exercise a judicial discretion whether and to what extent to do so in all the circumstances of the case.

5 3. An order prohibiting the imposition by the Circuit Court of a suspended sentence on the applicant outside the period of the suspension.

6 I have already decided to grant judicial review on the basis of the first of the reliefs sought herein. It is not necessary to deal any further with the application in respect of that point.

7 The only point at issue is the question of whether or not the applicant is entitled to an order prohibiting the imposition by the Circuit Court of a suspended sentence on the applicant outside the period of the said suspension. In order to consider this issue, it would be helpful to set out some of the background to this particular matter.

8 The applicant pleaded guilty to a number of offences in the District Court on the 24 ^th November, 2004. The offences were as follows:

9 An offence contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997

10 An offence contrary to s. 4 of the Criminal Justice (Public Order) Act, 1994

11 An offence contrary to s. 6 of the Criminal Justice (Public Order) Act, 1994.

12 He was sentenced to one month's imprisonment for the offence contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997 and to one month's imprisonment for the offence contrary to s. 6 of the Criminal Justice (Public Order) Act, 1994. The other matter was taken into consideration.

13 The applicant appealed the sentence to the Circuit Court and the matter came on for hearing in the Circuit Court on the 25 ^th January, 2005 before her Honour Judge Flanagan. The matter was adjourned before Judge Flanagan on a number of occasions to obtain a probation report and to facilitate the applicant in dealing with an alcohol problem. Ultimately the matter came back before the learned trial judge on the 26 ^th July, 2005. On the basis of the probation report before the court and a payment of€2,000.00 in compensation, the matter was concluded by the suspension of the one month sentence imposed in the District Court for a period of 9 months on the condition that the applicant remain under the supervision of the Probation and Welfare Services, that he complete a 15 week course at the Stanhope Centre and any further programmes thereafter directed and that he enter into a bond in the sum of €100.00 to keep the peace and be of good behaviour for the duration of the nine-month period. In the affidavit verifying the Statement of Grounds filed herein, Phillip Hannon, Solicitor on behalf of the applicant exhibited the order of the Circuit Court which states as follows:

"Whereas on the hearing of an appeal by the defendant against the said order, the Circuit Court Judge for the Dublin Circuit Court on the 26 ^th July, 2005 ordered as follows:

Affirm conviction of the District Court and vary order in that the said defendant

It was judged that the said defendant be convicted of the said offence and be imprisoned in Mountjoy (Male) Prison for the period of one month, said sentence to be suspended on condition that the said defendant be convicted of the said offence and enter a bond, himself/herself in the sum of €100.00 to keep the peace and be of good behaviour for the period of nine months and further to remain under the supervision of the Probation and Welfare Services and abide by all directions by them and to continue to engage with services at Stanhope Centre."

14 The said Phillip Hannon further deposes in the course of his affidavit that the bond entered into by the applicant was in the following terms:

"Do you acknowledge yourself bound to the people of Ireland in the sum of €100.00, the conditions being that you will keep the peace and be of good behaviour towards all the people of Ireland and further remain under the supervision of the Probation and Welfare Services and abide by all directions by them and continue to engage with services at Stanhope Centre and further that you will come up if called upon within the period of nine months to serve the sentence of the Court this day imposed on you, but suspended on your entering into this recognisance?."

15 The applicant duly entered into the bond.

16 Subsequently on the 21 ^st March, 2006 the case was re-entered before the Circuit Court at which time his Honour Judge O'Sullivan was sitting. He declined to adjourn the matter to a date when her Honour Judge Flanagan was sitting and he proceeded to hear evidence as to alleged breaches of the bond entered into by the...