Purdue v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 08 November 2016
• Neutral Citation: [2016] IEHC 619
• Docket Number: [2016 No. 115 JR]
• Court: High Court
• Date: 08 November 2016

[2016] IEHC 619

THE HIGH COURT

Barrett J.

[2016 No. 115 JR]

BETWEEN

SCOTT PURDUE

APPLICANT

– AND –

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Crime & Sentencing – S.99 of the Criminal Justice Act 2006 – Criminal Justice (Theft and Fraud) Offences Act 2001 – Suspension of sentence – Imposition of conditions – Establishment of proportionality – Geographical restriction – Right to liberty – Fair procedures – Certiorari

Facts: Following the suspension of the applicant's sentence of detention on the specified conditions that the applicant not consume alcohol and not leave the County without the consent of the Probation service with whom the applicant was then liaising, the applicant now sought an order of certiorari for quashing the said conditions. The applicant contended that the conditions attached to the suspension were in excess of the District Judge's jurisdiction, arbitrary and unlawful. The applicant contended that there was no justification for imposing the condition of avoidance of alcohol and excluding the applicant from all but one county in the State.

Mr. Justice Max Barrett granted an order of certiorari to the applicant thereby, quashing the conditions imposed in lieu of the suspended sentence. The Court found that proportionality must be established by striking a balance between the circumstances of the commission of offence and the circumstances of the offender to be sentenced. The Court found that the District Judge had no evidence or basis in the context of the circumstances surrounding the offences or the personal circumstances of the applicant to impose the alcohol-related restriction and thus, the said condition could not stand. The Court found that there must be high-standard of fair procedures for the geographical restriction of an accused. The Court found that the restriction on the applicant's movement to the particular County in the State had no relationship to his possibility of re-offending and it constituted restriction on the applicant's constitutional right to liberty and thus, was unnecessary, unwarranted and unlawful restriction.

JUDGMENT of Mr Justice Max Barrett delivered on 8th November, 2016.

I. Key Issue Arising

1 Was the learned District Judge correct in law to suspend part of Mr Purdue's sentence of detention on condition that he (i) not partake of any alcohol, and (ii) not leave County Kildare without the consent of the Probation Service, with whom Mr Purdue was then liaising?

II. Facts

2 At Dun Laoghaire District Court, on 15th December, 2015, Mr Purdue, then a minor, pleaded guilty to a number of offences, viz. (1) theft (of sports gear at Dundrum Shopping Centre) contrary to the Criminal Justice (Theft and Fraud) Offences Act 2001, (ii) possession of a knife contrary to the Firearms and Offensive Weapons Act 1990, (iii) disorderly behaviour at the Square Shopping Centre, Tallaght, contrary to the Criminal Justice (Public Order) Act 1994, and (iv) failing to comply with a Garda direction contrary to the Criminal Justice (Public Order) Act 1994. Notwithstanding that he was then just 17 years old (he turned 18 years of age on 14th February, 2016), Mr Purdue had already amassed a remarkable ten convictions, seven of them for theft. He also had the benefit of two prior suspended sentences, imposed at Blanchardstown District Court in December, 2013 and January, 2014.

3 In all the circumstances the learned District Judge imposed a sentence of three months' detention in respect of the theft, with a portion thereof suspended on specified conditions. It is those conditions that have led to the within application for an order of certiorari. They included a requirement that Mr Purdue (i) not partake of any alcohol, and (ii) not leave County Kildare (to which his concerned parents had removed him to get him away from what they perceived to be a “bad crowd” with whom Mr Purdue had fallen in) without the consent of the Probation Service, with whom Mr Purdue was, it appears, then separately liaising - though counsel for Mr Purdue asserted that this was not so.

4 It is accepted in principle by counsel for Mr Purdue that a custodial sanction was merited in all the circumstances arising and thus that the imposition of a sentence of three months' detention was within the jurisdiction of the District Court. The learned District Judge's decision to suspend a portion of the prison sentence is also conceded by counsel for Mr Purdue to have been intra vires. However, it is contended that the conditions attached to the suspension were in excess of jurisdiction, being, it is alleged, gratuitous, punitive and arbitrary.

III. Statutory Basis for Sentence Imposed

5 Section 99 of the Criminal Justice Act 2006 , provides, inter alia, as follows:

‘(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.

…(3) The court may, when making an order under subsection (1), impose such conditions in relation to the order as the court considers -

(a) appropriate having regard to the nature of the offence,

(b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence,

and any condition imposed in accordance with this subsection shall be specified in that order.

(4)In addition to any condition imposed under subsection (3), the court may, when making an order under subsection (1) consisting of the suspension in part of a sentence of imprisonment or upon an application under subsection (6) [which subsection is not relevant to the within application], impose any one or more of the following conditions in relation to that order or the order referred to in the said subsection (6), as the case may be:

(a) that the person co-operate with the probation and welfare service to the extent specified by the court for the purpose of his or her rehabilitation and the protection of the public;

(b) that the person undergo such-

(i) treatment for drug, alcohol or other substance addiction,

(ii) course of education, training or therapy,

(iii) psychological counselling or other treatment, as may be approved by the court;

(c) that the person be subject to the supervision of the probation and welfare service.’

6 Writing of s.99 in his learned text, Sentencing Law and Practice (3rd Ed., Round Hall, 2016), 659, Professor O'Malley observes as follows:

‘Despite the apparent latitude afforded by s.99, courts must exercise considerable judgement, not to mention realism, when deciding on the conditions to be imposed in any case. When imposing suspended sentences, courts will naturally be anxious to include conditions that will minimise or reduce the risk of re-offending. Yet they should be equally careful not to set the offender up for a fall, so to speak, by imposing conditions that are not strictly necessary and that...