Section 52(1) of the Courts (Supplemental Provisions) Act 1961: DPP v CT (A Minor)

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 27 July 2005
• Neutral Citation: [2005] IEHC 295
• Docket Number: No. 609 SS/2005
• Court: High Court
• Date: 27 July 2005

[2005] IEHC 295

THE HIGH COURT

No. 609 SS/2005

DPP (COMISKEY & GOVERN) v TRAYNOR

IN THE MATTER OF SECTION 52(1) OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA DEREK A.P. COMISKEY)

PROSECUTOR

AND

COLM TRAYNOR (A MINOR)

ACCUSED

AND

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA ALAN G. GOVERN)

PROSECUTOR

AND

COLM TRAYNOR (A MINOR)

ACCUSED

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1984 S6

MISUSE OF DRUGS REGS 1988 SI 328/1988

MISUSE OF DRUGS (AMDT) REGS 1993 SI 342/1993

PROBATION OF OFFENDERS ACT 1907 S1(1)(ii)

PROBATION OF OFFENDERS ACT 1907 S4

PROBATION OF OFFENDERS ACT 1907 S6

PROBATION OF OFFENDERS ACT 1907 S5

CRIMINAL JUSTICE ADMINISTRATION ACT 1914 S9

DCR O.28

PROBATION OF OFFENDERS ACT 1907 1(1)(b)

COLLINS & O'REILLY CIVIL PROCEEDINGS & THE STATE PARA 2.15

NATIONAL AUTHORITY FOR OCCUPATIONAL SAFETY & HEALTH v O'K TOOLS HIRE & SALES LTD 1997 1 IR 534

CRIMINAL LAW

Sentence

Probation order - Breaches of conditions of recognisance - Whether conviction and sentencing only possible within period of probation order - Whether original probation order extended by District Judge in circumstances where conviction and sentencing adjourned to give accused one further chance - Probation of Offenders Act 1907 (7 Edw 7, c 17), s 1(1) and 5 -

Judgment of

Mr. Justice Roderick Murphy

1 dated the 27th day of July, 2005.

2 The accused was notified and required to appear before the District Court on 3^rd June, 2003. He had been served with a juvenile summons applied for by Garda Govern dated 13^th March, 2003. He was required to answer an allegation that he had committed an offence contrary to s. 3 and s. 27 (as amended by s. 6 of the. Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977, being unlawful possession, on 2^nd November, 2002, of a controlled drug being cannabis resin.

3 On 3^rd June the summons was adjourned for mention to the Children's Court on 22^nd July, 2003, when the accused pleaded guilty and the matter was adjourned to 4^th September, 2003 to allow for the preparation of a probation and welfare officer's report.

4 A second juvenile summons applied for by Garda Comiskey, dated 9^th May, 2003, requested the accused to appear before the District Court to answer an allegation that he had unlawfully in his possession a controlled drug being ecstasy, contrary to the same provisions and that he had the same for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations, 1988 and 1993 and, on the same day, that he had in his possession and the for the purpose of selling or otherwise supplying it to another, a controlled drug being cannabis resin.

5 On 4^th September, 2003 summary disposal was directed by the D.P.P. in relation to Garda Comiskey's summons. Pleas of guilty were then entered in relation to that summons. Judge Connellan ordered that the accused enter into a bail bond in the sum of €100 with a number of conditions attaching as recommended by the probation and welfare officer. The conditions included, inter alia, a curfew, return to full-time education, addiction counselling and provision of urine analysis. Proceedings were remanded until 30^th October, 2003 so as to facilitate the preparation of a further probation and welfare officer's report. On that date the accused was remanded on continuing bail until 24^th January, 2004.

6 The proceedings came before Judge Catherine Murphy on 24^th January, 2004, when the proposal of the probation and welfare officer's progress report was adopted. The accused was placed on a twelve-month probation order with conditions including a curfew, urine analysis testing, full co-operation with the probation and welfare services and attendance at the Aislinn Drug Treatment Centre. The accused was remanded on continuing bail to 17^th September, 2004 and a progress report was directed.

7 That report stated that the accused had not complied with certain conditions attaching to the probation order, in particular the requirement to attend for urine analysis, attendance at the Aislinn Centre. It was further stated and confirmed that the accused had been recently charged with other matters.

8 On 4^th October, 2004 the adjourned previous proceedings came before Judge Murphy who varied the conditions of the accused's bail bond so that the accused had to:

· - Maintain a curfew 10 p.m. to 7 a.m.;

· - attend urine analysis twice weekly;

· - attend regularly at school;

· - attend an addiction counsellor;

· - attend probation officer meetings, and

9 · - keep away from two named individuals.

10 The accused was remanded to 15^th December, 2004 and further reports were directed.

11 On 15^th December, 2004, having considered the progress report, the accused was remanded on strict terms to 10^th February, 2005. The progress report expressed the accused's compliance as being very unsatisfactory and that he was not co-operating with the drug counselling. A further report was directed. It was indicated to the accused that he was being given one last chance to offer complete compliance with the terms of his probation bond.

12 A progress report on 10^th February, 2005 expressed views, inter alia, that attendance at probation appointments had been unsatisfactory, that the accused was not co-operating with attempted referrals for drug counselling and, without prejudice, that the accused had come to the unfavourable attention of the Gardaí in relation to breaches of curfew and of antisocial behaviour conditions on 24^th October, 2004 to the day before the hearing. The breach of curfew included driving a car at 2 a.m. and again at 11.40 p.m. on 9^th January and the finding of ecstasy tablets in the front garden of the accused's home on 3^rd January, 2005.

13 Judge Murphy, having considered matters and the most recent progress report of 10^th February, 2005, indicated that she wished to sentence the accused as she had indicated on 15^th December, 2004, that she had given the accused one further chance to comply with the terms of the probation bond imposed on 22^nd January, 2004.

14 Section 1(1)(ii) of the Probation of Offenders Act, 1907 empowers the District Court to make what are knows as Probation Orders in relation minor offences. As a means of disposing of a minor offence by focusing on the rehabilitation of offenders and the prevention of re-offending behaviour.

15 A probation order is a formal warning to a person that if he does not keep the peace and abide by conditions imposed by the court for a specified period he is liable to be brought before the court for punishment.

16 This option is available to a court if having regard to the offender's character, his antecedents, age, health or mental condition, the trivial nature of the offence, or any extenuating circumstances it considers that it would be expedient to release the offender on probation.

17 A Probation Order may also provide that a person be placed under the supervision of a Probation and Welfare Officer during the probation period. The Probation Officer's functions, pursuant to s. 4 of the 1907 Act are to make contact with the offender and assist him in complying with conditions of his probation. The Probation Officer must see that the offender abides by the conditions and report to the court on the offender's progress.

18 If there has been any breach of any of the conditions of a Probation Order and an information is sworn to this effect, a court can issue a warrant for a defendant's arrest. He or she will then be brought before the court which, pursuant to section 6 of the 1907 Act, may then sentence the defendant for the original offence(s) if satisfied regarding the alleged breach of condition.

19 Section 5 of the Probation of Offenders Act, 1907 , as amended by s. 9 of the Criminal Justice Administration Act, 1914, which relates to the power varying the conditions of recognisances, provides as follows:

"The court before which any person is bound by recognisance under this Act to appear for conviction and sentence or for sentence-"

(a) may at any time it appears to it, upon the application of the probation officer, that it is expedient that the terms or conditions of the recognisance should be varied, summon the person bound by the recognisance to appear before it, and, if he fails to show cause why such variation should not be made, vary the terms of the recognisance by extending or diminishing the duration thereof (so, however, that it shall not exceed three years from the date of the original order), or by altering the conditions thereof, or by inserting additional conditions; or

(b) may on application being made by the probation officer, and on being satisfied that the conduct of the person bound by the recognisance has been such as to make it unnecessary that he any longer be under supervision, discharge the recognisance."

20 The District Court judge was of the opinion that questions of law did arise and, having asked the accused's solicitor to initiate such questions, asked the High Court for a determination as follows:

21 (1) In order for a District judge to properly proceed to conviction and sentence, in circumstances where accused have been in breach of condition(s) of a Probation Order, must this be done within the period of said Probation Order?

22 (2) If the answer to (1) above is "no", in the circumstances of the proceedings as set out above, am I in a position to properly proceed and consider convicting and sentencing the accused?

23 2 4.1 It was submitted on behalf of the accused at that hearing that the sentence had already been imposed in the form of a twelve-month probation order on 22^nd January, 2004. It was not...