Sharlott v Judge Collins and Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE HANNA
• Judgment Date: 21 December 2010
• Neutral Citation: [2010] IEHC 482
• Court: High Court
• Date: 21 December 2010

[2010] IEHC 482

THE HIGH COURT

[JR 1072/2009]

Sharlott v Judge Collins & Ors

BETWEEN

ANTHONY SHARLOTT

APPLICANT

-and-

JUDGE COLLINS AND THE JUDGES OF DUBLIN CIRCUIT CRIMINAL COURT

RESPONDENTS

-and

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

CRIMINAL JUSTICE ACT 2006 S99(9)

CRIMINAL JUSTICE ACT 2007 S60

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S51

CRIMINAL JUSTICE ACT 2006 S99

FIREARMS & OFFENIVE WEAPONS ACT 1990 S11

CRIMINAL JUSTICE ACT 2006 S64

CRIMINAL JUSTICE ACT 2006 S99(10A)

CRIMINAL JUSTICE ACT 2006 S10A

AHERNE, STATE v COTTER 1982 IR 188

MUNTEAN v DISTRICT JUDGE HAMILL & DPP UNREP MCCARTHY 6.5.2010 2010 IEHC 391

BURKE v DPP & MCNULTY 2007 2 ILRM 371

HARVEY v DISTRICT JUDGE LEONARD & DPP UNREP HEDIGAN 3.7.2008 2008/28/6178 2008 IEHC 209

BLANCHFIELD v HARNETT 2002 3 IR 207

CLUNE v DPP 1981 ILRM 17

CRIMINAL LAW

Sentence

Reactivation - Suspended - Prohibition to restrain application to revoke suspended sentence - Conviction for production of article capable of causing serious injury - Appeal -Possibility of reactivation of earlier suspended sentence - Remand of matter to Circuit Court - Whether District Judge had jurisdiction to remand matter to Circuit Court - Whether District Judge functus officio - Inability to appeal against conviction alone to Circuit Court - Necessity for sentencing prior to appeal - Whether right to fair procedures mandated stay on procedure until appeal completed - Mandatory nature of procedure - Obligation to remand applicant to Circuit Court - Appeal against reactivation of sentence - Quia timet - Power of Circuit Court to uphold rights to fair procedures - Discretion of Circuit Court to enable appeal to be pursued - State (Aherne) v Cotter [1982] IR 188; Muntean v District Judge Hamill [2010] IEHC 391, (Unrep, McCarthy J, 6/5/2010); Burke v Director of Public Prosecutions [2007] IEHC 121 [2007] ILRM 371; Harvey v District Judge Leonard [2008] IEHC 209, (Unrep, Hedigan J, 3/7/2008); Blanchfield v Hartnett [2002] 3 IR 207 and Clune v Director of Public Prosections [1981] ILRM 17 considered - Criminal Justice Act 2006 (No 26), s 99 - Application refused (2009/1072JR - Hanna J - 21/12/2010) [2010] IEHC 482

Sharlott v District Judge Collins

1 1. By order of Peart J., dated the 19 ^th October, 2009, the applicant herein was granted leave to bring these judicial review proceedings seeking the following reliefs:

(1) An order of certiorari to quash the order of the first named respondent, dated the 4 ^th June, 2009, remanding the applicant to appear before the second named respondents, pursuant to s. 99(9) of the Criminal Justice Act 2006, as amended by s. 60 of the Criminal Justice Act 2007 and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009; and (2) an order of prohibition restraining the second named respondents from hearing the application to revoke the suspended sentence pursuant to s. 99 of the Criminal Justice Act 2006, as amended.

2 2. The background facts are as follows. The applicant was charged with an offence contrary to s. 11 of the Firearms and Offensive Weapons Act 1990, as amended by s. 64 of the Criminal Justice Act 2006, involving the alleged production of an article capable of causing serious injury. The penalty for this offence, on summary conviction, is a fine not exceeding €5000, or a maximum of 12 months' imprisonment, or both.

3 3. The applicant's case was heard by the first named respondent on the 27 ^th May, 2009, and he was convicted.

4 4. It appears that the applicant had previously been sentenced to imprisonment for a period of five years by His Honour Judge McDonagh on the 2 ^nd March, 2007, on a charge of attempted robbery. This sentence had been suspended in its entirety.

5 5. Section 99 subsections (9),(10), and (10A) of the Criminal Justice Act 2006,("the Act") as amended, provide as follows:-

2 "[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, being an offence committed after the making of the order under subsection (1), the court before which proceedings for the offence are brought shall, before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order. [10] A court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1) unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody other than a period spent in custody by the person in respect of an offence referred to in subsection (9) pending the revocation of the said order.

3 [10A] The court referred to in subsection (10) shall remand the person concerned in custody or on bail to the next sitting of the court referred to in subsection (9) for the purpose of that court imposing sentence on that person for the offence referred to in that subsection."

6 6. Thus the applicant faces the possibility of the activation of his earlier suspended sentence. On behalf of the notice party, Ms. Halpin, solicitor, drew the learned trial judge's attention to the prior sentence. There is some dispute between the applicant's solicitor, Mr. Bermingham, and Ms. Halpin as to the application then made by Ms. Halpin. At paragraphs (6) and (8) of his affidavit, the applicant's solicitor deposes:-

"Ms. Halpin indicated to the court that the applicant was the subject matter of the suspended sentence imposed by Judge McDonagh in the Circuit Court. Having sought time from the court to take instructions on the matter, Ms. Halpin indicated that she did not have an application that the applicant be remanded back to the Circuit Court under section 99(9) of the Criminal Justice Act 2006 (as amended by section 60 of the Criminal Justice Act 2007)....... The following week on the 4th June, 2009, the applicant presented in the District Court in order to file his notice of appeal de novo to the Circuit Criminal Court and to enter the appeal recognisance. The application was made ex parte as required. The applicant was represented by Kieran Conway of my office. Ms. Halpin appeared in court and requested that, notwithstanding her earlier indication, she wished the applicant to be remanded to appear before the second named respondents pursuant to section 99(9)."

7 7. However, at paragraph (6) of her affidavit, Ms. Halpin avers:-

"I beg to refer to paragraphs (6) and (8) of the said affidavit sworn herein by John Bermingham. I say that, contrary to what is averred therein, I had consistently argued from immediately after the applicant's conviction that the applicant should be remanded to the Circuit Court under s. 99 of the Criminal Justice Act 2007 (as amended). I never suggested that the applicant should be so remanded. The reason why I did not press the matter further at the first hearing was that the first respondent decided to fix recognisance in any event."

8 8. As to the dispute between Mr. Bermingham and Ms. Halpin, no cross-examination was sought by either side. I am quite sure that both solicitors are being entirely truthful as to their recollection of events. Since I cannot determine whose recollection to accept in the absence of cross-examination I must perforce find against the party upon whom the onus of proof rests, the applicant....