O'Shea v Ireland and ors

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 19 January 2017
• Neutral Citation: [2017] IEHC 9
• Docket Number: [2016 No. 276 J.R.]
• Court: High Court
• Date: 19 January 2017

[2017] IEHC 9

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 276 J.R.]

BETWEEN

PAUL O'SHEA

APPLICANT

AND

IRELAND, THE ATTORNEY GENERAL

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Constitution – Crime & Sentencing – Validity of S. 99(11) of the Criminal Justice Act 2006 – Suspended sentence under Misuse of Drugs Act 1977 – Sentence awaited for committal of burglary – Serving of suspended sentence versus imposition of mandatory sentence – Proportionality of sentence Art. 49.3 of the EU Charter of Fundamental Rights

Facts: The applicant had challenged the constitutionality of s. 99(11) of the Criminal Justice Act 2006 on the basis that it was in contravention of fundamental rights of the applicant. The applicant had been serving suspended sentence under s. 15 of the Misuse of Drugs Act 1977 for committing a triggering offence of burglary during the period of suspension and his sentencing for that offence was awaited. The applicant contended that the imposition of mandatory consecutive sentence during the period of suspension of sentence was disproportionate.

Mr. Justice Richard Humphreys dismissed the applicant's application. The Court held that a regime of mandatory consecutive sentencing was not unconstitutional if the court imposing a sentence would take into account the time already spent by the accused in prison and evaluate the totality of the sentence so that it would not become excessive or disproportionate. The Court noted that reactivation of suspended sentence was not unconstitutional as it was imposed for breach of condition of good behaviour by the applicant. The Court held that the trial court was vested with the discretion to assess the proportionality of the sentence that was required in relation to the triggering offence.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 19th day of January, 2017

1 The legal right to a proportionate sentence was recognised over 800 years ago in the original text of the Magna Carta of 1215, which provides that ‘[a] freeman shall only be amerced for a trivial offence in accordance with the seriousness of the offence. For a grave offence, he shall be fined correspondingly, leaving him his contenement’ (c. 20) and that ‘[e] arls and barons shall be amerced only by their peers, and only in proportion with the degree of the offence’ (c. 21).

2 The entitlement to a proportionate sentence can come under challenge in a number of contexts, particularly through the increasing complexity of criminal law, which may have the result that a single criminal act may involve multiple statutory offences, technical or otherwise, or where statutory provision is made for mandatory sentencing, including mandatory consecutive sentencing. Hence the importance of the totality principle, whereby the court stands back to ask if the proposed overall sentence would be unjust in all the circumstances. That can be given effect to in a number of ways, including a discretion to depart from the mandatory sentence, or a discretion to suspend the whole or a part of a sentence, if not to do so would be unjust.

3 Section 99(11) of the Criminal Justice Act 2006 provides that where a person has received a suspended sentence on an original offence, and is then, during the period of suspension, sentenced for a subsequent offence which triggers the reactivation of the suspended sentence, any term of imprisonment for the subsequent offence shall not commence until the expiry of the original sentence. In these proceedings, the applicant, who is awaiting sentence for the triggering offence in his case, contends that s.99 (11) is unconstitutional and contrary to his fundamental rights.

4 The applicant pleaded guilty to two offences under the Misuse of Drugs Act 1977 s. 15 and was sentenced on 10th May, 2011, to two 5 year sentences, 3 years of which were suspended.

5 On 21st July, 2015, he pleaded guilty to 4 counts of burglary and on 27th October, 2015, to two counts of theft. These triggering offences were committed during the period of suspension. Accordingly the 3 year suspended period was re-entered and activated from 27th October, 2015. As noted above, the applicant now awaits sentencing for the triggering offence. If that involves a custodial sentence, such sentence must be mandatory.

Legal background

6 In Moore v. D.P.P. [2016] IEHC 244, Moriarty J. decided that s. 99(9) and (10) were unconstitutional having regard to their inconsistent and inequitable impact especially by reference to the possibility of appealing the triggering...