Wansboro v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay,Ms. Justice Dunne
• Judgment Date: 20 December 2018
• Neutral Citation: [2018] IESC 63
• Date: 20 December 2018
• Court: Supreme Court
• Docket Number: [Appeal No. S: AP:IE:2017:000112] [Appeal No: 112/2017] S:AP:IE:2017:000112

[2018] IESC 63

THE SUPREME COURT

Dunne J.

Finlay Geoghegan J.

O'Donnell Donal J.

O'Donnell Donal J.

Dunne J.

Charleton J.

O'Malley Iseult J.

Finlay Geoghegan J.

[Appeal No. S: AP:IE:2017:000112]

[Appeal No: 112/2017]

S:AP:IE:2017:000112

Between/

Eric Wansboro

Applicant/Appellant

AND

The Director of Public Prosecutions

and

The Governor of Mountjoy Prison

Respondents

Crime & sentencing – Sentencing – Suspended sentence – Revocation – S 99 Criminal Justice Act 2006

Facts: The appellant had been convicted of several road traffic offences and sentenced to a term of imprisonment which was suspended on certain terms. Following this, he was involved in a further incident in which a passenger in his car died. The earlier suspension was revoked and the sentence was reactivated. The matter now came on appeal raising the issue of s 99 of the Criminal Justice Act 2006.

Held that the appeal would be allowed, Finlay Geoghegan J dissenting. In the earlier case of Moore v DPP [2018] IEHC 244, Moore J had declared ss 99 (9) and (10) to be unconstitutional. Dunne J. stated that an appellant could not adopt a new approach on appeal to that taken at trial, to rely on a concurrent finding of unconstitutionality. To determine this, the conduct/strategy of the proceedings below was to be assessed and not the merits of the facts or the appellant’s circumstances. A. v. Governor of Arbour Hill Prison [2006] IESC 45 considered. O’Donnell J also handed down a concurring judgment.

Finlay Geoghegan J considered that the appellant had engaged in conduct that would debar him from relying on the declarations of unconstitutionality of ss 99(9) and (10).

Judgment of Ms. Justice Dunne delivered on the 20th day of December 2018

1 The suspended sentence has long been an important feature of Irish sentencing practice. Section 99 of the Criminal Justice Act 2006, as amended, (hereinafter referred to as s. 99) sought to put a statutory framework around the procedures to be operated in respect of a suspended sentence, particularly in the context of the revocation of a suspended sentence. In the case of DPP v. Carter, and DPP v. Kenny [2015] IESC 20, this Court considered the provisions of s. 99 in the context of two cases stated. The majority judgment in that case was delivered by O'Donnell J. and at the commencement of his judgment he made the following observation:

‘Section 99 of the Criminal Justice Act 2006 (“the Act of 2006”) is an apparently innocuous procedural provision. It has already been amended twice in its short life (s. 60 of the Criminal Justice Act 2007, and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009). Nevertheless it has given rise to innumerable practical difficulties and problems of interpretation, only some of which are illustrated by the present cases. What these cases do demonstrate clearly however is that the provision is one of considerable complexity and difficulty, requiring some learned debate, fine distinctions and considerable argument. Only one thing is clear and beyond dispute: s. 99 is in need of urgent and comprehensive review.’

2 Section 99 has been subject to further review though perhaps not quite in the manner contemplated by O'Donnell J. in the judgment referred to above. The procedures for revocation of a suspended sentence to be found in subss. (9) and (10) of s. 99 were subsequently found to be unconstitutional in the case of Moore v. DPP [2016] IEHC 244. The question at the heart of this appeal concerns the extent, if any, to which the applicant/appellant in this case can rely on the finding of invalidity of s. 99(9) and (10) of the Act of 2006 to challenge his detention in respect of a sentence which had been suspended and was subsequently revoked by reason of a breach of the conditions imposed on the appellant when his sentence was suspended.

Background

3 The appellant was charged with three offences arising out of events which occurred on the 1st December, 2012. The offences involved were the unlawful taking of a motor vehicle contrary to s. 112 of the Road Traffic Act 1961 (as amended), an offence of drink driving and, finally, driving without insurance. He pleaded guilty to the three offences and at a sentence hearing on the 14th November, 2013, he was sentenced to three years imprisonment on the s. 112 charge and six months in respect of each of the other two charges, to be served concurrently with the three years sentence. The sentence was suspended on terms including that he keep the peace and be of good behaviour for three years. Other terms were imposed including a requirement to attend an alcohol awareness programme. Finally, the appellant was disqualified from driving for a period of four years.

4 On the 29th May, 2014, the appellant was involved in a serious incident which led to him being charged with dangerous driving causing death and serious bodily harm contrary to the provisions of s. 53(1) of the Road Traffic Act 1961, as amended. At the time, the appellant was driving the car in which there were two passengers when it came to the attention of the Gardaí. In the course of the incident, the appellant attempted to make a right turn at a junction, failed to do so and crashed into a tree. As a result, all three people in the car were injured and when the Gardaí came to the scene all three were unconscious. Unfortunately, the rear seat passenger in the vehicle died as a result of her injuries. Subsequently, the appellant was charged with the offences referred to and on arraignment on the 22nd April, 2015, the appellant pleaded guilty to the offence of dangerous driving causing death and serious bodily harm. On that occasion, given that the appellant had previously been the subject of a suspended sentence, the question of sentence for these offences was adjourned until the 18th May, 2015 for a hearing before Her Honour Judge Ring (as she then was). By way of background, it appears that when the appellant was brought before the Circuit Court for arraignment on the 22nd April, 2015, the judge presiding, Judge Nolan, was advised that there was a previous matter which had been heard by Judge Ring and it was on that basis that the matter was adjourned to the 18th May, 2015 pursuant to the provisions of s. 99(9) of the Act of 2006. Accordingly the appellant was remanded in custody for the purpose of considering the revocation of the suspended sentence, together with the sentencing hearing in respect of the matter to which the appellant had just pleaded guilty. On that date, Judge Ring heard evidence relating to the facts in respect of the dangerous driving causing death and serious bodily injury charge. She heard information in relation to the appellant's background and circumstances and submissions from counsel for the appellant.

5 The learned trial judge in her sentencing remarks referred to the previous Bill number in respect of which the appellant had pleaded guilty. She lifted the suspension of the sentences in that pursuant to the provisions of s. 99(10) of the Act of 2006 and noted that they were to run concurrently. She observed that by virtue of the provisions of s. 99 of the Act of 2006, the sentence on the latter Bill number was required by law to be consecutive to the three year sentence. She referred to a number of the factors to be borne in mind in regard to the appropriate sentence to be imposed. She noted:

‘Eric Wansboro drove this vehicle at a time when he was disqualified and on a suspended sentence. He drove at speed, without regard to anyone's safety, through city streets. He ignored the garda requests to stop and continued on driving. He killed S. M. and seriously injured I. McD. I have to have regard to the totality principle in light of the matters on Bill 298/2012 in sentencing. However in this case I can't overlook the fact that Eric Wansboro was fully aware of what was at risk and took that risk regardless. Had Eric Wansboro not pleaded not guilty the appropriate sentence would have been one of six and a half years. Taking these matters into consideration and weighing the limited mitigation in this case and having regard to the totality principle, I find that the appropriate sentence on count 2 on Bill 99/2015 is one of five and a half years.’

As previously mentioned that sentence was required to be consecutive to the sentence imposed in relation to the earlier offences.

6 Following the sentencing of the appellant, committal warrants were issued to give effect to the sentences imposed and accordingly the appellant was lodged in the custody of the second named respondent herein. On the 20th May, 2015, the appellant filed a notice of appeal against the order made in respect of Bill No. 298/2012 and also against the severity of the sentence imposed on Bill No. 99/2015.

The law

7 It would be useful at this stage to refer to the provisions of s. 99 of the Act of 2006 which are relevant to these proceedings. Section 99(9) provides as follows:

‘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 subs. (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.’

Section 99(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...