Irish Court of Criminal Appeal

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URL: http://www.bailii.org/ie/cases/IECCA/2008/C37.html
Cite as: [2008] 4 IR 204, [2008] IECCA 37

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Judgment Title: D.P.P.-v- Abdulakim Yusuf

Neutral Citation: [2008] IECCA 37

Court of Criminal Appeal Record Number: 153/07

Date of Delivery: 13 March 2008

Court: Court of Criminal Appeal

Composition of Court: Kearns J., Herbert J., Hedigan J.

Judgment by: Kearns J.

Status of Judgment: Approved


Judgments by	Result
Kearns J.	Quash sentence, impose sentence in lieu

Outcome: Quash sentence, impose sent. in lieu

COURT OF CRIMINAL APPEAL

Kearns J.
Herbert J.
Hedigan J.

[C.C.A. No. 153 of 2007]

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

ABDULAKIM YUSUF

APPLICANT

JUDGMENT of the Court delivered on the 13th March 2008 by Kearns J.

This appeal raises an important point in relation to the appropriate interpretation to be placed on section 11 of the Criminal Justice Act, 1984.
Section 11(1) of the Act provides as follows:-

“Any sentence of imprisonment passed on a person for an offence committed after the commencement of this section while he was on bail shall be consecutive on any sentence passed on him for a previous offence or, if he is sentenced in respect of two or more previous offences, on the sentence last due to expire, so however that, where two or more consecutive sentences as required by this section are passed by the District Court, the aggregate term of imprisonment in respect of those consecutive sentences shall not exceed two years.”

The issue which arises in this appeal is to determine whether the section requires that, in a case where more than one sentence of imprisonment is being imposed in respect of each of a number of offences committed while the offender was on bail, each such sentence must be consecutive to the previous sentence or whether the section only requires that the last such sentence to be imposed should be consecutive to sentences imposed for a previous offence or offences. In other words, does the section require cumulative consecutive sentences to be imposed?
In construing the section the Court must bear in mind s.10 of the Bail Act 1997, which inserted the following paragraph into section 11 of the Criminal Justice Act, 1984:-

“(4) Where a court –

(a) is determining the sentence to be imposed on a person for an offence committed while he or she was on bail
(b) and

(b) is required by subsection (1) to impose two or more consecutive sentences,

then, the fact that the offence was committed while the person was on bail shall be treated for the purpose of determining the sentence as an aggravating factor and the court shall (except where the sentence for the previous offence is one of imprisonment for life or where the court considers that there are exceptional circumstances justifying its not doing so) impose a sentence that is greater than that which would have been imposed in the absence of such a factor.”

BACKGROUND
On five separate occasions between 23rd September, 2006 and 4th January, 2007 in the City of Cork the applicant was found in possession of the controlled drug diamorphine (heroin). On each occasion the applicant was in possession of the controlled drug, diamorphine, for the purpose of selling or otherwise supplying it to another in contravention of Misuse of Drugs Regulations 1988 and 1993 made under s.5 of the Misuse of Drugs Act 1977, and contrary to s.15 and s.27 (as amended by s.6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act, 1977. The applicant made admissions of these offences on each occasion and also admitted to being in possession of the same controlled drug, diamorphine, for his own use 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.
Evidence regarding the nature of the offences was heard before His Honour Judge Patrick Moran at the Circuit Criminal Court in Cork on 26th and 27th June, 2007. The applicant was sentenced on 27th June, 2007. He had been in custody from 4th January, 2007.
This series of offences may be summarised as follows:-
(A) On 23rd September, 2006, during the course of a search of the applicant’s home pursuant to search warrant, garda found five packages, each containing eleven individual packs of heroin. The applicant was co-operative and made full admissions. The total weight of the heroin found was 6.5g having a street value of €1,300.00. The Circuit Court judge imposed a prison sentence of three years to commence on 4th January, 2007.
(B) On 6th November, 2006, following a surveillance operation, the applicant was searched pursuant to s.23 of the Misuse of Drugs Act 1977 (as amended by s. 12 of the Misuse of Drugs Act 1984). The garda found eleven individual packs of heroin concealed in his mouth. On the same date a follow-up search was conducted of his flat and one deal of heroin was found and also a larger bag was found concealed in the flat. Again, the applicant made admissions. The total weight of heroin found was 26g having a street value of €5,200.00. In respect of this offence, the applicant was sentenced to one year imprisonment concurrent with the three year sentence referred to at paragraph (A) above.
(C) On 11th November, 2006 (some five days after being granted bail in relation to matter (B)) during the course of a search of the applicant’s home pursuant to search warrant, gardai entered and found the applicant in the process of “bagging” heroin into individual deals. The applicant was co-operative and made full admissions. The total weight of heroin found was 12.6g having a street value of €2,500.00. For this offence he was sentenced to two years imprisonment consecutive to the three years referred to at paragraph (A) above.
(D) On 26th December, 2006, during the course of a search at the applicant’s home pursuant to search warrant, garda entered and found one package of heroin. Again the applicant made admissions. The total weight was 10.5g having a street value of €2,100.00. In respect of this offence the applicant was given a sentence of three years imprisonment consecutive to the sentence described at (C) above.
(E) On 4th January, 2007, during the course of a search of the applicant’s home pursuant to search warrant, garda entered and found the applicant in the process of “cutting up” and “bagging” heroin. When searched the applicant was found to be in possession of 133 individual deals of heroin. Again, the applicant made admissions to selling the heroin. On this occasion the total weight of heroin found was 20g having a street value of €4,000.00. In respect of this offence, he was sentenced to three years imprisonment consecutive to the sentence referred to at paragraph (D) above.
The total sentence, therefore, amounted to eleven years imprisonment commencing 4th January, 2007.

SUBMISSIONS
It is submitted on behalf of the applicant that the imposition of cumulative consecutive sentences is wrong in law, that the wording of s. 11(1) does not require or mandate cumulative consecutive sentences. Reliance was placed by the applicant on the decision of this Court in The People (at the suit of the Director of Public Prosecutions) v. Joseph Cole (Unreported, Court of Criminal Appeal, 31st July, 2003). Counsel further argued that if every sentence for an offence committed while on bail had to be consecutive to every other such sentence, the end result might be a cumulative sentence of fifty or sixty years, or perhaps more, in a given case. That would clearly offend the totality principle whereby the Court must be satisfied that the overall sentence in its totality is fair, just and proportionate.
In response, counsel for the respondent pointed out that the decision of this Court in The People (at the suit of the Director of Public Prosecutions) v. Cole related to the imposition of a consecutive sentence in a case where there were two previous sentences, one of 3 years imprisonment and another of 4 years imprisonment. Section 11 requires that the consecutive sentence “attach” to the previous sentence which is last due to expire. The sentencing court had failed to do that in the Cole case by attaching the consecutive sentence to the shorter of the two concurrent sentences. It was submitted that in the particular context, any indication the Court had given that there was no requirement for cumulative consecutive sentences was purely obiter.
Counsel posed the question: What if one of the “two or more previous” sentences was itself a consecutive sentence? If this previous consecutive sentence was the last of the previous sentences due to expire, the new sentence which the Court would be imposing would necessarily be consecutive to a consecutive sentence.
He gave the following example. AB commits a low level section 3 assault (five years maximum) warranting a six month sentence, but while on bail awaiting sentence he goes on a rampage and commits a further twenty serious section 3 assaults all involving “glassing” victims in nightclubs. He submitted it would be contrary to good sentencing policy if all twenty sentences, whilst all being consecutive to the previous offence of six months, were all concurrent to each other as a result of a misapplication or misunderstanding of the ruling in the Cole case.
He further submitted, in the alternative, that, regardless of the statutory provisions, the court had a discretion to sentence in a cumulative consecutive manner in any event.

DECISION

It may be said at the outset that the imposition of consecutive sentences does not require statutory authorisation and is a well established feature of Irish criminal law. That said, there is a strong tendency evident in the jurisprudence of this Court to avoid the imposition of consecutive sentences where the offences might be described as falling within a similar pattern of offences or occurring within a relatively short timeframe. It could be said that those features are present in the instant case.
Whether the section requires the imposition of consecutive sentences which, where there is more than one, shall be consecutive to each other, was considered by this court in The People (at the suit of the Director of Public Prosecutions) v. Joseph Cole (Unreported, Court of Criminal Appeal, 31st July, 2003) where Fennelly J. stated as follows (at pp. 6 - 7):-

“In the view of the court, the obligation to impose consecutive sentences is not, however, cumulative. If the eight year sentence is to be made consecutive to the four year sentence, rather than the three year sentence, it follows that the four year sentence should not be consecutive to the three year sentence. This follows from the wording of the provision, which does not require cumulative consecutive sentences. Where there are “two or more previous offences” for which sentences are imposed, the court should sentence for the last one consecutively to the last to expire of the earlier sentences.”

Counsel for the respondent has invited this Court to view these observations as obiter dicta only and has urged the Court to take the view that the decision was directed more to identifying the particular previous sentence to which the consecutive sentence should attach, rather than the issue of cumulative consecutive sentences. The Court does not agree, because the clear import of the judgment is that only the last sentence imposed in respect of the final set of offences is to be a consecutive sentence because; as stated by Fennelly J., “where there are ‘two or more previous offences’ for which sentences are imposed, the court should sentence for the last one consecutively to the last to expire of the earlier sentences”.
If every sentence to be imposed for offences committed while on bail had to be consecutive to any other sentence, the implications would be somewhat alarming. Where three or more such events occurred, the ultimate outcome might be a sentence of twenty or thirty years, or some other period of years which would be quite disproportionate having regard to the totality principle. Alternatively, the sentencing judge might have to fashion absurdly short consecutive sentences to ensure compliance with the totality principle. This would infringe the provisions of s. 11 (4) (as inserted by s.10 of the Bail Act 1997) of the Criminal Justice Act 1984.
In construing this statute the court should obviously lean against a construction which produces an absurd result. Bennion’s Statutory Interpretation (4th Ed) states at Part XXI (at p. 831):-

“The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament. Here the courts give a very wide meaning to the concept of ‘absurdity’, using it to indicate virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial or productive of a disproportionate counter-mischief.”

On the page following (p. 832) Bennion states:-

“The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament.”

Mr. Grehan, Senior Counsel for the applicant, also reminds the court that, in construing a penal statute, the construction most favourable to the accused must be adopted.
Turning to the construction of section 11 itself, the Court is satisfied that it is not free from ambiguity. On the one hand the reference to “any sentence” at the commencement of s.11(1) would suggest that where several sets of offences committed whilst on bail are being dealt with, each sentence “shall” be consecutive to the other as recited in the section.
The subsection also contains the words “where two or more consecutive sentences as required by this section are passed by the District Court” (emphasis added) which appears to be an explicit recognition that more than two consecutive sentences may fall to be imposed. Furthermore, the concluding words of the subsection, which limit the District Court to an aggregate term of two years in respect of “those consecutive sentences”, would also suggest that consecutive sentences may be consecutive to each other, providing the total does not exceed two years.
The Court is satisfied that the section is open to both the interpretation indicated by Fennelly J. in The People (at the suit of the Director of Public Prosecutions) v. Joseph Cole and to an interpretation which permits the imposition of more than one consecutive sentence, providing the latter course does not infringe the concept of totality when the aggregate of the consecutive sentences is taken into account. The Court does not interpret the section as requiring that every sentence imposed for an offence committed while on bail be consecutive to any other similar sentence save as regards the last sentence to be imposed
On the facts of the present case, the Court is of the view that to structure the sentence so that the sentence imposed for each of the last three sets of offences is made consecutive to each of the others did result in a total sentence which is disproportionately high having regard to the relatively small amounts of drugs involved.
The Court would propose to deal with the matter by directing that only the last two sentences, (i.e. in respect of offences (D) and (E)) be treated as cumulatively consecutive to the sentence of 3 years imposed in respect of sentence A. The sentence for offence C should therefore be one to run concurrently with the sentences imposed in respect of the offences A and B so that the total period of imprisonment will amount to the sum of 9 years.