Irish Court of Criminal Appeal

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Cite as: [2009] IECCA 21

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Judgment Title: DPP -v- Gordon Ryan

Neutral Citation: [2009] IECCA 21

Court of Criminal Appeal Record Number: 190/07

Date of Delivery: 20 March 2009

Court: Court of Criminal Appeal

Composition of Court: Finnegan J., Herbert J., deValera J.

Judgment by: Finnegan J.

Status of Judgment: Approved


Judgments by	Result
Finnegan J.	Other (see notes)

Notes on Memo: Grant leave to proceed under Section 99(12) of the Criminal Justice Act 2006

COURT OF CRIMINAL APPEAL

CCA No. 190/07

Finnegan J.
Herbert J.
de Valera J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

.v.

GORDON RYAN

APPLICANT

Judgment of the Court delivered on the 20th day of March 2009 by Finnegan J.

The applicant was charged and convicted on one count of wounding with intent to do grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861 the particulars of the offence being that he did between 10 p.m. on the 11th September 1995 and 1 a.m. on the 12th September 1995 at O’Connell Street in the City of Limerick unlawfully and maliciously wound one Anthony O’Mahony with intent to do grievous bodily harm to the said Anthony O’Mahony. On the 23rd March 2000 he was sentenced to a term of imprisonment of twelve years with the last six years of that term suspended on terms that he keep the peace and be of good behaviour. He was released from prison having served that sentence on the 26th April 2003. On the 19th April 2005 the respondent applied to have the suspended portion of the sentence reactivated. On that date, the learned trial judge having been appointed to the High Court, an issue arose as to who should hear the application. For that and other reasons the application was adjourned from time to time but was ultimately heard on the 21st December 2005.

The evidence was that the applicant had committed a number of offences. He was charged with obstructing a Garda contrary to section 29(5) of the Offences against the State Act 1939 the date of the offence being the 24th July 2003. He was remanded on bail but failed to answer to his bail on the 21st April 2004. Bail having been reinstated he again failed to answer to his bail on the 8th September 2004. A bench warrant was issued and on the 21st September 2004 he pleaded guilty to the offence and the matter was adjourned to the 6th October 2004 the applicant being again remanded on bail. He failed to answer to his bail on the 6th October 2004 and a further bench warrant was issued. The offence of obstructing a Garda was finally dealt with on the 1st March 2005 and a sentence of imprisonment for one month was imposed. On the 1st March 2005 the applicant also faced two charges under section 13 of the Criminal Justice Act 1984 of failing to answer to his bail, one relating to the 8th September 2004 and the other to the 2nd October 2004. He was convicted and sentenced to one month imprisonment on each count. All three terms were to run concurrently. Two offences under the Criminal Justice (Public Order) Act 1994 one under section 6 and one under section 4 were taken into consideration.

The circumstances of the offence of obstruction are that on the 24th July 2003 while Gardai were executing a search warrant at premises in Ballinacurra, Weston, Limerick, the applicant removed a plastic sachet from his pocket and threw it into an open fire. A Garda went to remove the sachet from the fire and the applicant prevented him from doing so and it was consumed by the fire.

On the application it was conceded by the prosecution that the applicant’s failures to answer to his bail would not of themselves justify the reactivation of the suspended portion of the sentence. It was, however, submitted that those offences taken in conjunction with the offence of obstructing a Garda and the Public Order offences constituted sufficient grounds for reactivation. The learned trial judge exercised his discretion on the basis that to reactivate the six year portion of the twelve year sentence which had been suspended would be disproportionate where the offences relied upon were prosecuted in the District Court and resulted in an effective term of imprisonment of one month.

A further application to reactivate the suspended portion of the sentence was brought on the 6th February 2007, was adjourned from time to time and ultimately dealt with on the 25th July 2007. On this occasion the application relied on five convictions as follows:-

1. On the 16th December 2005 he was convicted at Nenagh District Court of an offence contrary to section 12 of the Criminal Justice (Theft and Fraud) Offences Act 2001 and sentenced to a term of imprisonment of eleven months.

2. On the same occasion he was convicted of failure to give his name and address or giving a name and address that was false or misleading contrary to section 107 of the Road Traffic Act 1961: this offence was taken into consideration.

3. On the 20th October 2006, arising out of the same events as the convictions mentioned at 1 and 2 above, he was convicted of fraudulently using the registration mark of a vehicle contrary to section 115 of the Road Traffic Act 1961: this offence was taken into consideration.

4. On the 20th December 2006 he was convicted at Limerick City District Court of theft of cigarettes contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, the offence having been committed on the 27th November 2005: he was sentenced to four months imprisonment.

5. On the 11th January 2007 at Limerick City District Court he was convicted of the theft of a computer screen contrary to section 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001: he was sentenced to five months imprisonment.

Counsel on behalf of the applicant submitted that as a result of the Criminal Justice Act 2006 section 99 the court, if it considers that to revoke the suspension would be unjust in all the circumstances, should not revoke the suspension but otherwise could require that the entire of the sentence originally imposed be served or

such part thereof as the court considers just having regard to all the circumstances of the case. The section was commenced on the 2nd October 2006. The sentence sought to be reactivated was imposed on the 23rd March 2000. The application to reactivate came before the court on the 6th February 2007 after the commencement of the Criminal Justice Act 2006 section 99. For the respondent it was submitted that as the sentence with portion thereof suspended had been imposed prior to the commencement of section 99 of the Criminal Justice Act 2006 the application to reactivate was governed by common law and having regard to the decision in The People (Director of Public Prosecutions) v Alan Murray, unreported, Court of Criminal Appeal 18th March 2003 the court’s discretion was limited to revoking the suspension or refusing to revoke it. The learned trial judge held that he was bound by the decision in The People (Director of Public Prosecutions) v Alan Murray and reactivated the entire of the suspended portion of the sentence. He did not take into account the convictions relied upon on the application to reactivate determined on the 21st December 2005. Leave to appeal was refused.

In The People (Director of Public Prosecutions) v Alan Murray, Court of Criminal Appeal, unreported 18th March 2003 the facts were as follows. The applicant was convicted on guilty pleas in respect of two offences contrary to section 5 of the Non-Fatal Offences against the Person Act 1997. The second offence was committed on bail. A sentence of four years imprisonment was imposed in relation to the first offence and three years imprisonment in relation to the second offence the sentences being consecutive. A portion of the sentences was suspended on conditions which were not complied with and the sentences were reactivated. In the course of the judgment McCracken J. said:-

“She (the learned trial judge) clearly took the view that this was a material and serious breach of the conditions in respect of residing where he is supposed to reside and visiting Mrs Kennedy. It is suggested in some way that reactivating the entire sentence is unjust, but no authority has been quoted to this court, and none of us are aware of any authority, whereby in a situation like this, where there has been a breach of a condition on which a sentence was suspended, that there is any discretion in the trial judge to do anything other than treat it as de minimis and simply almost ignore it and allow the suspension to continue, or else reactivate the entire sentence.

The sentence has already been passed and it is not open to a sentencing judge to give a second sentence. The suspension has been granted with conditions and if the conditions are broken, we are not aware of any authority, and it does not seem to be logical, that there should be a further discretion in the learned trial judge.”

Again in The People (D.P.P.) v Stewart, unreported, Court of Criminal Appeal, 12th January 2004, Hardiman J. said:-

“There is power to activate the sentence but it is not mandatory to do so in that a judge may decline to do so if the court considers that the breach might be described as trivial or de minimis. In the view of this court this breach in the circumstances in which it occurred could not possibly be so described.

The second issue was whether the sentences could be partially, not totally, activated. The terms in which the sentences were suspended clearly indicate that the applicant must ‘come up if called upon to do to serve the sentence of the court this day imposed but suspended on your entering into this bond’.

Mr Maguire has referred us to English statutory authority for the proposition that the sentence may be re-imposed, if it is to be re-imposed, in whole or in part. There is no Irish equivalent. It therefore seems to us that Judge Dunne was constrained to act as she did.”

The Criminal Justice Act 2006 was commenced on the 2nd October 2006, that is after sentence was imposed but prior to the same being activated on the 25th July 2007. Section 99 of the Act provides as follows:-

“99(1) Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognizance to comply with the conditions of, or imposed in relation to, the order.

(2) It shall be a condition of an order under subsection (1) that the person in respect of whom the order is made keep the peace and be of good behaviour during-
(a) the period of suspension of the sentence concerned, or
(b) in the case of an order that suspends the sentence in part only, the period of imprisonment and the period of suspension of the sentence concerned,

and that condition shall be specified in the order concerned.

(3) The court may, when making an order under subsection (1), impose such conditions in relation to the order as the court considers-
(a) appropriate having regard to the nature of the offence, and
(b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence,

and any condition imposed in accordance with this subsection shall be specified in that order.

(4) In addition to any condition imposed under subsection (3), the court may, when making an order under subsection (1) consisting of the suspension in part of a sentence of imprisonment or upon an application under subsection (6), impose any one or more of the following conditions in relation to that order or the order referred to in the said subsection (6), as the case may be:
(a) that the person co-operate with the probation and welfare service to the extent specified by the court for the purpose of his or her rehabilitation and the protection of the public;
(b) that the person undergo such-
(i) treatment for drug, alcohol or other substance addiction,
(ii) course of education, training or therapy,
(iii) psychological counselling or other treatment,
as may be approved by the court;
(c) that the person be subject to the supervision of the probation and welfare service.
(5) A condition (other than a condition imposed, upon an application under subsection (6), after the making of the order concerned) imposed under subsection (4) shall be specified in the order concerned.
(6) A probation and welfare officer may at any time before the expiration of a sentence of a court to which an order under subsection (1) consisting of the suspension of a sentence in part applies, apply to the court for the imposition of any of the conditions referred to in subsection (4) in relation to the order.
(7) Where a court makes an order under this section, it shall cause a copy of the order to be given to-
(a) the Garda Siochána, or
(b) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Siochána.
(8) Where a court has made an order under subsection (1) and imposes conditions under subsection (4) upon an application under subsection (6), it shall cause a copy of the order and conditions to be given to-
(a) the probation and welfare service, and
(b) (i) the Garda Siochána, or
(ii) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Siochána.
(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, the court before which proceedings for the offence were brought shall, after imposing sentence for that offence, remand the person in custody or on bail to the next setting of the court that made the said order and
(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 the 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 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 during which the person was serving a sentence of imprisonment in respect of an offence referred to in subsection (9)) pending the revocation of the said order.
(11) (a) A sentence (other than a sentence consisting of imprisonment for life) imposed-
(i) in respect of an offence committed by a person to whom an order under subsection (1) applies, and
(ii) during the period of suspension of sentence to which that order applies,

shall not commence until the expiration of any period of imprisonment that the person is required to serve of the sentence referred to in paragraph (b) either by virtue of the order under subsection (1) or a revocation under subsection (10).

(b) This subsection shall not affect the operation of section 5 of the Criminal Justice Act 1951.
(12) Where an order under subsection (1) is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoked that order.
(13) Where a member of the Garda Siochána or, as the case may be, the governor of the prison to which a person was committed has reasonable grounds for believing that a person to whom an order under this section applies has contravened the condition referred to in subsection (2) he or she may apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).
(14) A probation and welfare officer may, if he or she has reasonable grounds for believing that a person to whom an order under subsection (1) applies has contravened a condition imposed under subsection (3) or (4), apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).
(15) Where the court fixes a date for the hearing of an application referred to in subsection (13) or (14), it shall, by notice in writing, so inform the person in respect of whom the application will be made, or where that person is in prison, the governor of the prison, and such notice shall require the person to appear before it, or require the said governor to produce the person before it, on the date so fixed and at such time as is specified in the notice.
(16) If a person who is not in prison fails to appear before the court in accordance with a requirement contained in a notice under subsection (15), the court may issue a warrant for the arrest of the person.
(17) A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all the circumstances of the case it would be unjust to do so and where the court revokes the order the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order.
(18) A notice under subsection (15) shall be addressed to the person concerned by name, and may be given to the person in one of the following ways:
(a) by delivering it to the person;
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;
(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.
(19) This section shall not affect the operation of-

(a) section 2 of the Criminal Justice Act 1960 or Rule 38 of the Rules for the Government of Prisons 1947 (S.R. & O. No. 320 of 1947), or

(b) subsections (3G) and (3H) of section 27 of the Misuse of Drugs Act 1977.”

The Criminal Justice Act 2007, section 60, amended section 99 of the Act of 2006 the amendments not being relevant to this application. The issue on this appeal is whether the provisions of section 99 of the Act of 2006 have application to the reactivation of the applicant’s sentence.

Applying the law as stated in The People (Director of Public Prosecutions) v Alan Murray it is possible to envisage cases where a suspended portion of a sentence is caused to be reactivated by the commission of offences which could not be regarded as de minimis breaches of the terms of the suspension but yet the reactivation could be seen as disproportionate and accordingly unjust. It is to such a situation that section 99 is addressed and it enables the court to respond appropriately and proportionately by reactivating the sentence in part. That being the intention of the Oireachtas it is necessary to consider section 99 and the totality of its provisions to ascertain the true intention of the Oireachtas as to whether the provisions of section 99 are to be prospective only or whether they are to apply to suspensions imposed prior to the commencement of the section.

Section 99(1) can be read as no more than a restatement in statutory form of the position at common law rather than as the creation of a statutory jurisdiction. The remaining provisions of the section must be looked at to determine the true intention: the true intention is to be ascertained from the other provisions of the section.

Section 99(2) requires the imposition of a specific condition in an order made under section 99(1) that the person in respect of whom the order is made keep the peace and be of good behaviour. This provision must be prospective only. There will be cases in which prior to the commencement of section 99 conditions other than those specified have been imposed and the conditions specified have not been imposed: indeed the latter was the situation in The People (Director of Public Prosecutions) v Alan Murray. The fact that this provision is prospective only will not of necessity prevent other provisions of section 99 having retrospective effect. The same is true in relation to the provisions contained in subsections (3), (4), (5), (6), (7), (8), (11), (13), (14), (15), (16), (18), and (19) in so far as they may in any subsequent case be found to be prospective only.

Central to the interpretation of the section are the provisions of subsections (9), (10) and (17). Subsection (9) provides that where a person to whom an order under subsection (1) applies is during the period of suspension convicted of an offence, the court before which proceedings for the offence is brought shall, after imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the order. This did not happen, or certainly did not invariably happen, prior to the commencement of section 99. Subsection (9) has no application where there is a breach of a condition other than a condition to keep the peace and be of good behaviour, and will apply only where the person the subject of the order is convicted of an offence. Subsection (10) applies only to a person who has been remanded under subsection (9). It empowers the court to revoke the order, or if it considers that revocation would be unjust not to revoke the order, and also to reactivate the sentence in part. This provision could have no application where the conviction leading to the revocation of the suspension occurred prior to the commencement of the Act as the requirements of subsection (9) will most likely not have been complied with. On conviction for an offence during the period of suspension it is unlikely, or at least will not always be the case, that the respondent on an application to reactivate will have been remanded in custody or on bail for the purposes of the reactivation. When one then turns to subsection (17) identical provisions are therein contained to those in subsection (10) but without any reference to subsection (9) and referring, not to a conviction, but to a breach of a condition of the order. There is nothing in the wording of subsection (17) to exclude from its operation a breach of a condition to keep the peace and be of good behaviour. The wording of subsection (17) confers a benefit on those who have been sentenced with the entire or a portion of the sentence suspended and where subsection (9) has not operated or has no application. However section 99(1) is merely a statutory restatement of the common law. The object of the section as a whole is to deal with a perceived injustice where reactivation of a suspended sentence or a suspended portion of a sentence could be perceived as disproportionate in the absence of a power in the court to reactivate the sentence in part. There is nothing in the wording of subsection (17) to impose a temporal restriction on the jurisdiction thereby conferred so that only those whose sentences are imposed after the commencement of section 99 should benefit. To give full effect to the ordinary meaning of the wording of subsection (17) and to the statutory intention it is appropriate that it should apply to post-commencement applications to reactivate where subsection (9) has no application. It is also consistent with the scheme of the statute that the power conferred by subsection (17) should apply where there has been a breach of condition, including a breach of a condition to keep the peace and be of good behaviour, on an application for reactivation of a suspended sentence or portion of a sentence where the condition was imposed prior to commencement of section 99 but the application to reactivate is made after commencement of the section. In such circumstances the court is given power, additional to those powers which existed at common law, to treat the breach as de minimis or to reactivate the sentence in full, to reactive in part a suspended sentence.

Having regard to the foregoing the court has power to reactivate the suspended portion of a sentence in part notwithstanding that the sentence was imposed prior to the commencement of section 99 of the Criminal Justice Act 2006.

The matter, procedurally, comes before the court as an application for leave to appeal against the original sentence of twelve years with six years suspended imposed by the Circuit Court. However section 99(12) creates a power of appeal. Notwithstanding the procedure adopted the court will hear submissions as to whether the matter should proceed as an application for leave to appeal against sentence (see The People (Director of Public Prosecutions) v Lonergan, unreported, Court of Criminal Appeal 1st February 1999) or as an appeal pursuant to section 99(12) to the Circuit Court.