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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Robert Devine [2011] IECCA 67 (19 October 2011)
URL: http://www.bailii.org/ie/cases/IECCA/2011/C67.html
Cite as: [2011] IECCA 67
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Judgment Title: DPP -v- Robert Devine Composition of Court: Finnegan J., Budd J., O'Keefe J. Judgment by: Finnegan J. Status of Judgment: Approved
Outcome: No Order pursuant to S99 | ||||||||||
COURT OF CRIMINAL APPEAL Record No. 92CJA/07 Finnegan J. Budd J. O’Keeffe J. THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) .v. ROBERT DEVINE RESPONDENT Judgment of the Court delivered on the 19th day of October 2011 by Finnegan J. On the 31st October 2006 the respondent pleaded guilty to a charge of possession of a firearm contrary to the Firearms Act 1964 section 27(A)(1) as substituted by the Criminal Law Jurisdiction Act 1976 section 8 and amended by the Criminal Justice Act 1984, the Firearms and Offensive Weapons Act 1990 and the Offences Against the State (Amendment) Act 1998. He was sentenced to two years imprisonment. The Director of Public Prosecutions applied to the Court of Criminal Appeal for a review of that sentence on the grounds that it was unduly lenient pursuant to the Criminal Justice Act 1993 section 2. On the 10th December 2007 the Court of Criminal Appeal in substitution for the sentence imposed by the learned Circuit Court judge imposed a sentence of four years imprisonment the last two years thereof to be suspended upon the respondent entering into a bond to keep the peace and be of good behaviour for a period of two years from the 10th December 2007. The respondent appeared before Clonmel District Court on the 22nd April 2008 charged with a number of offences as follows:
An offence contrary to the Criminal Justice (Public Order) Act 1994 section 4 on the 26th December 2008. An offence contrary to section 4 of the Criminal Justice (Public Order) Act 1994 section 4 on the 5th March 2008. An offence contrary to section 4 of the Criminal Justice (Public Order) Act 1994 section 4 on the 14th December 2007. An offence contrary to section 4 of the Criminal Justice (Public Order) Act 1994 section 4 on the 21st January 2008. An offence contrary to the Criminal Justice Act 1984 section 13 on the 11th March 2008. An offence contrary to the Criminal Justice Act 1984 section 13 on the 8th April 2008. An offence contrary to the Criminal Justice (Public Order) Act 1994 section 6 on the 26th December 2008. An offence contrary to the Criminal Justice (Public Order) Act 1994 section 6 on the 26th December 2008. An offence contrary to section 98 of the Road Traffic Act 1961 on the 5th March 2008. The statutory provisions Section 99 of the Criminal Justice Act 2006 was amended by section 60 of the Criminal Justice Act 2007. It was further amended by the Criminal Justice (Miscellaneous Provisions) Act 2009 section 51. The statutory provisions are as follows:- Criminal Justice Act 2006.
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
(a) A sentence (other than a sentence consisting of imprisonment for life) imposed:-
during the period 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 (b) either by virtue of the order under subsection (1) or a revocation under subsection (10). 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 revoke that order. Criminal Justice Act 2007 Section 60. Section 99 of the Act of 2006 is amended:-
In subsection (10) by the substitution of “other than a period spent in custody by the person in respect of an offence referred to in subsection (9)” for “other than a period during which the person was serving a sentence of imprisonment in respect of an offence referred to in subsection (9).” By the insertion of the following subsection after subsection (10):
Criminal Justice (Miscellaneous Provisions) Act 2009 Section 51. Section 99 (as amended by section 60 of the Criminal Justice Act 2007) of the Criminal Justice Act 2006 is hereby amended in subsection (9) by the insertion after “convicted of an offence” of “being an offence committed after the making of the order under subsection (1)”. Having regard to the amendment of section 99(9) of the Criminal Justice Act 2006 by section 60 of the Criminal Justice Act 2007 what ought to have occurred in the District Court is that before imposing sentence the District judge ought to have remanded the respondent in custody or on bail to the next sitting of this court so that the suspended portion of the sentence imposed by this court could be reinstated in whole or in part. That having been done this court under subsection (10A) would then remand the respondent in custody or on bail to the next sitting of the District Court for the imposition of sentence. Prior to the regulation of revocation of sentences suspended in whole or in part by statute the practice was that where a sentence imposed by the Court of Criminal Appeal was suspended in whole or in part any application to revoke the suspension was made to the court of trial and not to the Court of Criminal Appeal: The People (At the Suit of the Attorney General) v Peter Grimes [1955] I.R. 315. However the procedure is now regulated by statute and any application to revoke a sentence suspended in whole or in part is made to the court which imposed that sentence. Section 2 of the Criminal Justice Act 1993 provides for an application to this court by the Director of Public Prosecutions for a review of sentence where it appears to him that the sentence was unduly lenient. The jurisdiction of the court on such an application is set out in section 2(3) as follows:- “(3) On such an application the court may either –
refuse the application.” Consequence of Irregularity The District judge ought to have remanded the respondent in custody or on bail to this court so that this court could exercise its jurisdiction under section 99(9) of the Criminal Justice Act 2006. The amendment to section 99 of the 2006 Act effected by section 60 of the 2007 Act was not brought to the District judge’s attention and accordingly prior to remanding the respondent to this court he imposed sentence. Both the Court of Criminal Appeal and the District Court are creatures of statute and have such jurisdiction as is conferred upon them by statute. The District Court had no jurisdiction to impose sentence on the respondent without first complying with section 99(9) as amended. The effect of section 99(9) as amended on the jurisdiction of this court is that its jurisdiction to revoke in whole or in part the suspended portion of the respondent’s sentence arises only if the respondent is remanded to this court in accordance with section 99(9). As the respondent has not been remanded to this court in accordance with section 99(9) this court has no jurisdiction to carry out its function envisaged under section 99(10) and (10A). For the jurisdiction of this court to arise it would be necessary that the orders made by the District judge on the 22nd April 2008 be set aside and an order in compliance with section 99(9) of the Criminal Justice Act 2006 made remanding the respondent to this court. Disposition Having regard to the foregoing the court will make no order on this application. | ||||||||||