High Court of Ireland Decisions

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Cite as: [2005] IEHC 295, [2007] 1 ILRM 311

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Neutral Citation No: [2005] IEHC 295

THE HIGH COURT

2005 No. 609 SS

IN THE MATTER OF SECTION 52(1) OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA DEREK A.P. COMISKEY)

PROSECUTOR

AND

COLM TRAYNOR (A MINOR)

ACCUSED

AND

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA ALAN G. GOVERN)

PROSECUTOR

AND

COLM TRAYNOR (A MINOR)

ACCUSED

Judgment of Mr. Justice Roderick Murphy dated the 27^th day of July, 2005.

1. Relevant factual background

The accused was notified and required to appear before the District Court on 3^rd June, 2003. He had been served with a juvenile summons applied for by Garda Govern dated 13^th March, 2003. He was required to answer an allegation that he had committed an offence 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, being unlawful possession, on 2^nd November, 2002, of a controlled drug being cannabis resin.

On 3^rd June the summons was adjourned for mention to the Children's Court on 22^nd July, 2003, when the accused pleaded guilty and the matter was adjourned to 4^th September, 2003 to allow for the preparation of a probation and welfare officer's report.

A second juvenile summons applied for by Garda Comiskey, dated 9^th May, 2003, requested the accused to appear before the District Court to answer an allegation that he had unlawfully in his possession a controlled drug being ecstasy, contrary to the same provisions and that he had the same for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations, 1988 and 1993 and, on the same day, that he had in his possession and the for the purpose of selling or otherwise supplying it to another, a controlled drug being cannabis resin.

On 4^th September, 2003 summary disposal was directed by the D.P.P. in relation to Garda Comiskey's summons. Pleas of guilty were then entered in relation to that summons. Judge Connellan ordered that the accused enter into a bail bond in the sum of €100 with a number of conditions attaching as recommended by the probation and welfare officer. The conditions included, inter alia, a curfew, return to full-time education, addiction counselling and provision of urine analysis. Proceedings were remanded until 30^th October, 2003 so as to facilitate the preparation of a further probation and welfare officer's report. On that date the accused was remanded on continuing bail until 24^th January, 2004.

The proceedings came before Judge Catherine Murphy on 24^th January, 2004, when the proposal of the probation and welfare officer's progress report was adopted. The accused was placed on a twelve-month probation order with conditions including a curfew, urine analysis testing, full co-operation with the probation and welfare services and attendance at the Aislinn Drug Treatment Centre. The accused was remanded on continuing bail to 17^th September, 2004 and a progress report was directed.

That report stated that the accused had not complied with certain conditions attaching to the probation order, in particular the requirement to attend for urine analysis, attendance at the Aislinn Centre. It was further stated and confirmed that the accused had been recently charged with other matters.

On 4^th October, 2004 the adjourned previous proceedings came before Judge Murphy who varied the conditions of the accused's bail bond so that the accused had to:

maintain a curfew from 10 p.m. to 7 a.m.;

attend urine analysis twice weekly;

attend regularly at school;

attend an addiction counsellor;

attend probation officer meetings, and

keep away from two named individuals.

The accused was remanded to 15^th December, 2004 and further reports were directed.

On 15^th December, 2004, having considered the progress report, the accused was remanded on strict terms to 10^th February, 2005. The progress report expressed the accused's compliance as being very unsatisfactory and that he was not co-operating with the drug counselling. A further report was directed. It was indicated to the accused that he was being given one last chance to offer complete compliance with the terms of his probation bond.

A progress report on 10^th February, 2005 expressed views, inter alia, that attendance at probation appointments had been unsatisfactory, that the accused was not co-operating with attempted referrals for drug counselling and, without prejudice, that the accused had come to the unfavourable attention of the Gardaí in relation to breaches of curfew and of antisocial behaviour conditions on 24^th October, 2004 to the day before the hearing. The breach of curfew included driving a car at 2 a.m. and again at 11.40 p.m. on 9^th January and the finding of ecstasy tablets in the front garden of the accused's home on 3^rd January, 2005.

Judge Murphy, having considered matters and the most recent progress report of 10^th February, 2005, indicated that she wished to sentence the accused as she had indicated on 15^th December, 2004, that she had given the accused one further chance to comply with the terms of the probation bond imposed on 22^nd January, 2004.

2. Legislation

Section 1(1)(ii) of the Probation of Offenders Act, 1907 empowers the District Court to make what are knows as Probation Orders in relation minor offences. As a means of disposing of a minor offence by focusing on the rehabilitation of offenders and the prevention of re-offending behaviour.

A probation order is a formal warning to a person that if he does not keep the peace and abide by conditions imposed by the court for a specified period he is liable to be brought before the court for punishment.

This option is available to a court if having regard to the offender's character, his antecedents, age, health or mental condition, the trivial nature of the offence, or any extenuating circumstances it considers that it would be expedient to release the offender on probation.

A Probation Order may also provide that a person be placed under the supervision of a Probation and Welfare Officer during the probation period. The Probation Officer's functions, pursuant to s. 4 of the 1907 Act are to make contact with the offender and assist him in complying with conditions of his probation. The Probation Officer must see that the offender abides by the conditions and report to the court on the offender's progress.

If there has been any breach of any of the conditions of a Probation Order and an information is sworn to this effect, a court can issue a warrant for a defendant's arrest. He or she will then be brought before the court which, pursuant to section 6 of the 1907 Act, may then sentence the defendant for the original offence(s) if satisfied regarding the alleged breach of condition.

Section 5 of the Probation of Offenders Act, 1907, as amended by s. 9 of the Criminal Justice Administration Act, 1914, which relates to the power varying the conditions of recognisances, provides as follows:

"The court before which any person is bound by recognisance under this Act to appear for conviction and sentence or for sentence –

(a) may at any time it appears to it, upon the application of the probation officer, that it is expedient that the terms or conditions of the recognisance should be varied, summon the person bound by the recognisance to appear before it, and, if he fails to show cause why such variation should not be made, vary the terms of the recognisance by extending or diminishing the duration thereof (so, however, that it shall not exceed three years from the date of the original order), or by altering the conditions thereof, or by inserting additional conditions; or

(b) may on application being made by the probation officer, and on being satisfied that the conduct of the person bound by the recognisance has been such as to make it unnecessary that he any longer be under supervision, discharge the recognisance."

3. Question for the determination of the High Court

The District Court judge was of the opinion that questions of law did arise and, having asked the accused's solicitor to initiate such questions, asked the High Court for a determination as follows:

(1) In order for a District judge to properly proceed to conviction and sentence, in circumstances where accused have been in breach of condition(s) of a Probation Order, must this be done within the period of said Probation Order?

(2) If the answer to (1) above is "no", in the circumstances of the proceedings as set out above, am I in a position to properly proceed and consider convicting and sentencing the accused?

4. Arguments on behalf of the accused

4.1 It was submitted on behalf of the accused at that hearing that the sentence had already been imposed in the form of a twelve-month probation order on 22^nd January, 2004. It was not then open to the court to sentence the accused a second time.

It was further submitted that in the event that the court had wished to revoke the probation bond and proceed to convict and sentence the accused, it was only possible for the court to do this during the period of the bond, that is to say in the circumstances of the criminal proceedings the subject matter of the case stated, at any time within a period of twelve months from 22^nd January, 2004.

The probation and welfare officer stated that he had been instructed that on any occasion where he wished to breach a probation bond it should be done in the course of the bond.

Garda Comiskey responded to the defence submissions stating that on 15^th December, 2004, the learned District judge had indicated that the matter would be in for sentence on 10^th February, 2005 unless there were a dramatic change in the behaviour of the accused. Garda Comiskey further stated that because the judge had varied the conditions of the accused's bail bond, she had, in fact, extended the bond in order to give the accused another chance.

4.2 It was submitted that the accused should not be subjected to conviction and sentence. Question (1) of the case stated be answered in the affirmative on the following grounds:

4.2.1 The accused was discharged conditionally pursuant to s. 1(1)(ii) of the Probation of Offenders Act, 1907 on 22^nd January, 2004 for a specified period of twelve months. This period recited in the recognisance entered into by the accused having elapsed, it is not possible now for the court which so bound him over to proceed to convict and sentence him.

4.2.2 In her Probation and Welfare Officer's report of 10^th February, 2005 and in particular the penultimate paragraph thereof, Ms. Breda Moylan, Probation and Welfare Officer, the individual with the most comprehensive and intimate knowledge of the progress of the probation order, clearly states her view that the accused's probation bond was completed on 22^nd January, 2005. In those circumstances, it was neither possible on 10^th February, 2005, nor is it possible now for District Judge Catherine Murphy to proceed to convict and sentence the accused.

4.2.3 Having disposed of the proceedings in the manner she did on 22^nd January, 2004 by placing the accused on a probation order/bond, the judge did not have jurisdiction to insert a review date. Any issue of non-compliance with or breach of a condition attaching to a probation order is a matter for the Probation and Welfare Officer to address through the swearing of an information stating that an offender is in breach of condition(s) of a probation order on foot of which a court can issue an arrest warrant. If an offender is arrested and brought first before the District Court he or she may be remanded in custody of on bail to appear before the court which bound him or her over. The District Court may then proceed to sentence him or her for the original offence(s) if it is satisfied that he or she has failed to observe any condition of his or her recognisance. (Section 6, Probation of Offenders Act, 1907).

4.2.4 At no stage in the proceedings did the supervising Probation and Welfare Officer apply to vary any of the conditions of the probation order and in particular the duration thereof pursuant to the provisions of s. 5 of the Probation of Offenders Act, 1907 (as substituted by the Criminal Justice Administration Act, 1914, s. 9).

4.2.5 Despite concerns expressed in reports, at no stage did either Ms. Breda Moylan, Probation and Welfare Officer or any member of An Garda swear an information in relation to the failure of the defendant to abide by the conditions of his bond, on foot of which a warrant for the arrest of the accused or a summons commanding attendance in District Court might have issued (Order 28 of the District Court Rules, 1997 refers).

4.2.6 It is of considerable significance in relation to the issue that Mr. Sean Fisher, the Probation and Welfare Officer attending District Court 55 on 10^th February, 2005 expressed the clear view that he had been instructed that on any occasion when he wished to breach a probation bond, this should be attended to in the course of the bond.

4.2.7 Notwithstanding the view of Garda Comiskey that the probation bond was extended on 15^th December, 2004, at no stage in the proceedings did the judge in fact state that the period of the probation order of twelve months was being extended and in any event in order for there to have been a lawful and proper admission to such a new (extended) recognisance, same would have had to have been formally entered into by the accused by him signing such a recognisance and acknowledging his signature in the usual manner. It is further submitted that should there be any doubt in the matter, this should not inure to the detriment of the defendant.

4.2.8 The conditions precedent for the variation, discharge or breach of the probation recognisance pursuant to ss. 5 and 6 of the Probation of Offenders Act, 1907 not having been complied with within the time specified in the Probation Order, or at all, it is not possible for the judge to proceed to convict and sentence the accused.

5. Submissions on behalf of the Prosecutor

5.1 Under the terms of s. 1(1) of the Probation of Offenders Act, 1907 an offender may only be called up for conviction and sentencing during the period of the probation order which has been imposed. Section 1(1)(b) provides that the court may make an order

"… discharging the offender conditionally on his entering into a recognisance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as may be specified in the order."

A probation order may, therefore, be imposed for a period of up to three years but where it is imposed for a shorter period, as in the instant case, it appears that a court cannot proceed to convict and sentence an accused outside that time period.

In those circumstances it appears that the answer to the first question is "yes". The net issue arising in this case is whether, when the District judge indicated her intention on 10^th February, 2005 to proceed to sentence the accused, the probation order was still in being.

5.2 Thus, the second question should be answered even though the answer to the first question is yes. Collins and O'Reilly: Civil Proceedings and the State, at para. 2.15 states:

"The High Court may reformulate questions posed by a judge of the District Court in a consultative case stated in an effort to provide the latter with the guidance he seeks on the issues arriving before it; National Authority for Occupational Safety and Health v. O'K Tools Hire [1997] 1 I.R. 534 per Laffoy J."

The probation order made on 22^nd January, 2004 was for twelve months. The District Judge indicated her intention to sentence the accused on 10^th February, 2005, which is clearly not within the original twelve-month period. Counsel referred to s. 5 of the Probation of Offenders Act, 1907 as substituted by s. 9 of the Criminal Justice Administration Act, 1914 provides, inter alia, that the period of a probation order may be extended by extending or diminishing the duration thereof (so, however, that it shall not exceed three years from the date of the original order), or by altering the conditions thereof, or by inserting additional conditions.

It was submitted that on 15^th December, 2004, the District Judge stated that she was extending the period of the bond by indicating to the accused that "he was being given one last chance to offer complete compliance with the terms of his Probation Bond."

It is submitted that the only logical interpretation of these words and of the events of 15^th December, 2004 was that the accused was to be given one final chance to comply with the conditions of his bond and that in the circumstances, rather than proceeding to convict and sentence immediately, the terms of the bond would be extended to 10^th February, 2005.

On 10^th February, 2005 the judge stated that her decision to proceed to sentence the accused was made in light of the fact that on 15^th December, 2005 it had been indicated to the accused that he was being given "one further chance to comply with the terms of the Probation Bond imposed on 22^nd January, 2004." It is submitted that this can only be viewed as an extension of the original bond.

It is further submitted that the terms of s. 5 of the Act of 1907 were fully complied with. In reaching her decision the judge had regard to the views of the probation officer, Ms. Moylan, and the information provided by Garda Comiskey. The accused was present and legally represented and was therefore in a position to show cause why the proposed variation should not be made.

The judge had extended the period of the probation bond to 10^th February, 2005 and that accordingly was in a position to proceed to consider convicting and sentencing the accused.

In the circumstances it is submitted that the answer to the second question is "yes".

6. Decision of the Court

The section assumes a certain formality with regard to the variation of terms and conditions of probation. It is clear that the section refers to what is now known as the probation bond rather than a bail bond.

Section 6 gives power to the court to vary the terms or conditions of the recognisance upon the application of the probation officer where it appears to the court that it is expedient. It seems to this court that the terms of the probation officer's report, or the progress report in this case, does not make such application. The relevant reports of 17^th September, 2004, 15^th December, 2004 and 10^th February, 2005, recite the conditions of the appropriate bond and comment on the progress or lack thereof.

The report of 10^th February, 2005 concludes as follows:

"While this officer is in a position to continue working with Mr. Traynor should the court feel that this is appropriate, I am concerned that he has not adhered to the conditions of his bond. Most notably the fact that Mr. Traynor has come to the unfavourable attention of the Gardaí is a matter of serious concern. Although Mr. Traynor completed his bond on 22^nd January, 2005, unless he adheres to the conditions laid down in that bond the prognosis regarding the risk of further re-offending must remain guarded.

I trust this information is of benefit to the court."

No application was made for a variation. Moreover, the probation and welfare officer states that the accused "completed his bond on 22^nd January, 2005".

The section further provides that if the person bound by the recognisance fails to show cause why such variation should not be made [the court] may at any time if it appears to it to be expedient that the terms and conditions be varied, may vary the terms of the recognisance by extending or diminishing the duration thereof or by altering the conditions thereof or by inserting additional conditions.

There has been, accordingly, no extension of the terms of the probation bond. The probation officer referred to the completion of the bond on 22^nd January, 2005, some days before the hearing of 4^th February. It does not seem to me that the adjournment of the matter from 15^th December to 4^th February, even if this was in ease of the accused over the Christmas period, was an order varying the probation bond by way of extension of time.

While it was clearly in the accused's interest to be given one last chance, this cannot be construed as being a variation of the order.

The imposition of a conviction and sentence is, of course, a penal matter. The evidence, moreover, is clear that the accused breached the terms of his bail bond on successive occasions during the period of the twelve-month probation.

He had, of course, been "called" to the court to deal with the progress report of 17^th September, 2004, where the probation and welfare officer reported that his attendance at probation appointments had been satisfactory but that attendance to give urine analysis had been erratic and of late very unsatisfactory, that he did attend the Aislinn Centre but did not attend the aftercare group and that the Gardaí confirmed that he had been charged in relation to other matters.

It is significant that on 4^th October, 2004, following that report, that the learned District judge varied the conditions of the accused's bail bond by the addition of conditions to attend regularly at school, attend an addiction counsellor and keep away from the two named persons rather than the more general "abide by pro-social, anti-criminal lifestyle". However, there was no extension of the probation period.

On 15^th December, the adjourned date, the accused was remanded on strict terms to 10^th February, 2005 when it was indicated to the accused that he was being given one last chance to offer complete compliance with the terms of his probation bond. This, clearly, was in the best interests of the accused and showed commendable patience and concern for him. However, it cannot be construed as an extension of the probation bond.

Probation is, of course, a statutory scheme within the Criminal Justice Administration. The effects of a breach of a probation bond is to activate a conviction and sentence. Penal provisions must be construed strictly. It follows that in order for a District judge to properly proceed to conviction and sentence, in circumstances where accused have been in breach of condition(s) of a probation order, this must be done within the period of the said probation order.

It is common case that the answer to the first question should be in the affirmative as is clear from s. 5 of the 1907 Act.

The second question, as drafted, only arises if the first question was answered in the negative. However, the court may reformulate a question posed. Laffoy J. in National Authority for Occupational Safety and Health v. OK Tools Hire [1997] 1 I.R. 534 amended the question posed by referring to the issue on which the District Court judge required guidance being more aptly formulated by the amendment at 541).

I would reformulate the second question as follows:

Where, within the period of probation, the judge adjourns conviction and sentence outside the period of probation to give a further chance to an accused who has breached the conditions of the probation order, extend the period of the probation bond for the purpose of considering conviction and sentencing.

For the reasons stated above the answer must be in the negative.

Approved: Murphy J.