Court of Criminal Appeal confirmed its jurisdiction to revoke suspended sentence portions under Criminal Procedure Act 1993.

COURT OF CRIMINAL APPEAL

Record No. 202/CJA2006

Finnegan J.

Budd J.

O’Keeffe J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

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

.V.

ANTHONY FOLEY

RESPONDENT

Judgment of the Court delivered on the 19th day of October 2011 by Finnegan J.

The respondent came before the Circuit Criminal Court, Dublin, for sentence on the 11th October 2006 in respect of three offences as

follows:-

Handling stolen property, contrary to section 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The offence

was committed on the 25th January 2005 and the property in question was a Volvo motor car.

False imprisonment contrary to section 15 of the Non-Fatal Offences Against the Person Act 1997. The offence was

committed on the 12th October 2005 and related to one Raymond McLure.

False imprisonment contrary to section 15 of the Non-Fatal Offences Against the Person Act 1997.

The offence was committed on the 12th October 2005 and related to one William Farrell.

The second and third mentioned offences were committed while the respondent was on bail in respect of the first mentioned offence.

The respondent pleaded not guilty to the first mentioned offence and at trial was convicted: to the second and third mentioned

offences he pleaded guilty. In relation to the first mentioned offence the learned Circuit Court judge imposed a sentence of twelve

months. In relation to the second and third mentioned offences he imposed sentences of seven years consecutive to the sentence of

twelve months imposed in respect of the first mentioned offence. All three sentences were suspended on conditions including a

condition that he keep the peace and be of good behaviour for a period of five years.

The Director of Public Prosecutions applied to the Court of Criminal Appeal pursuant to section 2 of the Criminal Justice Act 1993 for

review of the sentences. Judgment of the Court of Criminal Appeal was delivered on the 19th April 2007 the relevant part of the

judgment being in the following terms:-

“The court won’t interfere with the sentence that was imposed, the seven years imprisonment consecutive to the twelve

months imposed on the first offence. The total that was arrived at was eight years. The learned trial judge suspended the

entirety of the eight years but this court will suspend five of the eight years of the sentence so that the suspension will

be on the same conditions that were fixed by the learned Circuit Court judge.”

The relevant part of the warrant issued out of the Court of Criminal Appeal to the Governor, Mountjoy Prison, reads as follows:-

“And whereas the said application was granted this day by the Court of Criminal Appeal which quashed the said

concurrent sentences of seven years imprisonment (suspended as aforesaid) and imposed in lieu a sentence of seven

years imprisonment on each of the said counts to run concurrently and to commence at the legal termination of the

sentence imposed on Bill No. DU367/05 the final five years thereof to be suspended on the said Anthony Foley entering

into a bond in the sum of €100 before the Governor of the prison in whose custody for the time being he shall be to keep

the peace and be of good behaviour for a period of five years from the date of his release from lawful custody.”

The respondent was convicted before the District Court of a number of offences as follows:-

On the 7th July 2009 he was convicted of eight offences contrary to the Road Traffic Acts. The offences were committed

on the 13th February 2007.

On the 19th August 2009 he was convicted of handling stolen property contrary to section 17 of the Criminal Justice

(Theft and Fraud Offences) Act 2001. The offence was committed on the 25th January 2009 and the property in question

being various cartons of cigarettes.

On the 16th September 2009 he was convicted of having in his possession an article, a screwdriver, with the intention

that it be used in connection with the theft of property from a mechanically propelled vehicle contrary to section 15(1) of

the Criminal Justice (Theft and Fraud Offences) Act 2001. The offence was committed on the 14th June 2009.

In relation to the said convictions the District Judges having regard to the provisions of the Criminal Justice Act 2006 section 99 as

amended before imposing sentence for the offences remanded the respondent to the Court of Criminal Appeal.

Suspended Sentences

Suspended sentences have been part of Irish sentencing jurisprudence for more than one hundred years. In In Re McIhagga The

Supreme Court, unreported, O’Dálaigh C.J. 29th July 1971, the suspended sentence was described as “a valid and proper form of

sentence”. A considerable jurisprudence has developed in relation to suspended sentences particularly in the Court of Criminal Appeal

and the suspended sentence has been recognised as a valuable and flexible sentencing tool enabling the court to take into account

the personal circumstances of the offender. As to suspended sentences in general see the Criminal Process, Thomas O’Malley, 22.47-

22.51 which deals with the position following the passing of the Criminal Justice Act 2006 but not the amendments thereto by the

Criminal Justice Act 2007 and the Criminal Justice (Miscellaneous Provisions) Act 2009, The role of the Community Service Order and

the Suspended Sentence in Ireland: A Judicial Perspective, District Judge David O’Riordan, Department and Faculty of Law, University

College Cork pp.371-372 and Suspended Sentences following the 2006 and 2007 Criminal Justice Act, Smith & Dwyer Bar Review April

2009 p.32.

The statutory provisions

Section 99 of the Criminal Justice Act 2006 created a statutory basis for suspended sentences and 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 relevant

statutory provisions are as follows:-

Criminal Justice Act 2006

Section 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 conditional that the order under subsection (1) that the person in respect of whom the order is made keep

the peace and be of good behaviour during –

the period of suspension of the sentence concerned , or

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.

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 sitting of the court that made

the said order.

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 the circumstances of the case,

less any period of that sentence already served in prison or any period spent in custody (other then a period during which

the person was serving a sentence of imprisonment in respect of an offence referred to subsection (9)) pending the

revocation of the said order.

(a) A sentence other than a sentence consisting of imprisonment for life) imposed:-

in respect of an offence committed by a person to whom an order under subsection (1) applies, and

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).

This subsection shall not affect the operation of section 5 of the Criminal Justice Act 1951.

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 9 by the substitution of “the court before which proceedings for the offence are brought shall, before

imposing sentence for that offence” for “the court before which proceedings for the offence were brought shall

after imposing sentence for that offence”,

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):

“(10A) The court referred to in subsection (10) shall remand the person concerned in custody or on bail

to the next sitting of the court referred to in subsection (9) for the purpose of that court imposing

sentence on that person for an offence referred to in that subsection.”

In subsection (11), by the substitution of the following paragraph for paragraph (a):

“(a) Where an order under subsection (1) is revoked under subsection (10), a sentence of imprisonment

(other than a sentence consisting of imprisonment for life) imposed on the person concerned under

subsection (10A) shall not commence until the expiration of any period of imprisonment required to be

served by the person under subsection (10),” and

By the addition of the following subsection:

“(20) Where a court imposes a sentence of a term of imprisonment that is to run consecutively to a

sentence of a term of imprisonment the operation of a part of which is suspended, the first mentioned

sentence shall commence at the expiration of a part of the second mentioned sentence, the operation

of which is not suspended.”

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)”.

Application of Section 99

The order of the Court of Criminal Appeal was made on the 19th April 2007. The District Court convictions of the 17th July 2009 relate

to offences committed on the 13th February 2007: that is before the order of the Court of Criminal Appeal but subsequent to the

order of the Circuit Court made on the 11th October 2006. The District Court convictions of the 19th August 2009 and the 16th

September 2009 related to offences committed on the 11th February 2009 and the 14th June 2009 respectively: that is subsequent

to the order of the Court of Criminal Appeal.

The Issues

Two preliminary issues arose on the matter coming before the Court of Criminal Appeal pursuant to section 99 of the Criminal Justice

Act 1999 as amended. The issues are as follows:-

1. Has the Court of Criminal Appeal jurisdiction under section 99(10) as amended to consider the revocation of the

suspension of sentences the respondent having breached the terms of the suspension by committing offences on the

13th February 2007.

2. Has the Court of Criminal Appeal jurisdiction under section 99(10) as amended to consider the revocation of the

suspension of sentences the respondent having beached the terms of the suspension by committing offences on the 11th

February 2009 and the 14th June 2009.

It is proposed to deal with each of these issues in turn.

Has the Court of Criminal Appeal jurisdiction under section 99(10) as amended to consider the revocation of the

suspension of sentences the respondent having breached the terms of the suspension by committing offences on the 13th

February 2007.

Before the court it was conceded by the Director that the Court of Criminal Appeal has no jurisdiction under section 99 as amended

arising out of the conviction of the respondent for offences committed on the 13th February 2007. The concession is quite properly

made. The amendment of section 99(9) of the 2006 Act by section 51 of the 2009 Act makes it clear that to trigger the jurisdiction

to revoke the suspension of a sentence there must be a conviction for an offence committed after the making of the order

suspending the sentence in question. The 2009 Act was commenced on the 25th August 2009. The court is satisfied that the

amendment is by way of clarification of section 9 of the 2006 Act and its effect was to ensure that subsection (9) was construed in a

manner consistent with the law and practice of the courts prior to the introduction of the statutory scheme in relation to suspension

of sentences.

Has the Court of Criminal Appeal jurisdiction under section 99(10) as amended to consider the revocation of the

suspension of sentences the respondent having beached the terms of the suspension by committing offences on the 11th

February 2009 and the 14th June 2009.

Central to this issue is the decision of the Court of Criminal Appeal in The People (Attorney General) v Peter Grimes [1955] I.R. 315

and 1 Frewen 496. The reports correspond substantially one with the other but are not identical. The facts in that case are as

follows. Peter Grimes was the respondent on a motion by the Attorney General to the Court of Criminal Appeal. He had been

sentenced in the Circuit Court on the 10th November 1952 to two years imprisonment with hard labour. On the 18th December 1952

the Court of Criminal Appeal suspended the sentence upon the respondent entering into a recognizance to keep the peace and be of

good behaviour for a period of two years. The respondent committed offences on the 24th December 1952 in respect of which he was

sentenced to terms of imprisonment. The Attorney General applied to the Circuit Court for an order that the respondent be required to

serve his suspended sentence on the expiration of the sentence which he was then serving. The Circuit Court judge refused to make

the order. The Attorney General then brought the motion before the Court of Criminal Appeal. The relief sought on the motion as set

out in the judgment is as follows:-

“An application by motion on notice was then made to the Court of Criminal Appeal for an order that Grimes at present

serving a sentence of imprisonment, be ordered, on the expiration of the said sentence, to serve the sentence of two

years imprisonment with hard labour imposed upon him by the judge of the Circuit Court sitting at Wicklow on the 10th

November 1952 and suspended by the Court of Criminal Appeal on the said Peter Grimes entering into a recognizance

acknowledging himself bound to the State in the sum of €10.00 to keep the peace and be of good behaviour to all citizens

of Ireland for a period of two years, which said recognizance he broke on the 24th December 1952 by committing certain

crimes for which he was convicted on the 9th January 1953 and sentenced to three calendar months imprisonment with

hard labour and for an order that the said recognizance be estreated or alternatively for an order giving directions as to

the enforcement of the said order of the judge of the Circuit Court suspended by the Court of Criminal Appeal.”

In the body of the judgment as reported in Frewen there is a short recital of part of the sentencing order of the Court of Criminal

Appeal made on the 18th December 1952 as follows:-

“’with liberty to apply to the Circuit Court for such warrant’. This would seem to indicate that it was the view of the court

that the application should have been made to the Circuit Court. We are told that the Circuit judge, when his attention

was called to this case, declined to accept it as ruling the present application.”

In Grimes the Court of Criminal Appeal’s attention was drawn to an unreported case, The People (Attorney General) v Carolan. It has

proved impossible to find details of this case other than such details as are disclosed in the judgment in The People (Attorney

General) v Grimes as follows:-

“Mr McDonald, although he makes the application to this court, can suggest no distinction between this and Carolan’s

case (unreported) save that in this case application has been made to the Circuit judge who has refused it, whereas in

Carolan’s case (unreported) the application was made ex parte to this court in the first instance. This court is, however,

unable to see that any distinction can be drawn between the two cases.”

The court continued as follows:-

“The reasons which seem to support the decision in Carolan’s Case (unreported) are that this court has merely an

appellate jurisdiction; section 31, section 32 and section 33 of the Courts of Justice Act 1924 make this clear. By section

34 it has jurisdiction to affirm or reverse a conviction in whole or in part and to remit, reduce or to increase or otherwise

vary the sentence and generally to make such order, including any order as to costs, as may be necessary for the

purpose of doing justice in the case before it. It was in exercise of this jurisdiction that the court varied the sentence

imposed by the Circuit judge. Once it had done this the court had completed its task in that case. The effect of the order

was to allow the conviction to stand but to vary the sentence by suspending it. There appears to be no ground for

regarding the matter as being still before this court. It is not necessary for this court to rule finally that the Circuit Court

has jurisdiction nor can the court make any order in the nature of mandamus to that court to hear the application. It does

seem, however, to the court, as it seemed to the court in Carolan’s case (unreported), that the application was properly

made in the Circuit Court.”

The Court of Criminal Appeal is now established by the Courts (Establishment and Constitution) Act 1961 section 3. The jurisdiction of

the Court of Criminal Appeal is that conferred by section 12 of the Courts (Supplemental Provisions) Act 1961:-

“12(1) The Court of Criminal Appeal shall be a superior court of record and shall for the purposes of this Act and subject

to the enactments applied by section 48 of this Act have full power to determine any questions necessary to be

determined for the purpose of doing justice in the case before it.

(2) There shall be vested in the Court of Criminal Appeal all jurisdiction which, by virtue of any enactment which is applied

by section 48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the

existing Court of Criminal Appeal.

(3) In subsection (2) section 44 of the Offences Against the State Act 1939, the reference to section 30 of the Act of

1924 shall be construed as a reference to subsection (1) of this section.”

Section 48 applied to the Court of Criminal Appeal the provisions of the Courts of Justice Act 1924 which are referred to in the

judgment in Grimes.

On this application the Director relies upon the wording of section 99 as amended. For the purposes of section 99(1) the court which

sentenced the respondent to a term of imprisonment is the Court of Criminal Appeal and it is the court to which the respondent is

required to be remanded by subsection (9) and the court with jurisdiction pursuant to subsection (10) to revoke the suspension of

sentence. Section 34 of the Courts of Justice Act 1924 provided as follows:-

“34. The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to

remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order

as to costs as may be necessary for the purpose of doing justice in the case before the court.”

Section 34 of the 1924 Act was repealed by the Criminal Procedure Act 1993 and replaced by section 3 of the Criminal Procedure Act

1993. Section 3(2) provides as follows:-

“3(2) On the hearing of an appeal against sentence for an offence the court may quash the sentence and in place of it

impose such sentence or make such order as it considers appropriate, being a sentence or order which could have been

imposed on the convicted person for the offence at the Court of Trial.”

This subsection makes it clear that on the Court of Criminal Appeal allowing an appeal against sentence the order of the Circuit Court

is quashed and in its place a sentence is imposed by the Court of Criminal Appeal and on this basis Grimes can be distinguished.

The respondent relies upon Grimes and submits that the basis upon which the matter was there remitted to the Circuit Court applies

equally here. Thus the Court of Criminal Appeal is an appellate court only and once it made its order varying the sentence imposed by

the Circuit Court judge it had completed its task and there is no ground for regarding the matter as still being before the court.

Further section 99(12) provides for an appeal. Thus if suspension of a sentence is revoked by the District Court there is an appeal to

the Circuit Court, and if by the Circuit Court an appeal to the Court of Criminal Appeal. If suspension is revoked by the Court of

Criminal Appeal the only appeal available is to the Supreme Court pursuant to section 29 of the Courts of Justice Act 1924 as

amended. Section 99 should be read as granting a full right of appeal where a suspension is revoked by allowing the revocation of a

suspension by the Court of Criminal Appeal to be dealt with in the Central Criminal Court as appropriate thereby giving an effective

appeal to the Court of Criminal Appeal rather than simply an appeal with leave to the Supreme Court pursuant to section 29 of the

Courts of Justice Act 1924 as amended.

Discussion

A note in the records of the Court of the Criminal Appeal is to the effect that The People (Attorney General) v Carolan is reported at

1943 I.J.R. 49. Unfortunately that report is of an appeal against sentence on which the Court of Criminal Appeal, for the sentence

imposed by the Circuit Court that the appellant be sentenced to a Borstal Institution until he reach twenty one years of age,

substituted a suspended sentence of twelve months imprisonment. It does not deal with the revocation of the suspension.

The People (Attorney General) v Grimes suggests the following reasons why revocation should not be dealt with by the Court of

Criminal Appeal:-

The People (Attorney General) v Carolan decided on the 24th April 1944 and which is unreported. Maguire C.J. in Grimes deals with

the case in the following terms:-

“An application was there (i.e. to the Court of Criminal Appeal) made ex parte for a warrant to arrest Carolan for a breach

of his recognisances entered into before the Court of Criminal Appeal in circumstances similar to those in the present

case. The court, consisting of O’Byrne, Maguire and Haugh JJ., refused the application. There is no note of a judgment in

the case. The note in the court note book, however, contains these words:-

‘With liberty to apply to the Circuit Court for such warrant’.”

In Grimes from the report at 1 Frewen 496 (but not at 1955 I.R. 315) it appears that the order made by the Court of Criminal Appeal

when it suspended the sentence included in its order:-

“With liberty to apply to the Circuit Court for such warrant”.

The Court of Criminal Appeal has a purely appellate jurisdiction: having dealt with the appeal the matter was no longer before the

Court of Criminal Appeal.

It is possible that in both Carolan and Grimes the Court of Criminal Appeal was relying on section 34 of the 1924 Act and the words

“to remit”.

Unsatisfactory is the conclusion of the judgment – that it was not necessary for the Court of Criminal Appeal to rule finally that the

Circuit Court had jurisdiction but that it seemed to the court that the application was properly made in the Circuit Court.

In any event it seems to this court that Grimes is not relevant in the present case. The Court of Criminal Appeal is a statutory court

and has such jurisdiction as is conferred upon it by statute. The respondent came before this court pursuant to section 2 of the

Criminal Justice Act 1993 and not section 34 of the 1924 Act. The relevant provisions of section 2 are as follows:-

“2(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as

“the sentencing court”) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal

Appeal to review the sentence.

(3) On such an application, the court may either -

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers

appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application.”

Thus subsection (3) in the present case has the effect that the order of the Circuit Court was quashed and in its place a sentence of

imprisonment was imposed by the Court of Criminal Appeal. There is thus a distinction to be drawn between an application for leave to

appeal under the Criminal Justice Act 1993 section 2 and an application for leave or an appeal under the Courts of Justice Act 1924

where, in the view of Maguire C.J.

“…the court varied the sentence imposed by the Circuit judge. Once it had done this the court had completed its task in

that case.”

Section 3(2) of the Criminal Procedure Act 1993 which replaced section 34 of the 1924 Act gives the Court of Criminal Appeal

jurisdiction on an appeal against sentence to quash the sentence and in place to impose such sentence or make such order as it

considers appropriate. Thus upon the Court of Criminal Appeal making an order varying the sentence the order of the Circuit Court is

quashed and in its place stands an order of the Court of Criminal Appeal imposing a sentence.

Having regard to the foregoing the court is satisfied that on an application pursuant to the Criminal Procedure Act 1993 section 2 a

sentence is imposed by the Court of Criminal Appeal. For the purposes of section 99(9) the Court of Criminal Appeal is the court that

made the relevant order. This is reflected in the terms of the warrant addressed to the Governor of Mountjoy Prison which are quoted

above.

The court is not satisfied that the provisions of section 99(12), which provides for an appeal against the revocation to such court as

would have jurisdiction to hear an appeal against any conviction of a sentence imposed on a person for the offence by the court that

revoked the order, affects this interpretation. The only appeal from the Court of Criminal Appeal is that provided for by section 29 of

the Courts of Justice Act 1924 as amended, an appeal to the Supreme Court on a question of law. It is, of course, less extensive

than the right of appeal which would exist where the revocation is by order of the District Court or Circuit Court. However it has been

the policy of the Legislature to restrict appeals from the Court of Criminal Appeal to the Supreme Court and it is to be presumed that

the Legislature understood this and intended that an appeal from the Court of Criminal Appeal against revocation would be so limited

unless by clear words a contrary intention is indicated. The court does not find in the provisions subsection (12) any basis for

straining the construction of section 99 as a whole where in its terms the section is clear.

Conclusion

For the foregoing reasons the court is satisfied that the appropriate court to deal with the revocation in whole or in part of the

suspended portion of the respondent’s sentence is the Court of Criminal Appeal.

DPP v Anthony Foley