Court of Criminal Appeal dismisses DPP's application due to District Court's failure to remand respondent for sentence revocation.

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 5th March 2008.

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 respondent pleaded guilty to all charges and in respect of the first mentioned offence was sentenced to a term of imprisonment

of three months the remaining offences being taken into consideration. The respondent was remanded in custody with consent to bail

to this court for the purposes of the Criminal Justice Act 2006 section 99.

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.

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)”.

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 –

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

refuse the application.”

In the present case the Court of Criminal Appeal imposed a sentence on the respondent. Section 99 (1) empowers the Court of

Criminal Appeal to suspend the execution of a sentence in whole or in part. Section 99(9) as amended requires the District Court, in

this case, before imposing sentence to remand the respondent to the court that made an order under subsection (1), that is to the

Court of Criminal Appeal, so that the Court of Criminal Appeal could deal with the revocation of the suspended portion of the sentence

in whole or in part. The Court of Criminal Appeal would then remit the matter to the District Court to sentence the respondent in

respect of the offences to which he had there pleaded guilty. This was not done.

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.