High Court dismisses judicial review challenging Circuit Court's statutory suspended sentence length and conditions.

[2017] IEHC 779

THE HIGH COURT

2016 No. 958 JR

Between:

Michael Collins

Applicant

– and –

The Director of Public Prosecutions

Respondent

JUDGMENT of Mr Justice Max Barrett delivered on 21st December, 2017.

I

Facts

(i) General.

1. On 1st February, 2015, Mr Collins was found in possession of almost €7,000-worth of stolen power tools and two high-quality

bicycles that were worth a total of just under €2,000 between them. The tools and bicycles had been stolen in Dublin a few days

previously. The circumstances in which the tools came to be found in the possession of Mr Collins feature in the following extract from

a transcript of the later Circuit Court appeal proceedings which has been exhibited before the court:

“Garda: …I received a call from…Enniscorthy station saying that Mr [H]…had contacted the station saying that he had

been burgled a couple of days previous. It was a Sunday morning and he had travelled to the…market in Enniscorthy

where he [Mr H] observed a number of tools that were stolen which belonged to him. He identified a vehicle…a red Ford

transit which was parked….I met with Mr [H]…outside the market and he…pointed out the van where the tools

were….He said he was able to recognise them because [for] a lot of the power tools he had made extension cords with

yellow cable and these yellow cables were still on the power tools.”

2. On 10th December, 2015, Mr Collins was sentenced in the District Court to a cumulative sentence of ten months’ imprisonment in

respect of three counts of handling stolen property contrary to s.17 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (ten

months for handling the tools and two concurrent six-month sentences for the bicycles). Mr Collins lodged an appeal in respect of this

sentence to the Circuit Court. That appeal was heard and decided by Hickson J. on 9th December, 2016. Hickson J., having heard the

submissions before him and considered matters thoroughly, (i) affirmed the ten-month sentence but suspended the final four months

of it for a period of five years, (ii) marked the two other offences as having been taken into consideration in lieu of the two six-month

sentences, and (iii) disqualified Mr Collins from driving for a period of two years.

(ii) The Suspended Sentence.

3. When it comes to the imposition of the suspended sentence, the key segment of the transcript of the Circuit Court hearing

indicates the learned Circuit Court judge to have said as follows:

“Judge….He [Mr Collins] has been interviewed by the probation service and the report is as I described it on the last

occasion, like the curate’s egg it is good in parts….[T]he probation officer who is experienced…in assessing risk assesses

Mr Collins as [presenting] a moderate risk of re-offending in the next 12 months. There are three categories, low,

moderate and high. Notwithstanding that he has been caught red-handed he is assessed as a moderate risk. Like his wife

he has been bereaved by having three deaths in the family of children….There are two [surviving] sons, one I am told

aged 28 and the other 22, and they live locally. Mr Collins is not a man who works and undoubtedly he has limited

income. The receipt of stolen property is a huge temptation for him. But I am satisfied that he is a significant player in

the off-loading of stolen property. I adjourned this case and I remanded him in custody to consider my options and if at

all possible to deal more leniently with Mr Collins. I have to conclude that no error was made by the District Court judge

in imposing a custodial sentence. It is appropriate that a custodial sentence be imposed on Mr Collins. I do that with the

greatest regret and the greatest sympathy for the plight in which his wife finds herself….What I am going to do is as

follows. I will reduce the term of imprisonment from 10 months to six months. I will suspend the last four months for a

period of five years upon him entering into a bond to keep the peace and be of good behaviour. The bond should be

measured in the sum of €100. In addition, because he was using his own van for the purpose of handling stolen property,

I am going to disqualify him from driving for a period of two years.”

4. Notably, although the learned Circuit Court judge concluded “that no error was made by the District Court judge in imposing a

custodial sentence”, he ‘softened the blow’ somewhat by reducing the term of imprisonment from ten months to six months,

suspending the last four months for five years. The reduction so effected appears to have come about in response to the argument of

Mr Collins’ own counsel on appeal who stated, inter alia:

“With respect to the submissions before the court my submission would be that he has put his hands up, he has come

clean. He is a man whom, I submit, on my reading of the probation report…the probation officer does not see…as

someone who is likely to go out and get into trouble again….And I think that should permit the court to take a certain

approach with regard to holding him to his word with regard to giving him an opportunity to keep his nose clean. [This, it

appears to the court, is ‘code’ for a suspension of sentence.] His record is pretty good….I think he deserves a chance,

Judge, to stay out of jail, and to prove to this court that he can keep on the straight and narrow. That is my

submission, Judge.”

II

Reliefs Sought

5. Notwithstanding that Hickson J. suspended a portion of Mr Collins’ sentence, and that no objection was made by Mr Collins to the

period of suspension upon the revision of sentence, Mr Collins now comes to court complaining that the length of the suspension of

sentence was ultra vires the powers of the learned Circuit Court judge. In consequence, by notice of motion of 14th December, 2016,

Mr Collins seeks, inter alia, the following reliefs: (1) an order of certiorari quashing the sentence imposed by the learned Circuit Court

judge; (2) an order of certiorari quashing the driving disqualification order; (3) a declaration that it was in excess of jurisdiction to

impose a suspended sentence of ten months with the final four months suspended for a period of five years.

III

Two Statutory Provisions

(i) Introduction.

6. Although Mr Collins was convicted under s.17 of the Act of 2001, it is two other statutory provisions, s.27 of the Road Traffic Act

1961 and s.99 of the Criminal Justice Act 2006, that are of particular relevance in the context of the application at hand.

(ii) Section 27 of the Act of 1961.

7. Section 27 of the Act of 1961 provides, inter alia, as follows:

“(1)(a) Where a person is convicted of an offence under this Act or otherwise in relation to a mechanically propelled

vehicle or the driving of any such vehicle…or of a crime or offence in the commission of which a mechanically propelled

vehicle was used, the court may, without prejudice to the infliction of any other punishment authorised by law, make an

order (in this Act referred to as an ancillary disqualification order) declaring the person convicted to be disqualified for

holding a driving licence.”

(iii) Section 99 of the Act of 2006.

8. Section 99 of the Act of 2006 provides, inter alia, as follows:

“(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 recognisance to comply with the conditions of, or imposed in relation to, the

order.”

IV

Some Case-Law of Relevance

(i) The Section 27 Point.

9. As is clear from the outline of facts given above, Mr Collins’ handling offences were detected after a party who had been burgled

reported that his valuable stolen tools had been sighted in Mr Collins’ van at the market in Enniscorthy (along, it turned out, with a

couple of valuable stolen bikes). In imposing the disqualification order, the learned Circuit Court judge expressly cross-referenced the

imposition of that disqualification with the fact that Mr Collins had been using his van for handling stolen property. “[B]ecause”

Hickson J. said, “he [Mr Collins] was using his own van for the purpose of handling stolen property, I am going to disqualify him from

driving for a period of two years.”

10. There is really no doubt but that the foregoing involved a proper application of the power available to the learned Circuit Court

judge under s.27 of the Act of 1961. This Court has been referred by counsel for Mr Collins to DPP v. Sweeney [2014] IECA 5 and DPP

v. Cunningham [2015] IECCA 2. However, there is no comparison between the facts of those cases and the facts at play in the

within application. In Sweeney, the accused used a false name when selling a stolen van; in Cunningham, Mr Cunningham had not

actually employed a vehicle in his crime. In the within matter, by contrast, the use of his van by Mr Collins, a man described by

Hickson J. as “a significant player in the off-loading of stolen property” was central to what transpired in terms of the placing of the

stolen materials in his van and the driving of same to the market in Enniscorthy.

11. Worth recalling in this regard are the following observations of Walsh J. in Conroy v. Attorney General [1965] I.R. 411, 442, as

cited, at greater length, by Hogan J., in his judgment for the Court of Appeal in Sweeney:

“It is obvious that the protection of the common good requires that the right to drive a motor car cannot be

unrestricted. The right may therefore be lost if a Court, on a consideration of the relevant facts and materials,

determines that the person concerned, by reason of his general recklessness or thoughtlessness or of his propensity to

drink, or by reason of disease or other disability or his abuse of the right by exercising it in the furtherance of

criminal activities, is unfit to exercise the right to drive a motor car. Such disqualification is not a punishment

notwithstanding that the consequence of such finding of unfitness might be both socially and economically serious for

the person concerned….Undoubtedly disqualification may have a deterrent quality but that does not make it a

punishment. It is a regulation of the exercise of a statutory right in the interest of public order and safety.”

[Emphasis added].

12. As Hogan J. observes in Sweeney, para.12:

“While it is true that Conroy is ultimately a determination of the nature of a disqualification order in the context of the

minor/non-minor offence distinction for the purposes of Article 38.2 of the Constitution, the reasoning of Walsh J. must

nonetheless inform any wider analysis of the nature of such a disqualification order, whether it is imposed pursuant to

either s.26 or s.27 of the 1961 Act.”

13. To borrow from the above-quoted wording of Walsh J., the learned Circuit Court judge in the case at hand in effect determined

“on a consideration of the relevant facts and materials” that Mr Collins “by reason of his…abuse of the right [to drive] by exercising

it in the furtherance of criminal activities, is unfit to exercise the right to drive a motor car” and thus imposed the disqualification

order that he imposed. The court does not see any legal flaw to present in this regard. It was imposed intra vires, and there is no

basis for the contention that it ought now to be quashed ex debito justitiae (by reason of some obligation of justice).

(ii) The Section 99 Point.

14. Was Hickson J. on appeal, or indeed the District Judge at first instance, restricted as to the length of time for which sentence

could be suspended? The power to impose suspended sentences is now regulated entirely by statute, specifically by s.99 of the Act

of 2006, as amended. That this is so is clear, inter alia, from the judgment in DPP v. Murray [2015] IEHC 782 where O’Malley J. states,

inter alia as follows in respect of s.99, at paras. 99-100:

“99….[I]t is clear from the provisions of the section that the legislature’s intention was to regulate the suspended

sentence by putting it on a statutory footing. In so doing, the objective was to provide a complete code insofar as the

minimum conditions of suspension, the supervision of offenders, the enforcement powers of the court and the discretion

in relation to activation are concerned. It is also important to note that the section does not in any way interfere with

the objectives of the judiciary in relation to suspended sentences….

100. In these circumstances there is no scope for a ‘parallel jurisdiction’ to be operated outside the statute.”

15. O’Malley J.’s determination in this regard is consistent with her judgment in DPP v. Carter [2014] IEHC 179, para.39, and her

decision in that later case was upheld on appeal by the Supreme Court in DPP v. Carter; DPP v Kenny [2015] IESC 20.

16. The foregoing has the result that the pre-eminent case on the point raised in relation to Mr Collins’ sentence, i.e. whether there is

jurisdiction under s.99 to suspend a sentence for longer than the sentence stated is that of Peart J. in DPP v. Vajeuskis [2014] IEHC

265. That was a consultative case stated in which Peart J. concluded that because the Act of 2006 is silent on the point, a District

Judge is not restricted by the maximum sentencing jurisdiction in a given case as to the length of time for which he can suspend a

sentence. However, the effect of Vajeuskis is not to establish an unfettered sentencing power on the part of sentencing judges. As

Professor O’Malley observes in his learned text, Sentencing Law and Practice, 3rd ed., 658:

“Vajeuskis [is not] to be interpreted as giving courts an entirely free hand in deciding on the length of an operational

period [i.e. the period other than the custodial term]. That [operational] period is, after all, part of the punishment, and

all the more so where there are onerous conditions attached.”

17. It follows from this last-quoted observation, which the court respectfully endorses, that it is not the case, as was submitted by

counsel for the DPP that, for example, the observations of de Valera J. in McCarthy v. Brady [2007] IEHC 261 fall now to be treated

as entirely irrelevant on the contended-for basis that McCarthy was a case concerned with whether under the common law the

District Court had the requisite jurisdiction to suspend a sentence for longer than the sentence imposed, whereas this Court is now

treating with the position under statute law. When it comes to this aspect of matters, it seems to the court that all that O’Malley J.

states in Murray (as echoed by her in Carter) is that (i) there is now a statutory suspended sentence regime and (ii) there is no

parallel common law suspended sentence regime. But she is not saying that never and in no instance can a court ever look to case-

law which pre-dates the statutory regime. So, for example, although it no longer remains the case that a suspended sentence has to

be revoked in its entirety or not at all, it seems to the court that de Valera J., in McCarthy, made, as indeed Professor O’Malley

observes, again at 658, “valid observations”, of some continuing relevance, “about the hardship that the applicant [in McCarthy]

would experience if, say, the suspension were revoked after 35 months [of a 36-month operational period]”. Those are the type of

concerns to which an appellate court could legitimately have regard in the context of an appeal on grounds of severity and to which

this Court can have regard in the context of a judicial review on the grounds of illegality. The unfortunate difficulty that presents for

Mr Collins is that, even having regard to the observations of de Valera J. in McCarthy, (i) it is clear from Vajeuskis that when it comes

to the Act of 2006, the learned Circuit Court judge was not confined to imposing a maximum two-year suspension, (ii) there was no

failure on the part of the learned Circuit judge to provide reasons, and (iii) the period of the suspension was not so disproportionate

as to render it unfair, void, contrary to law or in excess of jurisdiction.

18. One final point occurs regarding the s.99 dimension of the within application. The court cannot but note that Mr Collins did have a

choice at the point in time when Hickson J. gave his judgment, which choice was to enter the bond and thereby bind himself to the

peace and to be of good behaviour for a period of five years, or, alternatively, to serve his last four months’ imprisonment and be

done with matters upon the elapse of that period. Mr Collins freely elected to choose the former option. That is a factor which the

court considers it could have appropriately borne in mind had it reached the point where it had to decide whether to exercise its

discretion to grant any or all of the reliefs sought by Mr Collins in the within application. However, Mr Collins for the reasons aforesaid

has failed to establish any legal frailty or flaw in what Hickson J. did and thus the decision as to whether or not to grant the

discretionary reliefs sought, in the face of such frailty or flaw, does not present.

V

Conclusion

19. For the reasons aforesaid, the various reliefs sought by Mr Collins at this time are respectfully refused.