A man who had his custodial sentence reduced from ten-months to six-months, with a further four-months suspended for a period of five years, has lost his appeal against his sentence in the High Court.
Finding that the Circuit Court judge did not err in his judgment, Mr Justice Max Barrett refused all reliefs sought by the man.
In February 2015, Mr Michael Collins was found in possession of almost €9,000-worth of stolen tools and bicycles.
In 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).
Circuit Court Appeal
Mr Collins lodged an appeal in respect of this sentence to the Circuit Court, in December 2016. Hickson J:
- Affirmed the ten-month sentence but suspended the final four months of it for a period of five years;
- Marked the two other offences as having been taken into consideration in lieu of the two six-month sentences;
- Disqualified Mr Collins from driving for a period of two years.
Mr Collins complained that the length of the suspension of sentence was ultra vires the powers of the Circuit Court judge.
In the High Court Mr Collins sought, inter alia:
- an order of certiorari quashing the sentence imposed by the learned Circuit Court judge;
- an order of certiorari quashing the driving disqualification order;
- 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
Justice Barrett explained that s.27 of the Road Traffic Act 1961 and s.99 of the Criminal Justice Act 2006 were of particular relevance in the context of the application at hand.
Justice Barrett said that the pre-eminent case on the point raised in relation to Mr Collins’ sentence, i.e. whether there is jurisdiction under s.99 of the Criminal Justice Act 2006 to suspend a sentence for longer than the sentence stated was DPP v. Vajeuskis  IEHC 265.
In Vajeuskis it was concluded that because the Criminal Justice Act 2006 was silent on the point, a District Judge was not restricted by the maximum sentencing jurisdiction in a given case as to the length of time for which a sentence can be suspended.
It was emphasised however that Vajeuskis did not establish an unfettered sentencing power on the part of sentencing judges.
Endorsing the observations of Professor O’Malley in Sentencing Law and Practice, Justice Barrett rejected submissions by the DPP that McCarthy v. Brady  IEHC 261 was entirely irrelevant
Justice Barrett said that the ‘unfortunate difficulty’ for Mr Collins was that, even having regard to the observations in McCarthy v. Brady  IEHC:
- it is clear from Vajeuskis that when it comes to the Criminal Justice Act 2006, the Circuit Court judge was not confined to imposing a maximum two-year suspension,
- there was no failure on the part of the Circuit judge to provide reasons, and
- the period of the suspension was not so disproportionate as to render it unfair, void, contrary to law or in excess of jurisdiction.
Further, in regard to Mr Collins’ arguments pursuant to s.99 of the Criminal Justice Act 2006, Justice Barrett noted 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’.
Since Mr Collins freely elected to serve his last four months instead of entering a bond, this was a factor the court considered ‘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’.
In any case, Mr Collins failed to establish any legal frailty or flaw in the judgment of Hickson J. 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.
As such, Justice Barrett refused all reliefs sought by Mr Collins.
- by Seosamh Gráinséir for Irish Legal News