Birmingham J.
Mahon J.
Edwards J. Appeal No.: 52/2015
Between
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment (ex tempore) of the Court delivered on 1st March 2016 by Mr. Justice Mahon
1. The appellant came before Cork Circuit Criminal Court charged with one count of robbery which occurred on 4th January 2013, and one count of s. 15 of the Misuse of Drugs Act, 1977 (as amended) and, more particularly, possession of cannabis with a street value of €600. The appellant pleased guilty to both counts on 17th June, 2013. Evidence was heard on 12th November 2013, and the matter was then adjourned for sentencing to 25th November, 2013. A urine analysis report was also directed to be available for that date.
2. On 25th November, 2013, a garda superintendent expressed reservations about the manner in which the urine analysis samples had been taken and the matter was further adjourned to 11th February 2014. On the adjourned date, the garda superintendent advised the court that the appellant was subject to a District Court suspended sentence dating back to 7th February, 2012. The appellant was then remanded in custody to 27th February, 2014.
3. On 27th February, 2014, the appellant, having by then spent approximately two weeks in custody, was sentenced to a term of three years, but the sentence was suspended for a period of three years on conditions, including a condition that for the first year the appellant would provide monthly urinalysis to the gardaí.
4. The matter again came before the court on 10th February, 2014, as the appellant had failed to provide urinalysis to the gardaí. The learned sentencing judge then lifted the three year suspension in its entirety. The appellant has appealed against that decision.
5. Prior to the commencement of this appeal, the appellant indicated just one ground of appeal in relation to the activation of the three year suspended sentence, namely that the learned sentencing judge failed to give have sufficient regard to the appellant’s pleas of guilty on 17th June, 2013. At the hearing of this appeal, it was also contended on behalf of the appellant that the activation of the three years suspended sentence was unduly harsh in the circumstances.
6. The decision to suspend almost the entire of the original three year sentence for what were undoubtedly serious offences was a lenient one, and a generous recognition of the mitigating factors, including the pleas of guilty. One of the offences concerned a robbery which involved the appellant entering an off licence with his face hooded, confronting staff, claiming to be armed with a knife, threatening the staff and forcing them to hand over €450 from the till. The appellant had a number of previous convictions.
7. Clearly, in making the decision to suspend the sentence, the learned sentencing judge decided to give the appellant a significant chance to avoid prison, but at a price, namely, that he facilitate urinalysis on a monthly basis for a period of twelve months. The choice for the appellant was to honour this condition of his suspended prison term, or failing that, suffer the consequences. The condition was not a particularly onerous one, and at best, it might have been an inconvenience for the appellant.
8. On the basis that the condition had been breached, the matter was re-entered for the purposes of determining whether there should be an activation of all or part of the suspended sentence of three years, or indeed, if none of the suspended sentence ought to be activated. A decision, pursuant to s. 99(10) of the Criminal Justice Act 2006, to activate the entire of, or part of, a previously suspended sentence is subject to the general principles of sentencing. It is not a process that automatically leads to the activation of a suspended sentence merely on proof that a condition on which that sentence was wholly or partly suspended was breached. The extent of any breach of a condition is relevant, and the entire process is always subject to the principles of totality and proportionality.
9. As already indicated the court is of the view that the decision to suspend the three year sentences, the appellant having spent two weeks in custody, was a lenient outcome for the appellant in respect of the offense in question.
10. When the matter returned to court on 10th February 2015, Sgt. Lyons explained the extent of the appellant’s failure to comply with the urinalysis testing requirement in the following terms:-
“… Mr. Heaphy last attended for a sample on 16th October, and despite five requests in November to attend, he failed to attend. He was requested to attend on 2nd, Mr. Bowman explained to me, what he would do is he would telephone Mr. Heaphy, give him twenty four hours notice to appear at Arbour House. Mr. Heaphy would come in, give a sample, then it would be tested. He contacted him, sorry, four times, 7th, 17th and 27th November. On each occasion Mr. Heaphy failed to turn up. He contacted him on 2nd December; again he failed to turn up. He attempted to make contact with him on 8th December but could not get him on the number. He has not presented for a sample in November. He has not presented in December. He has not presented in January and has not presented to date in February, but, to be fair, I don’t think, where he to present today, that the HSE would entertain him because of his failure to adhere to the previous ones.”
11. The learned sentencing judge clearly took a serious view of the appellant’s repeated failure to honour the urinalysis condition of his suspended sentence, in that he commented that if he could have done so, he would have increased the sentence.
12. In the Court’s view, this appeal must fail. The original sentences were lenient. The decision to activate the balance of the three year suspended sentence was proportionate, and no error of principle has been identified in relation to it.
