Director of Public Prosecutions v C.T. (A minor) Criminal law - Consultative case stated - Probation act - Breach of terms of probation order - Time within which judge can properly proceed to convict and sentence - Effect of adjourning sentencing hearing to date outside the period of probation - Reformulation of question in case stated - Probation of Offenders Act 1907, sections 1(1), 5, 6.
The High Court (Mr Justice Murphy): judgment delivered July 27th, 2005.
Probation is a statutory scheme within the Criminal Justice Administration. The effect of a breach of a probation bond is to activate a conviction and sentence. Penal provisions must be construed strictly. It follows that in order for a District Judge to properly proceed to conviction and sentence, in circumstances where accused have been in breach of condition(s) of a probation order, this must be done within the period of the said probation order.
Where, within the period of probation, the judge adjourns conviction and sentence outside the period of probation to give a further chance to an accused who has breached the conditions of the probation order, this does not extend the period of the probation bond for the purpose of considering conviction and sentencing.
The High Court so held in answering in the negative raised the questions raised in a case stated.
Paul Anthony McDermott BL for the prosecutor; Michael O'Higgins SC with Niall Nolan BL for the accused.
Mr Justice Murphy began by setting out the background to the case. The accused was notified and required to attend before the District Court on June 3rd, 2003. He had been served with a juvenile summons applied for by Garda Govern dated March 13th, 2003. He was required to answer an allegation that he had committed an offence contrary to ss. 3 and 27 (as amended by s.6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977, being unlawful possession, on November 2nd, 2002, of a controlled drug, being cannabis resin. On June 3rd, the summons was adjourned for mention to the Children's Court on July 22nd, 2003, when the accused pleaded guilty and the matter was adjourned to September 4th, 2003, to allow for the preparation of a probation officer's report. A second juvenile summons was applied for by Garda Comiskey, dated May 9th, 2003, requesting the accused to appear before the District Court to answer an allegation that he had unlawfully in his possession a controlled drug being ecstasy, contrary to the same provisions, and that he had the same for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations, 1988 and 1993, and on the same day, that he had in his possession and for the purpose of selling or otherwise supplying it to another, a controlled drug being cannabis resin. On September 4th, 2003, summary disposal was directed by the DPP in relation to Garda Commiskey's summons. Pleas of guilty were then entered in relation to that summons. Judge Connellan ordered that the accused enter into a bail bond in the sum of €100 with a number of conditions attaching as recommended by the probation officer. The conditions included, inter alia, a curfew, return to full-time education, addiction counselling and provision of urine analysis. Proceedings were remanded until October 30th, 2003, so as to facilitate the preparation of a further probation officer's report. On that date the accused was remanded on continuing bail until January 24th, 2004.
Mr Justice Murphy said that the proceedings came before Judge Catherine Murphy on January 24th, 2004, when the proposal of the probation officer's progress report was adopted. The accused was placed on a 12- month probation order with conditions including a curfew, urine analysis testing, full co-operation with the probation and welfare services and attendance at the Aislinn Drug Treatment Centre. The accused was remanded on continuing bail to September 17th, 2004, and a progress report was directed. That report stated that the accused had not complied with certain conditions attaching to the probation order, in particular the requirement to attend for urine analysis, and attendance at the Aislinn Centre. It was further stated and confirmed that the accused had been recently charged with other matters. On October 4th, 2004, the previously adjourned proceedings came before Judge Murphy who varied the conditions of the accused's bail so that the accused had to maintain a curfew from 10pm to 7am, attend urine analysis twice weekly, attend regularly at school, attend an addiction counsellor, attend probation officer meetings and keep away from two named individuals. The accused was remanded to December 15th, 2004, and further reports were directed.
Mr Justice Murphy said that on December 15th, 2004, having considered the progress report, the accused was remanded on strict terms to February 10th, 2005. The progress report expressed the accused's compliance as being very unsatisfactory and that he was not co-operating with the drug counselling. A further report was directed. It was indicated to the accused that he was being given one last chance to offer complete compliance with the terms of his probation bond. A progress report on February 10th, 2005, expressed views, inter alia, that attendance at probation appointments had been unsatisfactory, that the accused was not co-operating with attempted referrals for drug counselling and, without prejudice, that the accused had come to the unfavourable attention of the Gardai in relation to breaches of curfew and of antisocial behaviour between October 24th, 2004, and the day before the hearing. The breach of curfew included driving a car at 2am and again at 11.40pm on January 9th, and the finding of ecstasy tablets in the front garden of the accused's home on January 3rd, 2005. Judge Catherine Murphy, having considered matters and the most recent progress report of February 10th, 2005, indicated that she wished to sentence the accused as she had indicated on December 15th, 2004, that she had given the accused one further chance to comply with the terms of the probation bond imposed on January 22nd, 2004.
Mr Justice Murphy said that section 1(1) of the 1907 Act empowers the District Court to make what are known as probation orders in relation to minor offences. This is a means of disposing of a minor offence by focusing on the rehabilitation of offenders and the prevention of reoffending behaviour. A probation order is a formal warning to a person that if he does not keep the peace and abide by conditions imposed by the court for a specified period he is liable to be brought before the court for punishment. This option is available to a court if having regard to the offender's character, his antecedents, age, health or mental condition, the trivial nature of the offence, or any extenuating circumstances it considers that it would be expedient to release the offender on probation. A probation order may also provide that a person be placed under the supervision of a probation officer during the probation period. The probation officer's functions, pursuant to s.4 of the 1907 Act, are to make contact with the offender and assist him in complying with conditions of his probation. The probation officer must see that the offender abides by the conditions and report to the court on the offender's progress. If there has been any breach of any of the conditions of a probation order and an information is sworn to this effect, a court can issue a warrant for a defendant's arrest. He or she will then be brought before the court which, pursuant to s.6 of the 1907 Act, may then sentence the defendant for the original offences(s) if satisfied regarding the alleged breach of condition. Section 5 of the Probation of Offenders Act 1907, as amended by s.9 of the Criminal Justice Administration Act 1914, relates to the power varying the conditions of recognisances.
Mr Justice Murphysaid that the District Court judge was of the opinion that questions of law arose and, having asked the accused's solicitor to initiate such questions, requested the High Court for a determination as follows:
"(1) In order for a District Judge to properly proceed to conviction and sentence, in circumstances where accused have been in breach of condition(s) of a probation order, must this be done within the period of said order?
"(2) If the answer to (1) is 'no', in the circumstances of the proceedings set out above, am I in a position to properly proceed and consider convicting and sentencing the accused?"
It was submitted on behalf of the accused at that hearing that the sentence had already been imposed in the form of a 12- month probation order on January 22nd, 2004. It was not then open to the court to sentence the accused a second time. It was further submitted that in the event that the court wished to revoke the probation bond and proceed to convict and sentence the accused, it was only possible for the court to do this during the period of the bond, that is to say in the circumstances of the criminal proceedings the subject matter of the case stated, at any time within a period of 12 months from January 22nd, 2004. The probation officer stated that he had been instructed that on any occasion where he wished to raise a breach of a probation bond it should be done in the course of the bond. Garda Comiskey responded to the defence submissions stating that on December 15th, 2004, the learned District Judge had indicated that the matter would be in for sentence on February 10th, 2005, unless there was a dramatic change in the behaviour of the accused. Garda Comiskey further stated that because the judge had varied the conditions of the accused's bail bond, she had, in fact, extended the bond in order to give the accused another chance.
Mr Justice Murphy said that it was further submitted that the accused should not be subjected to conviction and sentence. Question (1) of the case stated should be answered in the affirmative on the following grounds:
Firstly, the accused was discharged conditionally pursuant to s.1(1)(ii) of the 1907 Act on January 22nd, 2004, for a specified period of 12 months. This period having elapsed, it was not possible for the court to proceed to convict and sentence him.
Secondly, the probation officer, the individual with the most comprehensive and intimate knowledge of the progress of the probation order, in her report of February 10th, 2005, clearly stated her view that the accused's probation bond was completed on January 22nd, 2005. In those circumstances it was neither possible on February 10th, 2005, nor was it possible now, for District Judge Catherine Murphy to proceed to convict and sentence the accused.
Thirdly, having disposed of the proceedings in the manner she did on January 22nd, 2004, by placing the accused on a probation order/bond, the judge did not have jurisdiction to insert a review date. Any issue of non-compliance with or breach of a condition attaching to a probation order was a matter for the probation officer to address through the swearing of an information stating that an offender was in breach of condition(s) of a probation order on foot of which a court could issue an arrest warrant.
Fourthly, at no stage in the proceedings did the supervising probation officer apply to vary any of the conditions of the probation order and in particular the duration thereof pursuant to the provisions of s.5 of the 1907 Act (as substituted by s.9 of the 1914 Act).
Fifthly, despite concerns expressed in reports, at no stage did either the probation officer, or any member of the Gardai, swear an information in relation to the failure of the defendant to abide by the conditions of his bond, on foot of which a warrant for the arrest of the accused or a summons commanding attendance in the District Court might have issued.
Sixthly, the probation officer attending the District Court on February 10th, 2005, expressed the clear view that he had been instructed that on any occasion when he wished to raise a breach of a probation bond, this should be attended to in the course of the bond. The penultimate submission for the accused was that notwithstanding the view of Garda Comiskey that the probation bond was extended on December 15th, 2004, at no stage in the proceedings did the judge in fact state that the period of the probation order of 12 months was being extended and, in any event, in order for there to have been a lawful and proper admission to such a new (extended) recognisance, same would have had to have been formally entered into by the accused by him signing such a recognisance and acknowledging his signature in the usual manner. It was further submitted that should there be any doubt in the matter, this should not inure to the detriment of the defendant.
Finally, it was submitted that the conditions precedent for the variation, discharge or breach of the probation recognisance pursuant to ss. 5 and 6 of the 1907 Act not having been complied with within the time specified in the probation order, or at all, it was not possible for the judge to proceed to convict and sentence the accused.
For the prosecutor, it was submitted that under the terms of s.1(1) of the 1907 Act, an offender may only be called up for conviction and sentencing during the period of the probation order which has been imposed. Section (1)(1)(b) provides that a probation order may be imposed for a period of up to three years but where it is imposed for a shorter period, as in the instant case, it appeared that a court cannot proceed to convict and sentence an accused outside the time period. In these circumstances, it appeared that the answer to the first question was "yes". The net issue arising in the case was whether, when the District Judge indicated her intention on February 10th, 2005, to proceed to sentence the accused, the probation order was still in being. Thus, the second question should be answered even though the answer to the first question was yes. Reference was made to Collins and O'Reilly, Civil Proceedings and the State, at para.2.15, which states: "The High Court may reformulate questions posed by a judge of the District Court in a consultative case stated in an effort to provide the latter with the guidance he seeks on the issues arriving before it; National Authority for Occupational Safety and Health v. O'K Tool Hire 1 I.R. 534, per Laffoy J.'
The probation order made on January 22nd, 2004, was for 12 months. The District Judge indicated her intention to sentence the accused on February 10th, 2005, which was clearly not within the original 12-month period. Counsel referred to s.5 of the 1907 Act as substituted by s.9 of the 1914 Act. It was submitted that on December 15th, 2004, the District Judge stated that she was extending the period of the bond by indicating to the accused that "he was being given one last chance" to offer complete compliance with the terms of his Probation Bond. It was submitted that the only logical interpretation of these words and of the events of December 15th, 2004, was that the accused was to be given one final chance to comply with the conditions of his bond and that in the circumstances, rather than proceeding to convict and sentence immediately, the terms of the bond would be extended to February 10th, 2005. On February 10th, 2005, the judge stated that her decision to proceed to sentence the accused was made in light of the fact that on December 15th, 2004, it had been indicated to the accused that he was been given "one further chance to comply with the terms of the probation bond imposed on January 22nd, 2004". It was submitted that this could only be viewed as an extension of the original bond. It was further submitted that the terms of s.5 of the 1907 Act were fully complied with. In reaching her decision the judge had regard to the views of the probation officer, and the information provided by Garda Comiskey. The accused was present and legally represented and was therefore in a position to show cause why the proposed variation should not be made. The judge had extended the period of the bond to February 10th, 2005, and accordingly was in a position to proceed to consider convicting and sentencing the accused. In the circumstances it was submitted that the answer to the second question was "yes".
Mr Justice Murphy said the section assumes a certain formality with regard to the variation of terms and conditions of probation.
He said that no application was made for a variation. Moreover, the probation officer stated that the accused completed his bond on January 22nd, 2005.
Mr Justice Murphy said that it was significant that on October 4th, 2004, following that report, that the learned District Judge varied the conditions of the accused's bail bond by the addition of conditions to attend regularly at school, attend an addiction counsellor and keep away from two named persons rather than the more general "abide by pro-social, anti-criminal lifestyle". However, there was no extension of the probation period. On December 15th, the adjourned date, the accused was remanded on strict terms to February 10th, 2005, when it was indicated to the accused that he was being given one last chance to offer complete compliance with the terms of his probation bond. This, clearly, was in the best interests of the accused and showed commendable patience and concern for him. However, it cannot be construed as an extension of the probation bond.
Mr Justice Murphy said that probation is, of course, a statutory scheme within the Criminal Justice Administration. The effect of a breach of a probation bond is to activate a conviction and sentence. Penal provisions must be construed strictly. It follows that in order for a District Judge to properly proceed to conviction and sentence, in circumstances where accused have been in breach of condition(s) of a probation order, this must be done within the period of the said probation order. It was common case that the answer to the first question of the case stated should be in the affirmative. The second question, as drafted, only arose if the first question was answered in the negative. However, the court may reformulate a question posed. Mr Justice Murphy said he would reformulate the second question as follows: "Where, within the period of probation, the judge adjourns conviction and sentence outside the period of probation to give a further chance to an accused who has breached the conditions of the probation order, does this extend the period of the probation bond for the purpose of considering conviction and sentencing?"
For the reasons stated above, Mr Justice Murphy said the answer must be in the negative.
Solicitors: Chief State Solicitor for the prosecutor; Terence Lyons & Co. (Dublin) for the accused.
P.J. Breen, barrister.