The Court of Appeal dismissed Patrick Heaphy’s appeal against the activation of the balance of a three-year suspended sentence, finding the decision proportionate and identifying no error of principle.
Heaphy had pleaded guilty in Cork Circuit Criminal Court to robbery and possession of cannabis under section 15 of the Misuse of Drugs Act 1977. The cannabis had a stated street value of €600. The robbery involved entering an off-licence with his face hooded, claiming to have a knife, threatening staff and forcing them to hand over €450 from the till, according to the appeal judgment. The court also noted his previous convictions.
On 27 February 2014, after spending about two weeks in custody, Heaphy received a three-year sentence suspended for three years on conditions. One required him to provide monthly urinalysis to gardaí for the first year. The judgment describes the original suspended sentence as lenient and says the condition gave him a significant chance to avoid prison.
At a later hearing, a garda sergeant described repeated failures to attend testing from November through February. The appeal judgment says the sentencing judge treated the failures seriously and remarked that he would have increased the sentence if he could.
Heaphy argued that the sentencing judge had not given sufficient weight to his guilty pleas and that activating the sentence was unduly harsh. The Court of Appeal said activation under section 99(10) of the Criminal Justice Act 2006 is not automatic when a condition is breached. A court must consider the extent of the breach and apply sentencing principles, including totality and proportionality; it may activate all, part or none of the suspended term.
The appeal was dismissed. The court concluded that activating the balance of the three-year sentence was proportionate.