The High Court has refused an application to quash a District Court remand connected with a previously suspended prison sentence, holding that the remand was required by law while the applicant awaited sentence for a new conviction.
The judgment, delivered by Mr Justice Hanna on 21 December 2010, concerned a conviction under section 11 of the Firearms and Offensive Weapons Act 1990. The charge involved the alleged production of an article capable of causing serious injury. The applicant had been convicted in the District Court on 27 May 2009 but had not yet been sentenced.
He had previously received a five-year prison sentence for attempted robbery in March 2007, suspended in full. Under section 99 of the Criminal Justice Act 2006, as amended, a person convicted during the suspension period must be remanded to the court that imposed the suspended sentence. That court must revoke the suspension unless it considers revocation unjust in the circumstances, and may require the person to serve all or part of the original sentence.
The applicant sought judicial review to quash the remand order made on 4 June 2009 and to prevent the Dublin Circuit Criminal Court from hearing an application to revoke the suspended sentence. He argued that the District Court had no jurisdiction to make the remand after becoming functus officio, or that the remand should have been stayed pending his appeal. He also argued that fair procedures required the Circuit Court process to wait until the appeal was completed.
There was conflicting affidavit evidence about whether the prosecution had sought a remand at an earlier hearing. Neither side sought cross-examination. Justice Hanna accepted that both solicitors were truthful in their recollections but said he had to resolve the disputed point against the applicant, who carried the burden of proof. He therefore proceeded on the basis that a remand application had been made.
The judge held that the statutory duty to remand applied whether or not an application had been made. The District Court had convicted the applicant but had not sentenced him, so the judge said the question of it being functus officio did not arise. He also concluded that an appeal to the Circuit Court could not be brought against conviction alone; the sentence stage had to be completed first.
Justice Hanna acknowledged the applicant’s concern that the suspended sentence might be activated before he could pursue his appeal. He said the Circuit Court had discretion to enable the appeal to proceed and presumed that the courts would take necessary steps to protect the applicant’s rights. The High Court refused the judicial review application. It did not decide whether the suspended sentence should be revoked or what sentence the applicant should serve.