Man wins Supreme Court challenge over suspended sentence

A man whose suspended sentence was reactivated after he pleaded guilty to a charge of dangerous driving causing death has won a significant Supreme Court appeal.

He challenged a decision he was not entitled to rely on a finding of unconstitutionality of the law governing activation of suspended sentences.

The key issue in Eric Wansboro’s case was whether a person sentenced under a procedure later found unconstitutional, and whose proceedings had not been “finalised”, could challenge the lawfulness of his detention.

The Supreme Court ruled, by a four to one majority, that, because Wansboro had an outstanding appeal against sentence when the High Court in 2016 made its declaration of unconstitutionality in the Moore case, he could rely on that declaration to challenge the reactivation of his suspended sentence.

The DPP will now consider whether to remit the issue of sentence back to the Circuit Court.

The declaration of unconstitutionality in the Moore case concerned Section 99(9) and 99(10) of the Criminal Justice Act 2006 governing reactivation of suspended sentences.

Section 99 required a sentencing court to revoke the suspension unless it considered that to be unjust and required that be done before sentence was imposed for the “trigger” offence (the offence which triggered the application to reactivate).

Trigger offence

It was held unconstitutional because the procedure did not provide for the possibility the trigger offence conviction might be set aside on appeal, with the effect the suspended sentence ought not to have been reactivated and consequent injustice to the individual affected.

In Wansboro’s case, he was sentenced by Dublin Circuit Criminal Court in 2013 to three years jail, with the entire sentence suspended, after admitting offences of December 2012 including unlawful taking of a motor vehicle.

He was later arrested in 2014 on charges including dangerous driving causing death of a passenger in his car, pleaded guilty in 2015 and received a five-year sentence.

On a Section 99 application, the trial judge ordered he serve the previously suspended sentence before the five-year sentence.

He appealed but the High Court dismissed his appeal, ruling he was not entited to rely on the Moore decision.

The Supreme Court agreed to hear an appeal directly to it for reasons including a number of similar cases raised the same point of law.

Giving the majority judgment on Friday, Ms Justice Elizabeth Dunne said the process by which Wansboro was brought back before the Circuit Court to have his suspended sentence revoked has been found unconstitutional.

Wansboro did not engage in any conduct that could debar him from relief and there was no apparent reason why he could not rely on the finding of invalidity concerning Section 99, she said.

Due process

There was “a want of due process of law” as the Circuit Court judge lacked jurisdiction to revoke the suspended sentence.

A finding that an Act, or part of an Act, is constitutionally invalid will not result in “final” decisions made in judicial proceedings being set aside because of the declaration of unconstitutionality, she also said.

The extent to which someone may be debarred from relying on the finding of unconstitutionality will depend on the circumstances of any given case, she stressed.

In a concurring judgment, Mr Justice Donal O'Donnell agreed, "with some reluctance", with the majority but "sympathised fully" with the concerns raised by Ms Justice Mary Finlay Geoghegan in her dissenting judgment.

Ms Justice Finlay Geoghegan said Wansboro pleaded guilty to the 2012 and 2014 offences, lodged no appeal against his convictions and therefore the convictions “had reached finality” with only the custodial sentences imposed in May 2015 not final.

Wansboro submitted at the May 2015 hearing to the jurisdiction of the Circuit Court and his approach meant he was debarred on appeal from taking an approach inconsistent with that conduct, she held. The facts do not give rise to an apprehension of “a real injustice” having occurred, she added.