Killian Flood BL

About this case:

• Citation:
  [2021] IESC 44
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Peter Charleton

The appellant had previously received a 30-month sentence with the last 12 months suspended on condition that he refrained from engaging in his job as a debt collector for seven years.

Giving judgment in the case, Mr Justice Peter Charleton held that, when applying conditions to a suspended sentence, a court had to balance “the suspended portion of a sentence, the conditions attaching, the operative part of the sentence and the necessity of weighing these elements so as to produce a proportionate result”.

As such, the court reduced the condition of refraining to act as a debt collector from seven years to two-and-a-half years.

Background

The appellant, Mr Kevin Molloy, ran a debt collection business. He was employed to recover a debt owed by a man known as IC. In seeking to locate IC, the appellant tracked down his partner, AB. The appellant proceeded to harass AB and her father in attempts to make IC pay the debt. The appellant made threatening phone calls, indicating to the father that he knew where he lived and was watching him.

Further, he made very serious threats about kidnapping IC and that he would “sort him out”. There was also a series of text messages which followed a similar threatening pattern and the appellant distributed posters making allegations that AB was involved in scams.

Eventually, Mr Molloy was charged with two counts of harassment under section 10 of the Non-Fatal Offences Against the Person Act 1997. He pleaded guilty on the day of the trial. At the subsequent sentencing hearing, the trial judge identified a headline sentence of four years imprisonment on the basis that the offending was in the “upper mid-range”. Taking into account the mitigation (which was mainly the guilty plea), the court reduced the sentence to two-and-a-half years.

Critically, the trial judge also suspended the final twelve months of the sentence on the basis that the appellant refrained from engaging directly or indirectly in debt collection for a period of seven years.

The appellant appealed the decision to the Court of Appeal on the basis that the headline sentence was too high and that the condition of a seven-year suspension from debt collection was disproportionate. Both of these submissions were rejected by the court. On the issue of the proportionality of the condition, the court stated that debt collection was not a regulated profession, but there was no doubt that the appellant would have been referred to a professional disciplinary body if one existed.

The court considered that it was important for debt collectors to be of good character and noted that the offences occurred in the course of the appellant’s work. As such, the court upheld the seven-year condition. The appellant appealed to the Supreme Court.

Supreme Court

The court began by outlining the statutory basis for the offence of harassment and a brief history of the approach by the courts to conditions in suspended sentences. It was noted that a condition was a pact between the offender and the justice system, but that offenders did not have a realistic choice to accept conditions of a suspended sentence.

The court also reiterated the fundamental principles for sentencing and stated that it was not for appellate courts to interfere with a trial judge’s ruling unless there was a clear error in principle. Generally, a “measure of appreciation” was to be given to a trial judge. The court also cited the case of The People (DPP) v M [1994] 3 IR 306, in which it was established that a sentence should be proportionate to the offence and that a range of factors such as personal circumstances and the impact on a victim had to be taken into account.

The court noted the submissions of the parties, where the appellant claimed that a suspended period had to be proportionate to the custodial sentence and that the public would lose confidence in a system that allowed for extended suspended periods. The DPP submitted that there was no limit to the length of a suspended sentence and a fact-specific approach needed to be taken when determining the suspended period.

Mr Justice Charleton went on to consider a number of blackmail cases from England, as he considered it an “akin offence” to the present scenario. The court also considered the key Irish precedents, noting the sentence imposed on each defendant and the factors which affected the sentence in each case (The People (DPP) v Doherty [2019] IECA 350; The People (DPP) v Doolin [2020] IECA 231; and The People (DPP) v Eid [2010] IECCA 24).

The court also gave extensive consideration to the English sentencing guidelines on harassment, noting the different sentencing bands and the factors which determined them.

After this analysis, the court turned to the question in the case. The court said that any condition imposed by a court must be relevant to the offence itself (The People (DPP) v DW [2020] IECA 145). Conditions were designed to address the root of the offending and allow an individual to rehabilitate. As such, conditions had to be rational and not arbitrary.

It was accepted that conditions could impinge on a person’s constitutional rights in a certain way (e.g. to stay away from a specific area or person), but this was not a factor if the sentence was properly balanced (The People (DPP) v DW [2020] IECA 145). In this case, it would be expected that the accused would not work for a long time in debt collection if it was subject to regulatory oversight.

On the facts of the case, the court held that the trial judge erred in principle by suspending the appellant’s right to work in debt collection for seven years. The suspension was part of the punishment for the offences, but the overall sentence created an imbalance where the suspended period greatly exceeded the operative conviction period. This would ordinarily require special justification, which was lacking in the case.

Conclusion

In light of the court’s findings, the court held that the condition to refrain from debt collection activity for seven years was disproportionate. The court varied the condition to continue for the 12-month suspended period and an additional 18 months beyond that.