It also dealt with such issues as the conditions to be attached to the sentence and the circumstances in which it could be revoked.
Judge David Riordan’s thesis on suspended sentences suggested that the suspended sentence serves one or more of five purposes:
- It is a means of avoiding an immediate custodial sentence,
- It serves as a denunciation of the accused’s behaviour,
- It is a controlling and rehabilitative device,
- It has a deterrent effect on the individual offender, and
- It can serve as part of a crime prevention strategy focused on particular types of crime.
Following commencement back in October 2006, some questions were being posed. What was the position with a person, during the period of suspension, being convicted of an offence committed before the order of suspension?
What allowance was to be made as to a period spent in custody for the ‘triggering’ offence when revocation was being considered?
Finally, how was the ‘revocation court’ to remand a person on bail or in custody to the ‘triggering offence’ court to secure the individual’s attendance before that court, and allow that court to impose sentence for the offence committed subsequent to the suspended sentence?
Within a year of commencement, subsections 9 and 10 were amended and a completely new subsection 10A was inserted. Further amendments were required in 2009 to section 99(9).
Further problems were encountered, and judicial reviews were activated by a number of applicants. Leave was granted by the High Court in turn to the following applicants: Colin Harvey, Maria Muntean, and Anthony Sharlott.
The problem with appeals
In Sharlott, the applicant raised two issues – namely, the jurisdiction to remand the matter back to the Circuit Court under section 99(9) from the District Court and, alternatively, if the remand order was lawful, should it have been made subject to a stay pending the outcome of the District Court appeal?
Finally, whether the right to fair procedures mandated the High Court to stay the procedure in the Circuit Court under section 99(9) until after the District Court appeal had been finalised.
Hanna J acknowledged the mandatory nature of section 99(9): “The terms of section 99(9) of the act of 2006, in my view, are mandatory on the learned district judge. With or without any application, she was bound to remand the applicant to the next sitting of Dublin Circuit Criminal Court. The learned district judge has convicted but not yet sentenced the applicant.”
The problem with remands
O’Donnell J commented, in DPP v Carter: “I am not convinced that the sequence the act adopts of making the sentencing court halt its sentence process and remit the matter to the suspended court is the wisest or most logical course.
The sentencing for the current offence should arguably be concluded before the business of remittal and reactivation is addressed.”
The Supreme Court finally held in Carter that the District Court had no jurisdiction to deal with the revocation of the suspended sentence, as the order made by the court under section 99(9) was not valid, on the basis that the defendant has not been remanded to the ‘next sitting’ of the District Court that had imposed the suspended sentence.
DPP v Murray was a consultative case stated by District Judge Constantine O’Leary, who sought the opinion of the High Court on the following question: did the power of the District Court at common law to suspend sentences of imprisonment survive the enactment of section 99 of the Criminal Justice Act 2006, as amended?
O’Malley J concluded that it did not: “In these circumstances, there is no scope for a ‘parallel jurisdiction’ to be operated outside the statute. I will therefore answer the question posed in the negative.”
On 19 April 2016, Judge Moriarty delivered judgment in the case of Moore. Moriarty J summarised the point being made by each of the plaintiffs: “In what was to become a constant argument in similar cases, it was submitted on behalf of Mr Moore that he wished to appeal the conviction in the District Court and have an outcome pronounced prior to any hearing in the Dublin Circuit Criminal Court.”
The court went on to hold as follows: “I am persuaded that, notwithstanding the presumption of constitutionality that exists in relation to enactments, and the regard and respect that Courts must show to enactments of the Oireachtas, the subsections under review of section 99 fall to be viewed as unconstitutional in the context of the facts reviewed and the arguments made.”
Habeas corpus
Soon after subsections 99(9) and (10) of the 2006 act were determined to be unconstitutional, article 40 applications were made by a number of applicants, including Clarke v Governor of Mountjoy and Anthony Foley.
In Clarke, Judge Birmingham delivered judgment in the Court of Appeal on 28 July 2016 with Judge Edwards and Sheehan. The application in Clarke was an appeal from a decision of the High Court (McDermott J) in refusing the applicant an order directing his release pursuant to article 40 of the Constitution.
In Foley, the High Court also noted that the applicant had pleaded guilty to the District Court offences, and the decision in Clarke was applied.
Recent developments
In Collins v DPP, the applicant objected to the suspension of his sentence for a period longer than the sentence itself. Barret J held that “it is clear from Vajeuskis that, when it comes to the act of 2006, the learned Circuit Court judge was not confined to imposing a maximum two year suspension”.
In People (DPP) v AS, the Court of Appeal held that a suspended sentence cannot be imposed on a child at all, as it only applies to sentences of imprisonment and not detention. Edwards J had particular regard to other provisions in the Children Act, including section 144(9), which provides for a limited suspension of a detention order.
The Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 was enacted in response to the decision in Moore. The act will be commenced on 9 April 2018.
According to paragraph 8.04 of the Law Reform Commission paper on suspended sentences in relation to the 2017 act: “Where a person subject to a suspended sentence has committed a subsequent offence, the activation process for the original offence will not occur until after the individual has been sentenced for the subsequent offence and, should he or she wish to appeal, after the appeals process for the subsequent offence has been fully exhausted.”
Back to the future?
It can be argued the 2017 act has gone back to the pre-2007 position to get around the Moore problem – that is, the defendant will be both convicted and sentenced for the triggering offence before the activation of the original suspended offence occurs.
Furthermore, rather than the ‘next sitting’ of the court (to overcome Carter problems), it is any sitting scheduled in the next 15 days or the next sitting thereafter. Previously, the offence and conviction both had to occur within the currency of the bond to trigger revocation.
Now, revocation applies to a conviction of a person – if proceedings for the offence are instituted during the period of the suspension or within 12 months of the expiry of the bond. The court hearing the revocation hearing can adjourn for such period as the court considers appropriate, to allow the defendant exercise his rights of appeal against the conviction for the triggering offence.
A number of other issues have been addressed by the new act:
• Currently, when an appeal court imposes a suspended sentence, a revocation hearing is conducted by that court. This can cause difficulties in seeking to prosecute a section 99(12) appeal against the revocation order. Under section 99(22), the revocation is brought before the court at first instance. This means the case is sent to the lower court and not the appellate court. Previously section 99(13) could only be sought on the application of a garda or a probation officer. Section 99(13A) provides this can now also be applied for by the DPP.
• The court can send a copy of a section 99 order to the gardaí and prison electronically.
• Under section 99(18A), the court is given a new power to ‘re-suspend’ the part of the original suspended sentence that was not revoked.
The Law Reform Commission paper comments that there has been a decrease in the use of the suspended sentence. Notwithstanding the 2017 act, the commission cites further problems, with persons committed to prison following the activation of a suspended sentence in the Circuit Court having no right to bail pending the determination of the Court of Appeal. The suspended sentence will usually be served by the time the appeal is heard.
Furthermore, the operational period of the suspended sentence remains without limit, as per Vajeuskis and Collins.
For practitioners, the judiciary, and court administrators alike, the difficulty in the implementation of suspended sentences is bringing the relevant court(s), judge(s), prosecutor(s), and defendant(s) together at the appropriate time, sitting, and place, and maintaining jurisdiction for the purposes of proper finalisation of the defendant’s criminal litigation.
This shall remain a continuing challenge for the various administrators of justice, notwithstanding the best endeavours of the 2017 act.