Suspended Sentences

Suspended Sentence

The Criminal Justice Act 2006 made formal provision for a sentencing framework.

Where a person is sentenced to a term of imprisonment other than a mandatory term, the court may make an order suspending the sentence in whole or in part, subject to them entering into a recognisance to comply with the conditions imposed.

It should be a condition of the order that the person concerned shall keep the peace and be of good behaviour during the suspended sentence period, or in the case of an order that suspends the sentence in part, the period of imprisonment and period of suspension concerned, and the recognisance shall be specified in the order.

The court may apply such conditions as it considers appropriate having regard to the nature of the offence and which will reduce the likelihood of the person in respect of whom the order is made committing any other offence.

In addition to the above conditions, the court may, in suspending a sentence

• impose, any one or more of the following conditions:
• that the person co-operates with the probation and welfare service;
• that he undergo treatment for drug, alcohol or other substance addiction,
• that he undergo a course of education, training or therapy, psychological counselling or such other treatment, as may be approved by the court;
• that the person be subject to the supervision of the probation and welfare service.

A probation and welfare officer may, at any time before the expiration of a sentence that is suspended, apply to the court for the imposition of any of the conditions referred to above in relation to the order.

Where an order is made under this provision, the court is to cause a copy to be given to the Garda Síochána or in the case of a part suspension only, the governor of the prison. Where a order and conditions of the sort above are applied, it shall also be given to the probation and welfare service.

Conviction During Suspension

Where a person is convicted of an offence during a period of suspension, the court before which the proceedings for the offence are brought shall, before imposing sentence for that offence, remand the person in custody or on bail to the next sitting. The court to which he is so remanded shall revoke the order of suspension above unless it considers that the revocation would be unjust in all the circumstances.

Where the court revokes the order, the person shall be required to serve the entire of the sentence or such part as it considers just having regard to all the circumstances of the case, less any period already served in prison or in custody.

Where an order of suspension is revoked, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against conviction.

Application for Revocation

Where a member of An Garda Síochána, governor of the prison or probation and welfare officer as the case may be has reasonable grounds for believing that a person has contravened relevant conditions, he or she may apply to the court for an order revoking.  A warrant may be issued for the arrest of the person, if he does not appear.

The court shall, where it considers satisfied that the person who has contravened a condition of the order, revoke the order unless it considers that in all the circumstances, it would be unjust to do so. Where the court revokes the order, the person shall be required to serve the entire or the remaining part of the sentence, or part as the court considers just.

The breach of condition may include breach of a condition regarding keeping the peace, being of good behaviour, tort. It may reactivate the sentence in full or in whole.

Deferring Sentence and Conditions

Where a court makes an order convicting a person of an offence in respect of which he is liable to both imprisonment and a fine, it may impose the fine and make an order deferring the passing of the sentence of imprisonment, and specifying the term of imprisonment that it will propose if he or she fails to comply with the conditions specified in the order.

The court may only take the above steps if it is satisfied that the person concerned consents to the sentence of imprisonment being deferred, and gives an undertaking to comply with the conditions specified, and having regard to the nature of the offence concerned and all of the circumstances, it would be in the interest of justice so to do.

An order above shall specify the date on which it proposes to pass sentence should there be a contravention of a condition, which is to be not later than six months after the making of the order. It is to specify the conditions with which the person is to comply during the period between the making of the order and the specified date, including a condition that the person be of good behaviour. Copies of the order are to be served on the members of An Garda Síochána etc.

The court is to require the person to attend the sitting of the court not later than one month before the specified date in the order. A person who fails to attend may be arrested on foot of warrant issued.

Application if Contravention

Where a member of An Garda Síochána has reasonable grounds for believing that a person to whom an order applies has contravened a condition of the order, he may apply to court for an order imposing imprisonment specified in the order.

The court may, if satisfied that the person in respect of whom the application was made has contravened an order, impose a term of imprisonment it proposed to make at the time of the making of the order unless it considers in the circumstances it would be unjust to do so. If it is satisfied that the person has complied with the condition, it shall not impose a sentence and shall discharge the person.

On the specified date the court may if satisfied that the person has contravened the condition specified, impose the term of imprisonment it proposed to impose, unless it considers that in all the circumstances, it would be unjust to do so and where it considers that it would be unjust to impose imprisonment, it may discharge the person.

Activation Clarified

The Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 amended the Criminal Justice Act 2006 in relation to the activation of a suspended sentence in the event of the commission of another offence by a person who is subject to a suspended sentence. The Act was designed to clarify the procedures to be followed by the courts in such cases.The need for the amending legislation arose from a High Court judgment of 19 April 2017 which found certain provisions of section 99 to be unconstitutional.

The Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 provides for amendments to section 99 (Power to suspend sentence) of the Criminal Justice Act 2006 with the following effect –

• Where a person who is subject to an order for a suspended sentence commits a subsequent “triggering” offence during the period of the suspended sentence and is convicted of that triggering offence either during or within a certain period of the suspended sentence, he or she will, following sentencing for the triggering offence, be returned to the court which imposed the order for the suspended sentence to have the matter of activation of the suspended sentence dealt with.
• Where a person is returned to the court which imposed the order for the suspended sentence, the court will revoke the order and activate the suspended sentence unless it considers, in all of the circumstances of the case, that it would be unjust to do so.
• Where a person appeals his or her conviction or sentence for a triggering offence, the court which imposed the order for the suspended sentence will not consider revocation of the order and will adjourn the proceedings until the appeal for the triggering offence has been determined.
• The sentences of imprisonment will be served consecutively, with the suspended sentence consecutive to the sentence for the triggering offence.
• Where a suspended sentence is activated in part, a new order may be made suspending the remaining part of the suspended sentence.
• Where a suspended sentence is imposed by a court on appeal from another court, the court from which the appeal was taken will consider revocation of the suspended sentence.