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p.8 Bailli). When concluding for the Court of Criminal Appeal, Fennelly J. had the
followingimportant observation to make:
“The court has accordinglydecided to treat the application for leave to appeal as the
hearing of the appeal and to reduce the sentence on count one to six month’s
imprisonment. In respect of count number four it reduces the sentence to one of 1
year’s imprisonment. 80
The applicant has already spent more than one year in
prison. This decision does not imply that the applicant should have received an
unsuspended sentence in the first place. An examination of the cases shows that the
courts had frequently imposed suspended sentences or fines in cases where much
more child pornography was involved and where credit cards had been used.
Where the offence is at the lower levels of seriousness, there is no suggestion of
sharing or distributing images, the accused is co-operative and it is a first offence, the
option of a suspended sentence should at least be considered”. (Fennelly J. in
People (D.P.P. – v – Carl Loving, Court of Criminal Appeal 10 th March, 2006 pp. 8-
9).
This part of the judgment seems to suggest that a suspended sentence might be considered
and imposed without the court firstly deciding to impose a custodial sentence and that the
suspended sentence occupies an intermediate position in the sentencing scale which is
unfetteredbyanyconsiderations of avoidance of custody 81 .
The net issue in the Carl Loving case concerned the overall calculation of custodial time
where a part-suspended sentence is imposed. The Court of Criminal Appeal concluded
that the suspended part of the part-suspended sentence should be included in the
calculation of the overall sentence of imprisonment. However, the case was ultimately
decidedagain accordingto the principle of proportionality.
The opportunity to locate a clear rationale for the suspended sentence in Irish sentencing
lawalso presented in the failed Criminal Justice Bill of 1967 when the Oireachtas sought to
80 The accused was originallysentenced to two years imprisonment with the latter six months suspended and five years imprisonment with the latter two years suspended bythe original
sentencingcourt.
81 In Moore-v-Judge Bradyand D.P.P., High Court ( ex-tempore) 16thNov.2006, FeeneyJ. granted an order of Certiorari to the Applicant who initially had
been refused legal aid by the first named Respondent, on the grounds that a suspended sentence was first and foremost a custodial sentence before it was
suspended. The trial judge was obliged to revisit the issue of legal aid once the likelihood of a suspended sentence was contemplated. The case was
constructedupon an interpretation of the Carl Loving judgement (supra) and O`Malley(2006:454) .
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