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Thus, the previous practice which obliged such offenders to leave the jurisdiction has a
certain contemporaryresonance when the disposal of certain cases is considered, especially
when the offender has no real connection with the Irish jurisdiction.
However, as the suspended sentence at common law is unregulated by statute, conditions
may occasionally be placed upon a convicted person which overreach the principle of
proportionality, an example of which is the requirement to leave the jurisdiction within a
specified time where the accusedis either an Irish citizen, an E.U. national or has otherwise
a right of residency in the State (People (D.P.P.) –v – Alexiou [2003] 3IR 518). In the case
of People (D.P.P.) –v – Salman Aslam Dar, in an appeal against leniency brought by the
D.P.P. for a series of three rapes, the Court of Criminal Appeal (14 th February 2006, p 4
Bailii) in substituting three sentences of five years each to run consecutively which were
imposed by the Circuit Criminal Court, gave ten years for the first rape, twelve years for
the second rape and 15 years for the third rape, all of which sentences were to run
concurrently. Significantly Kearns J., the presiding judge, intimated that but for Dar’s
counsel giving an unqualified undertaking that his client would return to Pakistan when his
term of imprisonment was over, the sentence would have been increased. 128
313
In People
(D.P.P.) –v – Alexiou [2003] 3IR 513 a similar consideration applied but the entire period
of custody was completely suspended on the undertaking of the accused to leave the State
immediately. 129
A sentence of imprisonment suspended on condition that the accused leaves the State
forthwith or upon the conclusion of a shorter custodial sentence (part suspended sentence)
is essentially a crime reduction measure which may offend against one of the principles of
proportionalitythat crimes of equal seriousness shouldbe punishedequally. 130
128 In the instant case the accused, Mr. Dar was a computer science student from Lahore Pakistan. (Irish Times, February14th 2006, p.4). In D.P.P. –v –
Dar the court considered and yielded to submissions by counsel in mitigation that the period in custodywould not be increased provided the accused left the
jurisdiction immediatelyupon completion of sentence.
129 In People (D.P.P.) – v – Alexiou[2003] 3 I.R. 513 the D.P.P. appealed the original sentence on the grounds of undue leniencyand more particularlythat
the accused would not be amenable to revocation or breach proceedings if he was out of the jurisdiction. O’Malley (2000:292) has characterised the
suspended sentence as a real punishment because it carries both a term of imprisonment and the possibility of activation for breach of conditions. If the
possibility of activation is removed by obliging the offender to leave the jurisdiction, the sanction not only loses its bite but is also significantly altered in
character. While the accused is prohibited from re-entry to the State on pain of activation of the sentence, if the accused is not of good behaviour while
abroads/he is not capable of anysanction for breach.
130 None of the Judges interviewedadvertedto the condition that an offender might be obliged to leave the jurisdiction. One Judge didsuggest to the writer
when this matter was raisedat a conference in 2007, that the judge might indicate s/he was not going to sign the warrant of committal to prison for a specified
number of days. Bythis device, a convicted person would be allowed walk free on the date of sentence and leave the jurisdiction. If s/he was available to be
lodged in prison after the signing of the warrant of committal, s/he would not have taken up the opportunity to avoid custody by simply leaving the