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driving or public order and I would consider those breaches as not being very
serious on the basis that if he has done 4 years, he comes out in the end, he will fall
by the wayside once or twice and you have to be understanding about that.
And there maybe circumstances. Do I go back to the original sentence? I knowI
have done it but howoften? Andthe answer to that is rarely.”A3J1CC
Meanwhile, his colleague took a contrarian view:
“Generally, I take the view that there is no second chance. I often say to people
“look can’t be messing around with you giving you second chances because
eventuallyit is going to denysome other unfortunate his first chance.” A5J1CC
The former judge’s requirement that the substance of the breach should be of an order of
magnitude almost equivalent to the original offence places the activation of the suspended
sentence at a veryhigh threshold. In the Aylmer case a conviction in the District Court for
criminal damage and breaking and entering and for which two concurrent sentences of 12
months imprisonment were imposed was considered sufficient to tip the balance in favour
of activation of the sentence in the Central Criminal Court of 10 years imprisonment 7 of
had been suspended upon reviewfor the offence of robberyContraryto Section 23 of the
LarcenyAct 1916.
The passage of time was considered an important factor for consideration by one judge
when he reflected upon the suspended sentence which requires compliance with
conditions which wouldendure for quite a number of years:
“I would be reluctant to reactivate a very long sentence after a longish
period.”A8J1SC
Thus it may be observed that discretion has a significant role to play when the court
considers whether to activate the sentence or not.
At common law, there appears to be no discretion in an Irish sentencing court but to
impose the full penalty prescribed in the original order, once the court is satisfied that the
circumstances giving rise to the breach such as the commission of a further offence do not
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