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fall within the category of trivial matters or trivial offences. 139 Under the judicially
developed suspended sentence, if the breach is not considered trivial then the court
appears to have no discretion but to impose the full original sentence upon finding that the
convicted person is in breach of a condition attached to the suspended sentence. The
authority for this can be found in People (D.P.P.) –v- Ian Stewart (Court of Criminal
Appeal, 12 th January, 2004) where Hardiman J. presiding in the Court of Criminal Appeal
declared that the sentencing judge having imposed the full suspended sentence “was
constrained to act as she did”. 140
The Judge observed that there was no Irish statutory
equivalent to the English statutoryprovision which allowedthe Court to impose a sentence
in whole, that is for the full original period, or for a substituted lesser period. The new
statutory suspended sentence in Ireland under Section 99 of the Criminal Justice Act 2006
allows a Court when considering revocation to impose a lesser custodial period than that
specified in the original suspended sentence, if the court considers this just having regard
to all the circumstances of the case. However, the judicially developed suspended
sentence did not allow for this discretion. Hardiman J., concluding for the Court of
Criminal Appeal, stated:
“We can see no error in principle in what Judge Dunne did, and indeed we cannot
see that she could have taken anyother step.” (Hardiman J. People (D.P.P.) –v- Ian
Stewart, 12 th of January, 2004 Court of Criminal Appeal).
When writing earlier on this issue O’Malley (2000), using English case law, suggested that
“the fact that the breach occurred towards the end of the period for which the sentence
has been imposed does not preclude a court from ordering that the full term be served
(R.v. Fitton 1989, 11Cr .App. R.(F) 350) although it has discretion to order the service of a
shorter period (R.v. Carr 1979, 1.Cr. App.R. (F) 53.” (p.291). Counsel for Ian Stewart
139 Had the Criminal Justice Bill 1967 been enacted, it would have allowed more latitude to the courts dealing with applications for activation of the original
sentence. Section 50(1)(b) provided: “In the event of a breach of anysuch condition, the Court, if it thinks proper to do so, may[1] permit the breach to be
disregarded and the suspension to continue or [2] in lieu of the sentence or fine substitute in the case of a sentence such reduced sentence or such fine and in
the case of a fine such reduced fine as the Court may consider appropriate having regard to all the circumstances of the case” (Criminal Justice Bill, 1967).
Under the statutorysuspended sentence, Section 99 Criminal Justice Act, 2006 a similar provision is provided. (see discussion in Chapter 7).
140 The accused was given a sentence of 10 years (cumulative) imprisonment for the use of a knife and a threat to kill which was suspended. A number of
breaches (3) were brought to the attention of the trial judge who continued to extend leniency on the basis that the offender’s drug dependency would or
could be addressed. In the meantime the trial judge retired. The accused absented himself from the drug treatment centre and later presented there apparently
having taken drugs. On application for breach, Judge Dunne revoked the suspension and activated the sentence in full. The revoking court and the appeal
court both paid particular regard to the wording of the original sentence which recited that the applicant must “come up if called upon to do so, to serve the
sentence of the court this dayimposed but suspended upon your entering this bond (emphasis added)” (People (D.P.P.) -v- Ian Stewart, ex tempore, Court of
Criminal Appeal, 12 January2004 p.3.
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