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put forward this argument in his appeal but this was rejected by the court specifically on
the grounds that these English cases were predicated on a statutorypower to applya lesser
sentence upon activation. As observed in the case of D.P.P. –v- Ian Stewart (Court of
Criminal Appeal, 12 th January, 2004) such discretion does not arise in Irish sentencing
practice at common lawonce the court determines that the breach is a non-trivial breach.
The issue of discretion to impose a lesser sentence emerged more recently, but not
centrally in a case where the applicant sought judicial review of a suspended sentence.
(Gareth McCarthy –v- Judge Patrick Brady and D.P.P. I.E.H.C., 30 July 2007,
unreported). 141 He contended that the period of suspension was in excess of the custodial
sentence bya factor of 12. The applicant argued that in accordance with the judgement of
Keane C.J. in People (D.P.P.) –v- William Hogan (unreported, Court of Criminal Appeal,
4 th March 2002) that the period of suspension should have been for a period identical to
the custodial period in the absence of statedand special reasons given. De Valera J. quoted
O’Malley wherein he stated that “where a suspended sentence is to be reactivated it must
be reactivated in its entirety” (2006:457). The time sequence of this case is important.
The case commenced in 2005 by way of leave for judicial review before the statutory
suspended sentence was in force. The case for judicial reviewwas arguedbefore the High
Court in January 2007 and the judgment was given on the 30 th July 2007 when on both
dates the statutory form of suspended sentence was in force. It is unclear from the short
judgment given whether the discretionaryfeature introduced under Section 99(10) to allow
for the substitution of a shorter sentence was considered. The judgment makes no
reference to the arrival of this new statutory discretion to permit the court to impose a
lesser sentence than that mandated previouslyat common lawunder the decision in People
(DPP) –v- Ian Stewart (unreported, 12 th Sept. 2004 Court of Criminal Appeal). It may
well be that the High Court while aware of the discretion allowed under the new section,
eschewed all further consideration of the section as the sentence under judicial reviewhad
141 The accusedwas given a sentence of 9 months imprisonment for unlawful takingof a motor car (Section 112 RoadTraffic Act 1961), the latter 3 months
of which were suspended for a period of 36 months with conditions attached. This amounted to a part suspended sentence. The applicant did not appeal to
the Circuit Court. Instead he sought judicial reviewof the sentence on the basis that the suspensoryperiod was disproportionate and exceeded the jurisdiction
of the District Court bya factor of 3 (12 months for 1 or 24 months imprisonment for 2 indictable offences). The judicial reviewwas disallowed on the basis
that an appeal was the appropriate remedy.
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