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Expansion of Judicial and Executive Discretion
When Section 99 is examined in its totality, the sentencing courts are essentiallyallowed to
proceed with the imposition of a suspended sentence in much the same fashion as
heretofore. Essentially the discretionary powers and practices of the court under the
common lawjurisdiction to suspend a sentence are not restricted bySection 99 and as shall
be seen presently, are even extended further by virtue of the Section. Indeed the extra
discretions extended to the court under Section 99(10) suggest the court may refuse to
revoke a suspended sentence on a much wider basis than that allowed for under People
(D.P.P.) – v – Aylmer [1995] 2 ILRM 624 which limited the courts discretion to disregard
trivial infractions only. The new discretion is widened to include not only the issue of
trivial infractions but now may include consideration of personal circumstances as well as
other mitigatingissues. Section 99(10) provides:
A court to which a person has been remanded under subsection (9) shall revoke the
order under subsection (1) unless it considers that the revocation of that order would
be unjust in all the circumstances of the case, and where the court revokes that
order, the person shall be required to serve the entire of the sentence of
imprisonment originally imposed by the court, or such part of the sentence as the
court considers just having regard to all the circumstances of the case, less anyperiod
of that sentence alreadyserved in prison and anyperiod spent in custody(other than
a period during which the person was serving a sentence of imprisonment in respect
of an offence referredto in subsection(9)) pendingthe revocation of the said order.
A further discretion is introduced in the revocation procedure even where the sentence is
revoked. This further discretion allows the court to impose a lesser sentence than that
originally specified in the initial suspended sentence. 164 Such discretion is again widely
constructedupon a consideration of all the circumstances of the case.
While the provisions of Section 99(10) and (13) at one level deal with the mechanics of
activation of a suspended sentence, the subsections also point to an important feature of
the statutory arrangement, namely the establishment and maintenance of a control
mechanismover offenders while under the threat of the suspended sentence.
164 In contrast and as noted previously, under the common lawjurisdiction to suspend a sentence, once the court decides to revoke the suspension and impose the custodial sentence
the periodof custodycannot be alteredfromthe original custodial periodspecified, (People (D.P.P. –v- Ian Stewart , Court of Criminal Appeal, 12th January, 2004).
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