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Thus under Section 99, the operative period is not circumscribed byanylimitations for any
court imposing a suspended or part suspended sentence. This has importance for a
number of reasons. Firstly, the absence of such time limitations may lead to a
disproportionate application of the sentence if the operative period is for a protracted
period of time which carries the threat of activation of a sentence. Consider the following
example. A person is convicted in the District Court under Section 6 of the Criminal
Justice (Public Order) Act 1994 for engaging in behaviour likely to lead to a breach of the
peace. S/he is given, on a plea of guilty, two months imprisonment (maximum 3 months
imprisonment) which is then suspended for a period of 5 years on condition that s/he
enter a recognisance to keep the peace and be of good behaviour for a period of 5 years.
The maximum statutory jurisdiction of the District Court on conviction for 2 or more
indictable offences triable summarily is 24 months imprisonment provided the sentences
are made consecutive. Is it reasonable to hold a citizen under threat of a suspended
sentence for 5 years or even longer for a summary offence, where the maximum sentence
is 3 months imprisonment? 166 Section 99 is not prescriptive or limiting of anycourt in the
construction of the operative period and this may in time lead to difficulties about the
reasonableness of the period of suspension. Moreover, when examining this matter one is
not without the benefit of a compass as this issue was partially addressed under Section
50(2) of the abortedCriminal Justice Bill of 1967 which provided:
Where a sentence has remained suspended under this Section for 3 years it shall then
cease to be enforceable except in the event of a breach during that period of the
condition subject to which it was suspended.
So, in effect under Section 50(2) above, the maximum period for the enforcement of a
suspended sentence given by any criminal court would have been 3 years had that
provision been enacted. One can only speculate why the draftsman of 2006 omitted this
provision limiting the period of enforcement but it maypoint to a certain deference on the
part of the legislature not to unduly interfere in what is traditionally regarded as an
exclusivelyjudicial function. 167
166 In light of the principle of proportionality , a central tenet of Irish sentencing jurisprudence, a sentence of imprisonment for a maximum period of three months, which is then
suspendedfor five years wouldclearlybreach the principle.
167 While the legislature always set the maximum custodial sentence applicable to a specific offence, the courts are allowed a complete discretion to apply the sanction up to the
maximum provided in the statute. Certain offences however attract a mandatorysentence such as murder – a term of life imprisonment, while other offences attract a presumptive
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