An analysis of sentencing provisions in the criminal justice act, 2006

AuthorGerard Murphy
PositionB.L., Faculty of Law, University College Cork
Judicial Studies Institute Journal [2007:1
There are a number of provisions in the Criminal Justice
Act, 2006 relating to sentencing. One of the major effects the Act
has on sentencing is to further erode the discretion of the courts in
imposing sentence by introducing new mandatory minimum
sentence provisions and strengthening existing provisions. The
concept of a mandatory minimum term of imprisonment was quite
alien to our system of criminal justice until the provisions of
section 5 of the Criminal Justice Act, 1999 were enacted. The
Court of Criminal Appeal has recently described this measure as
“a revolutionary alteration superimposed on the conventional
principles of sentencing”1.
Part 5 of the Act, for example, introduces new mandatory
minimum sentence provisions for certain firearms offences.2 The
Act completely erodes the discretion of the courts not to impose
such minimum sentences where a person is being sentenced for a
second offence.3 Part 8 of the Act continues to erode judicial
discretion in sentencing for certain drug trafficking offences.4
Section 99 of the Act operates to restrict a judge’s power to
suspend the whole or part of a “mandatory term of imprisonment”
including a mandatory minimum term of imprisonment.5
Part 9 of the Act contains a number of provisions
establishing what may be termed a “drug offenders’ register”
similar to the so-called “sex offenders’ register”.
* B.L., Faculty of Law, University College Cork. This article is based on two
papers delivered at a conference entitled Change in Criminal Justice: Policy
and Practice at University College Cork on 1 June 2006.
1 The People (D.P.P.) v. Dermody, Court of Criminal Appeal, unreported,
Hardiman J., 21 December 2006.
2 See, for example, s. 42 of the Criminal Justice Act, 2006.
3 s. 42 (7).
4 s. 84 (d).
5 s. 99 (1).
2007] Sentencing Provisions in the 61
Criminal Justice Act, 2006
In particular, Part 10 of the Act contains a number of
provisions relating to sentencing generally. These provisions
allow for the suspension of the whole or part of a sentence of
imprisonment and a new order known as a “Fine and Deferral
Order”. Part 10 also creates a new order that can be imposed on
offenders convicted of certain offences in the District Court or the
Circuit Court know as a “Restriction on Movement Order” (RMO)
and for the electronic monitoring of an offender who is subject to
a RMO. Part 10 also contains provisions relating to the electronic
monitoring of prisoners released on temporary release. Parts 9 and
10 of the Act came into force on 2nd October 2006, apart from the
provisions with regard to electronic monitoring6.
In this article I propose to examine the provisions of Part 10
of the Act in detail and then to focus on the provisions of Parts 8
and 9 of the Act relating to drug trafficking offences.
A. Suspended Sentences
Section 99 of the Act provides a statutory framework for the
courts to suspend the execution of a sentence, in whole or in part,
subject to the person entering into a recognisance to comply with
certain conditions. This will provide a statutory foundation to the
already established practice of the courts to suspend terms of
imprisonment either in whole or in part.
The concept of a suspended sentence7 was considered by the
Supreme Court in the case of O’Brien v. Governor of Limerick
Prison.8 O’Flaherty J. drew a distinction between: (a) a wholly
suspended sentence, (b) a sentence, the latter part of which is
suspended, and (c) a Butler Order. The court noted that the
jurisdiction to suspend a sentence is “obviously a very beneficial
jurisdiction for judges to posses” and said:
6 S.I. 390 of 2006.
7 On the history of suspended sentences in this jurisdiction, see: Osborough, “A
Damocles Sword Guaranteed Irish” (1982) Irish Jurist 221. As O’Flaherty J.
noted in the case of O’Brien v. Governor of Limerick Prison [1997] 2 I.L.R.M.
349, 353 (S.C.): “the development of the suspended sentence was an invention
of the Irish judiciary”.
Judicial Studies Institute Journal [2007:1
The court does not propose to pass any general
judgment on the desirability, or otherwise, of this
jurisdiction: except to note that it is there and
provided it is used for some tangible purpose such
as to effect the reintegration of the accused into
society, or to protect certain members of society
from certain forms of crimes, or some such object,
the matter should be left reside in the individual
discretion of the judge of trial...9
At some point it became the practice of the courts to impose
a sentence with a condition attached that the offender be brought
back before the sentencing judge, having served the initial part of
the sentence. In this way, the sentencing judge would retain seisin
of the case. If the offender’s conduct had been satisfactory, the
sentencing judge would consider suspending the remainder of the
sentence imposed. This type of sentence is often referred to as a
Butler Order from the judgment of Butler J. in the case of The
State (Woods) v. Attorney General.10 The order was controversial
and considered undesirable by the Court of Criminal Appeal in the
case of The People (D.P.P.) v. Cahill.11 The power of the courts
to impose suspended sentences with review dates attached was
thought to be unconstitutional by the Supreme Court in the case of
The People (D.P.P.) v. Finn.12 This was despite the distinction
Walsh J. drew in the case of The People (D.P.P.) v. Aylmer13
between the executive power to commute sentences and the
judicial power to suspend sentences and to impose certain
conditions in relation to a sentence.
While the practice of setting a review date when imposing
sentence appears to have ceased since the decision of the Supreme
Court in Finn, courts still routinely apply the suspended sentence
simpliciter i.e. suspending the sentence imposed either wholly or
in part.
9 [1997] 2 I.L.R.M. 349, 353 (S.C.).
10 [1969] I.R. 385 (S.C.).
12 [2001] 2 I.R. 25 (S.C.).

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