DPP v Cahill

JurisdictionIreland
JudgeHenchy J.
Judgment Date26 July 1979
Neutral Citation1980 WJSC-CCA 116
Docket Number(31-1979)
CourtCourt of Criminal Appeal
Date26 July 1979

1980 WJSC-CCA 116

COURT OF CRIMINAL APPEAL

Henchy J.

D'Arcy J.

Keane J.

(31-1979)
People (D.P.P.) v. CAHILL
THE PEOPLE (D.P.P.)
v.
MICHAEL CAHILL
1

Judgment of the Court delivered by Henchy J.on the 26 July 1979.

2

This is an application for leave to appeal against sentence only. The applicant pleaded guilty in the Central Criminal Court in March 1979 to a charge of burglary contrary to s. 23(A) of the Larceny Act 1916. He was put back for sentence. Having heard evidence and submissions, the trial judge on the 27 April 1979 imposed a sentence of seven years imprisonment but directed that when the applicant would have served 36 months he was to be brought back before the Court and "if in the meantime he has obeyed normal prison discipline and has shown a willingness to co-operate in preparing himself for integration into normal society the Court will consider suspending the then balance of said sentence".

3

Unfortunately neither counsel for the prosecution nor counsel for the defence drew the judge's attention to the fact that this Court has held on a number of occasions that a sentence in this form isundesirable.

4

For instance, in The People (D.P.P.) v. Fagan, in which this Court (Henchy, Murnaghan and Gannon JJ.) gave judgment on the 7 November 1977, the trial judge had imposed a sentence of seven years penal servitude with a direction that the prisoner be brought back to court after 36 months and if it was then found that he had observed prison discipline the judge would consider suspending the then balance of the sentence. Aside from holding (as this Court has held in a number of cases) that there is no jurisdiction vested in a court to suspend a sentence of penal servitude, the Court held that it was undesirable to impose a sentence in this manner whereby the judge sought to reserve to himself a jurisdiction to review and vary the sentence at the end of three years. The Court substituted a sentence of four yearsimprisonment.

5

More recently, this Court (Finley P., Griffin and McWilliam JJ.) in The People (D.P.P.) v. O'Toole (26 May 1978), in which the trial judge had imposed a sentence of seven years penal servitude similarly reviewable by the judge at the end of three years, held that a sentence reviewable in that form was undesirable. it substituted a sentence of four years imprisonment.

6

Because the opinion of this Court that a sentence in this form should not be imposed has not been expressed in a written judgment, and may therefore have escaped notice, the Court takes this opportunity of restating that opinion and giving reasons for it.

7

There are a number of grounds on which this form of reviewable sentence could be said to be undesirable. Of these the most important would seem to be the following.

8

Firstly, when a High Court judge sitting in the Central Criminal Court directs that a convicted person whom he has sentenced to a term in prison be brought before him at a date in the future for a review of thesentence, he may be said to be pre-empting the functions of the President of the High Court. S. 11 of the Courts (Supplemental Provisions) Act, 1961,...

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