DPP v Cahill

 
FREE EXCERPT

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
Henchy J.
1

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".

2

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 is undesirable.

3

For instance, inThe 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 years imprisonment.

4

More recently, this Court (Finley P., Griffin and McWilliam JJ.) inThe 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.

5

Because the opinion of this Court...

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