The High Court refused Gareth McCarthy’s application for judicial review of a District Court decision suspending a three-month sentence for 36 months, holding that he was not entitled to judicial review because he had not used the available appeal process.
In a judgment delivered on 30 July 2007, Mr Justice de Valera addressed two issues agreed by the parties after submissions in January: whether the suspension period should not exceed the sentence without special reasons, and whether a 36-month suspension exceeded the District Court’s summary jurisdiction.
On the first issue, the judge followed the reasoning in the unreported Court of Criminal Appeal decision People (DPP) v William Hogan, given on 4 March 2002. That decision indicated a court could suspend a sentence for longer than the term imposed, but said special circumstances would be needed and that doing so was not generally desirable. The parties accepted that the District Court judge had specified no special circumstances in McCarthy’s case.
The High Court nevertheless concluded that McCarthy was not entitled to judicial review because he had not appealed the District Court decision, although an appeal had been open to him. The judgment therefore did not set aside the suspension decision.
On the jurisdiction issue, neither party had submitted authority. The judge adopted the view in O’Malley Sentencing Law and Practice that a suspended sentence could be treated as punitive, and approved the view that if reactivated it must be reactivated in full. He illustrated the potential effect: if the sentence were reactivated in the 35th month, McCarthy would serve the remaining three months after the intervening period, producing a total period from commencement to completion of more than 43 months, assuming remission as described in the judgment.
The court again held that McCarthy could not obtain judicial review because he had not appealed and exhausted the available remedy. The judgment did not grant the requested review or provide relief from the District Court decision.