The High Court has dismissed a judicial review challenge to a law requiring a prison sentence for a later offence to begin after an earlier suspended sentence expires.
The applicant, Paul O’Shea, argued that section 99(11) of the Criminal Justice Act 2006 was unconstitutional and infringed his fundamental rights. The provision applies when a person commits an offence during the suspension period of an earlier sentence and the suspended term is reactivated.
O’Shea had pleaded guilty to two offences under the Misuse of Drugs Act 1977 and, on 10 May 2011, received two five-year sentences, with three years suspended. He later pleaded guilty to four burglary counts on 21 July 2015 and two theft counts on 27 October 2015. The offences were committed during the suspension period. The suspended portion was reactivated from 27 October 2015, and he was awaiting sentence for the later offences.
The judgment said any custodial sentence for those offences would have to run after the original sentence. However, the sentencing court was not required to impose imprisonment and could suspend all or part of a sentence if needed to reach a proportionate overall result.
The court considered an earlier High Court decision, Moore v DPP, which had found sections 99(9) and (10) unconstitutional. It said that ruling meant section 99(11) could not apply prospectively in its current form. But because the reactivation procedure had been applied to O’Shea in October 2015, before the Moore decision, section 99(11) remained applicable to his case.
Justice Richard Humphreys held that the sentencing court retained enough discretion to avoid an excessive overall penalty. The suspended sentence had already been imposed, he said, and it was for the court dealing with the later offences to decide whether any additional imprisonment was required. The High Court dismissed the proceedings. It did not sentence O’Shea for the burglary or theft offences.