The Court of Criminal Appeal held that judges can reactivate only part of a suspended sentence under section 99 of the Criminal Justice Act 2006, even when the original sentence was imposed before the section commenced, if the application to reactivate was made afterwards and section 99(9) did not apply.
The ruling arose from an appeal by Gordon Ryan, who was sentenced in March 2000 to 12 years in prison, with the final six years suspended on conditions. He was released in April 2003 after serving the custodial part of the sentence.
The prosecution first sought to reactivate the suspended portion in 2005, relying on later offences including obstructing a Garda and failures to answer bail. The trial judge refused that application, finding that reactivating six years would be disproportionate where the offences had been dealt with in the District Court and resulted in an effective one-month prison term.
A further application, heard in July 2007, relied on five convictions, including theft and fraud offences. The trial judge reactivated the full suspended portion, holding that an earlier Court of Criminal Appeal decision, *The People v Alan Murray*, left him with a choice only to reactivate all of it or none. Ryan appealed. His counsel argued that section 99, which had commenced in October 2006, gave the court power to order that only the part it considered just be served.
The Court of Criminal Appeal rejected the prosecution’s argument that the application was governed solely by the common law because the sentence predated the legislation. It said section 99(17) contains no wording limiting its application to sentences imposed after commencement. The subsection gives the court power, following a breach of a suspended-sentence condition, to revoke the order unless that would be unjust and, if revoking it, to require service of the whole sentence or such part as is just.
The court said that power applied to post-commencement reactivation applications where subsection (9), which concerns a person convicted during the suspension and remanded to the sentencing court, had not operated or did not apply. It concluded that the court had power to reactivate the suspended portion in part despite the earlier sentence date.
The judgment did not decide how much of Ryan’s suspended term should be served. It said the matter had come before it as an application for leave to appeal against sentence, but section 99(12) also provides for an appeal. The court said it would hear submissions on whether the case should proceed as an application for leave to appeal or as an appeal under that subsection.