The Court of Appeal has dismissed Gerry Wall’s appeal against the activation of the full sentence suspended after his burglary conviction, finding no error in the sentencing judge’s approach to his breach of probation conditions.
Wall pleaded guilty to burglary in Dublin Circuit Criminal Court. On 5 October 2016, he received a two-year prison sentence, suspended in full. The order required him to keep the peace and be of good behaviour for two years and six months, and to engage with the Probation Service for two years, including attending appointments and addressing his offending behaviour, drug use, training and employment needs. He was also required to keep the service informed of changes to his contact details.
The Probation Service brought the matter back before the sentencing judge under section 99(14) of the Criminal Justice Act 2006, alleging that Wall had failed to comply with conditions of suspension. At the November 2017 hearing, probation officer Ms Clarke said Wall had told the service he was moving to Cork shortly after sentence. His case was transferred there, but he had not attended appointments by January 2017 and received warning letters. In March, he told the Cork team he was moving to Dublin, and the case returned to Ms Clarke. She sent appointment letters over the following months but said she had no contact with him from March onwards.
The sentencing judge revoked the suspension and activated the sentence, giving Wall credit for time already spent in custody in the matter. She said there had been no compliance from the outset and that an offer to engage with probation while serving a short sentence did not reassure her he would comply once at liberty.
On appeal, Wall argued that the full activation was disproportionate. His counsel submitted that he had kept the peace and been of good behaviour, and that the judge should have considered activating only part of the sentence. The Director of Public Prosecutions argued that Wall’s failure to maintain contact prevented probation supervision and undermined the other conditions.
The Court of Appeal said a revocation application must be assessed in the context of the sentencing process as a whole. It noted Wall’s previous record, including earlier suspended sentences, and the sentencing judge’s warning that he needed to show concrete commitment to addressing the difficulties linked to his offending.
The court concluded that the judge had considered whether a less stringent response was appropriate and had rejected it in light of the complete lack of compliance with probation supervision conditions. Under section 99(17), the court may activate all or part of a sentence as it considers just, less time spent in custody. Finding no error of principle, the Court of Appeal dismissed the appeal. The dismissal leaves the activation in place.