The Court of Appeal has dismissed an appeal against the full reactivation of a five-year sentence imposed for 22 offences involving false documents, phone contracts and deception.
The judgment, delivered on 30 June 2020, concerned an appellant who had pleaded guilty to 10 counts of using a false instrument, two counts of possessing a false instrument and 10 counts of deception. In June 2018, he received five years’ imprisonment, backdated to March 2018. The final four years were suspended on condition that he leave the jurisdiction within three months of release and not return for four years.
The appellant did not leave. The matter was re-entered under section 99 of the Criminal Justice Act 2006, and in November 2019 the suspended portion was activated in full. His appeal argued that full activation was disproportionate and that the sentencing judge could have reactivated only part of it.
The Court of Appeal confirmed that section 99 gives a judge power to partially reactivate a sentence. It was not satisfied, however, that the judge believed he had only a binary choice. The appeal court understood the judge’s comment that he could “either apply or lift the suspension” as referring to the circumstances of this case.
The court said the appellant had been given three months to leave and no reason had been presented for his failure to do so. It said the destination and proposed address were matters for the defendant, not the Gardaí, prosecution or court. His partner’s pregnancy was mentioned at the reactivation hearing, but was not advanced as an explanation for missing the deadline.
The court noted that the four-year suspended portion had been granted on the basis that the appellant would leave the jurisdiction. It held that, absent exceptional circumstances or at least a reasonable explanation, the straightforward failure to meet that condition justified reactivating the suspended sentence in its entirety. The court dismissed the appeal.