Courts

Is it typical for a non-custodial sentence to be reviewed where person found guilty of another offence?

Reviewing a suspension, the original sentencing court has a discretion on whether to activate a jail term in whole or in part or at all

Judges consider a number of factors before deciding what to do in the event of a person reoffending after being given a suspended sentence. Photograph: Michaela Rehle/Reuters
Judges consider a number of factors before deciding what to do in the event of a person reoffending after being given a suspended sentence. Photograph: Michaela Rehle/Reuters
Ellen O'Riordan's picture
Ellen O'Riordan
Wed Sept 11 2024 - 19:58

A suspended sentence is said to hang like the “sword of Damocles” above offenders who have been spared jail on condition of good behaviour.

Such a sword has dangled over the head of Limerick hurler Kyle Hayes (26) since he was convicted last March for his role in a violent incident in a nightclub in 2019 that left a man with serious facial injuries.

For two counts of violent disorder, Limerick Circuit Court ordered the All-Ireland winner to pay €10,000 to the victim and it imposed a two-year sentence that was suspended for two years during which he must keep the peace.

Hayes went on to help Limerick reach the All-Ireland hurling semi-final at Croke Park last July.

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However, his conviction at Mallow District Court this week for dangerous driving last July has triggered a Garda application for a judge to review the suspension of Hayes’s two-year sentence.

While judges can impose a variety of conditions with which an offender must comply as part of his or her suspended sentence, keeping the peace and being of good behaviour are mandatorily attached, said senior counsel Tom O’Malley, who is an emeritus professor of law at the University of Galway and an expert on sentencing.

Speaking generally about procedures, he said the commission of any further offence during an offender’s suspended period amounts to a breach of his or her sentence conditions.

A suspended sentence is designed to be “rehabilitative”, he said. It offers someone who has committed an offence meriting imprisonment a “chance to prove themselves and show they are able to lead a law-abiding life during the sentencing period”, he said.

Reviewing a suspension, the original sentencing court has a discretion on whether or not to activate a jail term in whole or in part or at all, Mr O’Malley said. Judges consider factors such as the gravity and nature of a reoffence and the length of time left on the suspended period, he said.

A judge may decide that activating imprisonment on foot of a reoffence is unjust in the circumstances of a particular case, Mr O’Malley added.

Solicitor Ciaran Mullholland, who acts for many accused, said that, in his experience, people on suspended sentences who go on to commit entirely unrelated, lesser offences tend not to see their jail term activated, but it is “entirely up to the judge”.

The suspensions are designed to work as a “carrot and stick”, he said, adding that he has had clients’ sentences activated in drug-related cases where a similar offence occurred almost immediately after the original sentencing.

Mallow District Court was told on Tuesday that Hayes, of Ballyashea, Kildimo, intends to appeal his dangerous driving conviction, for which he received a two-year driving disqualification and a €250 fine. With a previously clean driving licence, he denied the charge, instead offering to plead guilty to a lesser offence of careless driving.

Convicting, Judge Colm Roberts said Hayes drove at 155km/hr in a 100km/hr speed limit zone while overtaking nine cars, on a stretch of road near Mallow, Co Cork. He said the case merited a dangerous driving conviction.

The judge returned Hayes to Limerick Circuit Court for consideration of activation of the suspended sentence. That court is next due to sit in October.

Generally, sentence suspension reviews will not occur before any appeal courts invoked by an accused have given final determination on the alleged reoffence. Mallow Circuit Court, which hears appeals from the local District Court, sits four times per year, with the next session scheduled for December.