PART 10

Sentencing

98 .— In this Part, unless the context otherwise requires—

“ authorised person ” means a person who is appointed in writing by the Minister, or a person who is one of a class of persons which is prescribed, to be an authorised person for the purposes of this Part;

“a direction” means a direction given by the Minister under section 2 of the Criminal Justice Act 1960 authorising the release of a person from prison (within the meaning of that section) for a temporary period;

“ governor ” includes, in relation to a prisoner, a person for the time being performing the functions of governor;

“ imprisonment ” includes—

(a) detention in Saint Patrick’s Institution, and

(b) detention in a place provided under section 2 of the Prisons Act 1970 ,

and “sentence of imprisonment” shall be construed accordingly;

“ mandatory term of imprisonment ” includes, in relation to an offence, a term of imprisonment imposed by a court under an enactment that provides that a person who is guilty of the offence concerned shall be liable to a term of imprisonment of not less than such term as is specified in the enactment;

“ offender ” means a person in respect of whom a restriction on movement order is, or may be, made under section 101 ;

“ probation and welfare officer ” means a person appointed by the Minister to be—

(a) a probation officer,

(b) a welfare officer, or

(c) a probation and welfare officer;

“ probation and welfare service ” means those officers of the Minister assigned to perform functions in the part of the Department of State for which the Minister is responsible commonly known by that name;

“ restriction on movement order ” means an order made by a court under section 101 .

99 .— (1) Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence, that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.

(2) It shall be a condition of an order under subsection (1) that the person in respect of whom the order is made keep the peace and be of good behaviour during—

(a) the period of suspension of the sentence concerned, or

(b) in the case of an order that suspends the sentence in part only, the period of imprisonment and the period of suspension of the sentence concerned,

and that condition shall be specified in the order concerned.

(3) The court may, when making an order under subsection (1), impose such conditions in relation to the order as the court considers—

(a) appropriate having regard to the nature of the offence, and

(b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence,

and any condition imposed in accordance with this subsection shall be specified in that order.

(4) In addition to any condition imposed under subsection (3), the court may, when making an order under subsection (1) consisting of the suspension in part of a sentence of imprisonment or upon an application under subsection (6), impose any one or more of the following conditions in relation to that order or the order referred to in the said subsection (6), as the case may be:

(a) that the person co-operate with the probation and welfare service to the extent specified by the court for the purpose of his or her rehabilitation and the protection of the public;

(b) that the person undergo such—

(i) treatment for drug, alcohol or other substance addiction,

(ii) course of education, training or therapy,

(iii) psychological counselling or other treatment,

as may be approved by the court;

(c) that the person be subject to the supervision of the probation and welfare service.

(5) A condition (other than a condition imposed, upon an application under subsection (6), after the making of the order concerned) imposed under subsection (4) shall be specified in the order concerned.

(6) A probation and welfare officer may, at any time before the expiration of a sentence of a court to which an order under subsection (1) consisting of the suspension of a sentence in part applies, apply to the court for the imposition of any of the conditions referred to in subsection (4) in relation to the order.

(7) Where a court makes an order under this section, it shall cause a copy of the order to be given to—

(a) the Garda Síochána, or

(b) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Síochána.

(8) Where a court has made an order under subsection (1) and imposes conditions under subsection (4) upon an application under subsection (6), it shall cause a copy of the order and conditions to be given to—

(a) the probation and welfare service, and

(b) (i) the Garda Síochána, or

(ii) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Síochána.

(9) Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, the court before which proceedings for the offence were brought shall, after imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order.

(10) A court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1) unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody (other than a period during which the person was serving a sentence of imprisonment in respect of an offence referred to in subsection (9)) pending the revocation of the said order.

(11) (a) A sentence (other than a sentence consisting of imprisonment for life) imposed—

(i) in respect of an offence committed by a person to whom an order under subsection (1) applies, and

(ii) during the period of suspension of sentence to which that order applies,

shall not commence until the expiration of any period of imprisonment that the person is required to serve of the sentence referred to in paragraph (b) either by virtue of the order under subsection (1) or a revocation under subsection (10).

(b) This subsection shall not affect the operation of section 5 of the Criminal Justice Act 1951 .

(12) Where an order under subsection (1) is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoked that order.

(13) Where a member of the Garda Síochána or, as the case may be, the governor of the prison to which a person was committed has reasonable grounds for believing that a person to whom an order under this section applies has contravened the condition referred to in subsection (2) he or she may apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).

(14) A probation and welfare officer may, if he or she has reasonable grounds for believing that a person to whom an order under subsection (1) applies has contravened a condition imposed under subsection (3) or (4), apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).

(15) Where the court fixes a date for the hearing of an application referred to in subsection (13) or (14), it shall, by notice in writing, so inform the person in respect of whom the application will be made, or where that person is in prison, the governor of the prison, and such notice shall require the person to appear before it, or require the said governor to produce the person before it, on the date so fixed and at such time as is specified in the notice.

(16) If a person who is not in prison fails to appear before the court in accordance with a requirement contained in a notice under subsection (15), the court may issue a warrant for the arrest of the person.

(17) A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and where the court revokes that order, the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order.

(18) A notice under subsection (15) shall be addressed to the person concerned by name, and may be given to the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.

(19) This section shall not affect the operation of—

(a) section 2 of the Criminal Justice Act 1960 or Rule 38 of the Rules for the Government of Prisons 1947 (S.R. & O. No. 320 of 1947), or

(b) subsections (3G) and (3H) of section 27 of the Misuse of Drugs Act 1977 .

100 .— (1) Where a court makes an order convicting a person of an offence in respect of which the person is liable to both a term of imprisonment and a fine, the court may, subject to subsection (2)—

(a) impose a fine on that person in respect of the offence, and

(b) make an order—

(i) deferring the passing of a sentence of imprisonment for the offence, and

(ii) specifying the term of imprisonment that it would propose to impose on the person in respect of that offence should he or she fail or refuse to comply with the conditions specified in the order.

(2) A court shall not perform functions under subsection (1) unless it is satisfied that—

(a) the person concerned consents to the sentence of imprisonment being deferred,

(b) the person gives an undertaking to comply with any conditions specified in an order made under subsection (1)(b), and

(c) having regard to the nature of the offence concerned and all of the circumstances of the case, it would be in the interests of justice to so do.

(3) An order under subsection (1)(b) shall specify—

(a) the date (in this section referred to as the “specified date”) on which it proposes to pass sentence should the person contravene a condition of the order, being a date that falls not later than 6 months after the making of the order, and

(b) the conditions with which the person concerned is to comply during the period between the making of the order and the specified date, including a condition that the person be of good behaviour and keep the peace.

(4) Where a court makes an order under subsection (1)(b), it shall cause a copy of the order to be given to the person in respect of whom it is made and the Garda Síochána.

(5) A court that has made an order under subsection (1)(b) shall not later than one month before the specified date require the person in respect of whom the order was made, by notice, to attend a sitting of the court on that date and at such time as is specified in the notice.

(6) If a person fails to comply with a requirement in a notice under subsection (5), the court may issue a warrant for the arrest of that person.

(7) Where a member of the Garda Síochána has reasonable grounds for believing that a person to whom an order under subsection (1)(b) applies has contravened a condition of the order, he or she may apply to the court to fix a date for the hearing of an application for an order imposing the term of imprisonment specified in the order in accordance with subsection (1)(b)(ii).

(8) Where the court fixes a date for the hearing of an application referred to in subsection (7), it shall, by notice in writing, so inform the person in respect of whom the application will be made, and such notice shall require the person to appear before it on the date so fixed and at such time as is specified in the notice.

(9) If a person fails to appear before the court in accordance with a requirement contained in a notice under subsection (8), the court may issue a warrant for the arrest of the person.

(10) Upon an application by a member of the Garda Síochána for an order imposing the term of imprisonment specified in accordance with paragraph (b)(ii) of subsection (1), a court may, if it is satisfied that the person in respect of whom the application was made has contravened a condition specified in the order under that subsection, impose the term of imprisonment that it proposed to impose at the time of the making of the order under that subsection (or such lesser term as it considers just in all of the circumstances of the case), unless it considers that it would in all the circumstances be unjust to so do.

(11) On the specified date the court shall, if it is satisfied that the person in respect of whom the order under subsection (1) was made has complied with the conditions specified in the order, not impose the sentence that it proposed to impose when making that order and shall discharge the person forthwith.

(12) On the specified date the court may, if it is satisfied that the person in respect of whom the order under subsection (1) was made has contravened a condition specified in the order, impose the term of imprisonment that it proposed to impose at the time of the making of the order (or such lesser term as it considers just in all of the circumstances of the case) unless it considers that in all of the circumstances of the case it would be unjust to so do, and where it considers that it would be unjust to impose a term of imprisonment it shall discharge the person forthwith.

(13) A notice under subsection (5) or (8) shall be addressed to the person concerned by name, and may be given to the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.

(14) Section 18(1) of the Courts of Justice Act 1928 is amended by the insertion of “, including an order under section 100 (1) of the Criminal Justice Act 2006” after “the person against whom the order shall have been made”.

101 .— (1) Where a person aged 18 years or more is convicted of an offence specified in Schedule 3 and the court which convicts him or her of the offence considers that it is appropriate to impose a sentence of imprisonment for a term of 3 months or more on the person in respect of the offence, it may, as an alternative to such a sentence, make an order under this section (“a restriction on movement order”) in respect of the person.

(2) A restriction on movement order may restrict the offender’s movements to such extent as the court thinks fit and, without prejudice to the generality of the foregoing, may include provision—

(a) requiring the offender to be in such place or places as may be specified for such period or periods in each day or week as may be specified, or

(b) requiring the offender not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified,

or both, but the court may not, under paragraph (a), require the offender to be in any place or places for a period or periods of more than 12 hours in any one day.

(3) A restriction on movement order may be made for any period of not more than 6 months and, during that period, the offender shall keep the peace and be of good behaviour.

(4) A restriction on movement order may specify such conditions as the court considers necessary for the purposes of ensuring that while the order is in force the offender will keep the peace and be of good behaviour and will not commit any further offences.

(5) A restriction on movement order shall specify the restrictions that are to apply to the offender’s movements and, in particular, it shall specify—

(a) the period during which it is in force,

(b) the period or periods in each day or week during which the offender shall be in any specified place or places,

(c) the time at which, or the periods during which, the offender shall not be in any specified place or places or any class or classes of place or places.

(6) In determining for the purposes of subsection (2)(a) the period or periods during which the offender shall be in a specified place or places, the court shall have regard to the nature and circumstances of the offence of which the offender has been found guilty and any educational course, training, employment or other activity in which the offender is participating, and it shall ensure, as far as practicable, that that period or those periods do not conflict with the practice by the offender of his or her religion.

(7) In determining for the purpose of subsection (2)(b) the place or places, or class or classes of place or places, the time or the periods to be specified in a restriction on movement order, the court shall have regard to the nature and circumstances of the offence of which the offender has been found guilty, the time that the offender committed the offence, the place where the offence was committed and the likelihood of the offender committing another offence in the same or similar place or places or class or classes of place or places.

(8) A court shall not make a restriction on movement order in respect of an offender unless it considers, having regard to the offender and his or her circumstances, that he or she is a suitable person in respect of whom such an order may be made and, for that purpose, the court may request a probation and welfare officer to prepare a report in writing in relation to the offender.

(9) A restriction on movement order which restricts the movements of an offender in accordance with subsection (2)(a) shall not be made without the consent of the owner of, or any adult person habitually residing at, the place or places concerned or, as the case may be, the person in charge of the place or places concerned.

(10) A court making a restriction on movement order may include in the order a requirement that the restrictions on the offender’s movements be monitored electronically in accordance with section 102 , but it shall not include such a requirement unless it considers, having regard to the offender and his or her circumstances, that he or she is a suitable person in respect of whom such a requirement may be made and, for that purpose, the court may request an authorised person to prepare a report in writing in relation to the offender.

(11) Before making a restriction on movement order, the court shall explain to the offender in ordinary language—

(a) the effect of the order, including any requirement which is to be included in the order under section 102 ,

(b) the consequences which may follow any failure by the offender to comply with the requirements of the order, and

(c) that the court has power under section 103 to vary the order on the application of any person referred to in that section,

and the court shall not make the order unless the offender agrees to comply with its requirements.

(12) The court shall cause certified copies of a restriction on movement order to be sent to—

(a) the offender,

(b) the member in charge of the Garda Síochána station for the area where the offender resides or, where appropriate, the area where he or she is to reside while the order is in force,

(c) where appropriate, an authorised person who is responsible under section 102 for monitoring the offender’s compliance with the order.

102 .— Where the restrictions on an offender’s movements in a restriction on movement order are to be monitored electronically, the order shall include—

(a) a provision making an authorised person responsible for monitoring the offender’s compliance with it, and

(b) a requirement that the offender shall, either continuously or for such periods as may be specified, have an electronic monitoring device attached to his or her person for the purpose of enabling the monitoring of his or her compliance with the order to be carried out.

103 .— (1) Where a restriction on movement order is in force, the court may, if it so thinks proper, on written application by—

(a) the offender,

(b) where appropriate, the owner of, or an adult person habitually residing at, the place or places or, as the case may be, the person in charge of the place or places, specified in the order,

(c) a member of an Garda Síochána, or

(d) where appropriate, an authorised person who is responsible under section 102 for monitoring the offender’s compliance with the order,

vary the order by substituting another period or time or another place for any period, time or place specified in the order.

(2) An application under subsection (1) shall be made on notice to such of the other parties specified in subsection (1) as is appropriate.

(3) Where any party specified in subsection (1) objects to the variation of a restriction on movement order, the court shall not vary the order without hearing from that party.

(4) The court shall cause certified copies of a restriction on movement order varied under this section to be sent to—

(a) the offender,

(b) where appropriate, the owner of, or an adult person habitually residing at, the place or places or, as the case may be, the person in charge of the place or places, specified in the order,

(c) the member in charge of the Garda Síochána station for the area where the offender resides or, where appropriate, the area where he or she is to reside while the order is in force, and

(d) where appropriate, an authorised person who is responsible under section 102 for monitoring the offender’s compliance with the order.

(5) The jurisdiction vested in the court under this section shall be exercised by a judge of the District Court for the time being assigned to the district court district, or, as the case may be, a judge of the Circuit Court for the time being assigned to the circuit, in which the offender resides or is to reside while the restriction on movement order is in force.

104 .— (1) Where more than one restriction on movement order is in force in respect of an offender at any time, the period during which the offender is required to be in a specified place or places shall, notwithstanding subsections (2) and (3), not be for a period of more than 6 months.

(2) Where a court makes restriction on movement orders in respect of 2 or more offences of which the offender has been found guilty, it may direct that the period for which the offender is required by any of those orders to be in a specified place or places shall be concurrent with or additional to that specified in any other of those orders.

(3) Where a court makes a restriction on movement order and at the time of the making of the order there is in force in respect of the offender another such order (whether made by the same or a different court), the court making the later order may direct in that order that the period for which the offender is required by that order to be in a specified place or places shall be concurrent with or additional to that specified in the earlier order.

105 .— (1) Where a restriction on movement order is in force and it appears to a court, on application by a member of an Garda Síochána or, where appropriate, an authorised person who is responsible under section 102 for monitoring the offender’s compliance with the order, that the offender has failed, without reasonable cause, to comply with the order or any condition to which it is subject, the court may—

(a) if the order was made by a court in the district court district, or, as the case may be, the circuit, in which the offender resides or is to reside while the order is in force—

(i) direct the offender to comply with the order or any such condition in so far as it has not been complied with,

(ii) revoke the order and make another restriction on movement order in respect of the offender, or

(iii) revoke the order and deal with the case in any other way in which it could have been dealt with before the order was made,

or

(b) if the order was made by a court in another district court district or, as the case may be, another circuit, remand the offender on bail to a sitting of that court to be dealt with, and for that purpose, paragraph (a) shall apply in relation to that court, with the necessary modifications.

(2) The matters to be taken into account by the court in arriving at a decision pursuant to subsection (1) shall include the extent to which, and the period during which, the offender has complied with the order concerned or any condition to which it is subject.

(3) Where the court proposes to exercise its powers under subsection (1), it shall summon the offender to appear before it and, if the offender does not appear in answer to the summons, it may issue a warrant for his or her arrest.

(4) The jurisdiction vested in the court under this section shall be exercised by a judge of the District Court for the time being assigned to the district court district, or, as the case may be, a judge of the Circuit Court for the time being assigned to the circuit, in which the offender resides or is to reside while the restriction on movement order is in force.

106 .— Where 2 or more sentences, one of which is a restriction on movement order, are passed on an offender by the District Court and are ordered to run consecutively, the aggregate of the period during which the order in respect of the offender is in force and the period of any term or terms of imprisonment imposed on him or her shall not exceed the maximum period of the aggregate term of imprisonment specified in section 5 of the Criminal Justice Act 1951 .

107 .— (1) Evidence of the presence or absence of the offender in or from a particular place at a particular time may, subject to the provisions of this section, be given by the production of a document or documents being—

(a) a statement produced automatically or otherwise by a device, prescribed by regulations under section 111 , by which the offender’s whereabouts were electronically monitored, and

(b) a certificate signed by an authorised person who is responsible under section 102 for monitoring the offender’s compliance with the order that the statement relates to the whereabouts of the offender at the dates and times shown in the statement.

(2) The statement and certificate mentioned in subsection (1) shall, when produced at a hearing, be evidence, until the contrary is shown, of the facts set out in them.

(3) Neither the statement nor the certificate mentioned in subsection (1) shall be admissible in evidence unless a copy of both has been served on the offender prior to the hearing.

108 .— (1) A direction in respect of a person aged 18 years or more may be subject to a condition restricting the person’s movements to such extent as the Minister thinks fit and specifies in the direction and those restrictions may be monitored electronically in accordance with subsection (4).

(2) Without prejudice to the generality of subsection (1), a direction may include provision—

(a) requiring the person to be in such place or places as may be specified for such period or periods in each day or week as may be specified, or

(b) requiring the person not to be in such place or places, or such class or classes of place or places, at such time or during such periods, as may be specified,

or both, but the Minister may not, under paragraph (a), require the person to be in any place or places for a period or periods of more than 12 hours in any one day.

(3) A direction shall not be subject to a condition which restricts the movements of a person in accordance with subsection (2)(a) without the consent of the owner of, or any adult person habitually residing at, the place or places concerned or, as the case may be, the person in charge of the place or places concerned.

(4) Where the restrictions on a person’s movements imposed by a condition in a direction are to be monitored electronically, the direction shall include—

(a) a provision making an authorised person responsible for monitoring the person’s compliance with the condition and the condition referred to in paragraph (b), and

(b) a condition that the person shall, either continuously or for such periods of not more than 6 months as may be specified have an electronic monitoring device attached to his or her person for the purpose of enabling the monitoring of his or her compliance with the condition restricting his or her movements to be carried out.

(5) A condition shall not be imposed under subsection (1) or (4)(b) unless the person concerned agrees to comply with it, but the absence of such agreement shall not confer an entitlement on that person to be released pursuant to a direction.

109 .— (1) In any proceedings for an offence under section 6 (2) of the Criminal Justice Act 1960 evidence of the presence or absence of the person in or from a particular place at a particular time may, subject to the provisions of this section, be given by the production of a document or documents being—

(a) a statement produced automatically or otherwise by a device, prescribed by regulations made under section 111 , by which the person’s whereabouts were electronically monitored, and

(b) a certificate signed by an authorised person who is responsible under section 108 (4) for monitoring the offender’s compliance with the condition in the direction that the statement relates to the whereabouts of the person at the dates and times shown in the statement.

(2) The statement and certificate mentioned in subsection (1) shall, when produced at a hearing, be evidence, until the contrary is shown, of the facts set out in them.

(3) Neither the statement nor the certificate mentioned in subsection (1) shall be admissible in evidence unless a copy of both has been served on the person prior to the hearing.

110 .— Section 2(1) of the Criminal Justice Act 1960 is amended by the insertion of “(including, if appropriate, any condition under section 108 of the Criminal Justice Act 2006)” after “subject to such conditions, as may be specified in the direction”.

111 .— The Minister may prescribe by regulations the types of electronic monitoring device that may be used for the purpose of monitoring—

(a) the compliance of offenders with a requirement under section 102 , and

(b) the compliance of persons with section 108 (4).

112 .— The Minister may, with the consent of the Minister for Finance, make such arrangements, including contractual arrangements, as he or she considers appropriate with such persons as he or she thinks fit for the monitoring of—

(a) the compliance of offenders with restriction on movement orders, or

(b) the compliance of persons with a condition imposed under section 108 (4) in directions in respect of such persons,

or both.