Supreme Court of Ireland Decisions

1. The applicant was convicted by the Central Criminal Court (Lavan J.) on a plea of guilty in respect of charges of

2. The details of the rape and the assault were as follows. The applicant and the injured party, M. were on the beach at Rosses Point, Co. Sligo in the early hours of the 18th January 1996. M. made what is accepted to have been an innocent remark as to the applicant not being the father of his girl friend’s child. He thereupon subjected her immediately to a physical assault of such ferocity that she suffered relatively serious injuries and was rendered unconscious. While she was lying unconscious on the beach, he then raped her. When she recovered consciousness, he brought her to a nearby house under the pretence that she had been assaulted by someone else and that he (the applicant) was, as it were, coming to her rescue. M. was not aware that she had

3. The applicant, when first questioned by the gardaí, admitted to having assaulted M. when she made the comment about his girlfriend. In his second statement, he admitted to the rape. It is clear from the Victim Impact Report furnished to the Central Criminal Court that, in addition to the physical injuries she sustained, her ordeal had significant psychological consequences for M. She was particularly concerned that the applicant should be imprisoned for what he had done, not simply because she thought he should be punished, but because she was afraid of what might happen to her if he were at liberty.

4. At the stage when sentence was imposed by the Central Criminal Court, the court had before it reports from a probation and welfare officer and a psychiatrist. From them it appeared that the applicant, who was then aged 21, came from a significantly disturbed family background, although he had done well at school. His problems derived from the fact that his father died when he was only 10 months old and that his mother’s second husband was abusive and violent on a regular basis, both towards her and her children, including the applicant. He appeared to have a good relationship with his girlfriend, with

5. The learned High Court judge approached the imposition of the sentence with considerable care. Having been addressed in detail by counsel for the prosecutor as to the circumstances of the offences, he heard the evidence of the investigating Garda sergeant, of the applicant’s mother and girlfriend and of the applicant himself and then heard submissions from counsel for the applicant and counsel for the prosecutor.

6. Before imposing sentence, the trial judge referred to the principles by which he considered himself bound, as laid down by this court and the Court of Criminal Appeal. He said that, as to the facts of the present case, he was satisfied that the injured party, as he put it, had been beaten “to within an inch of her life”. He also accepted entirely the conclusions in the Victim Impact Report as to the long term effects which this had had on M. He said that he was bearing in mind fully the mitigating factors in the case, i.e. that the applicant, having subjected the girl to this appalling ordeal, was sufficiently conscious of what he had done to seek assistance for her, that he made a full confession and had pleaded guilty, that he had no previous convictions and had to be regarded as being of blameless character until the night of the assault and

7. The trial judge concluded that the appropriate sentence in this case was one of seven years’ imprisonment in respect of the first count and three years’ imprisonment in respect of the second count. He also said, however, that, having regard to the factors to which he had referred, he would order the case to be re-listed before him, at which stage he would consider “reviewing how I will deal with the remainder of the sentence”. He made it clear to counsel that, since he was aware of the limited resources available in the form of a sex offenders programme in the prison system, he would strongly recommend that, if that programme were not available to the applicant, his family should make arrangements that other professional care would be available to him. He said that he would, accordingly, hear evidence at the review date as to the conduct of the applicant in prison and the counselling which he had undergone and he would also require a report at that stage on the injured party.

8. When the matter came before the court again on October 22nd, 1998, a further Victim Impact Report was produced. M. had seen a psychologist for the first 12 months of the period, but not during the past 12 months because she did not want to take time off work. She said that, while she was getting on with her life, she was in constant fear of a similar event happening to her and was scared because of the possibility of the applicant being released from prison. She had a particular fear that he might come back to Sligo and endeavour to make contact with her, in which case she would have to leave the town, which she did not wish to do.

9. There was also a report before the trial judge of Mr. Paul Murphy, a clinical psychologist concerned in the Sex Offenders’ Programme in Arbour Hill prison. While that report concluded that the applicant had co-operated consistently in the programme and had good support available to him from an uncle and from his girlfriend, it also said that it was important that there should be ongoing therapeutic work with him and his girlfriend in order to address significant therapeutic issues that became apparent during the programme. The report also concluded that the applicant needed to have “ongoing supervision in the community and access to appropriate professional support”.

10. During the course of this hearing, the trial judge indicated to counsel for the applicant his concern that, if the applicant were released, he should under no circumstances return to Sligo, having regard to the security implications for the injured party and the anxieties that she had expressed. The applicant gave evidence that he was prepared to reside with his uncle in Longford, to give an undertaking that he would not cross the Shannon or go anywhere near Sligo and that he would avail of ongoing therapy. He then gave a voluntary undertaking not to visit the county of Sligo until the 10th December 2003, to reside with his uncle and to arrange for ongoing supervision in the form of therapy. The trial judge then went on:

11. The trial judge accordingly released the applicant but directed that the case should be listed again in three months time so that the judge could be told of the position as to supervision. There was in fact a further hearing on April 14th at which the trial judge heard evidence from the applicant that he was living in Longford with his girlfriend, that he was doing a two-year computer

12. On the 18th November 1998 the prosecutor gave notice of an application to the Court of Criminal Appeal pursuant to s. 2 of the 1993 Act

13. The notice of application said that:-

14. When this application came before the Court of Criminal Appeal, counsel for the applicant objected that it was out of time, not having been made within 28 days from the day on which the sentence was imposed as required by s. 2 of the 1993 Act. In a short ex-tempore judgment delivered on the 14th June 1999, the court rejected that objection. It then proceeded to deal with the application itself and, again in a brief ex-tempore judgment, the court acceded to the prosecutor’s application and substituted for the sentence imposed in respect of the charge of rape a sentence of six years’ imprisonment, with no suspension in respect of either of the sentences.

15. On the application of counsel for the applicant, the court then certified that it was in the public interest that an appeal should be taken to this court on the point set out in a certificate, i.e.

16. Mr. Blaise O’Carroll, S.C., on behalf of the applicant, submitted that the words of the statute in this case should be literally construed and given their ordinary and natural meaning. So construed, the time limit for the purpose of an appeal was “28 days from the date on which the sentence was imposed”. He submitted that that could only refer to the 10th December 1996 when the sentence was imposed by the Central Criminal Court.

17. Mr. O’Carroll submitted that the definition of “sentence” in s. 1 of the 1993 Act did not include a review of the sentence, which was a process occurring after sentence aimed primarily at the rehabilitation of the offender. He further submitted that, since the review of sentences was a feature of the

18. Mr. O’Carroll further submitted that the prosecutor was not precluded from appealing a decision of a court to impose a sentence subject to its being reviewed within a specified time, on the ground that it appears to him that such a sentence is “unduly lenient”. The Director of Public Prosecutions is represented in court when the sentence is imposed and will be aware that, when a sentence provides for a review within a specified period, the probability is that, if the offender complies with any conditions laid down by the trial judge, he or she will be released on the review date with the balance of the sentence being suspended. He said that the Director of Public Prosecutions had implicitly accepted that the appropriate course for him to take where it appeared to him that the provision for a review date in the sentence was unduly lenient was to apply to the court under s. 2 of the 1993 Act for a finding to that effect within the 28 days provided for in the Act, as he had done in the case of The State at the prosecution of the Director of Public Prosecutions .v. James Kelly (unreported: judgment delivered 3rd July 2000).

19. On behalf of the prosecutor, Mr. Peter Charleton, S.C. said that the appeal on the point of law as certified by the Court of Criminal Appeal raised issues of fundamental importance as to the entire review procedure on which the Director was anxious to obtain guidance from this court.

20. Mr. Charleton submitted that the date “on which the sentence was imposed” within the meaning of s. 2(1) of the 1993 Act was the 22nd October 1998, since it was only at that stage that the order of the Central Criminal Court disposing of the case was finalised. An application by the prosecutor within the period of 28 days from the 10th December 1996 would have been premature, since at that stage the Central Criminal Court had not given any indication as to what course of action it proposed to take on the review date. In circumstances where a trial judge effectively adjourns a case pending a review of a sentence -as happened here - he necessarily continued to exercise a jurisdiction affecting the operation of the sentence. In those circumstances, the sentence could not be said to have been “imposed” within the meaning of the legislation until the review date.

21. A term of imprisonment was the period fixed by the judgment as the punishment for the offence and, accordingly, a sentence was not “imposed” until such time as the term of imprisonment was actually fixed. He cited in this

22. Mr. Charleton further submitted that it was clear from the decision of this court in O’Brien .v. The Governor of Limerick Prison [1997] 1 ILRM 349 that where a judge provides for a review of a sentence imposed by him at some future date he or she retains seisin of the case. He said that it was a logical consequence of that finding that such a case could not be regarded as finally disposed of until such time as the review procedure was completed by the court of trial.

23. For a period of over 20 years, a practice has developed in the Central Criminal Court and the Circuit Court of including in a custodial sentence

24. The Court of Criminal Appeal expressed its disapproval of sentences of this nature at an early stage in The People (DPP) .v. Fagan (unreported: judgment delivered 7th November 1977) and The People (DPP) .v. O’Toole (unreported: judgment delivered 26th May 1978). There was no written judgment in either of those cases, but in The People (DPP) .v. Cahill [1980] IR 8, the desirability of such sentences was considered at length by Henchy J. delivering the judgment of the court.

25. In that case, the applicant was sentenced to seven years’ imprisonment by the Central Criminal Court, having been convicted of burglary. The trial judge, however, directed that the court would “consider suspending the then balance of the sentence” if the applicant were to be brought before the court after the expiration of 36 months and if he then showed that in the meantime that he had obeyed normal prison discipline and had shown a willingness to co-operate in preparing himself for integration into normal society.

26. In his judgment, Henchy J. having referred to the two earlier decisions, went on -

27. The first of these grounds was that, in making such an order, a High Court judge sitting in the Central Criminal Court, would effectively be pre-empting the functions of the President of the High Court since s. 11 of the Courts (Supplemental Provisions) Act, 1961 stipulates that the jurisdiction

28. The second ground was that a sentence in this form did not seem compatible with the right of appeal against sentence given to a person convicted on indictment. Having regard to the time constraints applicable to the appeal procedure, a convicted person would be in difficulties in exercising his right of appeal on the ground of severity, since he would not know at that stage the length of the sentence which he would in fact be required to serve. If, however, the expression “the close of the trial” in the relevant rule of court, which was the time from which the appeal period ran, were to be the date when the sentence was being reviewed, the sentenced person’s right to seek to appeal would be postponed until then which would be “palpably unfair and unjust”. Henchy J. observed:

29. The third ground was that such a sentence gave the appearance of trenching on a function of the Executive. Henchy J. commented that

30. Finally, it was said that such a sentence was not in accord with correct principles of penology, since it was desirable that both the prison authorities and the prisoner should be in a position to plan for the date of release and that the appropriate rehabilitative procedures should be in place leading up to the date of release.

31. The judgment concluded as follows:-

32. Despite this disapproval by the Court of Criminal Appeal of sentences of this nature, they have been imposed in many cases since then by judges sitting

33. From the summary of counsel’s arguments at an earlier part of the judgment it would appear that the court was referred to Cahill but it is not otherwise referred to in the judgment.

34. A sentence containing such a review provision was considered by this court in The People .v. Aylmer (decided in 1986 but not reported until [1995] 2 ILRM 624). A sentence providing for a review had been imposed in 1979 and the balance of the sentence was suspended in 1982 on condition that the applicant would remain of good behaviour. However, following a further separate conviction in 1984, the DPP applied to have the suspension of the balance of the 1979 sentence revoked and the Central Criminal Court duly ordered the applicant to serve the remaining balance of the sentence. The Supreme Court dismissed an appeal against the sentence, but the reasons given in the five judgments delivered are not the same.

35. Walsh J. said that the sentence originally imposed by the Central Criminal Court was valid. He rejected a submission that it in some way trenched on the powers vested in the Executive by s. 3 of the Criminal Justice Act, 1951, pointing out that the Executive were not precluded from commuting the sentence in its entirety and that, if they had chosen so to do, the review provision in the sentence would simply have been inoperable. He also rejected the suggestion that the trial judge had in some way been usurping the functions of the President of the High Court, since the sentence simply envisaged that the order on the review procedure would be made by a judge of the Central Criminal Court, not necessarily himself. He declined to deal with the other grounds of appeal raised, on the ground that they raised questions as to whether the sentence imposed was in accordance with principles of good penology, which, he said, could only have been raised if an appeal had been taken against the sentence.

36. As to the decision in Cahill, Walsh J. commented that

37. It should be noted that Walsh J. accordingly, does not deal with two of the grounds mentioned by Henchy J. in Cahill i.e. whether a sentence containing a review procedure is incompatible with the right of appeal of a convicted person against sentence and whether it is in accordance with correct principles of penology. The reasons he declined to deal with the latter ground have already been mentioned and it may be that the first ground was not relied on in Aylmer.

38. Henchy J. said that the appeal should be dismissed because the applicant was estopped from claiming that the original sentence was invalid, since he had sought to take advantage of it by getting the balance of his sentence suspended. As to Cahill, he contented himself with saying that

39. Griffin J. also found it unnecessary to express any view on the validity of the original sentence: he held that, since it had not been appealed, its validity could not now be successfully challenged and that it followed that the order appealed from to the Supreme Court, deriving as it did its efficacy from its initial order, also could not be challenged.

40. Hederman J. also declined to express any view on the propriety or validity of sentences of this nature. He was satisfied that the appeal in the instant case failed because there had been no appeal within time from the original sentence and there were no grounds on which the court could grant any extension of time for such an appeal. McCarthy J., in common with Walsh J., was satisfied that the sentence containing the review provision was valid, but was not prepared to express any view as to its desirability, saying

41. Two members only of the court (Walsh and McCarthy JJ.), accordingly, upheld the validity of this form of sentence in that case. The majority

42. The topic was considered more recently by the court in Michael O’Brien .v. Governor of Limerick Prison [1997] 2 ILRM 349. In that case, the applicant was sentenced to imprisonment for a term of 10 years, the final six years of which were to be suspended subject to certain conditions which were to take effect when the period of suspension began. However, the applicant claimed to be entitled to be released before the expiration of the four year period on the ground that he had at that stage served three-quarters of the custodial sentence and was entitled to be released pursuant to Rule 38(1) of the Rules of the Government of Prisons 1947. That rule provides that a prisoner sentenced to imprisonment for a period exceeding one calendar month is to be eligible, by “industry and good conduct”, to earn a remission of a portion of his imprisonment, not exceeding one-fourth of the whole sentence. The applicant in that case was entitled to the remission for industry and good conduct, provided - and this was the matter at issue - the provisions of Rule 3 8(1) applied to the term of four years and not to the term often years only.

43. The court (Hamilton C.J., O’Flaherty, Denham, Barrington and Murphy JJ.) held that a sentence in that form could not be reconciled with the provisions of the Prisons (Ireland) Act 1907 and the Rules for the Government of Prisons 1947 which, in the view of the court, clearly contemplated that the period of imprisonment should be identical with the period of the sentence. It was also inconsistent with the provision in the Act that on the discharge of a prisoner “a sentence shall be deemed to have expired”: this, it was pointed out, seemed to be inconsistent with a period of imprisonment remaining suspended over a prisoner’s head after his release pursuant to the rules and the Act. Accordingly, the sentence of ten years, suspended as to the final period of six years, could not have been lawfully imposed, but a sentence of four years had been lawfully imposed and the applicant was entitled to a remission of one-quarter of that four years’ term. He was therefore entitled to be released after the expiration of three years.

44. O’Flaherty J. indicated in the course of his judgment that, had the trial judge made use of the review procedure instead of purporting to suspend the sentence as from a specified date, the sentence would have been valid. O’Flaherty J. commented:

45. The arguments advanced on behalf of the prosecution necessarily involved the proposition that there were in this case at least two, if not three, sentences imposed by the Central Criminal Court. At the conclusion of a criminal trial, in the event of the jury having returned a verdict of guilty on one or more counts, the trial judge is required to impose sentence on the convicted person. When he has done so, he is, as a general rule, functus officio and he cannot thereafter impose a further sentence: the jurisdiction to substitute another sentence for the sentence actually imposed is exclusively a matter for the appellate court. If the review procedure availed of by the court in this case were to be regarded as the imposition by the trial judge of a different sentence

46. The court is, accordingly, satisfied that, to the extent that the legislature directed their minds to the possibility of a sentence containing a review clause when enacting s. 2(2) of the 1993 Act, they would have envisaged that any appeal taken by the DPP in the case of such a sentence on the ground of undue leniency was to be taken within 28 days from the imposition of the sentence and not of the order implementing the review procedure. It is important to note in this context that a number of the grounds advanced on behalf of the DPP at the appeal stage in this case, and which appear to have been the grounds which found favour with the Court of Criminal Appeal, related exclusively to the sentence as originally imposed, i.e. the gravity and severity of the assault and rape, the unprovoked nature of the assault and the grave impact of the assault and rape on the injured party. Clearly, given the express statement by the trial

47. As to the definition of “sentence” in s. 1(1) of the 1993 Act, the legislature no doubt considered it desirable to make it clear that the expression “sentence imposed by the court” in s. 2(1) applied, not merely to custodial sentences, but also to the wide range of other sentences available to a court in dealing with a convicted person, e.g. fines, community service orders, orders forfeiting property or providing for the payment of compensation, etc. It also seems clear that, having regard to sub-paragraph (b), an order by the trial judge adjourning the imposition of sentence for a period of time, such as a year, in order to afford the convicted person an opportunity of demonstrating a bona fide intention of rehabilitating himself, is a “sentence” for the purposes of the section, as distinct from a an order adjourning sentence for the purpose of obtaining reports. That was so held by the English Court of Appeal in Attorney General’s Reference (No. 22 of 1992) [1994] 1 All ER 106, when it was

48. Similarly, an appeal undoubtedly lay from the sentence imposed in this case on the ground that the incorporation of a review procedure in the sentence was “unduly lenient” within the meaning of s. 2(1). No doubt, on a literal reading of the section each of the orders made in this case on the 22nd October 1998 and the 14th April 1999 was an “order made by a court in dealing with a convicted person” within the meaning of s. 1(2). That might suggest that, in an appropriate case, it would be open to the DPP, even where he had made no application to the Court of Criminal Appeal in relation to the original sentence, to apply to that court on the ground that an order made by the trial judge on the review date was “unduly lenient”, as where it was clear from the reports from the prison authority or from any other evidence before the trial judge that the

49. While it can readily be accepted that, given the extended definition of “sentence” in s. 1(1), an order deferring sentence for a specified period for the purpose already mentioned is a sentence imposed by the court “on conviction”, the same cannot be said of the order made by a court giving effect to a review provision.

50. It must be remembered that the facility afforded by these provisions to the State, through its prosecuting authority, to challenge a sentence as being “unduly lenient” constitutes a significant encroachment upon the finality of a judicial decision in favour of a convicted person which, at least in the case of sentences imposed on persons convicted on indictment, is without precedent.

51. Hence, the importance of the time limit of 28 days for making such an application prescribed by s. 2(2) and the absence of any power in the court to extend that time.

52. The court is satisfied that it would not be consistent with that approach to construe s. 2(2) as affording the Director two separate opportunities of applying to the Court of Criminal Appeal, the first arising on the imposition of the sentence containing the review provision and the second when the court actually reviews the sentence in accordance with the first decision. There is nothing in the statutory scheme to suggest that it was the intention of the Oireachtas to permit the DPP to intervene on two separate occasions to obtain a review from the court of what is effectively the same sentence.

53. The court is, accordingly, satisfied that, not having applied to the Court of Criminal Appeal within the 28 days prescribed by s. 2(2) on the ground that the incorporation of the review procedure was “unduly lenient” within the meaning of s. 2(1), the prosecutor was precluded from making an application to the court in respect of the two orders subsequently made by the trial judge and that the Court of Criminal Appeal was wrong in law in substituting sentences of six years imprisonment and three years imprisonment with no suspension of either sentence for the sentence originally imposed by the trial judge.

54. That is sufficient to dispose of the appeal in the present case. However, it will be apparent from the earlier part of this judgment that there is considerable uncertainty as to the legal validity of the practice of providing in custodial sentences for the review of the sentence at a later date by the court imposing the sentence. Members of this court who have sat regularly on the Court of Criminal Appeal and have also experience of the practice in the Central Criminal Court or in the Circuit Court are aware that, while some judges consider the practice not only valid, but desirable, others take the view that they should not impose such sentences. In a matter of such importance it is to be expected that this court will afford clear guidance to trial judges and, accordingly, while mindful of the fact that in legal terms everything it says on this topic must be regarded as obiter, it is satisfied that it is desirable in the public interest that such guidance should be available to trial judges.

55. There can be no doubt that, in the opinion of some judges, the review procedure is an important mechanism which helps to ensure the rehabilitation of convicted persons. There are, however, two important aspects of such sentences which must be borne in mind in considering their legal validity.

56. First, there is the factor identified by Henchy J. in The People (DPP) .v. Cahill i.e. that a sentence in this form is, in effect, an invasion by the judicial arm of government of the executive domain which is not authorised by law. The court recognises the force of the view expressed by Walsh J. in Aylmer that a trial judge, in imposing a sentence in this form, does not in any way interfere with the statutory power of the Minister for Justice to commute or remit the sentence pursuant to s. 23 of the Criminal Justice Act 1951. It is undoubtedly the case that, where such a sentence is imposed, there is in law nothing to prevent the Minister for Justice from exercising his power of commutation or remission during the period between the imposition of the sentence and the review date.

57. However, the essential legal frailty of the review procedure is not that it deprives the executive of its statutory power to commute or remit the sentence during that period. It is that, when the review date arrives and the Central Criminal Court or the Circuit Court, on being satisfied that the relevant conditions have been met, suspends the balance of the sentence and orders the release of the convicted person, it is in substance exercising the power of commutation or remission which the Oireachtas has entrusted exclusively to the government or the Minister for Justice to whom the power may be delegated. The Minister cannot, of course, in exercising that power do what the court

58. The making of such orders is not merely inconsistent with the provisions of s. 23 of the 1951 Act: it offends the separation of powers in this area mandated by Article 13.6 of the Constitution. That provision expressly vests the power of commutation or remission in the President but provides that the power may also be conferred by law on other authorities. Since under Article 15.2.10 of the Constitution the sole and exclusive power of making laws for the State is vested in the Oireachtas, it was for the legislative arm alone to determine which authorities other than the President should exercise that power. In enacting s. 23 of the Criminal Justice Act 1951, the Oireachtas conferred the power of commutation or remission on the government or, where

59. It would seem to follow that the remission power, despite its essentially judicial character, once vested under the Constitution in an executive organ, cannot, without further legislative intervention, be exercised by the courts. That, as has been noted, has been done in the case of certain drugs offences by the Criminal Justice Act, 1999.

60. It is also, of course, open to the Oireachtas to provide by legislation, as has been done in other countries, for the regular review of sentences by a parole board and such an approach might well be consistent with modern penological principles. These again, however, are entirely matters for the legislature and not within the competence of the courts, having regard to Article 13.6, to determine.

61. It must also be said that, altogether apart from those considerations, the reservation by trial judges to themselves of a power to review the sentence being imposed by them at some later date appears to be fundamentally at variance with the appeal structure prescribed by Order 86, Rule 3 of the Rules of the Superior Courts. That provides that

62. The “close of the trial” would normally be taken as referring to the stage at which the trial judge imposes sentence. If, however, the sentencing process is not completed until the review date, that would appear to be “the close of the trial” for the purposes of the rule and a convicted person would effectively be deprived of his right of appeal against the sentence until such time as he had served at least part - and it may be in some cases a significant part - of the sentence imposed by the trial judge.

63. The form of sentence imposed in this case came into use for a variety of reasons. First, there was a very striking increase in crime committed by persons who were drug addicts or were otherwise in need of treatment which gave rise to a need to give positive encouragement to avail of it. Secondly, and

64. In those circumstances, it appears to us that Professor Thomas O’Malley, the author quoted above, is correct when he says in his book Sentencing Law and Practice (Dublin 2000 ) that:-

65. It now appears extremely desirable, to say the least, that the question of remission of sentence, and any review which is to precede it, should be placed on a clear and transparent basis. The Law Reform Commission in their Report on Sentencing [LCR 53-96] reviewed a number of options in this regard. This is not a matter within the competence of this court. It is clearly for the Oireachtas to decide whether to retain the present system unaltered, to retain it on a clearer and more transparent basis, to devolve the function wholly or partly to a parole board or some other entity, or indeed to confer it on the courts. But as the law presently stands the courts cannot exercise this function in individual cases by reason of the separation of powers mandated in this regard by Article 13 of the Constitution. Nor can they prescribe or advocate an alternative system because that is in the remit of the legislature.

66. The court has already pointed out that its observations in this area are necessarily obiter. They are not to be taken as impugning the validity of such sentences imposed by trial judges in cases which have already come before the

67. It must also be borne in mind that, given the clear disapproval of sentences in this form voiced by the Court of Criminal Appeal in 1979, it would have been open to a convicted person to challenge the validity of such sentences either by way of appeal to the Court of Criminal Appeal, or, in the case of the Circuit Court, in judicial review proceedings. That of itself might render challenges now brought to the validity of such sentences, or the manner in which the review clauses were implemented or not, unsustainable. For the purposes of this judgment, however, it is sufficient to say that the court is satisfied that sentences in this form are undesirable, having regard to the serious legal questions which arise as to their validity, and that the practice of imposing them should be discontinued.

68. In the present case, the court will allow the appeal and will substitute for the sentence imposed by the Court of Criminal Appeal the sentence originally