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Any attempt to reposition the penalty within the punitive paradigm as a substitution for
imprisonment would be likely to meet judicial resistance, as an interference with judicial
independence and discretion (Young 1979; Carnie 1990). The plea to equity by Pease
brought forward a suggestion for a two-tier community service scheme. In this
arrangement the courts could make community service for non-custodial cases up to 120
hours but would be prohibited from imposing community service in excess of 120 hours
with a maximum of 240 hours except for cases where custody was intended as a penalty.
This suggestion has certain merit. However, the ability and propensity of sentencers to
circumvent measures which seek to limit and control their discretion are well documented
(Ashworth 1977) especially when measures are introduced to change already established
practices.
In the surveypart of this study, one of the judges who favoureddecouplingthe community
service fromanyprior custodial requirement suggested:
“…I would suggest that we should have extra gradations of sentence i.e. communityservice without
the sentence hanging over it. … For example so many hours, maybe 60 hours would be the one
without a sentence hanging over it or whatever”. A4J1DC
While another suggested the courts sentencing function would be enhanced by such a
measure byadding:
“…I would also like to see a situation where for something like minor public order offences, that
community service orders could be imposed which if they were complied with would lead to the
effective cleaning of the record for that particular offence. Leaving the accused without any actual
recordof conviction”. A2J1DC
Although courts may resist measures which seek to limit and control their discretion such
as the requirement to combine the community service order with a custodial sentence in
Ireland, these latter views might be interpreted as expanding the role of the Community
Service Order into something which approximates more accurately the original idea of
service to the communityandforgiveness bythat community.
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