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detail in the Senate, Senator O’Leary 38 proposed that the Court should inform the offender
of the actual sentence, which would be imposed, if he did not consent to the making of the
communityservice order. Senator O’Learyargued in an amendment made to the Bill that
this should be obligatory upon the Court when making a community service order. This
proposal was supported by Senators Durkin, Fallon, Ryan, Honan and McGuinness. In
dismissing Senator O’Leary’s amendment, the Minister for Justice promised to deal with
these issues in regulations but such regulations were not to appear subsequently. An
oblique reference is made to the specified alternative penalty in the District Court Rules
which provide for the procedures of that court to give effect to particular statutory
measures. However, as the statute was silent as to any requirement to specify the
alternative custodial penalty, the regulations drawn up by the District Court Rules
Committee and approved by the Minister for Justice did not address the issue either,
except in the form provided, under the District Court [Criminal (Community Service) Act,
1983] rules 1984 Rule 4, a community service order made by the Court under Section 3 of
the Act shall be in the form1 andForm 1 provides inter-alia
… the appropriate sentence wouldbe one of (blank) imprisonment/ detention in St.
Patrick’s Institution for months.
This is the only reference in any statutory or regulatory arrangement where the Court is
required to specify precisely the alternative custodial sentence. The Circuit Court Rules
do not make mention of community service and so it would appear that there is no
regulatory requirement on a Circuit Criminal Court Judge to specify the precise alternative
custodial sentence which is to be substituted for any community service order. A similar
situation appears to applyin respect of the Central Criminal Court. The absence of formal
rules of Court to govern the making of such orders, or the extension of time for the
performance or revocation of such orders, may give some indication of the marginalised
nature of community service orders as sentences in these courts which deal solely with
non-minor indictable offences. 39 Notwithstanding the absence of any statutory or
regulatory requirement which would oblige a court to specify in advance the alternative
period of custody to be served, it is clear from the decision in Foleythat every community
38 later Mr Justice O’Learyof the High Court
39 In Foley– v – Judge Murphyand DPP [2005 3 I.R. 574] Dunne J declared that an order for Community Service must showon its face what the appropriate term of imprisonment
wouldbe but for the makingof aCommunityService Order. Otherwise the court does not showjurisdiction to make such an order.
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