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sentencing Judge did not impose custodial sentences for first time drunk-driving cases, or
where upon breach of community service for the same offences the same Judge did not
impose an ultimate custodial penalty as specified in his order. It might be observed that
any attempt to access the true intentions of the sentencing Judge as to the intention to
incarcerate or not before considering community service in the examples put forward by
Walsh and Sexton (1999) might prove to be an impossibility. Senator O’Leary’s
observation that District Justices threaten to do one thing but do quite another and the
observations byProbation Officers that certain cases would not have warranted a custodial
sentence may be an indication that community service in Ireland is used in a manner
inappropriately and wider than that intended by the legislation. However, any attempt to
give a definitive answer on this question must remain speculative. It does however bear
upon the true issue of consent that an offender is consenting to community service in lieu
of a real sentence of imprisonment in the alternative.
Had the Minister for Justice in the Senate Debate Third Stage accepted the amendment of
Senator O’Leary, requiring that any sentencing court specify, on the making of a
communityservice order, the alternative period in custody, the legislation would have been
improved further. As 96% of community service orders are made in the District Court
(Walsh and Sexton 1999) the offender will invariably know the specified alternative
custodial penalty although Walsh and Sexton claim that “the reality, of course, is that not
every individual served with a CSO would have served time in prison if CSOs were not
available”. (Walsh and Sexton 1999:77). This latter claim might put in doubt the
consensual nature of the “contract” to perform community service by an offender when
voluntary work in the community is exchanged for a custodial sentence which may never
have been in contemplation bythe sentencingjudge.
In the interviews with the judges for this study one judge when asked what was the most
important feature of communityservice replied:
“I would think that the most important aspect of it is that the defendant knows that he has been
sentenced and this is an alternative to that and that he has come very close to actual incarceration.”
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