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This reply identifies not only the relationship between community service and custody but
also highlights the realisation bythe offender that if communityservice was not considered
at all then custodywouldhave been the alternative sanction.
In the Senate debate Senator Durcan approached the consent issue from a slightlydifferent
angle. He pointed out that unless a statement of the original detention period was
specified in the order at the time of hearing it would not be possible for another Judge to
adequately deal with the issues of non-compliance without rehearing the case entirely
(Senate Debates, vol. 101, cols. 885, 7 th July, 1983) and Senator Ryan cautioned that in the
absence of a specified penalty of custody, an offender would be on hazard of a more
severe penalty, particularly if the breach case was dealt with by another Judge unfamiliar
with the case and the offender’s circumstances (Senate Debate, vol. 101, col. 886 7 th July,
1983). In their empirical studyWalsh and Sexton (1999) identified a significant number of
cases where the continuance of community service procedures in respect of the same
defendant in the District Court were taken up bydifferent Judges.
However, in Burns – v – Governor of St Patrick’s Institution (unreported, High Court
transcript extempore 1995 -161 SS, 3 rd February 1995 Kinlen J.), when dealing with an
enquiry under Article 40 of the Constitution (habeas corpus) the High Court released an
offender remanded in custody back to the original Judge (Judge Hussey) who had decided
to impose a community service order on the applicant/offender. The applicant in the
High Court case had been remanded in custody by Judge Windle of the District Court,
when the offender failed, when asked bythe Judge, to explain what communityservice was
and when he might commence the order. Although the case clearly turns on its own
particular facts, the High Court discouraged the practice of another Judge dealing further
with an offender when the original Judge was not sitting to hear the matter, for whatever
reason. In the above case, Kinlen J. released the offender on bail and remanded him back
for hearing before Judge Hussey of the District Court who had originally dealt with the
case and had signified a community service order would be made if the defendant was
found suitable.
The issues of the offender’s consent to perform community service may also be examined
from a slightlydifferent angle when the type of work to be performed is an issue. Thus far,
the issue of consent has been examined in the context of a “trade off” or exchange for a
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