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The case in the Central Criminal Court is unique but the case may also be instructive in
revealing a tendency on the part of the Irish judiciary, particularlythe Judges of the Circuit
Court and the Central Criminal Court to adopt non-statutory or organic approaches to
sentences, some of which may have been developed to counter penal exigencies, such as
early release by the prison authorities of serious offenders sentenced to long terms of
imprisonment, due to prison overcrowding. In the example given in the Walsh and
Sexton study, the Central Criminal Court clearly was minded that the accused would serve
a custodial sentence for the first year but was open-minded about the sentence for the
remainder of the period. This tendency to experiment with sentencing by the Circuit and
Central Criminal Courts has been criticised by the Supreme Court in O’Brien – v –
Governor of Limerick Prison [1997] 2 ILRM where the Court pointed out the risks of
combining judicial and executive functions in the supervision of sentences by the Courts.
This will be further discussedin chapter 6 in the discussion on part-suspendedsentences.
In the present survey of judges, one judge of the Circuit Criminal Court gave an example
of the use and development of such organic practices when he explained the manner in
which he makes community service orders. The resulting sentence appears to be a hybrid
or combination of both communityservice anda suspendedsentence. He put it thus:
“I impose community service in a rather odd way. Very often what I do is this. Even though
community service is supposed to be given in lieu of a prison sentence, I impose what I call “work
to be done in the community” in lieu of a condition of a suspended sentence. What I would do for
example, I would give him3 years. I would suspend those 3 years on certain conditions.
1. Of course that he wouldkeep a bondto keep the peace andbe of good behaviour for 3 years.
2. If he was a drugaddict he wouldreport drugtreatment to us.
3. That he would do work in the community to the amount of 240 hours…I have been doing that
for 7 years andI haven’t been challenged on it.”A7J3CC
The use of community service orders by the Circuit and Central Criminal Courts in the
Walsh and Sexton studyreveals that theyare rarely, if ever, used as a substitute for a prison
term at the sentencing jurisdiction of these Courts. Perhaps this might be explained by
reference to the issue of equivalence between the maximum number of hours which can
statutorily be made at two hundred and forty hours community service which period of
community service is the same maximum for each jurisdictional level on the one hand and
the variable maxima of imprisonment terms which maybe imposed bythe criminal Courts
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