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“I think I startedout bysaying I don’t use these veryoften.”A5J1CC
Thus he indicated an overall dissatisfaction and disapproval of community service as a
realistic alternative to custody.
Judges are not trained or invested with any higher aptitude to assess risk. Whether judges
acquire an enhanced ability to assess risk through experience remains an open question.
Indeed one of the respondents below specifically refers to her lack of experience but
applies the template of “risk to society” as a central feature when deciding to apply an
immediate custodial sentence or to substitute this with a communityservice order.
While incapacitation as a goal of sentencing has always received official disapproval (Law
Reform Commission 1996:20, People (A.G.) –v- O’Callaghan [1996] I.R. 501), in practice
judges tend to address the issue of risk when theyconsider the suspension of a sentence or
the substitution of a custodial sentence with a community based sanction such as
communityservice. Risk is essentiallythe calculation of the occurrence of potential dangers
in the future and the application of controls to avoid such occurrence (Garland 2003:51).
These latter controls in the context of sentencing manifest themselves as an incapacitation
of the offender to visit further danger upon the public or specific victims. It is not to be
unexpected that actors in the criminal justice system such as judges will apply “the
precautionary principle” when deciding upon sentences as they would in other aspects of
their lives. But the critical issue is that theywould not be overwhelmed bya perception that
society is essentially and always a dangerous place (Beck 1992). Accordingly, when judges
consider risk in the overall matrix of considerations when sentencing, the issue of risk may
occupya more elevatedposition of prioritythan it might otherwise deserve.
Although incapacitation may be not expressly the aim of sentencing by judges, it may be
the result of sentencing in some instances. When questioned on what category of offences
would generally be considered unsuitable for community service, the judges tended to
agree that offences against property, road traffic offences and repeat public order offences
would be considered suitable. In contrast, crimes of violence and possession of drugs for
the purpose of sale and supply(section 15, Misuse of Drugs Act, 1977) simpliciter would not
be generallysuitable:
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