View/Open - CORA - University College Cork

Why is the sanction not used more often?
As noted previouslysome judges appear reluctant to accept the principle that a sentence of
imprisonment which is genuinelycontemplated maybe substituted bysomething else, such
as, communityservice. These perceptions mayalso be influenced byconsiderations of risk
in the selection of offenders suitable for community service. In the courts which deal
exclusivelywith indictable offences the fixed upper limit of 240 hours communityservice is
perceived to be too lenient by far for substitution of sentences in excess of twelve months
imprisonment. In short, community service by virtue of its upper limit of hours becomes
disproportionatelylenient in the disposal of indictable offences. For example a sentence of
five years imprisonment for armed robbery can be substituted by community service of
240 hours at a maximum. Similarly a sentence of five months imprisonment for common
assault in the District Court may be substituted also by the same maximum of 240 hours
community service. The greater the extent that this disproportionality is manifest there is
an increasedlikelihood that communityservice will not be used.
Besides these more obvious factors which bear upon the use or non-use of the sanction,
the study pointed to some less obvious factors which may inhibit the wider use of the
sanction.
(1) Ownership of the sanction
It is hypothesised in this study, that the reluctance bysentencing courts to make greater use
of community-based sanctions such as probation orders and community service orders in
preference to supervision during deferment, is more closely related to the reluctance by
courts to impart the function of supervision to the Probation Service and correspondingly
to retain such supervision to the courts themselves. This tendencybythe courts to extend
the scope of supervision, as a function of the sentencing process of the court itself, may
account for the increase in adjourned supervision by the courts and a decline in the use of
community service orders and probation orders. Structurally, a community service order
and usually a probation order are functions handed over by the court to the Probation
Service without further input by the court except in cases of non-compliance or breach
proceedings. Increasingly, the Irish criminal courts have extended the control and
supervision of offenders bythe use of non-statutoryprocedures, some of which have been
criticised by the Supreme Court as trespassing upon the proper function of the Executive
by the Judicial arm of Government. In the Circuit and Central Criminal Courts, the
practice of imposing a custodial sentence and then adjourning the case for review became
182