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Perceptions by the Judges that fines are not collected by the Gardai (Report of the
Comptroller and Auditor General No. 37), the historical abuse of the scheme for petitions
for clemencyto the Executive per Brennan – v – Minister for Justice [1995] 1 I.R. 612, and
the unfettered discretion by the Probation Service over offenders in the performance of
probation orders may cumulatively have had the effect of narrowing the field of optimal
sanctions which the courts regardas appropriate in sentencingoffenders.
The provision of a significant increase in prison accommodation during the period from
1997 onwards should not be understated as a reason for the relative decline in the use of
community service orders during this period. As a result, the use of custody, especially in
light of the expansion of the prison system and its ability to receive further inmates into
custody, facilitated the increased use by the courts of imprisonment as a sentencing option
andnot necessarilyas a sentence of last resort.
Thus, the relative use of community service as a sentence by judges may be explained by
reference to the use of other sanctions such as imprisonment, the fine and probation
orders. Although judges use the fine and probation order regularlyin the disposal of cases,
their enthusiasm for such disposals is qualified by perceptions that fines may not be
collected and probation orders may not be complied with sufficiently. As a consequence,
the sanction of imprisonment may be regarded as the residual sanction which carries the
greatest degree of certainty in its execution. Some judges remain unconvinced that
community service has any real equivalence with a custodial sentence and are reluctant to
use it. As previously noted, a few judges did indicate they would occasionally deploy the
sanction of community service where the custodial sentence was not really intended. The
community service order remains therefore a niche sanction in the overall range of
sentences. Any attempt to present the community service order as the first choice of
penaltyover the custodial sentence or fine or probation order is criticallydependent on the
limiting scope of Section 2 of the 1983 Act which mandates the sanction mayonlybe used
as a decarcerative measure.
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