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present case”. (R-v-Wightman, 1950 N.I. 124)
The search for the rationale for the suspended sentence in Irish sentencing practice tends
to be as elusive as the search for its origins, and in some respects both are inextricably
linked. While sentences which attract suspension are exclusively custodial (Osborough
1982) the judicially invented suspended sentence in use in Irish criminal courts finds its
primary identity and expression as a device which seeks to control the future behaviour of
a convicted person, in contrast to the suspended sentence in other jurisdictions which
promote the suspended sentence as essentially the avoidance of custody (Weigend
2001:205, Freiberg2001:47).
The emergence of the suspended sentence in continental Europe and Australia must be
seen in the wider context of changes in sentencing practices within these jurisdictions and
in particular the movement towards finding alternatives to custody and the emergence of
communitybased sanctions. 74
74 Germany
Following a radical restructuring of policyin Germanyin 1969 (Zweites Gesetz zur Reform des Strafrects of July4, 1969), which sought to limit the use of imprisonment solelyto cases
where imprisonment became inevitable, the sanction formed a significant diversionary function from the previous custodial approach. The abolition of shorter sentences of less
than one month combined with the mandatory requirement on judges to give written reasons for the imposition of short-term custodial sentences, was quickly reflected in a
significant decline in the number of convicted persons in custody from 136,519 in 1968 one year before the reforms to 36,874 in 1996 (Weigend 2001:192). The suspension of
sentence played a central role in this diversion from custodyas judges were additionallyrequired to justify in writing why, having contemplated a custodial penalty, the court should
not then proceed to suspend the sentence in cases where the custodial sentence was less than one year. Overall, the German approach to bring down the level of punitiveness in
sentencing discloses a shift from custodial to non custodial sanctions. Weigend (2001:196) characterises the German suspended sentence as something which approximates to
probation in the Anglo-American system. The convicted person given a suspended sentence in Germany, mayin addition to the types of conditions common to the Irish suspended
sentence such as avoidance of contact with specified persons and the payment of specified compensation , be required to report to a probation officer for directions on rehabilitation
(Para.5.6(d) P.C.). This hybrid, between the suspended sentence and probation is not readily recognisable in Irish sentencing practice, although a deferred or adjourned sentence
pending supervision bya probation officer and subject to reviewbythe court mayapproximatelyto the German model. The alternative penaltywhich might be given byan Irish
criminal court wouldnot be known in advance of the final disposal of the case unless the court was to conditionallyindicate the likelypenaltyin the event of the convictedperson not
co-operatingwith the probation officer. Section 100 of the Criminal Justice Act 2006 does however introduce adeferredpenaltywhere the penaltymust be specifiedin advance.
Australia
In some Australian states the suspended sentence maybe combinedwith supervision byaprobation officer andeven communityservice, although in the majorityof states the suspended
sentence is regarded as a stand alone penalty where no conditions can be made except standard conditions relating to good behaviour and a requirement that the convicted person
does not re-offend(Freiberg2001:47). Since 1985 the jurisdiction of Victoriahas been the suspendedsentence emerge as a dynamic sentencingtool where 35% of the sentences for
serious offences in the superior criminal courts were suspended sentence of imprisonment (Freiberg and Ross 1999). There is some evidence within this sentencing change of
displacement of the pre-existingsanctions of fines and probation andpeace bonds (FreibergandRoss 1999).
Initiallythe suspendedsentence in the State of Victoria was limitedto substitution for sentences of imprisonment under 12 months. Subsequentlythis was extendedto a substitution for
imprisonment of up to 24 months in 1991and to 36months in 1997 such was its popularity (Freiberg 2001:47). However, sentencing legislation is subject to the ebb and flowof
public opinion. The tendencyon the part of the superior criminal courts in Victoria to grant a suspension of sentence in almost one in four cases (24%) came into sharp focus in
respect of a number of highly controversial cases there. In August 2006 a Bill was introduced in the State of Victoria to limit the powers of sentencing courts to impose wholly
suspended sentences for a serious offence and to provide for better enforcement of breach of suspended sentences in general. Freiberg has criticised the use of the sanction as a
displacement of the fine and probation with little effect upon the overall reduction of the prison population on the one hand, while allowing certain cases to be disposed of by
suspension which in other respects should have attracted an actual custodial sentence (Freiberg 2006 The LawReport ABC Broadcast 25th July2006). A certain retrenchment may
be observedin the use of the suspendedsentence in the State of Victoria. Initiallythe sanction was given wide use bythe sentencingcourts but came under scrutinyin the mediaand
by the Sentencing Advisory Council. The sanction was severely criticised by the Sentencing Advisory Council as a displacement of other equally efficacious dispositions such as
probation and community based sanctions. The suspended sentence equally challenged the public understanding that a custodial sentence would require the offender to enter
custodyandnot to be a libertyto all. This Australian experience with a sanction maywell followthe English trajectoryof reformthus leadingto its ultimate demise. The suspended
sentence under Section 99 of the Criminal justice Act 2006 in Ireland allows Irish sentencers to use the sanction essentially without restriction upon conditions save that such
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