View/Open - CORA - University College Cork

The advent and development of the suspended sentence in other jurisdictions, but
particularly in the historically connected jurisdiction of England and Wales, is instructive
when contemplating the Irish sanction for anynumber of reasons.
The suspended sentence introduced in England and Wales under the Criminal Justice Act
1967 initially failed to provide a statutory rationale for the sanction. In 1969 however the
Court of Criminal Appeal held that sentencing courts must first consider and dismiss all
non-custodial options such as fines and probation as inadequate to the sentencing task and
then decide that a sentence of imprisonment had to be imposed, determine the period of
imprisonment and then and only then consider whether the sentence of imprisonment
couldbe suspendedin the particular case (R-v- O’Keefe 1969 2.Q.B.29).
The Criminal Justice Act 1973 in England and Wales however did crystallise the principles
set out in the case of R-v-O’Keefe [1969] 2Q.B.29, where under Section 11(3) the Statute
provided:
“an offender shall not be dealt with by means of a suspended sentence unless the
case appears to the court to be one in which a sentence of imprisonment would
have been appropriate in the absence of any power to suspend such a sentence”.
(Criminal Justice Act 1973, Section 11(3))
Accordingly one can conclude that Parliament intended the use of the new power to
suspend sentences to be exercised only where a term of imprisonment would otherwise
have been imposed instead of using the suspended sentence as an alternative to any other
alternative to custody. The rationale for the English suspended sentence after 1973
becomes clarified as a sanction to avoid the imposition of custody where custody would
otherwise have been imposed.
Throughout the historyof the suspended sentence in England and Wales the propensityof
the judiciary to re-import deterrent principles was truncated by legislative changes
ultimatelyleading to the near abandonment of the sanction bysentencers there. The fixed
conditions must promote reduction of offending(Section 99(3)). In contrast with the experience of the jurisdiction of Victoria, Ireland seems to be embarking upon a course in the
use of the suspended sentence which challenges the experience gained in the use of the sanction in Victoria. In particular the issues of penaltyescalation, net wideningin the use of
the sanction andthe relative utilityof the sanction comparedwith other Irish disposals are as yet uncharteredaspects of the sanction in this jurisdiction.
227