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to the emergence of agreement on principles of sentencing. It is not surprising,
therefore, that no such principles are readily discernable in respect of the suspended
sentence." (Osborough 1982:237).
Notwithstanding these cautionarywords O'Malleyasserts that "the purpose of a suspended
sentence is to keep the offender out of prison" (O'Malley 2006:456) quoting the English
case of R.-v-Sapiano (1968) 52 Cr.App R.674. But perhaps O'Malley's assertion that the
purpose of the suspended sentence in Ireland is to avoid prison is based upon less certain
foundations. In Sapiano, MelfordStevenson L.C.J. stated:
“ The court is satisfied that is a wrong sentence, wrong in two respects, first that is
really against the spirit and intention of the Act, because the main object of a
suspended sentence is to avoid sending an offender to prison at all”; Melford
Stevenson L.C.J. R.-v-Sapiano 1968 52 CR. App. R. 674.
The English Court of Appeal had the benefit of a statute to dissect which allowed them to
conclude that the intention of the legislature, when framing the suspended sentence, was to
avoid prison. As Osborough has observed above, but certainly before the passing of the
Criminal Justice Act 2006 in Ireland, the rationale for the suspended sentence could only
be locatedin the judgments andcomments of the sentencingcourts themselves.
Recent pronouncements on the suspended sentence by the Supreme Court and the Court
of Criminal Appeal in Ireland suggest that the prevailing and underlying rationale for the
suspension of custodial sentences is primarily within the special deterrent approach and
only marginally within the avoidance of custody approach. 75
230
Although O’Flaherty J.
asserts in O’Brien – v – Governor of Limerick Prison [1997] 2ILRM 353 that “the
development of the suspended sentence was an innovation of the Irish judiciary” when he
referred to Osborough’s 1982 seminal article, he does not seek to expand upon this unique
contribution by the Irish judiciary to world sentencing, particularly by making any specific
reference to any of its underlying functions other than to assert “that it is obviously a very
beneficial jurisdiction for judges to possess”.
The earlier case of McIllhagga (supra) is significant as it is the first case where the Supreme
75 People (D.P.P.) – v– Alexiou[2003] 3 I.R. 513. People (D.P.P.) – v– Carl Loving(unreported) Court of Criminal Appeal 10th March, 2006.