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sentence. In the Alexiou case, Murray J. eschewed a more generalised approach when
dealingwith the suspendedsentence when he stated:
“The court is only concerned with the circumstances of this case and not with an
abstract review of the kind of conditions which can be imposed when a sentence is
suspended”. (People (D.P.P)-v-Alexiou[2003], 3 I.R. 526).
Invariably, when the issue of a suspended sentence comes before an Irish court by way of
judicial review or on appeal, the focus is always on the issue of proportionality or the
mechanics of the sentence rather than on the rationale. 79
232
The opportunity to align the
Irish suspended sentence with the stated objective of the English sanction presented in the
case of People (D.P.P.) – v – Carl Loving (unreported, Court of Criminal Appeal 10 th
March, 2006) where counsel for the appellant strongly suggested that the principles
enunciated by the English Court of Appeal (Criminal Division) in R.-v-David Ivanhoe
Cohen Mah-Wing (13 th October 1983) should apply. In that case the Court of Appeal
(Criminal Division) held that:
“When a court passes a suspended sentence, its first duty is to consider what would
be the appropriate immediate custodial sentence, pass that and go on to consider
whether there are grounds for suspending it. What a court must not do is pass a
longer custodial sentence than it would otherwise do because it is suspended.”
Griffiths L.J. (R.V. Mah-Wing Court of Criminal Appeal (Criminal Division) 13 th
October, 1983 5 Criminal Appeals R. (s) 348)
However, the Irish Court of Criminal Appeal in Carl Lovingdid not followMah-Wingwhich
it could have done by expressly approving the English decision and adopting the same
principle in the instant case. Instead, Fennelly J. merely stated that “the court does not
think that the learned trial judge has offended that proposition in the present case”
(FennellyJ., People (D.P.P.) – v – Carl Loving Court of Criminal Appeal 10 th March, 2006,
79 Notwithstanding the statutoryminimum of ten years imprisonment for possession of drugs for the purpose of sale and supplypursuant to section 15(a) of
the Misuse of Drugs Act as amended, the Court of Criminal Appeal approved the suspended sentence in the case of Alexiou therein approving also the dicta
of Barron J. in People (D.P.P) –v- McCormack (supra). The reader will note the difficulty in extracting any clear principles for the imposition of penalties
contained in the McCormack case other than that a court should consider all of the circumstances and should tailor a sentence according to the individualised
circumstances of the offence and the offender. In the circumstances it is verydifficult to extract a clear rationale for the use of the suspended sentence within
Irish sentencing practice especially if one was to compare it with the approach taken by the German authorities in 1969 where suspended sentences were
designedinto the sentencingstructure in such a wayandfor the specific purpose of avoiding imprisonment therebyreducingthe prison population.