View/Open - CORA - University College Cork

Thus, the statutoryreviewof sentence allowed under Section 27 maybe seen as a via media
provided by the Oireachtas to mitigate the harshness of a presumptive 10 year minimum
sentence expected under Section 15(a) or 15(b) but which sentence nonetheless does
extract a significant period of retribution byrequiring an initial 5 year custodial sentence to
be served before suspension maybe permittedor even contemplated. 92
Thus, reviewable sentences whether by way of Butler Orders or under Statute (Section 27
Misuse of Drugs Act 1977 as amended) present as a mechanism to allowthe extraction of
punishment by way of a custodial sentence before the court usually allows the suspension
of the remainder of the sentence. In this latter period of the sentence the character and
purpose of the sentence is transformed from retribution to one of rehabilitation and
control of the offender.
Similarly, when considering a part-suspended sentence the initial period of custody
advances a retributive rationale while the latter part of the sentence advances rehabilitative
andcontrolling functions.
LOCATING A SUSPENDED SENTENCE IN THE SENTENCING DOMAIN
Thus far, it is noted the suspended sentence in Ireland emerged at the beginning of the
twentieth century as a judge made disposition. Thereafter in this chapter a review of the
suspended sentence was presented with particular reference to the statutory sanction in
England and Wales to illuminate the Irish suspended sentence and to delineate its common
and divergent features. The search for the rationale of the Irish suspended sentence
remains inconclusive while the avoidance of custody and the role of special deterrents
occasionally combine as joint objectives of the sanction and at other times compete for
dominance in particular cases. But in the overall scheme of sentencing where is the
suspended sentence located? On the one hand, the suspended sentence is first and
foremost a custodial sentence which is not brought into being unless certain events occur.
But the suspended sentence when viewed from another angle resembles the probation
order where again a sanction is withheld, albeit unspecified, until the offender fails to
remain compliant with conditions of his/her probation bond.
92 In practice the presumptive minimum 10 year sentence under Section 15(a) has proven to be the exception rather than the rule, the average sentence has workedout at about 6.5 years
imprisonment (Kilcommins et al 2004).
249