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a custodial sentence albeit suspended may have long term consequences for the offender who is given a suspended sentence for reasons relating to travel visas and future employment (A2J1DC). In this scenario the offender is marked out by being denounced bythe court without the extraction of anyimmediate penalty. The main criticism of the denunciatory approach is that while initially it may appear efficacious it fails to adequately consider the response of the general public to whom it is primarily addressed. One cannot be denounced in a vacuum, it is necessary to consider also the audience to whom one is denounced. The denunciatoryapproach was considered byWalker and Marsh (1984) in Britain where on a surveyof public responses to sentences the authors concluded: “The denunciatory theory has the attraction of appearing to justify a tough sentencing policy in a way which is independent of “just deserts” or a belief in general deterrence, but the empirical facts make it most unlikely that the theory is realistic” (Walker and Marsh 1984:41). Moreover, this finding is reinforced by studies of attitudes on the suspended sentence. Where offenders are concerned, Edney and Bagaric claim that “…feware deceived by the superficial punitive veneer of the suspended sentence” (EdneyandBagaric 2007:356). Sebba andNathan report that: “a suspended sentence involving the prospect of a possible prison sentence for a specified time is less burdensome than the immediate inconvenience of probation supervision or a financial penalty(Sebba andNathan 1984:231). An earlier surveybySebba disclosed that a $250.00 fine was considered more severe than 6 months of a suspendedsentence byoffenders (Sebba 1978:247). Besides the issues which emerge in the scaling of the sentence above, whether viewed through the prism of the sentencer, the offender or the general public, once a fixed position is ascribed to the suspended sentence it is possible to observe another phenomenon associated with the operation of the sanction. This relates to the tendencyof some courts to utilise the suspended sentence as if unfettered by considerations which 259
would apply if an actual custodial sentence was contemplated at the time of the passing of the sentence. Osborough (1982 ) has referred to the tendency of Irish sentencers to use the sanction with “ gay abandon “ without such constraints. The criticism that the courts may tend to inflate the sentence by increasing the custodial period merely because it is to be suspended or indeed the application of the suspended sentence to offenders who ceteris paribus, would not otherwise have received a a suspended sentence, must be grounded upon the premise that suspended sentences are located just below the custodial sentence and were genuinely intended to be used as a direct substitute for such custodial sentences. If this premise does not hold, it is difficult to determine the inflationary or netwidening effect of the sanction. Therefore for the following discussion it will be assumed for the purpose of argument that the suspended sentence in Ireland is always made as a direct substitute for an immediatelycontemplatedcustodial sentence. It has been observed (Ryan and Magee 1983:401) that courts when imposing a suspended sentence, mayimpose a more severe suspended sentence than would otherwise be the case if immediate custody had been imposed. This tendency to increase both the custodial part of the suspended sentence and to elongate the period of suspension has already been identified as an inflationary feature in the use of the suspended sentence. O’Malley has cautionedagainst the inclusion of such a premium in the sentence as follows: “It cannot be too strongly emphasised that a sentence of imprisonment should not be increased simply because it is about to be suspended. As the English Court of Appeal has frequentlysaid, the judge shouldfirst decide on the appropriate custodial sentence, impose it, and then decide if it should be suspended. A fortiori, a suspended sentence should never be imposed if a non-custodial sentence such as a fine or deferred supervision would suffice. After all the recipient of a suspended sentence who breaches one of the conditions may be ordered to serve the full term originally imposed. It would be unjust if that term were disproportionate to the gravity of the offence. It would also be a waste of public resources in viewof the cost of imprisonment”. (O’Malley2000:292) Notwithstanding the unambiguous endorsement of the O’Keefe and Mah Wingprinciples by this leading Irish writer, there is no clear adoption of these principles within the Irish case law which is surprising in light of the fundamental principle at issue. It could be argued that an Irish criminal court may make a suspended sentence in circumstances where the custodial sentence may not have been in immediate contemplation by the sentencer. 260
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Title The role of the community ser
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DECLARATION The contents of this th
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Acknowledgements I wish to acknowle
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TABLE OF CONTENTS Declaration .....
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Activation Of The Suspended Sentenc
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from an assumed jurisdiction of the
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Probation Service. Instead each age
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these considerations are subject to
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not slow to inform the “naïve”
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the PhD programme. Notwithstanding
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One of the constant criticisms of t
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the year 2006 for a whole year surv
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the exigencies which presented befo
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eference solely to the function of
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In addition to the general, social
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having been exported from the Antip
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Any attempt to locate the origins o
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Hulks or Prison Ships The Act which
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Many of these commentators have arg
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The use of impressment must also be
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simultaneouslydivertingthe investig
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Wales rose during the same period d
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Thus, against this bleak background
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We do not think it is easyor wise t
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While these latter factors maybe se
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we consulted about the need for for
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taking of vehicles, for some of the
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character of the voluntary sector i
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The Bill was essentially structured
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As community service schemes were t
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significant debate in subsequent st
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imposed, must be described as punis
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this was provided for in sections 1
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(ii) PUNISHMENT Reference has alrea
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that by inserting offenders into su
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not be measured by the same criteri
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encountered by others less-fortunat
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participation do so for a very shor
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ehabilitative potential and such di
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into a relationship of mutual inter
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These issues were examined in this
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CHAPTER 2 COMMUNITY SERVICE ORDERS
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Some aspects of the new functions w
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1977:112). As will be seen later (C
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within one year. The inevitability
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characterised by some British proba
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turn. If the offender turns up and
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former court but not necessarily so
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imprisonment, the suspended sentenc
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not receive a custodial sentence. B
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inhibits any clear measurement of e
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were still significantly belowthe p
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Participation byan offender on comm
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In England and Wales the unknown ri
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unsatisfactory or unreasonable by S
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learned the limits to which theycou
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for non-compliance. Where the proba
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how do Judges deal with breach of c
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administration of the community ser
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control can have the effect of dive
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Manyresponded … byindicating that
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“I cannot think of anycase in whi
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CONCLUSION Throughout this chapter
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CHAPTER 3 “Laws, like houses, lea
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1986). Elements which were consider
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elationship between the host and re
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justice measure from Britain was id
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offences by recidivist offenders. 2
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eyond the area of offenders for who
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provide a significant element of re
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problems was seen as whollyinapprop
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softlysoftlyapproach adopted in the
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Thus the stage was set for somethin
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The White Paper set out a series of
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An amendment by Dr Michael Woods, T
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Andhe further suggested: Very often
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c) That under this Act the District
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These provisions empower the courts
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task of reporting on the defendant
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While the legislation and regulatio
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service order must specify the alte
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This reply identifies not only the
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the Probation Service to operationa
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Accordingly when the Probation Serv
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custodial penalties. As previously
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particularly in cases of drunk-driv
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this ranging from 63 hours to 11 ho
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made which provided for a substitut
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at each jurisdictional level. The D
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This view was reinforced in a study
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But when the relatively low level o
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“Definitelya term of imprisonment
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who might be suitable for it becaus
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The offender was presented in the r
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“I would be slow in crimes where
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Why is the sanction not used more o
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custodial or non-custodial, will be
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Perceptions by the Judges that fine
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Insofar as it is possible to discer
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e amended to delete the requirement
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allows a community service order to
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year community service was introduc
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anypenaltyimposedon a childfor an o
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Section 110 provides: 1) Where a co
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(a) the revocation of anylicence, (
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accordance with the subsequent prov
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this chapter. The Minister of State
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An analysis of the wording that “
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Page 219 and 220: communityservice into two categorie
Page 221 and 222: standards for sixteen/seventeen yea
Page 223 and 224: disengagement fromthe former coloni
Page 225 and 226: formal imposition of a custodial se
Page 227 and 228: punishment where a threat of activa
Page 229 and 230: sessions (Hardiman 2004:5). By way
Page 231 and 232: Thus the suspended sentence is seen
Page 233 and 234: validity of the procedure as a sent
Page 235 and 236: present case”. (R-v-Wightman, 195
Page 237 and 238: policy of using the suspended sente
Page 239 and 240: to the emergence of agreement on pr
Page 241 and 242: sentence. In the Alexiou case, Murr
Page 243 and 244: deal with the suspendedin a statuto
Page 245 and 246: criminogenic circumstances which is
Page 247 and 248: sentence. Sequentially, a custodial
Page 249 and 250: cases it is not uncommon for the de
Page 251 and 252: “I don’t tend to favour suspend
Page 253 and 254: “If you have a person who has bee
Page 255 and 256: sentence andwhere suspension should
Page 257 and 258: “This is a very difficult one to
Page 259 and 260: But the “custodial” designation
Page 261 and 262: who got verylong suspended sentence
Page 263 and 264: which is reflectedin the suspendedt
Page 265 and 266: might otherwise be thought bythe pr
Page 267: that the suspended sentence contain
Page 271 and 272: and this would clearly be the case
Page 273 and 274: England and Wales. A practice of im
Page 275 and 276: generallyare reluctant to activate
Page 277 and 278: abandon” claims Osborough (1982:2
Page 279 and 280: The activation of the sentence is n
Page 281 and 282: normal way, allow you leniency, I w
Page 283 and 284: court had made no mention at the se
Page 285 and 286: Criminal Appeal, which were the cou
Page 287 and 288: Thus, the limited statutory review
Page 289 and 290: The bipolar arrangements of the cou
Page 291 and 292: specified period. For example, the
Page 293 and 294: It is worth noting that these sente
Page 295 and 296: mayfeel at libertyto continue with
Page 297 and 298: the court if the convicted person f
Page 299 and 300: maintain progress on a treatment pr
Page 301 and 302: himself/herself bound over for a lo
Page 303 and 304: of the District Court to enforce a
Page 305 and 306: Thus, the utility of suspending the
Page 307 and 308: other words, a suspended sentence o
Page 309 and 310: The net point is this - if the oper
Page 311 and 312: is kept, there is a complete discha
Page 313 and 314: nature such as conditions prohibiti
Page 315 and 316: “I think that if the condition is
Page 317 and 318: Thus it may be observed that the Di
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custodyas a primaryaim of the sente
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Whatever conclusions can be drawn f
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(v) The role of consent. In the cla
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sentence. Thus, the degree to which
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ate of suspended sentences to be 35
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category of offence was not provide
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of a breach of a condition. This is
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“Such a hearing should have been
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juryin the present case. He did not
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“… the only matters which this
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driving or public order and I would
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put forward this argument in his ap
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egime instead. Interestingly, in th
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And “Provision may be made by pri
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(Miscellaneous Provisions) Act 1997
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accused has served his/her custodia
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the Minister for Justice to exercis
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suspended sentence although it has
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(vi) Activation of sentence the piv
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In the Circuit Criminal Court and t
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sanctions have followed. This is bo
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CHAPTER 7 THE SUSPENDED SENTENCE PU
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It will also be demonstrated how th
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of the pre-existing power to suspen
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The Criminal Justice (Public Order)
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In terms of regulating the criminal
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suspended sentences in a statutory
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developed for the enforcement of a
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On a literal interpretation, the Oi
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enjoyed and practiced up to now. In
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portion of a part-suspended sentenc
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This control mechanism is construct
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sentence under Section 99(1) constr
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Although Section 50 (2) seeks to li
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As noted, the procedure under Secti
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CONDITIONS Besides the time element
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Generallyspeaking, the Legislature
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Besides placing the suspended sente
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ehaviour was clearly settled in the
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these agencies. But perhaps the mos
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Imposition of Fine and Deferment of
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courts, this may be too restrictive
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for a minor infraction of not keepi
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acquire certain dynamic characteris
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on this issue. Strictly speaking on
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instead of a custodial sentence. A
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is a feature of the sanction, place
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applications to revoke the suspende
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evocation of the sentence which is
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There remains a significant deficit
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APPENDIX A The questions below were
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11. We spoke about the CommunitySer
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REFERENCES AND BIBLIOGRAPHY BOOKS B
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Foucault, M. (1975) (Translation Al
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McWilliams, W. and Pease, K. (1980)
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Ryan, L. (1990) Irish Emigration to
Page 431 and 432:
Davies, M. (1974), Social Enquiry f
Page 433 and 434:
Roberts, J. (2003), Evaluating the
Page 435 and 436:
Expert Group on the Codification of
Page 437 and 438:
Report into the Case of Philip Shee
Page 439 and 440:
Young, W. (1978) Community Service
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People (DPP) -v - Aylmer [1995] 2 I
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Criminal Law(Amendment) Act 1977 (E
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