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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.
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