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Sparks’ identification of the “malfunction” of the principle may be observed in the Irish
Criminal Courts practice to impose a longer suspended sentence than would have been the
case if an immediate custodial sentence had been imposed if at all. (Osborough: 1982,
Sparks: 1971, Ryan andMagee: 1983).
Some of the judges interviewed gave direct evidence of this tendency to fashion a
suspended sentence in a manner less restrictively than that prescribed in the English case
lawand advised by Irish academic writers. O’Malley has identified the custodial sentence
imposed which is then suspended and the period of suspension itself as two distinct
elements of punishment (O’Malley 2006:457). However, the issue of equivalence appears
to present a dilemma for the Irish sentencer when she/he is passing sentence by way of a
suspended sentence. In answer to this dichotomy, the judges below appear to construct
longer periods of custody which are then suspended together with longer periods of
suspension of the sentence itself. The fact that the offender is not entering custody
immediately appears to invest their sentencing with a wider discretion than would be the
case if an immediate custodial sentence was imposed :
“Another way that I would approach it too is I’d often consider extending the suspended sentence
aspect of the matters to the maximum available. Let me explain it more clearly. Say for instance,
you might have a person on his fourth or fifth conviction for no insurance, on a plea of guilty in
appropriate circumstances, I might give him credit for the plea, impose a sentence of four months.
If I considered a suspended sentence appropriate in the circumstances, I might give the sentence for
six months, suspend it for a periodof twelve months on himenteringa bond.” A6J1DC
“There is no comparison between a suspended sentence and the custodial sentence. There is no
comparison….they (offenders) are there in court: the question is are they getting out there and
then.”A7J2CC
“...very often if I am imposing a suspended sentence, and if it is a border line you knowas whether
he would get a prison sentence or a suspended sentence with conditions, I would say very clearly I
am giving you a suspended sentence but I am putting a sting in the tail and I might add an extra year
on but suspend it to keep it hanging over his head. So that he knows if he is getting his liberty, its
comingat a price.”A7J3CC
It could be argued that such an approach offends against a fundamental principle of
proportionality (People (D.P.P.) –v- McCormack supra, People (D.P.P.) – v – M supra)
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