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and this would clearly be the case if the offender was breached and required to serve the
full term thus suspended. However it could be argued that the conditional suspension of
the sentence may be “set off” against the obligation to serve the original sentence albeit a
longer sentence. In the circumstances the principle of proportionality while ostensibly
breached by the imposition of a longer custodial sentence is observed in a quasi- contract
between the offender and the court. 96
Thus, the judges look to the responsibilisation of the offender as an integral feature of the
sentence. A sentence structured in this way, albeit with an extra custodial premium
attached, is the price that some judges demand of the offender if the sentence is to be
suspended. A number of studies from other common law jurisdictions confirm the
tendency of sentencers to increase the sentence merely because it is to be suspended. But
the inflationary feature is not the only aspect which is observed in these studies. A
concomitant tendencyby sentencers to reach down the sentencing scale and to expose the
offender to a penalty just short of the custodial sentence has been reported in a series of
studies (Bottoms1981:5, Sparks1971:392,Tait199:143,Moxon1988:68) 97 .
The use of the sanction primarily as a special deterrent is likely to increase the probability
that the avoidance of prison becomes a secondary consideration and hence the sanction
may well displace other non-custodial sentencing dispositions, a phenomena identified by
Oatham and Simon in their review of the 1967 English legislation (1972). 98
262
Indeed,
96 Irish sentencing courts probably apply the suspended sentence in circumstances where frequently the real custodial sentence would not have been
contemplated but do so in the sense of applying a bargain or a contract whereby the defendant may regard the penalty effectively as a “let-off” (Ashworth
2002:1103) thereby avoiding further punishment, unless breached. The courts may be applying an actuarial approach in such circumstances by imposing a
more severe penalty for the original offence on the contingency that the convicted person will not be called upon to serve such penalty and if he is so called
upon, the penaltywith an additional premium attached is then warranted.
97 Insteadof reducingthe prison population bythe use of diversionarysanctions such as the suspended sentence, sentencers made less use of the fine andprobation bondandelevated a
number of those previouslygiven such penalties to ahigher riskof incarceration byplacingthose offenders on asuspendedsentence (Bottoms 1981:5). This net wideningeffect was
separatelyobserved in England and Wales bySparks (1971) and in Victoria byTait (1995). In England, sentencers particularlymagistrates, tended to increase the custodial sentence
before they would then suspend it thus inflating the sentence to a higher level of custody when in the event such a sentence was activated upon breach (Bottoms 1981:6, Moxon
1988:68). In Victoria, Tait (1995:143) estimated that onlyabout 50% of offenders were diverted from custodywhen given a suspended sentence. The remaining 50% given such a
sentence would not otherwise have received a suspended sentence but would previouslyhave received a fine or probation, signifying penaltyescalation. Moreover, when a person
was given a suspended sentence Tait estimatedthat the sentence was increased byabout 50% in Magistrates Courts where previouslya 4 month custodial sentence was increased to 6
months imprisonment and then suspended (Tait 1994). The dual effect of increasingthe custodial sentence before suspending it (inflation) and elevatingat least 50% of the cohort
to acustodial sentence (net widening) resultedin alaggedincrease in the prison population in EnglandandWales (Sparks 1971).
98The development of the suspended sentence in England and Wales is instructive to the reader for one further reason. As noted in chapter three, the communityservice order in Irish
lawis expresslya penaltywhich should onlybe imposed if a custodial sentence is in immediate contemplation bythe sentencer, whereas the communityservice order in England and
Wales, as it developed over the decades, has essentiallyremained a sanction which can be made where the offence is “an imprisonable offence” but the alternative penaltyotherwise
might equallybe a fine or probation in that jurisdiction. These sentencingstructures are somewhat reversed when the suspended sentence is examined. In England and Wales the
suspended sentence should onlybe applied after the Criminal Justice Act 1973 where, but for the Act, a custodial penaltywould otherwise be imposed, while in the Irish jurisdiction,
despite academic exhortations, there is no express requirement on the Irish sentencer to decide upon an immediate custodial sentence before goingon to consider whether to suspend
such sentence or not.