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sentence have inevitablyfollowed in the absence of the suspended sentence? If somebody
is considered to be in need of rehabilitation or deterrence, would the placement of such
offender on probation with conditions for rehabilitation over a prescribed period not
equally answer? There is no reason to expect that the suspended sentence developed in
Ireland on a common lawbasis is any more resistant to the tendency experienced in other
jurisdictions, where the sanction is better defined and provided for in legislation, to uplift
an offender into a higher category of sentence. As noted, this net widening effect was a
constant feature of the suspended sentence in England and Wales and Victoria where
almost 50% of offenders were exposed to a higher level of sanction due to the mere
availability of the sentence to judges. Admittedly, the remaining 50% were genuinely
diverted from custodial sentences but the overall effect of decarceration was mitigated bya
lagged increase in the prison population due to later activations upon breach. These
activations, of necessity, included a certain amount of offenders who were originally
assigneda suspended sentence incorrectly.
But how might one compare the Irish suspended sentence, which emerged from a Judge-
made matrix of considerations with the type of analysis done by Sparks? At a formal
level, all suspended sentences in Ireland are real prison sentences which are then
conditionally suspended and accordingly at this formal level may be characterised as
sentences which avoid the imposition of custody. However, as the penalty developed in
Ireland and extended to all levels of courts for the disposal of the most serious to the very
minor of offences, a sub rosa objective for the penalty may also be seen to emerge beneath
the formal sentence of imprisonment. When this hidden objective is disclosed, control of
the future behaviour of the convicted person may be seen to predominate over any real
concerns about unnecessary incarceration. If this latter analysis is correct, the courts,
instead of imposing sentences in such a way as to purposefully avoid the imposition of
custodyas a primaryobjective, are using the threat of custody, whether real or otherwise to
enforce good behaviour on the convicted person.
It is argued that in many cases, especially in the lower criminal courts, the threat of the
custodial sentence is the intended sentence and not the actual custodial sentence itself.
The basis of this claim is founded in part upon the observation that prosecutors rarely
apply where grounds clearly exist to have the suspended sentence activated and courts
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