View/Open - CORA - University College Cork

More documents

Recommendations

Info

CHAPTER 6 THE SUSPENDED SENTENCE IN IRELAND INTRODUCTION Unlike the development of the suspended sentence in other jurisdictions where the sanction developed in a statutory format and is thus subject to statutory interpretation, the suspended sentence in Ireland developed as a common law sentencing procedure only. The sanction was wholly defined and obtained its meaning from practices and interpretations of the Judges who used the sanction. In the previous chapter, the historical development of the suspended sentence was discussed in conjunction with an analysis of the rationale of the sentence. In this chapter, the distinctly Irish form of the sanction will be discussed in detail to demonstrate how a sentence, which developed solely within a judicial construction, has been used to meet changing exigencies that present to the Irish sentencing courts. In response to such exigencies, the courts developed variations of the suspended sentence and even the part suspended sentence so that over time four distinct variations of the suspended sentence emerged. The statutorysuspended sentence enacted bythe Oireachtas will be discussedin detail in Chapter 7. 101 The types of suspended sentence developed by the courts comprise the following: the straightforward suspended sentence, the reviewable sentence or Butler Order, the part suspended sentence, and the variation used in the District Court where a warrant of execution for a term of custody is withheld for a defined period of time on condition that the offender is not further convictedwithin that period. The chapter then proceeds with an analysis of the ingredients of the sentence with particular reference to the time elements of the sanction and the centrality of the conditional nature of the suspension. The practical application of part suspended sentences are further examined to determine whether they offend against constitutional provisions in relation to the separation of powers andstatutoryprovisions in relation to the remission of sentences. 101 Section 99 Criminal Justice Act as passed by both houses of the Oireachtas and signed into law by the President 16th of July, 2006. S.I. 390/2006 brought section into force on 2ndOctober 2006. 269
The activation of the sentence is next discussed to explore the element of discretion in the commencement of activation proceedings and the actual activation of sentence. Critically, the role of the prosecution in the supervision of the conditional element of the sanction is examined in combination with the function of initiating proceedings for activation. The chapter further explores the parameters of the discretionary role of the court in the activation of the suspended sentence, against claims that the sentence is self activating in the event of breach of conditions. Finally, the chapter concludes with a reflection upon the workings of the suspended sentence in Ireland, the adaptabilityof the Judiciary to advance sometimes conflicting aims in sentencinganda discussion on the hidden purpose of the sanction. THE VARIETIES OF SUSPENDED SENTENCE IN IRELAND Besides the statutory form of suspended sentence provided for under Section 99 of the Criminal Justice Act 2006 the criminal courts in Ireland have utilised in varying degrees four varieties of suspended sentence. These comprise the straightforward suspended sentence, the part suspended sentence, the suspension of a partially served custodial sentence upon reviewby the court (Butler Order) and the suspended sentence conditional upon the convictedperson not receivinga further conviction within a specified period. The suspended sentence continued to be developed in the Irish criminal courts in a manner unregulated bystatute and consequentlythis partiallyresulted in the fragmentation of the use of the disposition. (A) The Straightforward Suspended Sentence The straightforward suspended sentence commonly used in the criminal courts in Ireland is structured as follows. The sentencing court pronounces a custodial sentence upon a convicted person for a specified period of time (the custodial period). Immediately, the court then suspends the operation of the sentence by specifying two matters. Firstly, the suspension of the custodial sentence will only become operative provided the convicted person forthwith enters a bond to keep the peace and to be of good behaviour but the court mayalso attach further conditions. The second specification in the order is that the custodial sentence shall continue to be subject to activation for a specified period of time (the operative periodor periodof suspension). 270
Page 1 and 2:
Title The role of the community ser
Page 3 and 4:
DECLARATION The contents of this th
Page 5 and 6:
Acknowledgements I wish to acknowle
Page 7 and 8:
TABLE OF CONTENTS Declaration .....
Page 9 and 10:
Activation Of The Suspended Sentenc
Page 11 and 12:
from an assumed jurisdiction of the
Page 13 and 14:
Probation Service. Instead each age
Page 15 and 16:
these considerations are subject to
Page 17 and 18:
not slow to inform the “naïve”
Page 19 and 20:
the PhD programme. Notwithstanding
Page 21 and 22:
One of the constant criticisms of t
Page 23 and 24:
the year 2006 for a whole year surv
Page 25 and 26:
the exigencies which presented befo
Page 27 and 28:
eference solely to the function of
Page 29 and 30:
In addition to the general, social
Page 31 and 32:
having been exported from the Antip
Page 33 and 34:
Any attempt to locate the origins o
Page 35 and 36:
Hulks or Prison Ships The Act which
Page 37 and 38:
Many of these commentators have arg
Page 39 and 40:
The use of impressment must also be
Page 41 and 42:
simultaneouslydivertingthe investig
Page 43 and 44:
Wales rose during the same period d
Page 45 and 46:
Thus, against this bleak background
Page 47 and 48:
We do not think it is easyor wise t
Page 49 and 50:
While these latter factors maybe se
Page 51 and 52:
we consulted about the need for for
Page 53 and 54:
taking of vehicles, for some of the
Page 55 and 56:
character of the voluntary sector i
Page 57 and 58:
The Bill was essentially structured
Page 59 and 60:
As community service schemes were t
Page 61 and 62:
significant debate in subsequent st
Page 63 and 64:
imposed, must be described as punis
Page 65 and 66:
this was provided for in sections 1
Page 67 and 68:
(ii) PUNISHMENT Reference has alrea
Page 69 and 70:
that by inserting offenders into su
Page 71 and 72:
not be measured by the same criteri
Page 73 and 74:
encountered by others less-fortunat
Page 75 and 76:
participation do so for a very shor
Page 77 and 78:
ehabilitative potential and such di
Page 79 and 80:
into a relationship of mutual inter
Page 81 and 82:
These issues were examined in this
Page 83 and 84:
CHAPTER 2 COMMUNITY SERVICE ORDERS
Page 85 and 86:
Some aspects of the new functions w
Page 87 and 88:
1977:112). As will be seen later (C
Page 89 and 90:
within one year. The inevitability
Page 91 and 92:
characterised by some British proba
Page 93 and 94:
turn. If the offender turns up and
Page 95 and 96:
former court but not necessarily so
Page 97 and 98:
imprisonment, the suspended sentenc
Page 99 and 100:
not receive a custodial sentence. B
Page 101 and 102:
inhibits any clear measurement of e
Page 103 and 104:
were still significantly belowthe p
Page 105 and 106:
Participation byan offender on comm
Page 107 and 108:
In England and Wales the unknown ri
Page 109 and 110:
unsatisfactory or unreasonable by S
Page 111 and 112:
learned the limits to which theycou
Page 113 and 114:
for non-compliance. Where the proba
Page 115 and 116:
how do Judges deal with breach of c
Page 117 and 118:
administration of the community ser
Page 119 and 120:
control can have the effect of dive
Page 121 and 122:
Manyresponded … byindicating that
Page 123 and 124:
“I cannot think of anycase in whi
Page 125 and 126:
CONCLUSION Throughout this chapter
Page 127 and 128:
CHAPTER 3 “Laws, like houses, lea
Page 129 and 130:
1986). Elements which were consider
Page 131 and 132:
elationship between the host and re
Page 133 and 134:
justice measure from Britain was id
Page 135 and 136:
offences by recidivist offenders. 2
Page 137 and 138:
eyond the area of offenders for who
Page 139 and 140:
provide a significant element of re
Page 141 and 142:
problems was seen as whollyinapprop
Page 143 and 144:
softlysoftlyapproach adopted in the
Page 145 and 146:
Thus the stage was set for somethin
Page 147 and 148:
The White Paper set out a series of
Page 149 and 150:
An amendment by Dr Michael Woods, T
Page 151 and 152:
Andhe further suggested: Very often
Page 153 and 154:
c) That under this Act the District
Page 155 and 156:
These provisions empower the courts
Page 157 and 158:
task of reporting on the defendant
Page 159 and 160:
While the legislation and regulatio
Page 161 and 162:
service order must specify the alte
Page 163 and 164:
This reply identifies not only the
Page 165 and 166:
the Probation Service to operationa
Page 167 and 168:
Accordingly when the Probation Serv
Page 169 and 170:
custodial penalties. As previously
Page 171 and 172:
particularly in cases of drunk-driv
Page 173 and 174:
this ranging from 63 hours to 11 ho
Page 175 and 176:
made which provided for a substitut
Page 177 and 178:
at each jurisdictional level. The D
Page 179 and 180:
This view was reinforced in a study
Page 181 and 182:
But when the relatively low level o
Page 183 and 184:
“Definitelya term of imprisonment
Page 185 and 186:
who might be suitable for it becaus
Page 187 and 188:
The offender was presented in the r
Page 189 and 190:
“I would be slow in crimes where
Page 191 and 192:
Why is the sanction not used more o
Page 193 and 194:
custodial or non-custodial, will be
Page 195 and 196:
Perceptions by the Judges that fine
Page 197 and 198:
Insofar as it is possible to discer
Page 199 and 200:
e amended to delete the requirement
Page 201 and 202:
allows a community service order to
Page 203 and 204:
year community service was introduc
Page 205 and 206:
anypenaltyimposedon a childfor an o
Page 207 and 208:
Section 110 provides: 1) Where a co
Page 209 and 210:
(a) the revocation of anylicence, (
Page 211 and 212:
accordance with the subsequent prov
Page 213 and 214:
this chapter. The Minister of State
Page 215 and 216:
An analysis of the wording that “
Page 217 and 218:
andseventeen year olds will undoubt
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 and 268: that the suspended sentence contain
Page 269 and 270: would apply if an actual custodial
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: abandon” claims Osborough (1982:2
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
Page 319 and 320: custodyas a primaryaim of the sente
Page 321 and 322: Whatever conclusions can be drawn f
Page 323 and 324: (v) The role of consent. In the cla
Page 325 and 326: sentence. Thus, the degree to which
Page 327 and 328: ate of suspended sentences to be 35
Page 329 and 330:
category of offence was not provide
Page 331 and 332:
of a breach of a condition. This is
Page 333 and 334:
“Such a hearing should have been
Page 335 and 336:
juryin the present case. He did not
Page 337 and 338:
“… the only matters which this
Page 339 and 340:
driving or public order and I would
Page 341 and 342:
put forward this argument in his ap
Page 343 and 344:
egime instead. Interestingly, in th
Page 345 and 346:
And “Provision may be made by pri
Page 347 and 348:
(Miscellaneous Provisions) Act 1997
Page 349 and 350:
accused has served his/her custodia
Page 351 and 352:
the Minister for Justice to exercis
Page 353 and 354:
suspended sentence although it has
Page 355 and 356:
(vi) Activation of sentence the piv
Page 357 and 358:
In the Circuit Criminal Court and t
Page 359 and 360:
sanctions have followed. This is bo
Page 361 and 362:
CHAPTER 7 THE SUSPENDED SENTENCE PU
Page 363 and 364:
It will also be demonstrated how th
Page 365 and 366:
of the pre-existing power to suspen
Page 367 and 368:
The Criminal Justice (Public Order)
Page 369 and 370:
In terms of regulating the criminal
Page 371 and 372:
suspended sentences in a statutory
Page 373 and 374:
developed for the enforcement of a
Page 375 and 376:
On a literal interpretation, the Oi
Page 377 and 378:
enjoyed and practiced up to now. In
Page 379 and 380:
portion of a part-suspended sentenc
Page 381 and 382:
This control mechanism is construct
Page 383 and 384:
sentence under Section 99(1) constr
Page 385 and 386:
Although Section 50 (2) seeks to li
Page 387 and 388:
As noted, the procedure under Secti
Page 389 and 390:
CONDITIONS Besides the time element
Page 391 and 392:
Generallyspeaking, the Legislature
Page 393 and 394:
Besides placing the suspended sente
Page 395 and 396:
ehaviour was clearly settled in the
Page 397 and 398:
these agencies. But perhaps the mos
Page 399 and 400:
Imposition of Fine and Deferment of
Page 401 and 402:
courts, this may be too restrictive
Page 403 and 404:
for a minor infraction of not keepi
Page 405 and 406:
acquire certain dynamic characteris
Page 407 and 408:
on this issue. Strictly speaking on
Page 409 and 410:
instead of a custodial sentence. A
Page 411 and 412:
is a feature of the sanction, place
Page 413 and 414:
applications to revoke the suspende
Page 415 and 416:
evocation of the sentence which is
Page 417 and 418:
There remains a significant deficit
Page 419 and 420:
APPENDIX A The questions below were
Page 421 and 422:
11. We spoke about the CommunitySer
Page 423 and 424:
REFERENCES AND BIBLIOGRAPHY BOOKS B
Page 425 and 426:
Foucault, M. (1975) (Translation Al
Page 427 and 428:
McWilliams, W. and Pease, K. (1980)
Page 429 and 430:
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
Page 441 and 442:
People (DPP) -v - Aylmer [1995] 2 I
Page 443:
Criminal Law(Amendment) Act 1977 (E
show all

View/Open - CORA - University College Cork

Create successful ePaper yourself

Delete template?

Save as template?