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(ii) Time Elements.
A suspended sentence contains a number of time elements, namely the specified period of
imprisonment and the period of suspension or the operative period. O’Malley(2000:292)
cautions against the over-extension of the specified period of imprisonment by sentencers,
on the grounds that the convicted person maysuffer a disproportionatelysevere penaltyin
the event s/he is called upon the serve the specified penaltyif s/he is breached. As noted,
the earlier deployment of the suspended sentence in England and Wales showed a
reactivation rate of 27%. As there is no prescribed equivalence between an actual period
of custody and a suspended period of custody, the courts in Ireland, as elsewhere, may
have tended to extend the suspended period of custody (Ryan and Magee 1983:401) and
this is borne out in the interviews with judges as indicated in chapter 5. O’Malley
(2000:292) advises that the sentencing court should firstly determine that a custodial
sentence is the most appropriate penalty to apply and then and only then to calculate the
sentence of custody to be actually served, before going on to even consider applying a
suspension of the custodial sentence (R –v- Mah-Wing (1983) 5Cr. App. R.(S) 347). In
this waythe court will avoidmakingtwo critical errors, firstly, byfailing to applya custodial
sentence only as the last resort and secondly by suspending such penalty only when the
custodial penaltywould have been imposed.
The second time element relates to the operative period of the suspension of the sentence.
The period during which a sentence of custody may be suspended is unregulated in
Ireland, except for the jurisdiction of the District Court. In the District Court, a
suspended sentence prior to the coming into force of the District Court Rules in 1997 was
limited by Rule 68(2) of the District Court Rules 1948. Notwithstanding the operative
period recited in the District Court suspended sentence, the Rule prohibited the issuance
of a Warrant to enforce such a sentence after the expiration of six months from the date of
the making of the order. In other words, a suspended sentence of six months
imprisonment suspended for two years could not be activated after six months from the
date of the making of the original suspended sentence. 118 However, since 1997 the power
118 District Court Rules 1948 Rule 68(2) provides: when imprisonment is ordered to take place in default of payment of a penalty, the Justice shall issue the
Warrant of Committal at any time after such default. When imprisonment is to take place on the non-performance of a condition or where the execution of
the sentence of imprisonment has been suspended by the Justice, the Justice shall issue the Warrant of Committal upon his being satisfied of the non-
performance of a condition or of the failure of the Defendant to carryout the terms upon which the sentence was suspended and it shall not be necessary in
anysuch case to serve upon the Defendant anynotice of an application for the issue of the Warrant. Where the execution of a sentence of imprisonment has
been suspended, no Warrant shall be issuedto enforce such sentence after the expiration of six months fromthe date of the makingof the Order.
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