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Thus, the utility of suspending the sentence for a longer period may be defeated in certain
circumstances especially where an offender is liable to change his/her behaviour in early
course but wouldotherwise remain liable to the risk of a substantial custodial sentence.
In the neighbouring jurisdiction of England and Wales, where the suspended sentence has
been regulatedbystatute for decades, Wasik has observedthat:
“There appears to have been no appellate discussion of what principles might
underlie the selection of operational period length. It is not clear, therefore,
whether this period should reflect primarily the seriousness of the offence (as
should the length of the term), or whether other matters, such as the sentencer’s
perception of the likelihood of the offender remaining conviction-free during a
lengthy operational period, may properly be taken into account. (Wasik 2001:158-
159)
In a number of jurisdictions where the suspended sentence is provided for under statute
there is no requirement that the operative period should correspond exactly with the
custodial period (Weigend 2001:188, Ashworth 2005:9.4.2, Tait 2007:351). Instead
sentencers in Germany, England and Wales and Victoria are permitted under their
statutory forms of suspended sentence, to suspend a sentence for a period in excess of the
custodial period but there is usually a maximum limit of 3 years set in the statute for the
suspension of the sentence. Similarly, the custodial periods are usuallylimited to periods of
imprisonment of up to 2 years. Longer periods are discouragedbystatutorylimitation.
As observed in chapter 5, the judges in general believed they had the power to structure a
suspended sentence by increasing the period of suspension over the custodial period to be
potentially served. However, one Circuit Criminal Court judge did point to the potential
illegalityof the procedure when he cautiouslyobserved:
“I don’t [increase the period of suspension over the custodial period], because of
the controversy there was in the Court of Criminal Appeal about whether or not
you can do it. There is some doubt. I knowa predecessor of mine used to go for
the longest if he was suspending it. He would go for the longest possible sentence
suspended for the longest possible time. Okay that’s one way of doing it. If it
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