View/Open - CORA - University College Cork

sentence can only be measured on the rate or degree of compliance by the offender with
the particular conditions attached to his/her sentence. A sentencing court may intend a
certain change of behaviour to be brought about in the offender by structuring the
suspended sentence in a certain way tailored to the offender’s circumstances and the
offence. However, if the conditions are not complied with, clearly the intended result of
the sentence is not achieved.
ACTIVATION OF THE SUSPENDED SENTENCE
A suspended sentence needs to be conditionallysuspended, otherwise it is incapable of re-
activation. Such conditionality of suspension may be contained in either a recognisance
entered into by the convicted person or in the spoken order of the court where the court
does not require the convicted person to enter into such a recognisance. Conditions of a
mandatory or prohibitory nature are an essential feature of the suspended sentence.
While the issue of identifying which particular agencywithin the criminal justice system has
the function of monitoring offenders, who are subject to suspended sentences, will be
addressed in the next section, this section will address the procedures for activating the
suspended sentence when breaches of the conditions occur. While some writers suggest
that breach of conditions of a suspended sentence will automatically re-activate the
sentence without the need for any further order, it will be demonstrated how procedures,
rules of Court and case law structure the requirements for a valid re-activation of the
sentence. An important aspect of the re-activation process involves the degree of
discretion allowed to sentencers to invoke the full penalty or a lesser penalty in
substitution. This discretion, when examined, will also disclose a discretion to ignore
trivial breaches and to allow the suspended sentence to remain in situ. Another related
issue on activation concerns the standard of proof and the degree of breach necessary to
warrant the re-activation of the suspended sentence. This will also be addressed in this
section.
In Ireland there is no reliable information on the rate of breaches and re-activation of the
suspended sentence. There does however appear to be a reluctance by sentencers to re-
activate or breach an offender for non-compliance with conditions attachedto a suspended
sentence, even when subsequent convictions are recorded against the offender. However,
in the neighbouring jurisdiction of England and Wales Sparks estimated the reactivation
317