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“The sentence would be fully imposed in the event of the slightest non- compliance. I would impose a full sentence…I don’t give credit for time served…mygeneral inclination wouldbe to impose the full sentence…”A9J1HC “If a fellowis in breach he just does it, he does the time. That [newprocedures under Section 99] seems to have stopped a lot of it…it has brought a sense of purpose and seriousness in the criminal’s mind. I better behave here because there are no reviews…I have structuredthe sentence here which was for the defendant’s benefit…if he doesn’t take it up that comes at a price andthe price is that I reactivate the sentence.” A7J3CC “Once it is brought back bang! I impose the sentence in full. The likelihood is he will serve the full sentence.” A4J1DC “My gut reaction would be in the circumstances to impose the sentence (in full)… unless there was some very very good, very very strong genuine reason as to why it shouldn’t be invoked.”A6J1DC Meanwhile other judges sawa greater role for the exercise of discretion byallowing a “further chance” to the offender when theystated: “Normally, I would impose the sentence in full or if there is a genuine excuse for it I will put the matter back and generallyrequire him to appear again before me to see howhe is complying with whatever order has been made. If he comes back on the first occasion complying, then I will happily leave the matter as it is. It hasn’t happenedveryoften.”A2J1DC “I don’t ignore the breach. It depends upon the seriousness of the breach. I have hadpeople brought back before me who wouldhave receiveda sentence of say6 years. I am using 6 as the standard. We are talking in the realm of 4 to 6 years or 4 to 7 where I have suspended somebody and they have been brought back by the Guards for what I consideredto be not veryserious breaches. The original sentence would have been imposed for a serious assault or for a robbery, matters like that whereas a breach veryoften has been something…I have even hadone for dangerous 329
driving or public order and I would consider those breaches as not being very serious on the basis that if he has done 4 years, he comes out in the end, he will fall by the wayside once or twice and you have to be understanding about that. And there maybe circumstances. Do I go back to the original sentence? I knowI have done it but howoften? Andthe answer to that is rarely.”A3J1CC Meanwhile, his colleague took a contrarian view: “Generally, I take the view that there is no second chance. I often say to people “look can’t be messing around with you giving you second chances because eventuallyit is going to denysome other unfortunate his first chance.” A5J1CC The former judge’s requirement that the substance of the breach should be of an order of magnitude almost equivalent to the original offence places the activation of the suspended sentence at a veryhigh threshold. In the Aylmer case a conviction in the District Court for criminal damage and breaking and entering and for which two concurrent sentences of 12 months imprisonment were imposed was considered sufficient to tip the balance in favour of activation of the sentence in the Central Criminal Court of 10 years imprisonment 7 of had been suspended upon reviewfor the offence of robberyContraryto Section 23 of the LarcenyAct 1916. The passage of time was considered an important factor for consideration by one judge when he reflected upon the suspended sentence which requires compliance with conditions which wouldendure for quite a number of years: “I would be reluctant to reactivate a very long sentence after a longish period.”A8J1SC Thus it may be observed that discretion has a significant role to play when the court considers whether to activate the sentence or not. At common law, there appears to be no discretion in an Irish sentencing court but to impose the full penalty prescribed in the original order, once the court is satisfied that the circumstances giving rise to the breach such as the commission of a further offence do not 330
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Title The role of the community ser
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DECLARATION The contents of this th
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Acknowledgements I wish to acknowle
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TABLE OF CONTENTS Declaration .....
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Activation Of The Suspended Sentenc
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from an assumed jurisdiction of the
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Probation Service. Instead each age
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these considerations are subject to
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not slow to inform the “naïve”
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the PhD programme. Notwithstanding
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One of the constant criticisms of t
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the year 2006 for a whole year surv
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the exigencies which presented befo
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eference solely to the function of
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In addition to the general, social
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having been exported from the Antip
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Any attempt to locate the origins o
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Hulks or Prison Ships The Act which
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Many of these commentators have arg
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The use of impressment must also be
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simultaneouslydivertingthe investig
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Wales rose during the same period d
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Thus, against this bleak background
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We do not think it is easyor wise t
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While these latter factors maybe se
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we consulted about the need for for
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taking of vehicles, for some of the
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character of the voluntary sector i
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The Bill was essentially structured
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As community service schemes were t
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significant debate in subsequent st
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imposed, must be described as punis
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this was provided for in sections 1
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(ii) PUNISHMENT Reference has alrea
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that by inserting offenders into su
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not be measured by the same criteri
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encountered by others less-fortunat
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participation do so for a very shor
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ehabilitative potential and such di
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into a relationship of mutual inter
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These issues were examined in this
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CHAPTER 2 COMMUNITY SERVICE ORDERS
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Some aspects of the new functions w
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1977:112). As will be seen later (C
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within one year. The inevitability
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characterised by some British proba
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turn. If the offender turns up and
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former court but not necessarily so
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imprisonment, the suspended sentenc
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not receive a custodial sentence. B
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inhibits any clear measurement of e
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were still significantly belowthe p
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Participation byan offender on comm
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In England and Wales the unknown ri
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unsatisfactory or unreasonable by S
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learned the limits to which theycou
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for non-compliance. Where the proba
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how do Judges deal with breach of c
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administration of the community ser
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control can have the effect of dive
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Manyresponded … byindicating that
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“I cannot think of anycase in whi
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CONCLUSION Throughout this chapter
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CHAPTER 3 “Laws, like houses, lea
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1986). Elements which were consider
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elationship between the host and re
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justice measure from Britain was id
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offences by recidivist offenders. 2
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eyond the area of offenders for who
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provide a significant element of re
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problems was seen as whollyinapprop
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softlysoftlyapproach adopted in the
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Thus the stage was set for somethin
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The White Paper set out a series of
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An amendment by Dr Michael Woods, T
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Andhe further suggested: Very often
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c) That under this Act the District
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These provisions empower the courts
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task of reporting on the defendant
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While the legislation and regulatio
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service order must specify the alte
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This reply identifies not only the
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the Probation Service to operationa
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Accordingly when the Probation Serv
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custodial penalties. As previously
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particularly in cases of drunk-driv
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this ranging from 63 hours to 11 ho
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made which provided for a substitut
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at each jurisdictional level. The D
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This view was reinforced in a study
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But when the relatively low level o
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“Definitelya term of imprisonment
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who might be suitable for it becaus
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The offender was presented in the r
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“I would be slow in crimes where
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Why is the sanction not used more o
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custodial or non-custodial, will be
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Perceptions by the Judges that fine
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Insofar as it is possible to discer
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e amended to delete the requirement
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allows a community service order to
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year community service was introduc
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anypenaltyimposedon a childfor an o
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Section 110 provides: 1) Where a co
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(a) the revocation of anylicence, (
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accordance with the subsequent prov
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this chapter. The Minister of State
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An analysis of the wording that “
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andseventeen year olds will undoubt
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communityservice into two categorie
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standards for sixteen/seventeen yea
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disengagement fromthe former coloni
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formal imposition of a custodial se
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punishment where a threat of activa
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sessions (Hardiman 2004:5). By way
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Thus the suspended sentence is seen
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validity of the procedure as a sent
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present case”. (R-v-Wightman, 195
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policy of using the suspended sente
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to the emergence of agreement on pr
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sentence. In the Alexiou case, Murr
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deal with the suspendedin a statuto
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criminogenic circumstances which is
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sentence. Sequentially, a custodial
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cases it is not uncommon for the de
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“I don’t tend to favour suspend
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“If you have a person who has bee
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sentence andwhere suspension should
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“This is a very difficult one to
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But the “custodial” designation
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who got verylong suspended sentence
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which is reflectedin the suspendedt
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might otherwise be thought bythe pr
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that the suspended sentence contain
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would apply if an actual custodial
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and this would clearly be the case
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England and Wales. A practice of im
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generallyare reluctant to activate
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abandon” claims Osborough (1982:2
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The activation of the sentence is n
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normal way, allow you leniency, I w
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court had made no mention at the se
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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
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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
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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
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CONDITIONS Besides the time element
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Generallyspeaking, the Legislature
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Besides placing the suspended sente
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ehaviour was clearly settled in the
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these agencies. But perhaps the mos
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Imposition of Fine and Deferment of
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courts, this may be too restrictive
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for a minor infraction of not keepi
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acquire certain dynamic characteris
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on this issue. Strictly speaking on
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instead of a custodial sentence. A
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is a feature of the sanction, place
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applications to revoke the suspende
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evocation of the sentence which is
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There remains a significant deficit
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APPENDIX A The questions below were
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11. We spoke about the CommunitySer
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REFERENCES AND BIBLIOGRAPHY BOOKS B
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Foucault, M. (1975) (Translation Al
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McWilliams, W. and Pease, K. (1980)
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Ryan, L. (1990) Irish Emigration to
Page 431 and 432:
Davies, M. (1974), Social Enquiry f
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Roberts, J. (2003), Evaluating the
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Expert Group on the Codification of
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Report into the Case of Philip Shee
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Young, W. (1978) Community Service
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People (DPP) -v - Aylmer [1995] 2 I
Page 443:
Criminal Law(Amendment) Act 1977 (E
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