Tom O’Malley BL, a commissioner with the Law Reform Commission and a senior lecturer in law at NUI Galway, writes on suspended sentences.

The suspended sentence is highly esteemed by judges and lawyers as a valuable sentencing option. Members of the public are often a little more sceptical. After all, it seems strange that a court should first decide that an offence is sufficiently serious to warrant imprisonment, but then declare that the offender will not be sent to prison after all.

That, admittedly, encapsulates the essence of the suspended sentence, but there is much more to it than that.

A suspended sentence is real punishment and, in some circumstances, quite a severe one. A person given a suspended sentence is first of all sentenced to a specified period of imprisonment, and perhaps a lengthy one. This can be a significant stigma in itself.

Secondly, the suspension is conditional on the offender staying out of trouble and being of good behaviour for a certain length of time, usually for a period of years.

Additional and sometimes quite onerous conditions may also be imposed that restrict the offender’s freedom in various ways, and this is a further dimension of the punishment.

Finally, and often most importantly, the offender has hanging over him throughout the operational period of the sentence the prospect of being sent to prison. Any offence committed during that period can trigger the activation of the sentence which means that the offender will go to prison for all or most of the term originally imposed.

A suspended sentence can advance a number of key sentencing goals, including deterrence and rehabilitation. It can also give effect to the distributive principle of proportionality, which is the cardinal principle of sentencing in Ireland.

Under our law, every sentence (unless it is mandatory) must be proportionate to the gravity of the offence and personal circumstances of the offender.

Delicate balancing

In order to give full effect to this principle, courts must often engage in a delicate balancing exercise and one that cannot readily be reduced to any kind of mathematical formula.

Offence gravity has two dimensions: the harm caused and the offender’s actual culpability. Sometimes, a person acting with a low level of culpability may cause a great deal of harm.

Careless driving causing death or serious injury is a good example. The seriousness of the harm caused scarcely needs elaboration. Yet, the driver in question may have had an impeccable driving record and may have caused death or injury solely as a result of a momentary lapse of attention.

A suspended sentence may well be appropriate in such a case, though it is not being suggested that it is invariably appropriate for careless driving or anything other offence for that matter.

It allows a court, by specifying a term of imprisonment, to mark very definitely and publicly the harm and its impact on others. Simultaneously, however, a court can acknowledge the offender’s low culpability level by suspending the operation of the sentence subject to conditions.

In other circumstances where the offence involves both a significant degree of harm and a high level of culpability, the personal circumstances of the offender may occasionally justify the suspension of a prison sentence.

This might be appropriate where, for example, the offender was suffering from a serious illness, perhaps a terminal illness.

The courts have, however, consistently stressed that there are certain offences for which a fully suspended sentence will never be appropriate, save in truly exceptional circumstances. This holds true of rape and serious assaults.

Incentive

Part-suspension is more likely to be used for serious offences. This means that the offender will serve a certain portion of the sentence in prison but will be released conditionally after serving that portion.

This is done mainly to provide the offender with an incentive to self-rehabilitate and desist for further crime. A person who reoffends during the operation of the suspended portion of the sentence is liable to be returned to prison to serve out the rest of the original sentence.

The Law Reform Commission has just published an issues paper on suspended sentences.

It has done this as a prelude to drawing up a report on the topic and is anxious to have the views of all interested parties on the present law governing suspended sentences and on the principles according to which the courts should use the suspended sentence in preference to other sentencing options.

Remarkably complicated

The suspended sentence has existed in Ireland for well over a century, although it was only recently placed on a statutory footing.

The Criminal Justice Act 2006 provides a comprehensive code of law governing the suspended sentence.

However, it is a remarkably complicated area because, for example, of the need to make detailed provision for the circumstances and manner in which a suspended sentence may be activated in any case where the offender is alleged to have breached any of the specified conditions. The 2006 law has had to be amended on a number of occasions since it was passed.

Following the receipt of recommendations and observations from the general public, the commission plans to undertake a detailed review of the present law and to identify any outstanding problems with it.

It will also consider more general policy questions about the most appropriate use of the suspended sentence as a criminal sanction. Observations on that aspect of the project are equally welcome.