However, the commission also recommends that this discretion be constrained by the principle that the operational period and the conditions of suspension be both proportionate and reasonable, affording the offender a reasonable prospect of compliance, based on his or her personal circumstances.
The recommendations seek to complement and improve the principles that have already been developed through the case law of the Irish courts, the LRC says.
In juvenile justice, the commission veers away from legislative provision on suspended sentences, in light of the need for offences and punishments to be closely linked in time in the context of child offenders.
The commission acknowledges that there is merit in a sentencing court having at its disposal sentencing options that are similar to the part-suspended sentence.
In that regard, the commission makes some observations regarding the "ageing out" problems associated with the sentencing options available for child offenders.
The LRC also wants beefed-up data management and analysis units in the criminal justice system, for the collection, collation and dissemination of data, in relation to the operation of the suspended sentence in particular.
The LRC also wants to build on established cross-collaboration in the Irish criminal justice system.
The commission recommends that the ICT architecture underpinning court processes be streamlined and modernised for to ensure interoperability.
This will facilitate a collaborative and efficient approach to the operation of the criminal justice system, the LRC believes.
The commission also recommends that the newly-established Sentencing Guidelines and Information Committee (SGIC) (established under the Judicial Council Act 2019) should formulate sentencing guidance in relation to suspended sentences generally, and in respect of particular categories of offender and offences.
The report follows on from the commission’s 2017 issues paper on the matter and is based upon intensive research and extensive consultation with interested parties, practitioners, experts and relevant non-governmental organisations.
The commission’s report examines the legislation and the principles that underpin the operation of the suspended sentence and makes a number of practical proposals as to how the suspended sentence might be used more effectively.
LRC analysis shows a significant decline in the use of suspended sentences and acknowledges the public perception of them as a ‘let-off for the offender’.
However, a lack of clear data on the reasons for the decline means the LRC can only speculate on the reasons for this, pointing to a series of judicial reviews and constitutional challenges, taken after legislation was enacted in 2006 regarding judicial powers to suspend sentences.
This ‘data-deficit’ must be urgently addressed, the LRC says.
Procedural difficulties with the new law may have led to judicial reticence, the LRC observes.
Scale of severity
It recommends that part-suspended sentences should rank just below an immediate custodial sentence, and just above the fully suspended sentence on the scale of severity, with the fully suspended sentence just below the part-suspended sentence and just above the deferred sentence.
The LRC also weighs the use of suspended sentences as a means of controlling the prison population, and says it may be legitimate in sentencing first-time offenders with a low risk of re-offending.
For instance, in 2006, a full 40% of sentences were suspended, compared to just 17% in 2017.
This was particularly the case for sexual offences, which such sentences fell from 37% to 10%.
Assault case suspended sentences stood at 47% in 2006, down to 22% in 2017. And in drugs matters, the drop was from 46% to 19%
The report explores:
- Origin and development of the penalty,
- Its perception among members of the public and members of the judiciary,
- Where in the hierarchy of criminal penalties the suspended sentence should rank,
- How the suspended sentence can advance the various purposes of punishment recognised in Irish law, particularly retribution, deterrence (specific and general) and rehabilitation,
- The avoidance of prison as a sentencing rationale,
- General principles including proportionality and the principle of imprisonment as a last resort, the various factors which may be relevant to sentencing courts when (1) determining whether a custodial sentence is justified, (2) fixing the length of the custodial sentence and (3) deciding whether the custodial sentence may be suspended,
- The distinction between the part-suspended sentence and the fully suspended sentence (how they differ in their structure and in terms of the penal objectives they aim to advance),
- How the Parole Act 2019, when commenced, may affect a sentencing court's jurisdiction to impose a part-suspended sentence in circumstances where the offender will also be eligible for parole during the currency of the sentence,
- The categories of offences which are the subject of a presumption of an immediate custodial sentence (including drug-dealing, rape and certain firearms offences as well as manslaughter) and the circumstances in which a fully suspended sentence might be imposed in such cases,
- The suspended sentence in the context of sentencing child offenders,
- Procedural and practical issues associated with suspended sentences, in particular the monitoring and enforcement of conditions of suspension,
- Suspended sentences in the context of white-collar offending,
- Combining suspended sentences with other orders, such as community service orders and fines.
The LRC is an independent statutory body. The purpose of the commission is to keep the law under independent, objective and expert review; to make recommendations for law reform and to make current law accessible for all.