Amongst the general public the matter of suspended sentences is much misunderstood. Often after the imposition of such a sentence radio programmes and social media are alight with incredulous individuals who cannot fathom how a person guilty of a crime can seemingly stroll out of court without punishment. This reaction typically stems from confusion about the purpose of a suspended sentence and how it actually operates. As has been stated by the New Zealand Court of Appeal:
“[a]lthough a suspended sentence is commonly perceived as a light punishment, or, indeed as none at all, it is a genuinely punitive measure.”
Judges often remark that suspended sentences are the carrot and stick means of dispensing justice, the offender has received a custodial sentence for their crime but in order to incentivise them into leading lives as law abiding members of the community this sentence has been suspended for a certain period on strict conditions, should they fail to abide by those conditions they risk the custodial sentence being activated.
It is only in relatively recent times that suspended sentences were put on a statutory footing, prior to that the principles governing them were developed over the centuries by common law. Section 99 of the Criminal Justice Act 2006 (as amended by section 60 of the 2007 Act) outlines the power of the courts to suspend sentences. Features of this section include:
- The sentence may be suspended in whole or in part.
- The person must keep the peace and be of good behaviour for the duration of the suspension.
- The court may impose further conditions it determines appropriate to the nature of the offence and will reduce the likelihood of reoffending.
- The court may require the person to cooperate with the probation and welfare service in order to aid rehabilitation and require them to undergo treatment for drug, alcohol or substance addiction; a course of education, training or therapy; psychological counselling or other treatment.
The section then provides that if a person is convicted of another offence during the period of the suspension of their sentence they will be required to reappear before the same court that had imposed this sentence. Additionally if a member of the Gardaí, a probation and welfare officer or other relevant official have reasonable grounds for believing that a condition of the suspended sentence has not been complied with then they may apply to the court to fix a date for hearing an application about the matter.
The court may then revoke the suspended sentence “unless it considers that in all of the circumstances of the case it would be unjust to so do”. The court essentially has three options, activate the entirety of the suspended sentence, activate only a portion of the sentence as it considers just or opt not to activate the sentence at all as it would be unjust to do so.
Let’s consider a hypothetical example of how this works in practice. In November 2012 John is convicted of assault causing harm, an offence contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997, an offence when tried in the District Court that carries a sentence of up to twelve months’ imprisonment. Late one evening outside a Dublin city centre nightclub John had been involved in an argument with another individual, a fight ensues and the individual John assaults must be hospitalised for some minor medical care, requires stitches but ultimately suffers no permanent injuries. At the sentencing hearing John’s solicitor outlines to the court a number of factors that should be taken into account including John’s guilty plea, his cooperative attitude to gardaí during interview, his lack of previous convictions, his apology to the victim and offer of compensation. Taking these matters into account the Judge imposes a sentence of six months but suspends this in its entirety for a period of one year. John is required to keep the peace and be of good behaviour for the one year period from the handing down of this sentence. Then in February 2013 John is convicted of another offence, intoxication in a public place and failing to comply with the direction of a member of An Garda Síochana contrary to sections 4 and 8 of the Criminal Justice (Public Order) Act 1994. Since this conviction occurred during the period of the suspension of his original sentence he will be brought back before the District Court that handed down that sentence. Ultimately the Judge determines John was given a fair opportunity to change his behaviour and partially reactivates the sentence, imposing three months of it.
Suspended sentences allow the judiciary to blend their approach, encouraging an offender to rehabilitate their conduct into the future, either of their own accord or with the support of various services, whilst also imposing the necessary deterrent – the risk of a custodial sentence dangling over them for a fixed period.
 R v Petersen  2 NZLR 533, 537.