Suspended sentences should not be used on juvenile offenders says new report 

The report, by the Law Reform Commission, has recommended that the current ban on courts handing down suspended sentences to young offenders should not be lifted.

The LRC said there are fundamental differences between the objectives of a period of detention for child offenders and a period of imprisonment for adults. File picture: iStock

Suspended sentences should not be used as an option for sanctioning juvenile offenders, according to the Government’s main advisory body on changes to the law.

A new report by the Law Reform Commission has recommended that the current ban on courts handing down suspended sentences to young offenders should not be lifted.

The LRC said there are fundamental differences between the objectives of a period of detention for child offenders and a period of imprisonment for adults.

“Detention is informed predominantly by welfare considerations, whereas imprisonment is primarily punitive,” the LRC said. 

“If detention is in the child’s best interests, it seems unjust and inappropriate to suspend or withhold that detention.” 

The LRC also pointed out the need for a close connection between the wrongdoing and the punishment when imposing sanctions on child offenders.

If suspended sentences are used with children and need to be reactivated, it said the gap in time means it is likely that they will fail to associate the penalty with the offence.

The report, which examined the use of suspended sentences in the criminal justice system here, concluded that they work well in general as a sanction that could be imposed by the courts.

It described a suspended sentence as “an inherently flexible sanction”, which is capable of serving the aims of retribution and deterrence as well as promoting rehabilitation.

The LRC generally recommended maintaining the status quo in their use by allowing individual judges to have discretion on when to apply suspended sentences.

However, it also called for more research and data on suspended sentences to be made available to provide a more detailed insight into their effectiveness.

The LRC said the lack of data made it difficult to determine if the largely anecdotal view is true that the monitoring and enforcement of suspended sentences is "sub-optimal".

It also proposed that the recently-established Sentencing Guidelines and Information Committee should formulate guidance for judges on the use of suspended sentences.

The LRC said the part-suspended sentence should be ranked just below an immediate custodial sentence and just above a fully suspended sentence on the scale of severity.

It acknowledged that the public perceives suspended sentences as a “let-off” for offenders.

In a 349-page report, the commission said a suspended sentence is a legitimate option for a first-time offender with a low risk of reoffending so as to avoid sending them to prison.

The report said the use of part-suspended sentences by the courts as a means of incentivising an offender’s rehabilitation is also a commendable use of the sanction.

Typical conditions imposed by courts when suspending a sentence are that the offender must be of good behaviour and agree to be under the supervision of the Probation Service. In some cases, they must agree to stay away from a person or area or be subject to a night-time house curfew. Failure to comply with any condition can result in the activation of the suspended sentence.

Judges are prohibited from using suspended sentences for certain types of offences such as murder as well as certain drugs and firearms offences.

Decisions of the appeal courts over the past 20 years have also determined that suspended sentences are not suitable, apart from exceptional cases, for other offences including manslaughter, rape, assaults causing serious harm, and serious tax and social welfare fraud.

The LRC said that the categories of offences that currently attract the presumption of an immediate custodial sentence should continue to operate but should also be the subject of further research.

An analysis of sentencing decisions between 2006 and 2017 showed a steady decrease in the number of convicted offenders being given suspended sentences by the Circuit Court.

In 2006, 40% of all sanctions imposed by the Circuit Court for specific offences were suspended sentences but the figure had fallen to 17% by 2017.

Out of all sentences imposed for assault over the 12-year period, 31% were suspended. The figure for drug offences and firearms offences as well as for theft, robbery, and fraud was 23%.

Only 19% of all sentences imposed for sexual offences were suspended.

In contrast, the use of suspended sentences at District Court level for specific road traffic offences including dangerous driving, drink driving, and the unauthorised taking of a vehicle, remained constant over the same period at 2% of all cases.

All jail sentences applied in all cases of two types of white-collar crime — convictions under competition and health and safety legislation — were suspended.

The LRC acknowledged that white-collar offenders might be able to rely on strong personal mitigation by virtue of their social position more than “conventional” offenders.

However, it said there was a difficult balance between ensuring the gravity of while-collar offending was marked by an appropriately severe sanction and giving offenders due credit for personal mitigating factors.

The LRC supported the current legislative ban on judges combining suspended sentences with community service orders as it ensured the line between custodial and non-custodial sanctions was not blurred.

However, it backed the use of suspended sentences with fines and compensation.