Michael McNamara (Clare, Labour)

I propose to share time with Deputy John Lyons.

This Bill which I support introduces a number of important and welcome changes to the regime for the implementation of community service orders. It increases the sentencing period in lieu of which a community service order can be made from six months to 12. Moreover, while sentences in excess of six months are rarely handed down in the District Court - it may in certain circumstances hand down 12 month sentences - the Bill explicitly provides that community service orders can now be made in the Circuit Court. This is a welcome amendment to the current regime. Most important, the Bill provides that judges will now have a duty to consider whether a community service order is appropriate.

Community service orders are appropriate in a great number of circumstances and for a number of reasons, those reasons being linked with the purposes and aims of sentencing in the criminal justice system, namely, retribution, rehabilitation, deterrence and incapacitation. With regard to retribution, the benefits of community service orders are clear in that a community or society - a crime is, in essence, a wrong against a community or society - has the opportunity to see those who have committed the wrong purge themselves of it and perform acts beneficial to society. With regard to rehabilitation, the benefits of such orders are equally obvious in that an offender at sentencing stage has the possibility to remain in his or her community and draw support from it, including from the family, as he or she seeks to deal with the wrong committed.

With regard to deterrence, as one who has worked in the criminal justice system, albeit briefly on the south western circuit before having the honour of being elected by the people of County Clare, it always struck me that for some offenders, particularly minor offenders, the possibility of receiving a very short prison sentence did not act as a deterrent. Anybody who has sat in the criminal courts, particularly in our largest cities, could only have been struck by the bravado of young and even older offenders as they awaited sentencing for relatively minor offences. Regrettably, in certain communities which in certain instances have suffered neglect since the foundation of the State a minor sentence is almost a badge of honour and, for certain individuals, going to prison is almost welcomed.

While in many cases these individuals are habitual offenders, every habitual offender begins with a first, second and third offence. A prison sentence of more than six months seems to at least concentrate the minds of offenders from certain areas of the State which are effectively under the influence of crime gangs. I make this point having spoken to young offenders who were serving more than six months for the first time and were appealing the sentence. That is the context in which I managed to speak to them; therefore, I know they feared being drawn further under the influence of criminal gangs. From this perspective, it is welcome that the Bill increases the sentence period in lieu of which a community service order can be granted to up to 12 months.

With regard to incapacitation, if an offence is of such gravity that it requires incapacitation to meet the sentence, obviously, community service orders do not apply. I must voice a reservation on one point, namely, that the consent of an offender is required in order for a judge to consider a community service order. While I am mindful of the State's obligations in the protocols to the European Convention on Human Rights, these obligations being that nobody shall be required to effectively engage in slave labour, I submit to the House that a criminal sanction could not be considered to amount to slave labour. Mindful of what I said about minor sentences for relatively minor offences such as anti-social behaviour being a badge of honour, in the circumstances I strongly suggest the consent of an offender ought not be required in order to allow a judge to make a community service order. It is almost anathema to the criminal justice system that an offender can choose the type of sentence to be imposed upon him or her, whether it is a custodial sentence, a fine or a community service order.

I am concerned that the Bill does not appear to require judges to state the time period the community service order is in lieu of. If it is for a very short time period, given the revolving door syndrome which in itself is not as negative as it is portrayed to be, those who are sentenced to a very short period may find it attractive to serve the sentence, knowing it will be greatly reduced and, effectively, that their period of incarceration will be very brief. This might be more attractive than going into the community which they have offended by their behaviour and carrying out a community service order in view of that community, even though such an order could be greatly beneficial to the offenders in question, as they will inevitably carry out some duty which is useful and beneficial to the community. Moreover, there is a greater chance of rehabilitation in these circumstances than there would be by serving a short custodial sentence in certain instances where offenders have an opportunity to consort with persons with whom they would have consorted in the past in prison, or with groups carrying out criminal activities outside prison.

Notwithstanding my reservations, I commend the Bill to the House. I take the opportunity to congratulate the Minister on his appointment in the relatively recent as we approach the first recess of the 31st Dáil.

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