Criminals who misbehave while on suspended sentences should expect to serve their time behind bars, the Director of Public Prosecutions says.
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But the chair of the Law Society's criminal law committee has argued the fate of a person who breaches a suspended sentence should be left up to judges and magistrates.
Director of Public Prosecutions Jon White and Michael Kukulies-Smith, partner in local firm Kamy Saeedi Lawyers, took sides in the Bar Association's December bulletin.
The articles come as the legal fraternity considers questions raised by a recently released Law Reform Advisory Council report into the territory's suspended sentence regime.
A suspended sentence is handed down when a magistrate or judge is satisfied nothing other than a custodial term is appropriate.
But the judicial officer has the power to suspend the sentence - depending on the circumstances of the crime and the criminal - attaching it to a longer good-behaviour order and leaving it hanging over the defendant.
In legal circles the sentencing option is sometimes referred to as a ''Sword of Damocles'', a reference to the ancient Greek tale of a man with a weapon hovering above his head.
But in the territory in the event of a breach, a magistrate or judge can choose to impose the original sentence or set it aside and craft another punishment.
DPP figures from 2009 suggested three-quarters of defendants who violated their good-behaviour orders did not serve their original sentence in prison. More than half received another suspended jail term.
The director said establishing a statutory presumption of imposing the original sentence would bring the territory into line with the rest of the nation.
''This would act to emphasise that a suspended sentence should only be imposed as a last resort and that if the opportunity afforded by the sentence is not availed of, then jail will almost certainly follow,'' he wrote.
Mr White argued there was a widespread perception the sentencing power was wielded for the wrong reasons.
''Given that ... the court has to be satisfied that it is appropriate that the offender receive a custodial sentence, then if an offender who breaches a suspended sentence order is not sent to prison, it is reasonable to ask: why was that person sentenced to imprisonment in the first place,'' he wrote.
But Mr Kukulies-Smith said there was need for ''a great deal of discretion'' when considering breaches.
He warned if sentences were imposed automatically, defendants could lose the benefit of ''clean street time'' and progress from drug rehabilitation, as well as being jailed without due consideration to the nature of the breach.
''Although there are cases where such an imposition is justified it would be unacceptable for these consequences to be made arbitrary by the inclusion of a statutory presumption of activation,'' Mr Kukulies-Smith wrote.
''The Government should maintain faith in the judiciary and continue to arm our judges and magistrates with appropriate discretion to see justice done.''
The consultation process is continuing.
