It's certainly better than taking the antiquated historical list of ten-year maxima from the code and simply using that. What it does is it requires a contextual evaluation to be made in each case, and it would be consistent with discretion, but constrained discretion, to use presumptions. That's really how the criminal justice system operates. There are times when we don't know the right answer or the wrong answer to questions, and the real issue is on which side do you want to err? Who has the burden of proof?
If you put the burden of proof on the accused to demonstrate that there's something exceptional in the circumstances to justify conditional sentencing, then in your typical case you're not going to have it. But if you remove the discretion entirely from judges--and I don't know whether that's what you're proposing or not, Mr. Murphy--then you end up with the situation where you have the absolutely same result in cases that are completely different and where it's simply not a good fit.
I'm not suggesting that what I'm putting forward is a magic bullet. What I am suggesting is if you really do feel there's a problem with conditional sentences being used in cases that are too serious, the way to deal with that is to identify principles that should animate judges in determining the appropriate sentence.