THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ



CONSULTATION PAPER

ON

SENTENCING



March 1993

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2



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© Copyright The Law Reform Commission 1993

First Published March 1993

Cover: The Courthouse, Washington Street, Cork.

(photo courtesy of “Cork Examiner”)



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THE LAW REFORM COMMISSION

The Law Reform Commission was established by section 3 of the Law Reform Commission Act, 1975 on 20th October, 1975. It is an independent body consisting of a President and four other members appointed by the Government.

The Commissioners at present are:

The Hon. Mr. Justice Anthony J. Hederman, Judge of the Supreme Court, President;

John F. Buckley, Esq., B.A., LL.B., Solicitor;

William R. Duncan, Esq., M.A., F.T.C.D., Barrister-at-Law, Associate Professor of Law, University of Dublin;

Ms. Maureen Gaffney, B.A., M.A. (Univ. of Chicago), Senior Lecturer in psychology, University of Dublin;

Simon P. O'Leary, Esq., B.A., Barrister-at-Law.

The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both House of the Oireachtas on 4th January, 1977. The Commission has formulated and submitted to the Taoiseach or the Attorney General forty four Reports containing proposals for the reform of the law. It has also published eleven Working Papers, five Consultation Papers and Annual Reports. Details will be found on pp.415–419.

Alpha Connelly, B.A., LL.M., D.C.L., is Research Counsellor to the Commission.

Ms. Emily Egan, LL.B., B.C.L. (OXON), Ms. Clíona Kimber, LL.B., LL.M., Mr. James Kingston, LL.B., LL.M., Barrister-at-Law, and Ms. Julianne O'Leary, B.A., LL.B., Barrister-at-Law are Research Assistants.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2.

Telephone: 715699.

Fax No: 715316.



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CONTENTS

PAGES

INTRODUCTION

1–3

CHAPTER 1: OVERVIEW OF IRISH SENTENCING LAW AND PRACTICE

4– 58

A: General

4–48

B: The Sentencing Hearing

6

(i) Outline of the Offence

7

On a plea of guilty

7

The standard of proof

7

On a plea of not guilty

8

(ii) The Offender's Antecedents and Character

9

Antecedents

9

Character

9

(iii) Reports

11

(a) The social inquiry (presentence) report

11

(b) Medical reports

12

(c) Reports of prison officers, and community service reports

12

(iv) Plea in Mitigation

12

(v) Bringing Other Offences into Consideration

14

C: The Sentencing Decision

14

(I) Determining the Factual Basis

15

(II) Choosing the Appropriate Penalty

17

(a) The choice of approach

18

Incoherent policy

18

A rehabilitative approach

19

A deterrent approach

20

A retributive approach

21

Differing principles

21


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CONTENTS

PAGES

(b) The choice of penalty or measure

23

(III) The Mitigation Decision

27

The Range of Choice

30

Options as to the Nature of Sentence

30

Table A: Options Upon Conviction

31

Table B: Options Without Conviction in District Court

32

(a) Deprivation of liberty

32

Penal Servitude

32

Imprisonment

33

Modern attitudes towards imprisonment

34

(b) Suspended sentence

36

(c) Adjournment sine die

37

(d) Fines

37

(e) Probation

38

(f) Deferred sentence

39

(g) Community service

39

(h) Medical treatment or therapy

40

(i) Disqualification

42

(j) Compensation

42

(k) Other offences taken into consideration

44

(l) Confiscation

44

(m) Young offenders

45

(n) Adjourned supervision

46

Options as to the Extent of Sentence

46

(a) Maximum, minimum and mandatory limits

47

Maximum sentences

47

Minimum sentences

47

Mandatory sentences

48

Insane Offenders in Cases of Murder, Treason or Felony

48

(b) Limits on jurisdiction

49

The District Court

49

The Circuit Court

49

The High Court

50

The Special Criminal Court

50

Summary

50


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CONTENTS

PAGES

D: Reasons for and Pronouncement of Sentence

51

Reasons

51

Pronouncement

52

E: Commencement of Sentence

52

Concurrent and Consecutive Sentences

53

F: Appeals against Sentence

55

Appeals to the Circuit Court

55

Appeals to the Court of Criminal Appeal

56

Appeals to the Supreme Court

57

(i) Under article 34.4.3 of the Constitution

57

(ii) Under s29 of the Courts of Justice Act, 1924

58

CHAPTER 2: SENTENCING POLICY

59–72

No Policy

61

Incoherent Policy

61

Problems with Incoherent Sentencing Policy

62

1. Fair notice

62

2. Conflicts with penal policy

62

3. Accommodation of abuse

63

4. Failure to achieve any object

64

5. Public distrust

64

Victims

65

6. Disparity and inconsistency

66

Disparity

66

Inconsistency

68

7. Inability to develop specific principles

69

Coherent Policy

71

CHAPTER 3: THE FORMULATION OF SENTENCING POLICY

73–81

The Evolution of Judicial Sentencing Discretion

73


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CONTENTS

PAGES

Judicial Discretion, Independence of the Judiciary, and Sentencing Policy

74

The Executive

75

The Legislature

76

Judicial or Legislative Sentencing Policy

78

The Courts

78

The Legislature

80

CHAPTER 4: A COHERENT SENTENCING POLICY

82–117

Preliminaries: Justifying Aims and Principles of Distribution

82

Justifying the Imposition of Criminal Sanctions

85

(i) Retribution

85

(ii) Rehabilitation

88

(iii) Deterrence

92

(iv) Incapacitation

95

(v) Compensation

100

Summary

102

Principles of Distribution

104

(i) “Just Deserts”

104

“Just Deserts” – Harm, Culpability

105

Implementing a “Just Deserts” System

108

(a) Fixing the levels

108

(b) Prior criminal record

112

(c) Mitigation

112

(d) Promoting the justifying aims

113

(ii) Hybrid principles

113

Provisional Recommendations

115

CHAPTER 5: AGGRAVATING AND MITIGATING FACTORS

118–153

An important distinction

119


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CONTENTS

PAGES

A. Aggravation and Mitigation of the Offence

122

Constructing the list

125

Factors which aggravate offence seriousness

125

Premeditation or planning, offending as a member of a group organised for crime, or participation in a campaign of offences on multiple victims or of multiple offences

126

Offending for profit or remuneration

127

Exploitation of a weak or defenceless victim, or knowledge that the victim's access to justice may be impeded

127

Abuse or exploitation of a position of confidence or trust, or offences by law enforcement officers

127

Threatened or actual use of violence or a weapon, or causing, threatening, or risking death or serious injury, or excessive cruelty

128

Causing or risking substantial economic loss for the victim

129

Committing the offence for pleasure or excitement

129

Acting as a ringleader in the commission of an offence, or inducing a weaker or younger person to participate in the commission of the offence

129

Offending while under the influence of alcohol or drugs

130

Offending against a law enforcement officer

130

Other factors which aggravate offence seriousness

131

Factors which mitigate offence seriousness

132

Duress

132

Provocation

133

Impulse, or no sustained motivation to break the law

134

Reduced mental capacity, strong temptation, or offender motivated by strong human sympathy

134

Offender very young or very old

135

Offender played only a minor role in the commission of the offence

135

No serious injury resulted or was intended

135

Offender made voluntary attempts to alleviate the effects of the offence

136


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CONTENTS

PAGES

The existence of excusing circumstances which, although not constituting a defence to liability, tend to justify or excuse the offender's conduct

136

Other factors which mitigate offence seriousness

137

B. Mitigation of Sentence

137

The offender has pleaded guilty

141

The offender has assisted in the investigation of the offence or of other offences

142

The offender has shown remorse for the offending conduct, or has denounced his or her conduct

143

The offender has attempted to remedy the harmful consequences of the offence

143

The sentence would result in damage to the offender's future employment or career

145

The offender has suffered severe personal injury in consequence of the offence

145

The offender, through age or ill health, would be occasioned unreasonable hardship by a sentence imposed in proportion to the seriousness of the offence

145

Delay or other grievances in bringing the matter to trial

145

The sentence would result in financial or emotional damage to the offender's dependents

149

“Moral” Accounting

149

Conclusions and Provisional Recommendations

150

CHAPTER 6: PRIOR CRIMINAL RECORD

154–160

Aggravation of Seriousness

154

Progressive Loss of Mitigation

157

Conclusions and Provisional Recommendations

159


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CONTENTS

PAGES

CHAPTER 7: SOME COMPARATIVE ASPECTS OF SENTENCING POLICY

161–201

(i) Finland

162

(ii) Sweden

164

(iii) Canada

170

Purposes

170

Principles (of distribution)

171

(iv) Victoria

175

(v) Australian Federal Jurisdiction and Capital Territory

182

The USA

188

(vi) Minnesota

188

(vii) The Federal System of the USA

190

(viii) Great Britain

192

JUSTICE Report

192

The Criminal Justice Act, 1991

193

(ix) Sentencing Policy on the Continent

196

CHAPTER 8: DISPARITY IN CONTINENTAL EUROPE

202–206

CHAPTER 9: IMPLEMENTING SENTENCING POLICY: PRESUMPTIVE GUIDELINES, STARTING POINTS AND JUDICIAL GUIDANCE

207–299

(I) Presumptive Sentencing Guidelines: Minnesota

207

Table E: Minnesota Sentencing Guidelines Grid

215

(II) The Guidelines Movement in the US States

216

Maine

216

South Carolina

216

New York

216

Connecticut

216

Pennsylvania

217


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CONTENTS

PAGES

Table F: Pennsylvania Guidelines

220

Michigan

221

Washington State

225

Table G: Washington Sentencing Guidelines

226

Florida

229

(III) Determinate Sentencing: California

231

(IV) Presumptive Sentencing Guidelines: Canada

233

Table H: Sample Canadian Guideline Prototype

238

(V) US Federal Sentencing Guidelines

240

Criticism of the US Guidelines

247

(VI) Statistics, Starting Points, and Informed Judicial Discretion

259

Table I: Punishment Imposed for Completed Theft

266

Table J: Finnish Drunk Driving Tables

269

Table K: Case Description Sheet

274

Table L: Sample Factors Screen

276

Table M: Sample Distribution Screen

277

A. Quantitative Data

279

(a) Wilkins's empirically based descriptive guidelines

280

(b) Hogarth's sentencing data base

281

(c) Doob's sentencing data base

282

Table N: Seriousness Scale for Total Value of the Theft

286

Table O: Violence to the Victims in relation to Total Value of the Theft

288

(d) The Victorian experience

289

Less serious offences

291

B. Qualitative Data

292

Prognosis

293


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CONTENTS

PAGES

(VII) Conclusions and Provisional Recommendations

294

CHAPTER 10: MAXIMUM, MINIMUM AND MANDATORY SENTENCES

300–320

Maximum Sentences

300

The Review of Maxima in other Jurisdictions

304

(i) England and Wales

304

(ii) Canada

305

(iii) Australian Federal Jurisdiction and Capital Territory

306

(iv) Victoria

308

Provisional Recommendations

308

Minimum Sentences

308

Provisional Recommendation

309

Mandatory Sentences

310

Abolition of Mandatory Sentences

312

The British Debate

313

The European Court of Human Rights

316

Options for Reform

317

(a) Unlawful homicide

317

(b) Varying degrees of murder

318

(c) Discretionary sentence

318

(d) Restricted sentencing discretion

319

Minor Offences

319

Provisional Conclusions

320

CHAPTER 11: SENTENCING PROCEDURE AND FACT-FINDING

321–337

(i) The role of prosecuting counsel

326

(ii) The role of the victim: mandatory victim impact statements

329

The type of information allowed for consideration

331

The type of victim participation

332


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CONTENTS

PAGES

Summary of the arguments in favour of mandatory victim impact statements

333

Summary of the arguments against mandatory victim impact statements

334

Unnecessary

334

Unfair

336

Conclusions

337

CHAPTER 12: PLEA DISCUSSIONS AND AGREEMENTS

338–350

CHAPTER 13: REASONS FOR SENTENCE

351–353

CHAPTER 14: PROSECUTION APPEAL AGAINST SENTENCE

354–359

CHAPTER 15: PENAL POLICY

360–365

(i) Sentencing Options

360

(ii) The Administration of Sentence

361

(a) The power to commute or remit

362

(b) Temporary release

363

Problems with Commutation, Remission and Temporary Release

364

CHAPTER 16: SENTENCING STUDIES

366–372

CHAPTER 17: SUMMARY OF PROVISIONAL RECOMMENDATIONS

373–381


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CONTENTS

PAGES

APPENDIX A: COUNCIL OF EUROPE RECOMMENDATIONS ON SENTENCING

382–387

APPENDIX B: CANADIAN SENTENCING COMMISSION GUIDELINE PROTOTYPES

388–395

APPENDIX C: PROPOSED CANADIAN PROVISIONS ON EVIDENCE AND PROCEDURE FOR SENTENCING

396–399

APPENDIX D: PLEA DISCUSSIONS AND AGREEMENTS (DOCUMENTS)

400–414

LIST OF COMMISSION PUBLICATIONS

415–419


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INTRODUCTION

As part of its First Programme for examination of different branches of the law, which was laid before both Houses of the Oireachtas on 4th January, 1977, the Commission proposed to examine various aspects of the criminal law and criminal procedure, including in particular the law on the matters proper to be taken into account in sentencing convicted persons.

On the 6th March, 1987, the then Attorney General, Mr John Rogers S.C., requested the Commission to formulate proposals for reform of the law in relation to a number of areas. These included the law relating to certain aspects of the criminal law, and, first and foremost, sentencing policy.

During the course of its research on sentencing, the Commission noted that a clear statement of the matters proper to be taken into account in sentencing convicted persons is closely dependent on the policy governing the sentencing of offenders first being clearly articulated: where the policy is vague or incoherent, any number of matters may without impropriety be taken into account by reference to that policy. The Commission concluded that the primary matter to be dealt with, therefore, was the formulation of a coherent sentencing policy, which, once in place, would indicate what matters ought properly be taken into account in sentencing.

In the present Consultation Paper we begin by setting out in Chapter 1 the existing law and practice of sentencing and touch briefly upon the difficulties encountered in this area. In Chapter 2 we then examine the role of sentencing policy and the effect which incoherent policy has on existing sentencing law and practice. In Chapter 3 we examine the respective roles of the legislature and the courts in sentencing reform, and in Chapter 4 we discuss the role of the existing components of our sentencing policy making some provisional recommendations for reform of sentencing policy which would be more purposive, consistent and

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just. Chapter 5 examines the types of matter proper to be taken into account in sentencing, and Chapter 6 looks at the importance of prior criminal record. Chapter 7 contains a review of sentencing policy in other jurisdictions. Chapter 8 examines continental European responses to sentencing disparity. Chapter 9 discusses in detail means of implementing sentencing policy, drawing on the rich vein of comparative experience. Subsequent chapters are concerned with the statutory context of sentencing (Chapter 10); matters of procedure (Chapters 11, 12, 13 and 14); the co-ordination of penal and sentencing policy (Chapter 15); and sentencing information and studies (Chapter 16). We conclude by setting out our provisional proposals for reform.

On the 30th of September, 1992 when the Commission was on the point of going to print, the Minister for Justice presented the Criminal Justice Bill, 1992. The Commission had to decide at that stage whether to ignore or examine the Bill.

We decided to examine it, even if this delayed publication. Our examination led in particular to a re-appraisal of the Commission's approach to Victim Impact evidence. The Commission was unable to agree on a provisional recommendation so we have simply set out below arguments for and against the introduction of mandatory victim impact statements and have sought views.

In the Whitaker Report on the Penal system, it is concluded that “complexities” are the reality of the criminal justice system but that given the present state of criminal justice statistics, their frequency cannot be measured.

“This lack of information is not merely a nuisance which hinders research. It is a feature of the criminal justice system that decisions are taken at one stage in ignorance of what is occurring elsewhere in the system.”1

Unfortunately, this situation remains unchanged. Any provisional recommendations in this paper or recommendations ultimately made in our Report will be rendered comparatively ineffective by the absence of proper information. Details of every sentence imposed in every court and of every instance of election for trial venue by judge, prosecution or accused should be recorded and speedily retrievable. It would not be possible to attain this by relying on occasional research.

A distinct national office or agency should be established under the aegis of the Department of Justice, the Gardaí or the DPP, staffed by experts in criminological research to conduct the necessary research and provide statistics. This office, which could be given a statutory basis, would have to secure the trust and confidence of the aforementioned bodies and of the judiciary in order to ensure that the relevant information would readily be made available, if necessary by affording access to files and orders.2


1

Report of Committee of Inquiry into the Penal System (PL 3391, 1985), p236.

2

The design of such a system is examined in chapter 9 infra.



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While the President of the Commission, Mr. Justice Hederman, was appointed before this paper went to print, he took no part in its preparation and it would be unfair in the circumstances to associate him with any provisional recommendation made in the Paper. Happily, the Commission will have the benefit of his extensive experience in this area when it comes to make its final Report.

We emphasise that the proposals for reform contained in this Consultation Paper are provisional in their nature. We invite written submissions in relation to any of these proposals and the material contained in this Consultation Paper. Any such submissions received by us will be assessed with great care before we present our final proposals to the Attorney General. We also hope to hold a Seminar which will enable a full discussion of the Consultation Paper to take place.

We would be grateful if submissions on the Consultation Paper were sent to us at the Commission's Offices not later than 1st June, 1993.



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CHAPTER 1: OVERVIEW OF IRISH SENTENCING LAW AND PRACTICE

A: GENERAL

1.1

What is sentencing? While there exists a general consensus as to the etymology of the expression “sentence”– from the Latin sententia, meaning literally “feeling” or “opinion”1– there appears to be very little in the way of coherent Irish statement as to the nature of sentencing. Little assistance is to be gained from the definition of “sentence” which appears in section 21 of the Criminal Appeal Act, 1907:

“The expression “sentence” includes any order of the court made on conviction with reference to the person convicted or his wife or children, and any recommendations of the court as to the making of an expulsion order in the case of a person convicted, and the power of the Court of Criminal Appeal to pass a sentence includes a power to make any such order of the Court or recommendation, and a recommendation so made by the Court of Criminal Appeal shall have the same effect for the purposes of section three of the Aliens Act, 1905, as the certificate and recommendation of the convicting Court.”

1.2

As well as being, perhaps, somewhat verbose, this explanation would exclude from the ambit of sentencing many orders made by the District Court under the Probation of Offenders Act, 1907 which do not require conviction before they may be made.2 Nowadays, conviction is not always a prerequisite for the imposition of sentence; rather what is always required is a finding of guilt. A number of more helpful formulations appear in recent sentencing reform literature. The British Government, for example, describes “sentence” thus:


1

Drapkin, The Art of Sentencing, p233; Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, (1987) p111.

2

See eg s1(1) of the Probation of Offenders Act, 1907; also para 1.102, infra. (Probation).



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“The sentence of the court prescribes the punishment for criminal behaviour.”3

1.3

JUSTICE, the British section of the International Commission of Jurists has said:

“A sentence is the order of a criminal court imposing punishment on an individual for an offence of which he has been found guilty.”4

1.4

Sentencing might thus be described as the act of a criminal court imposing punishment on an individual found guilty of an offence. Other formulations of “sentencing”, however, avoid the concept of punishment. The Victorian Sentencing Committee said:

“Sentencing is the process by which people who offend against the criminal law have sanctions imposed upon them in accordance with that law. Many of those sanctions involve punishment, others involve the exercise of mercy and yet others represent means by which a person's conduct or attitudes may be altered so they do not offend in the future.”5

1.5

The Canadian Law Reform Commission also took this approach, defining “sentencing” as:

“that process in which the court or officials, having inquired into an alleged offence, give a reasoned statement making clear what values are at stake and what is involved in the offence.”6

1.6

That certainly is not the case in Irish courts; rarely do our courts give “reasoned statements” of the values at stake in sentencing.7 The most cogent, perhaps, of this kind of formulation is that of the Canadian Sentencing Commission:

“Sentencing is the judicial determination of a legal sanction to be imposed on a person found guilty of an offence.”8

1.7

This description highlights the most important element of sentencing: judicial determination. Sentencing involves a decision by a judge9 as to what the criminal justice system should do to a person found guilty of an offence. Occasionally, as we shall see, the District Court may decide simply to “dismiss


3

White Paper, Crime, Justice, and Protecting the Public, CM 965 (1990) p5.

4

JUSTICE Report, Sentencing, A Way Ahead, (1989) p1.

5

Victorian Sentencing Committee, Sentencing, (1988), para 2.2.1.

6

Law Reform Commission of Canada, Studies on Sentencing, (1974) p4, and Principles of Sentencing and Dispositions, (1974) px.

7

See para 1.145, infra. (Reasons).

8

Canadian Sentencing Commission, op cit, p115.

9

Judicial involvement is a constitutional requisite: Deaton v AG [1963] IR 170; see Chap 3, infra. (Formulation of Sentencing Policy).



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the information or charge.”10

1.8

This type of formulation is also to be preferred at an early stage of discussion because it avoids reference to “punishment”. The notion of punishment implies, as we shall see, a certain ideological approach to the question of sentencing: i.e. retribution. Another approach, that of rehabilitation, prefers to view the imposition of legal sanction not as punishment, but as treatment. Later, we shall examine the merits of these differing views,11 but for the present it may be of some assistance to discussion if we do not commit ourselves to any one ideological approach.

1.9

Also, by avoiding reference to punishment, it is easier to conceive of orders, such as indefinite adjournment and absolute discharge, as forming part of the sentencing process12– even though they may not impose such a measure of pain as to properly be described as punishment in the ordinary sense.

1.10

We prefer to describe sentencing, therefore, as the judicial determination of the sanction, if any, to be imposed on a person found guilty of an offence.

B. THE SENTENCING HEARING

1.11

The sentencing hearing may begin once there has been a plea or a finding of guilt. The proceedings may have taken a number of courses prior to this: the defendant may have pleaded not guilty at the trial but subsequently have been found to be guilty by the judge or jury; or may have changed his or her plea to guilty during the course of the trial; or he or she may have pleaded guilty at the outset. The court may then proceed to sentence, or it may adjourn for the compilation of reports and to allow the parties to call witnesses to the court. If the plea or finding of guilt was made in the District Court, the District Judge may have sent the offender forward to the Circuit Court for sentencing in order to avail of that court's wider jurisdiction.

1.12

We now examine the procedures which may be implemented in the course of the sentencing hearing. It should be observed that not all sentencing hearings will follow this pattern, since neither the rules of court, legislation nor judicial precedent set out a course of procedure to be followed at every sentencing hearing. Indeed, in some cases, particularly at District Court level, it is difficult to distinguish the sentencing hearing from the determination of the substantive issue of guilt since the District Judge may decide the sentence to be imposed on the evidence adduced during the course of the trial. Nonetheless, practice has over the years established a pattern of procedure which is generally followed at sentencing hearings in the superior courts.


10

The District Court is empowered to do this under s 1 (1) of the Probation of Offenders Act, 1907, when it appears to the Court that it is “inexpedient to inflict any punishment”.

11

See Ch 4, infra. (A Coherent Sentencing Policy).

12

See para 1.99, infra. (Adjournment Sine Die).



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(i) Outline of the Offence

1.13

It is normally the prosecution which opens the sentencing hearing by presenting the facts of the offence to the court. When an offender pleads guilty to the charge at an early stage of the trial, the court may know little about the circumstances of the offending behaviour. Similarly, if the offender has been sent forward to the Circuit Court by the District Court for sentencing, the Circuit Court Judge will know little about the case. Occasionally, in District Court sentencing hearings, the District Judge may have learnt many of the details during the course of a preliminary examination, particularly if there has been some question as to whether or not the offence was minor in nature and fit to be tried summarily, and, thus, may feel that it is unnecessary to rehear all the circumstances of the offence.

1.14

The prosecution will explain to the court what the case involves by summarising the evidence which has been heard during the trial, or, if the offender has pleaded guilty, the evidence which the prosecution would have presented at the trial – normally starting with the circumstances of the crime and finishing with the offender's apprehension and charge. It is usual for the prosecution to call a Garda witness to give sworn testimony as to these matters.

On a Plea of Guilty

1.15

If the defendant pleads guilty but disputes the prosecution's version of the facts, the defence may either contact the prosecution prior to the hearing to see if they are prepared to modify their version of the facts, or, if the prosecution is not prepared to do so, the defence may address the court on the facts in dispute. There is no clear authority as to how the court should resolve such a conflict, but it seems from English decisions that the court will not order a trial on a verdict of not guilty simply to enable the sentencer determine a question of fact which does not affect the outcome of the trial itself.13 There is also some English authority to the effect that the sentencing court may either hear evidence and come to a conclusion on the matter14 (both sides calling witnesses and cross examining them in the usual way, if appropriate15), or hear no evidence, but listen instead to the submissions of counsel and come to a conclusion.16 If the latter course is followed, the benefit of any doubt must be given to the defence.17

The Standard of Proof

1.16

There is no established rule as to the standard of proof which should be attained by the prosecution and defence at the outline stage. In England,


13

Rv Milligan (1982) 4 Cr App R (S) 2; Rv Newton (1982) 4 Cr App R (S) 388, [1983] Crim L R 198, disapproving R v Taggart (1979) 1 Cr App R (S) 144.

14

R v Newton, supra; also R v Gravell [1978] Crim L R 438; R v Gortat and Pirog [1973] Crim L R 648; R v Ball [1983] Crim L R 198 and R v Parker [1984] Crim L R 763.

15

R v McGrath and Casey (1983) 5 Cr App R (S) 460.

16

R v Newton, supra n. 14.

17

R v Gortat and Pirog, supra n. 15.



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however, if the sentencing court chooses to hear evidence from both sides, the usual standard of proof in criminal trials is applied (i.e. beyond any reasonable doubt),18 but this carries only the weight of English precedent and there seems to be no Irish authority on the matter. The usual requirements as to corroboration should also be applied, although this may have the peculiar consequence of the trial judge issuing a corroboration warning to himself.19

On a Plea of Not Guilty

1.17

Where an offender pleads not guilty, the court will usually have received evidence on all the germane facts during the course of the trial. The judge must make his own decision as to what were the true circumstances of the case. Where the defendant has been found guilty by a jury and the factual basis for the verdict is implicit in that verdict, it seems that the sentencer is bound to accept this and sentence accordingly.20 A dispute as to the facts may still arise, however. For example, if the finding of guilt results from a jury verdict, the basis of the verdict may remain unclear. Similarly, if the sentencing hearing is taking place in the Circuit Court following a finding of guilt in the District Court, the basis of the District Judge's verdict may remain unclear. Again, the task of the sentencing judge is to make his or her own decision on the evidence as to what were the true circumstances of the case,21 and, seemingly, giving the offender the benefit of the doubt where any doubt lies.22

1.18

It is not normal practice for the sentencing judge to question the jury so as to clarify the basis upon which it arrived at its verdict, although some older authority exists for doing so in murder trials where a verdict of guilty of manslaughter is returned without the factual basis of the verdict being made apparent.23 In R v Solomon and Triumph,24 the extent to which it is permissible or desirable for a sentencer to question a jury about the basis on which it arrived at a particular verdict was considered. Beldam J concluded that it is generally undesirable to ask a jury to explain an otherwise ambiguous verdict,25 since the jury may not have been unanimous on the basis for the particular verdict although in agreement on the general verdict.26 A “sensible precaution”,27 however, where the trial is on a charge of murder, is for the trial judge to follow the procedure used in R v Frankum.28 In that case the jury was directed, (prior to reaching its verdict), that if it found the appellant guilty of manslaughter instead of murder, it would be asked to indicate whether the abnormality arose as a result of inherent causes or as the result of the effects of drugs, or both; if the diminished responsibility arose from the effects of a drug


18

R v McGrath and Casey, supra n.16.

19

R v Gortat and Pirog, supra n.15.

20

R v Boyer (1981) 3 Cr App R (S) 35.

21

Archbold, Criminal Pleadings, Evidence and Practice, (43 ed, 1988) p622.

22

See R v Stosiek (1982) 4 Cr App R (S) 205.

23

R v Doherty (1887) 16 Cox CC 306.

24

(1984) 6 Cr App R (S) 120.

25

See also R v Stosiek (1982) 4 Cr App R (S) 205.

26

See R v Larkin [1943] KB 174.

27

According to the Court of Appeal in R v Frankum, (1983) 5 Cr App R (S) 259.

28

Ibid.



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then imprisonment would probably not be appropriate. The jury returned a verdict of guilty of manslaughter on the grounds of diminished responsibility arising out of inherent causes. The defendant was sentenced to life imprisonment, and on appeal tendered medical evidence which tended to support the claim that it was the effects of a drug which caused the abnormality. The Court of Appeal held, however, that the fresh evidence did not justify the court in reaching a conclusion different to that of the jury.

(ii) The Offender's Antecedents and Character

1.19

The prosecution will then present to the court evidence of the offender's antecedents (criminal record) and character.29. It is normal practice for the prosecution to call a witness, usually a Garda officer, to given sworn evidence of the offender's age, domestic and family circumstances, education, employment, previous convictions, date of arrest, and whether he or she has been on bail.

Antecedents

1.20

Where previous convictions are to be relied upon they must be either:


(a)


proved in lawful evidence, or


(b)


expressly admitted to by the accused.30

In respect of each and every alleged conviction, the offender should have been given an opportunity of admitting or denying it before putting the information to the court.31 In respect of any conviction disputed by the offender, proper evidence – such as the court order of the previous conviction – would be required to be presented to the court, and the defendant allowed an opportunity to controvert that evidence.32 Hearsay evidence, such as a copy of the Garda criminal history record, would not be sufficient to prove convictions in dispute.33 In respect of convictions not in dispute, however, a copy of the Garda record will suffice.34

Character

1.21

There is no hard and fast rule as to what constitutes evidence of character at the sentencing stage, but generally included are personal details such as age, family background, education and work record, and other details such as income and personal situation since arrest, including whether or not the offender was on bail or in custody.


29

The State (Stanbridge) v Mahon [1979] IR 214; R v Ball (1951) 35 Cr App R 164.

30

Ibid, p219; R v Turner (1924) 18 Cr App R 161.

31

Ibid. A photocopy of the Garda record is a convenient method of presenting the information personally to the convicted offender.

32

Ibid.

33

Ibid.

34

Ibid; R v Marquis (1951) 35 Cr App R 33.



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1.22

The rules of evidence are relaxed in relation to character evidence, so that hearsay evidence may be relied upon. In The State (Stanbridge) v Mahon35 Gannon J quoted from a judgment of the English Court of Criminal Appeal delivered by Goddard LCJ in R v Marquis:36

“The other thing to which I desire to call attention is that the learned Recorder seems to have had some doubt whether he could accept what he called 'hearsay evidence' of character after conviction ... It would be a very unfortunate thing if evidence of that kind could not be given, because it would prevent evidence from being given in favour of the prisoner, and would prevent a police officer from saying: 'I have made inquiries of the prisoner's employer, he works well and his character is good'. After conviction, any information which can be put before the Court can be put before it in any manner which the Court will accept.”

1.23

It is generally accepted that the role of the prosecution in sentencing is to provide the court with information – not to seek to influence the court's sentencing decision in any way.37 However, a problem which may occur when evidence of antecedents is being given by prosecution counsel or a Garda officer is that damaging general remarks about the defendant's character, which are not capable of substantiation, are made, having the effect of damning the offender in the eyes of the court. For example, the officer may state that the defendant “associates with known criminals“ or is “known to the police” (i.e. he has often been in trouble with the police) or even that “there is a lot of this type of crime in the locality.“ These types of remarks can be seen as attempts by the prosecution to influence the decisions of the sentencing court.

1.24

English precedent may again prove persuasive here. In R v Van Pelz, evidence was given that the appellant was a prostitute who was “an adventuress ... a very dangerous woman ... completely unscrupulous.” Caldecote CJ held that “a police witness should not be allowed to make allegations which are incapable of proof and which he has reason to think will be denied by the prisoner.”38 The present English rule is that witnesses should confine themselves to the details of the antecedents, and any adverse comments should be contained in the antecedents form.39 Any such adverse evidence should not be given as part of the antecedents “unless it is first hand information about which the officer giving the information can be questioned.”40 There is no Irish authority on the matter.


35

[1979] IR 214.

36

(1951) 35 Cr App R 33.

37

See for example Rule 9.20 of the Code of Conduct for the Bar of Ireland:

“Prosecuting Counsel should not attempt by advocacy to influence the court in regard to sentence. If however an accused person is unrepresented it is proper for prosecuting Counsel to inform the Court of any mitigating circumstances as to which he is instructed”.

38

See also R v Wilkins (1977) 66 Cr App R 49: associates with “a notorious Soho gangster” and “a violent criminal.”

39

Practice Direction [1966] 2 All ER 922.

40

Ibid. Such evidence must be sufficiently particularised for the defence to be able to cross examine on it and specifically rebut it: R v Wilkins (1977) 66 Cr App R 49; R v Robinson (1969) 53 Cr App R 314.



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(iii) Reports

1.25

At this stage of the hearing, the court will consider any reports which it has requested or ordered. These will have taken time to prepare, so an adjournment will invariably have been required for this purpose.

(a) The social inquiry (presentence) report

1.26

The social inquiry report is prepared by the Probation and Welfare Service. If the offender is already on probation, it is likely that his supervising officer will prepare the report – if not, the offender will be assigned an officer to interview him and make appropriate inquiries into the offender's domestic situation and social background. As well as outlining the offender's attitudes and responses to the offence, the report evaluates how further crime may be avoided and what services and forms of intervention can be utilised towards this end. Following this analysis, a supervision programme may be proposed (if considered feasible) which will both continuously monitor the behaviour of the offender and involve him or her in a constructive use of time through availing of community resources. Recommendations can then be made to the court concerning what type of supervision would underpin such a programme as well as the terms and conditions of sentence that would be appropriate in the particular case.41 The Probation officer's recommendations will be based on his or her assessment of the offender's likely reaction to a particular sentence. The court, however, is not bound to accept the officer's recommendations as it will have other factors to take into account, such as the public interest.42

1.27

There is only one situation in which such a report is a prerequisite, that is prior to the making of a community service order.43 However there are certain types of order, such as adjourned supervision,44 or orders under s28 of the Misuse of Drugs Act, 1977,45 which cannot be made without consultation with the Probation and Welfare Service – in effect requiring a social inquiry report.

1.28

The social inquiry report is accorded some degree of confidentiality in that it is not read aloud in court. However, whereas in England the prosecution is never allowed to see the contents of the report, in Ireland it is not uncommon for the prosecution to be given a copy of the report to peruse.46 The defence will, of course, be given a copy to read, and will have opportunity to question the probation officer in court if any matter contained in the report requires clarification, or if a dispute arises.47 Of necessity, this requires that the report


41

Report on the Probation and Welfare Service, 1988 (PL 6843), p2.

42

For a brief summary of the criticisms made by the English Court of Appeal of probation officers making unrealistic recommendations without recognising this difference in perspective see Boyle and Allen, Sentencing Law and Practice, (1985), p238.

43

Criminal Justice (Community Service) Act, 1983, s4(1)(a); see para 1.108, infra. (Community Service).

44

See para 1.128, Infra. (Adjourned Supervision).

45

See para 1.111, infra. (Medical Treatment or Therapy).

46

Which they may even keep on file for future occasions.

47

R v Kirkham [1968] Crim L R 210.



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be presented to the judge in open court in the presence of the accused.48

(b) Medical reports

1.29

If the court is of the opinion that an inquiry ought to be made into the physical or mental condition of the offender then it may adjourn49 to enable a medical examination and report to be made.

1.30

It used to be that such reports had to be furnished in respect of all offenders under certain sections of the Misuse of Drugs Act, 1977,50 but this is no longer the case.51 However, the extended sentencing powers52 under that Act are only exercisable upon consideration of a medical report and social inquiry report, so a medical report will be required if the court considers that one of these extended penalties is viable option. The reports will be prepared by “a health board, Probation and Welfare officer or other body or person, considered by the court to be appropriate.”53

(c) Reports of prison officers, and community service reports

1.31

If the defendant has served a custodial sentence, a report from that institution will be available to the court. Likewise, if the defendant has served a term of community service, the court may request a report from the Probation and Welfare officer responsible for the supervision of the particular scheme. Such reports will outline how the defendant responded to the particular regime, if he failed to respond, or if any problems arose. Very often these reports will already have been used by the probation officer when preparing a social inquiry report.

(iv) Plea in Mitigation

1.32

The prosecution having outlined the facts of the offending behaviour and the character and circumstances of the accused, and all disputes in relation to the foregoing having been made known to the court, the defence now has a duty to address the court by way of a plea in mitigation. Despite the reference to 'mitigation' in the name of the plea, the defence, in making the plea, is not limited to factors relevant solely to the mitigation decision,54 and may raise matters relevant to the decision as to which approach the court should adopt in determining sentence.55


48

See The People (DPP) v John McGinley 3 Frewen 251.

49

The period of remand of an offender for the purposes of s28 of the Misuse of Drugs Act, 1977 shall not exceed eight days if he or she is kept in custody; id s28(1)(a).

50

See Charleton, Controlled Drugs and the Criminal Law, (1986) p 150.

51

Ibid; Misuse of Drugs Act, 1984 (Commencement) Order, 1984, (SI No 205 of 1984).

52

See para 1.111, infra. (Medical Treatment).

53

S28(1) Misuse of Drugs Act, 1977.

54

See para 1.71 et seq, infra. (The Mitigation Decision).

55

i.e. whether the sentence should reflect a rehabilitative, retributive, or deterrent approach; see para 1.45 et seq, infra. (The Choice of Approach).



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1.33

There is no defined or exclusive list of matters which are relevant to the mitigation decision, or to the sentencer's choice of approach for determining sentence (an infinite variety is thought to exist56). Thus, the defence will be left to rely on its own ingenuity and experience when deciding what factors to raise during the plea in mitigation. It is far from unlikely that the defence will from time to time overlook a factor which the trial judge would have found persuasive; or, alternatively, that the defence will burden the court with a large range of factors, only some of which in the event will prove to be relevant. It appears, however, that the sentencing judge should permit the defence an opportunity to do so,57 listening patiently and not interrupting, even if the defence has earlier put forward a lying defence.58

1.34

Boyle and Allen give the following list of factors commonly raised by the defence during the plea in mitigation:59


(1)


Those circumstances of the offence of a mitigating nature such as the impulsive nature of the offence, the presence of provocation, the fact that the defendant was led into trouble by older and more experienced offenders, the fact that he or she was entrapped, or the limited role he or she played in the commission of the offence.


(2)


Those circumstances subsequent to the offence which indicate contrition, such as the fact that the defendant made a full and frank confession to the police, his or her co-operation with the police, or the fact that he or she has made restitution to the victim. If the police officers in charge of the case can be called to give evidence on these points this will strengthen the effect of the plea.


(3)


Those factors in his or her personal life, character and conduct which indicate an ability to reform, such as the fact that this is his or her first offence, or that he or she has kept out of trouble for a substantial period since his or her last conviction, that he or she has been in regular employment or has obtained employment since committing the offence, that he or she has a stable home and family background. If imprisonment might have an adverse effect on his or her health or family, this should also be mentioned. If possible, character witnesses should be called to add substance to these factors.

1.35

Where appropriate, the offender may be called to the stand to give evidence, particularly if his or her bearing, personality and desire for reform are likely to impress the court. It is clear that the likelihood of reform is not a factor relevant to mitigation; but it is of crucial importance in determining the correct


56

See the remarks of Finlay CJ in The People (DPP) v Tiernan [1988] IR 250; and para 5.51 et seq, infra (Factors which Mitigate Offence Seriousness).

57

The People (AG) v Kearns [1949] IR 385.

58

Rv Jones [1980] Crim L R 58.

59

Boyle and Allen, Sentencing Law and Practice, p243.



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approach to adopt when sentencing. In The People (DPP) v Conroy (No 2)60 Finlay CJ said of the likelihood of reform:

“Such evidence could never be in mitigation of the crime but could be a ground for supposing that there was a reasonable chance that he could be rehabilitated provided he was induced by the length of his sentence to have an expectation of eventually returning to ordinary society.”61

1.36

The defence may present, if appropriate, character evidence as part of the plea in mitigation, and may call character witnesses such as the local priest, youth club leader, school teacher, or employer (particularly if the employer is willing to keep the offender in his or her employ).

(v) Bringing Other Offences into Consideration

1.37

At this stage, the defence may also wish to have other charges taken into consideration to which the offender has pleaded guilty. The Court may then take them into consideration at its discretion.62

C: THE SENTENCING DECISION

1.38

The sentencing decision is essentially a matter for the judge, not for the jury, and while it is permissible for the jury to offer a rider to its verdict, such as a recommendation that mercy be shown, the judge is in no way bound by it.63

1.39

As to the procedure to be followed at the sentencing hearing, there is little in the way of legislative or judicial ruling on the decisions which must be made by the sentencing judge.64 Cryptic guidance is to be found, however, in various judicial pronouncements to the effect that the sentence to be imposed must not only be appropriate to the particular circumstances of each case, but also to the particular offender.65

1.40

Of course, it is not possible to say with precision what goes on in the mind of every sentencer when choosing a sentence appropriate to the characteristics of both the particular offender and offence. The judicial reluctance to state reasons for choice of sentence does not help us in our analysis.66 However it is possible to identify some of the various decisions which may be made by sentencers in coming to a final conclusion. Thus, during the 1970s in England, Thomas was able to construct a three stage decision model generally followed by the English Court of Appeal and the lower courts in


60

[1989] IR 160.

61

Ibid, p165.

62

See para 1.120 et seq, infra. (Other Offences taken into Consideration).

63

Ryan and Magee, The Irish Criminal Process, (1983), p391.

64

Section 5 of the Criminal Justice Bill, 1992, recently initiated, provides for the Court's taking into account, in determining sentence, the effect of sexual offences or offences of violence on the victim, see para 2.22, infra. (Victims).

65

See for example The People (AG) v Poyning [1972] IR 402; The State (Healy) v Donoghue [1976] IR 325.

66

See para 1.145, infra. (Reasons) and Ch 13, infra. (Reasons for Sentence).



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determining sentence.67 Thomas's analysis was accepted by the English courts as being accurate, and in the twenty one years that have followed, has been accepted as an authority on the matter. Our examination of Irish sentencing decisions suggests that Irish sentencers follow a broadly similar pattern in making their decisions. The Irish pattern may be outlined as follows:


(I)


Factual Basis:

The sentencer determines the correct factual basis upon which to base his sentencing decision.


(II)


The Appropriate Sentence:


(a)


The sentencer decides on the correct approach to adopt, having regard to the particular circumstances of both the offender and the offence.


(b)


The sentencer then chooses the particular sentence by reference to the approach adopted in (ii)(a) above.


(III)


Mitigation:



The sentencer may take mitigating factors into account in reducing sentence below the level chosen in (ii)(b) above.

(I) Determining the Factual Basis

1.41

The first task of the sentencing judge is to determine the factual basis of the offence upon which to assess the appropriate sentence. A principle of fundamental importance in determining the factual basis upon which to assess the appropriate sentence is expressed in the ancient maxim nulla poena sine lege, i.e. no one is to be punished on a charge for which they have not been tried and found guilty. In The People (Attorney General) v O'Callaghan,68 Walsh J gave this the weight of a constitutional prescript:

“In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted.”69

1.42

Thus, the sentencing judge must sentence only on the facts supporting the offence in hand, and must ignore any other evidence which would tend to


67

Thomas, Principles of Sentencing, (2 ed, 1979).

68

[1966] IR 501. See also The People (AG) v Edge [1943] IR 115; King v AG [1981] IR 233.

69

The requirement of conviction here might be thought to cast some doubt on the constitutionality of sentencing options which may be imposed merely upon proof of guilt but without conviction, such as those available to the District Court under s1(1) of the Probation of Offenders Act, 1907. However, if Walsh J's reference to conviction is taken to mean that the offender has been tried and found guilty in due course of law (as the Constitution, Article 40.4.1, puts it: see also the judgment of Gavan Duffy J in The State (Burke) v Lennon [1940] IR 136) then these doubts are unfounded.



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support the commission of other or more severe offences. English case law has recently produced a number of subsidiary principles based on the principle of nulla poena which, because they share the same foundation, may be considered a fortiori declaratory of Irish law. They can be summarised as follows:


(a)


The sentencer must not impose sentence on the basis of an opinion that the offender is actually guilty of offences with which he or she has not been charged. In The People (DPP) v O'Leary70 the applicant was convicted in the Special Criminal Court on two charges relating to membership of an unlawful organisation and possession of incriminating documents. In the course of sentencing the applicant on the first count, the Special Criminal Court stated:



“The Court also accepts the evidence of Inspector Brennan that the accused was disseminating such posters to young people as part of a campaign on his part – as part of a campaign conducted by him to recruit new young members for the Irish Republican Army. The Court must regard such conduct as being most reprehensible and grievously wrong.”

In fact, dissemination of such posters amounts to a separate offence, with which the applicant had not been charged. McCarthy J, in reducing sentence from 5 to 4 years imprisonment, said:



“The Court should not have been influenced, as it clearly was, by an allegation of wrongdoing with which the applicant was never charged or convicted. The Court therefore erred in principle.”71


(b)


Where an offender has been tried and acquitted on some counts but convicted on others, the evidence of the charges of which he or she was acquitted must be disregarded. In R v Ajit Singh72 the appellant was convicted of unlawful wounding although acquitted of wounding with intent to do grievous bodily harm, despite evidence that he had attacked a workmate, stabbing him several times with a kitchen knife and causing a deep cut to one eye. The trial judge sentenced him on the basis that he had wounded with intent to do grievous bodily harm. The Court of Appeal reduced the sentence saying:



“One had to look at it from the point of view that one was punishing an unpremeditated unlawful wounding, somewhat artificial in this case, but that was the approach that had to be


70

3 Frewen 163.

71

See also R v Connor (1981) 3 Cr App R (S) 225.

72

[1981] Crim L R 724, (1981) 3 Cr App R (S) 180.



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made.”73


(c)


Where an offender pleads guilty to some of the counts, but not to others, he or she must be sentenced only on the charges to which he has pleaded guilty. Unless, of course, he or she is tried and convicted on the other counts. In R v Clutterham74 the appellant pleaded guilty to assault occasioning actual bodily harm, but not to possession of an offensive weapon. His pleas were accepted, but in sentencing him, the trial judge referred to the alleged possession of an offensive weapon. The Court of Appeal reduced the sentence, saying:



“It seemed to us from what the recorder said when sentencing that he failed to eliminate from his mind the second incident which he plainly should have done.”75


(d)


Where an offender pleads guilty to a lesser offence not charged he or she must not be sentenced on the charge to which he or she pleaded not guilty. Unless again, of course, he or she has been tried and convicted on that charge. In R v Rogina76 the appellant pleaded not guilty to a single count of incest with his daughter, but guilty to indecent assault which did not appear on the indictment. The Court of Appeal reduced the sentence saying that it was important:



“not to sentence or appear to sentence for incest when in fact the offence with which we are dealing is the lesser one of indecent assault.”77

(II) Choosing the Appropriate Penalty

1.43

The second task of the sentencing judge is to choose the appropriate penalty based on the facts of the case. It is rare that the sentence for an offence is fixed by law.78 The sentencer must, thus, be aware of his or her sentencing options and any legal restrictions which apply to them, such as the statutory maxima which govern the sentence for that particular offence, the limits on the jurisdiction of his or her court, or the separate provisions for young offenders or drug abusers.79 But within this framework there is a considerable degree of discretion for sentencers in choosing sentence in individual cases.

1.44

Making this choice is a two stage process. The first stage involves


73

Ibid. See also R v Hudson (1979) 1 Cr App R (S) 130; R v Hazelwood (1984) 6 Cr App R (S) 52; R v Worsfold, unreported, April 29 1975 (See Thomas, Encyclopedia of Current Sentencing Practice, (loose leaf service), L2, (b)).

74

(1982) 4 Cr App R (S) 40.

75

Ibid. See also R v Booker (1982) 4 Cr App R (S) 53; R v Ayensu and Ayensu (1982) 4 Cr App R (S) 248; R v Johnson (1984) 6 Cr App R (S); R v Fisher (1981) 3 Cr App R (S) 313.

76

(1977) Cr App R 79.

77

Ibid. See also R v Fisher (1981) 3 Cr App R (S) 313.

78

See The People (DPP) v Gray [1987] ILRM 4, and para 1.132, infra. (Mandatory Sentences).

79

See para 1.77, infra. (The Range of Choice).



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choosing the correct principle or approach to adopt in the instant case according to the particular characteristics of the offender and offence. This is decided by reference to the traditional “objects” or purposes of sentencing.80 The second stage then involves choosing the particular penalty or measure appropriate to the offender by reference to the approach adopted in the first stage.

(a) The Choice of Approach

1.45

The primary decision the sentencer has to make is to choose which approach to adopt in sentencing the particular offender. Traditionally, there have been four approaches to the sentencing of offenders, corresponding to the four traditional “objects” or purposes of sentencing, namely retribution, rehabilitation, deterrence or incapacitation, i.e. the offender should be punished for crime; the offender should be given an opportunity to mend his or her ways; the offender and others should be deterred from committing similar crimes in the future; and the offender should, if necessary, be prevented from repeating his or her crime.81 Of these four, only the first three have been expressly favoured by the Irish courts. In The State (Stanbridge) v Mahon82 Gannon J said:

“The first consideration in determining sentence is the public interest, which is served not merely by punishing the offender and showing a deterrent to others but also by affording a compelling inducement and an opportunity to the offender to reform.”

1.46

Thus the sentencing judge must decide whether to impose a sentence of sufficient severity to punish the offender, or of such severity so as to deter the offender and others from committing similar offences in the future, or, alternatively, to choose an “individualised” measure, i.e. a sentence based not on the severity of the offending behaviour but on the individual needs of the offender; i.e. a sentence likely to reform the offender.

Incoherent policy

1.47

There is no clear legislative or judicial policy which governs how the sentencing judge will decide which approach to adopt. The decision represents what the Victorian Court of Criminal Appeal described as an “instinctive synthesis”83 of all the various aspects of the offending behaviour and the circumstances of the offender.

1.48

This lack of coherent policy has a perplexing consequence for the sentencing judge. The problem is that there are a number of competing objects which are used to determine the sentence which may be imposed, and these approaches frequently conflict. For example, a sentencing judge when faced with


80

See paras 1.45, Infra. (The Choice of Approach) and Ch 4 Infra. (Objects/Distribution).

81

Ryan and Magee, The Irish Criminal Process, p391.

82

[1979] IR 214.

83

R v Williscroft [1975] VR 292.



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a young addict who is caught peddling drugs to feed his or her habit might rationally decide to impose a lengthy prison sentence to deter, although the sentencer may as easily decide to impose a short sentence in the interests of rehabilitating the offender. Ultimately a choice has to be made to follow one object the expense of another, yet, when faced with conflicting principles, sentencers have no principle to guide them:

“Nothing tells us, however, when or whether any of these several goals are to be sought, or how to resolve such evident conflicts as that likely to arise in the effort to punish and rehabilitate all at once.”84

1.49

In this jurisdiction, Walsh J gave some general guidance to assist sentencers by favouring rehabilitation as the most positive aim. In The People (AG) v O'Driscoll, he said:

“The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him as far as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course.”85

1.50

However, even though it would seem from this that sentencers should generally favour a rehabilitative approach, it is not clear when such an approach would be inappropriate and a different approach more appropriate. Some small amount of guidance may be divined from decided cases, but, since the decision represents an “instinctive synthesis”, sentencers are by no means bound by decided examples, and are free to adopt any approach they wish.

A rehabilitative approach

1.51

In O'Driscoll, a rehabilitative approach was appropriate where the offence was the offenders' first crime of violence. Recently, in The People (DPP) v Conroy (No 2)86 a rehabilitative approach was found to be appropriate where the high standard of behaviour on the part of the appellant while on remand in custody could be a ground for supposing that there was a reasonable chance of reform.

1.52

One's bearing in court may be accepted as an important indicator as to the likelihood of reform.87 However a rehabilitative approach may not be appropriate where the offender has not availed of an opportunity to reform under a prior sentence, e.g. where he or she has committed a further offence while on probation.88


84

Frankel, Lawlessness in Sentencing (1972) 41 U Cincinnati LR 1, p4.

85

1 Frewen, 351, 359, (1972).

86

[1989] IR 160.

87

The People (AG) v Poyning [1972] IR 402.

88

The People (AG) v Buckley, 1 Frewen 190.



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1.53

Also, as Finlay CJ noted in The People (DPP) v Tiernan:

“an admission of guilt may, depending upon the circumstances under which it is made and the extent of the evidence apparent to an accused person as being available against him, also be taken in some circumstances as an indication of remorse and therefore as a ground for a judge imposing sentence to have some expectation that if restored to society, even after a lengthy sentence, that the accused may possibly be rehabilitated into it.”89

1.54

Rehabilitative considerations commonly lead the sentencer to impose a reduced sentence. However, since a rehabilitative approach involves an attempt by the sentencer to find a sentence which is most likely to induce reform, a rehabilitative sentence may sometimes appear to be more severe than a sentence imposed following some other approach. In J v District Justice Sean Delap90 the applicant was applying to the High Court for judicial review of a sentence of detention in a reformatory school for a term in excess of three years in length. The District Justice who tried the case had done so upon summary conviction of the applicant, i.e. for a minor offence; despite the fact that the Supreme Court had previously held that an offence carrying a sentence of three years detention in St Patrick's Institution (which is not a reformatory school) could never be considered minor nor tried summarily.91 Barr J in the High Court held, however, that since the object of a period of detention in reformatory school was the rehabilitation of the offender, and not the punishment of the offender, the offence was legitimately tried summarily as a minor offence. He said:

“An obligation to remain at a place for the education and training of young offenders does not, in my view, convert a school into a penal institution analogous to a prison, nor ought the period of education and training which a young offender spends there be regarded as a period of imprisonment in the penal sense of that term. I accept that such detention has in it an element of punishment, but its primary purpose is educational and, most importantly, the period of detention is in the main related to the function of the school as a place of instruction and correction. The duration of a prison sentence on the other hand is primarily related to the gravity of the offence which gave rise to it and the character of the convict.”92

A deterrent approach

1.55

For some offences, a deterrent sentence may be more appropriate; in


89

[1988] IR 250, p255.

90

[1989] IR 167.

91

The State (Sheerin) v Kennedy [1966] IR 379.

92

[1989] IR 167, p170. Emphasis added.



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The People (DPP) v Preston93 it was recognised that it is important in sentencing under the Misuse of Drugs Acts that penalties of a deterrent nature be imposed to display society's revulsion at drug abuse and drug trafficking. Similar considerations apply to offences of possession of controlled substances.94 It is clear that public opinion has a large role to play in the decision to impose a deterrent sentence. In The People (AG) v Buckley95 Maguire CJ said of the offences of house breaking, larceny and malicious damage:

“There is much disturbance in the public mind at present about such offences and I would not like it to be thought that this court would deal leniently with them.”

A retributive approach

1.56

Where the offender shows no likelihood of reform, and a deterrent sentence is not appropriate, the correct approach may be to impose on the offender “a sentence appropriate to his degree of guilt,”96 in other words, a sentence which is proportionate to the seriousness of the offending behaviour by reference to the retributive principle of desert– the offender gets the sentence he or she deserves.97 In The People (AG) v Giles,98 the appellant was sentenced to six years imprisonment for conspiracy to rob. The Supreme Court held that despite the rule of general practice not to award a period of imprisonment greater than the substantive offence would carry if the accused had been convicted of that, a retributive sentence was appropriate, Walsh J saying:

“In my view the sentence imposed by the learned trial judge in the present case was a very proper one, having regard to the seriousness of the offence, and was a lawful sentence.”99

Differing principles

1.57

Having adopted the most suitable approach with regard to the circumstances of the offence and the characteristics of the offender, the sentencer will apply the principles appropriate to that approach to determine the precise penalty or measure which is to be imposed on the offender. As we shall see, only the most general body of such principles exists.100 However, it is clear that the general principles of each approach differ considerably, depending on the approach taken. For example, the application of retributive principles


93

Court of Criminal Appeal, unreported, 23 October 1984, ex tempore. See Charleton, Controlled Drugs and the Criminal Law, (1986) p149.

94

The People (DPP) v Moylan, Court of Criminal Appeal, unreported, 12 March 1984, ex tempore.

95

1 Frewen, 190.

96

Per Henchy J in The State (Healy) v Donoghue, [1976] IR 325, p353, supra.

97

See para 4.11, infra. (Retribution)

98

[1974] IR 422.

99

Ibid, p426. Emphasis added.

100

See para 1.62, infra. (The Choice of Penalty or Measure). Conversely, proportionality arguments of this type have been successfully relied upon in appeals against sentence, and sentences which were found to be too severe in proportion to the seriousness of the particular offence have been reduced; see The People (DPP) v Johnston 3 Frewen 276.



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requires the sentencer to find the sentence which most accurately reflects the offender's culpability.101 Mitigating circumstances may be taken into consideration in reducing the severity of such a sentence. Also, because the retributive approach relies heavily on the theory of desert, the sentence imposed should not be more severe than that which the offender deserves.102 On the other hand, rehabilitative principles require the sentencer to find the measure which will most likely induce the offender to reform.103 Thus, the gravity of the offending behaviour is irrelevant to such an approach, and the sentence will reflect an assessment of the probable future conduct of the offender and his likely response to various measures.104 Finally, deterrent sentences reflect neither the gravity of the offending behaviour nor the characteristics of the offender, but rather, they depend on an assessment of the likelihood of the offender and others committing further similar offences.105

1.58

It follows that a sentence which would be considered inappropriate as an application of the principles of one approach may be considered entirely correct when seen in terms of another approach. This is clearly illustrated in cases concerning co-accused, who although of equal complicity in the offending behaviour, receive significantly different sentences.

1.59

In The People (AG) v Poyning,106 the appellant was arraigned in the Circuit Court in Cork on a number of counts relating to an armed robbery. He pleaded guilty and was sentenced to four years penal servitude on the first count (armed robbery), 12 months imprisonment on the second (conspiracy) and to six months imprisonment on the fifth (taking a vehicle without authority); the prosecution having entered a nolle prosequi in respect of counts 3 and 4. Two other men, Motherway and Twomey, were also indicted but their trial was transferred to the Central Criminal Court where each pleaded guilty and was sentenced to six years penal servitude suspended upon each prisoner entering into a bond to keep the peace for five years, and each was then released. The appellant appealed to the Court of Criminal Appeal on the grounds that there was a gross inequality of treatment of himself as compared to the other two accused in a case in which the circumstances indicated that he was no more culpable than the other two and his previous record was no worse.

1.60

However, the Court of Criminal Appeal could not justify altering the sentences on those grounds; Walsh J said:

“When two persons are convicted together of a crime or of a series of crimes in which they have been acting in concert, it may be (and very often is) right to discriminate between the two and to be lenient to the one and not to the other. The background, antecedents and character


101

See para 4.11, infra. (Retribution).

102

Ibid.

103

See para 4.19, infra. (Rehabilitation).

104

Ibid.

105

See para 4.32, infra. (Deterrence).

106

[1972] IR 402.



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of the one and his whole bearing in court may indicate a chance of reform if leniency is extended; whereas it may seem that only a severe sentence is likely to serve the public interest in the case of the other, having regard both to the deterring effect and the inducement to turn from a criminal to an honest life. When two prisoners have been jointly indicted and convicted and one of them receives a light sentence, or none at all, it does not follow that a severe sentence on the other must be unjust. If in any particular case one of such joint accused has received too short a sentence, that is not per se a ground on which this court would necessarily interfere with the longer sentence. Of course, in any particular case the court must examine the disparity in sentences where, if all other things were equal, the sentences should be the same; it must examine whether the differentiation is justified. The court, in considering the principles which should inform a judge's mind when imposing sentence and having regard to the character and antecedents of the convicted persons, will seek to discover whether the discrimination was based on those differences.”107

1.61

The fallacy of this neat explanation of differing treatment of offenders is that there is no uniform set of principles or policies which the appellate court may refer to in considering the 'factors which should influence a judge's mind' when imposing sentence, having regard to the character and antecedents of the offender.108 Almost any approach may be justified by reference to some or other characteristic of the character and antecedents of the offender since there is no uniform consensus on the weight which should be given to one factor or the other. The problems of this incoherence, as we shall see109 are profound. Justice and equality of treatment require sentencers to adopt a uniform system for choosing the approach to be adopted,110 but such uniformity is sadly lacking in Irish sentencing practice. Thus reform of this area should strive to inject coherence and uniformity into choice of approach in sentencing.

(b) The Choice of Penalty or Measure

1.62

How the sentencer, having decided upon the correct approach to adopt in the particular circumstances, decides upon the appropriate penalty or measure to impose belongs to the realms of mystery. It is trite to say that the sentencer, following a retributive approach, will impose a sentence which punishes the offender; or, if a rehabilitative approach is adopted, that the sentencer will impose a sentence likely to induce reform. There is no formal 'scale' or 'tariff' of sentences from which a sentencer can choose the appropriate penalty or measure, although there is some evidence that sentencers occasionally construct


107

Ibid pp408, 409. This aspect of Poyning's case was recently applied by the Court of Criminal Appeal in The People (DPP) v Healy [1990] IR 388; and by the Supreme Court in The People (DPP) v Conroy (No 2) [1989] IR 160.

108

See Ryan and Magee, The Irish Criminal Process, op cit, p433.

109

See para 2.11, infra. (Problems with Incoherent Sentencing Policy).

110

See Thomas; Principles of Sentencing; Nadin-Davis, Sentencing in Canada (1982); and the Canadian Sentencing Commission, Sentencing: A Canadian Approach, (1987), p139.



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their own personal informal tariffs or 'rules of thumb'.111 What is unclear, therefore, is how the sentencer decides that a particular penalty or measure will achieve chosen objects.

1.63

One practice which is discernible, however, is that of sentencers considering those factors which aggravate or mitigate112 the seriousness of the offending behaviour. In finding a sentence which appropriately corresponds to the seriousness of the offence under consideration, it appears that the sentencer will, not uncommonly, begin by determining the sentence which is appropriate to the ordinary circumstances of that offence in general – e.g. if the offence is one of assault occasioning actual bodily harm, then the court may determine the sentence appropriate to an assault occasioning what it perceives as the ordinary or usual consequences of actual bodily harm committed with full intention to commit such harm. The courts have given on occasion some indication of the relative seriousness of various types of offence.113 Following this, the sentencer then considers those elements of the particular offence which aggravate or mitigate its seriousness in comparison to the usual offence: such as the extra harmful consequences (aggravating) or the recklessness, as opposed to specific intent, of the offender (mitigating). The sentencer then adjusts the sentence for the ordinary offence to suit the specific circumstances of the instant case.

1.64

A useful illustration of this practice in operation is to be found in the judgment of Finlay CJ in The People (DPP) v Tiernan.114 The appellant was one of three men who forcibly entered a car where the complainant was in the company of her boyfriend. They locked the boyfriend into the boot of the car; took the complainant to a nearby field where two of them raped her; and subjected her to other sexual assaults. The appellant was convicted and sentenced on a charge of rape, for which he received a twenty-one year sentence, and against which he appealed. In the course of his judgment, Finlay CJ followed the practice outlined above. He began by considering the nature of the crime of rape, its consequences, and the appropriate sentence for the commission of the offence without aggravating or mitigating factors: the bodily harm to the victim; the psychological, psychiatric and emotional distress which would ensue; the distortion of the victim's approach to her own sexuality; and the possibility of unwanted pregnancy. He concluded:

“All these features, which I mention in summary and not as an attempted comprehensive account of the character of rape, apply even when it is committed without any aggravating circumstance. They are of such a nature as to make the appropriate sentence for any such rape a


111

See the Irish Press of January 6, 1988, where a Dublin based District Judge announced (admittedly, perhaps facetiously) a New Year's resolution to impose three months extra imprisonment on any offender found to have committed the crime in question while drunk; O'Malley, Irish Sentencing Reform (1988) 6 ILTR 111, at p112–3.

112

“Mitigation” in this context is distinct from mitigation of sentence; see further para 1.71, infra. (The Mitigation Decision).

113

See e.g. The People (DPP) v Maguire & McDonagh 3 Frewen 265, p266, where Walsh J said of rape: “Next to murder, it is probably the most serious offence one could contemplate.”

114

[1988] IR 250.



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substantial immediate period of detention or imprisonment.”115

1.65

The learned Chief Justice then went on to consider those factors of the appellant's conduct which aggravated or mitigated the seriousness of the instant offence:

“Unfortunately, the facts of the rape to which this appellant has pleaded guilty contain very many aggravating circumstances. They are:–


(1)


It was a gang rape, having been carried out by three men.


(2)


The victim was raped on more than one occasion.


(3)


The rape was accompanied by acts of sexual perversion.


(4)


Violence was used on the victim in addition to the sexual acts committed against her.


(5)


The rape was performed by an act of abduction in that the victim was forcibly removed from a car where she was in company with her boyfriend, and her boyfriend was imprisoned by being forcibly detained in the boot of the car so as to prevent him from assisting her in defending herself.


(6)


It was established that as a consequence of the psychiatric trauma involved in the rape that the victim suffered from a serious nervous disorder which lasted for at least six months and rendered her for that period unfit for work.


(7)


The appellant had four previous convictions, being:-


(a)


for assault occasioning actual bodily harm,


(b)


for aggravated burglary associated with a wounding,


(c)


for gross indecency, and


(d)


for burglary.

Of this criminal record, particularly relevant as an aggravating circumstance to a conviction for rape are the crimes involving violence and the crime involving indecency.”116

He continued:

“The mitigating circumstances in rape are indeed limited.

The only single mitigating circumstance which arises in this case, I am satisfied, is the fact that when interviewed by the Garda Síochána the appellant immediately admitted his complicity in the crime and made a full statement. His attitude at that time was followed by a plea of guilty

I have no doubt, however, that in the case of rape an admission made at an early stage in the investigation of the crime which is followed by


115

Ibid, p253.

116

Ibid, p253–4.



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a plea of guilty can be a significant mitigating factor. I emphasise the admission of guilt at an early stage because if that is followed with a plea of guilty it necessarily makes it possible for the unfortunate victim to have early assurance that she will not be put through the additional suffering of having to describe in detail her rape and face the ordeal of cross-examination.”117

1.66

The Chief Justice then considered the sentence appropriate to the circumstances of the appellant's case. He concluded:

“I would have little hesitation in upholding a sentence of twenty-one years on the facts of this case had this appellant put the victim to trial and to the ordeal of giving evidence. When he did not, under circumstances from which it is possible to infer that he might have had some chance of escaping conviction for want of identification on a trial, it seems to me that the sentence is excessive.

In these circumstances I would allow this appeal on the basis that the appropriate sentence for the offence in this case is seventeen years' penal servitude.”118

1.67

What is clear, however, is that there is little in the way of legislative or judicial guidance to assist the sentencer in finding the appropriate sentence. As we shall see, the maximum penalties for most offences are far more severe than would be required in general,119 so they provide little practical guidance to the sentencer as to how serious an offence should be viewed when he is imposing a retributive sentence (i.e. a sentence proportionate to the seriousness of the offence). Yet maximum penalties are the only form of legislative guidance available to sentencers – there exist no statutory provisions which indicate how a suitable rehabilitative or deterrent sentence should be found. It has been observed that:

“The statutes granting such powers characteristically say nothing about the factors to be weighed in moving to either end of the spectrum or to some place between.”120

1.68

This predicament is exacerbated by the paucity of reported judicial decisions and precedents which are available in this area. But even decided examples are of little help. To begin with, the concurrent jurisdiction of sentencers in the same courts means that a sentencer is free to disregard the decisions of his or her colleagues. But furthermore, even decisions of superior courts must be treated with caution, for as Finlay CJ noted in The People (DPP) v Tiernan:


117

Ibid, p255.

118

Ibid, p256.

119

See para 10.12, infra. (Review of Maximum Penalties).

120

Frankel, Lawlessness in Sentencing, (1982) 41 U Cincinnati LR 1, p4.



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“having regard to the fundamental necessity for judges to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar) and the particular circumstances of the accused I doubt that it is appropriate for an appellate court to appear to be laying down any standardisation of tariff of penalty for cases.”121

Thus, the sentencer receives little guidance from examples of previous choices made by other sentencers.

1.69

The sentencer, when applying a rehabilitative approach, may receive some assistance from the reports of Probation and Welfare officers, who, from their experience, may be able to suggest a sentence likely to induce reform. However such advice will be of little relevance to a retributive or deterrent approach.

1.70

It is far from clear what principles govern the choice of particular penalty or measure. The decision represents another “instinctive synthesis”122 of the offence, the characteristics of the offender, and the past experience of the sentencing judge. Here too, then, reform should strive to introduce coherence and uniformity to the principles which govern the choice of penalty or measure.

(III) The Mitigation Decision

1.71

Mitigation refers to the process of making such allowance for mitigating factors as may be just by reducing the sentence level below the level appropriate to the facts of the particular offence committed by the offender.123 Mitigating factors are matters such as the character and history of the offender, the pressures which led to the commission of the offence and the consequences of conviction and sentence for the offender, rather than variations in the immediate circumstances of the offence, such as the value of the goods stolen, or the relationship between the offender and the victim.124

1.72

“Mitigation” in this context is to be distinguished from mitigation in the sense of making allowance for factors which reduce the seriousness of the offending behaviour125– the former we shall call mitigation of sentence, the latter mitigation of seriousness– although the end result of both is a reduction in the severity of sentence. Factors which mitigate seriousness are those elements of the offending behaviour which are thought to reduce the seriousness of the particular conduct below the ordinary level of seriousness for that offence – for example, the fact that the offender was less culpable because he was


121

Ibid, p254.

122

R v Williscroft [1975] VLR 292; see also para 1.45 et seq, supra. (The Choice of Approach).

123

Thomas, Principles of Sentencing, p194.

124

Ibid.

125

See para 1.62, supra. (Choice of Penalty or Measure).



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provoked;126 or the fact that the harm caused by the offender was less than the ordinary consequences of that offence.127 Factors which mitigate sentence, on the other hand, are those characteristics of the offender which are thought to reduce the severity of the sentence merited by that offender below the level of sentence merited by the particular offending conduct – for example, the fact that the offender has not exhausted all possible credit for previous good character;128 or the fact that the offender is a single parent and there is no other person to look after the child other than the offender.129 Factors which mitigate seriousness are, thus, not relevant to the determination of a rehabilitative sentence,130 which focuses on the likelihood of successful re-integration of the offender into society rather than on the circumstances of the offending conduct; conversely, factors which mitigate sentence are not strictly relevant to the determination of a retributive sentence which focuses on the seriousness of the offending behaviour rather than on the circumstances of the offender.131 The importance of this distinction will become clear later when we examine the merits of making one approach to sentencing paramount to the exclusion of the others: if, for example, a retributive approach is to be favoured in preference to a rehabilitative one, then there is a danger that some desirable factors which mitigate sentence might be excluded in the process.132

1.73

There is no exclusive list or defined principle determining the factors which are relevant to mitigation. An infinite variety appears to exist.133 Irish decisions do not generally make an express distinction between factors which mitigate seriousness and factors which mitigate sentence. Thus, in The People (DPP) v Maloney134 the Court of Criminal Appeal flatly rejected the argument that a plea of guilty by the accused automatically entitled him to a reduction in sentence on the grounds that the plea had been motivated by a hard headed tactical response to being apprehended “red-handed” rather than by a genuine feeling of remorse. Similarly, in The People (DPP) v Johnston,135 where the accused had denied complicity until told that a co-accused had implicated him whereupon he admitted guilt immediately, the Court of Criminal Appeal refused


126

R v Morris, Court of Appeal, 5th August 1974; see Thomas, Encyclopedia of Current Sentencing Practice, C3.2(a).

127

See Tiernan, supra, where an early admission of guilt followed by a plea of guilty was held to mitigate the seriousness of the offence because it diminished the ensuing harm to the victim of having to relate the circumstances of her rape and to face the ordeal of cross-examination.

128

The People (AG) v Robinson McClure [1945] IR 275.

129

R v Franklyn (1981) 3 Cr App R (S) 65.

130

Except in so far as they may indicate that the character of the offender is such that there is thought to be a high likelihood of successful re-integration into society.

131

Except in so far as they may indicate that the severity of the punishment chosen would be greater on the offender because of his or her circumstances than on another.

132

See Ch 5 (Aggravating and Mitigating Factors) and Ch 7 (Some Comparative Aspects of Sentencing Policy), infra, which examine how many jurisdictions which have adopted purely seriousness-based approaches to sentencing have concurrently and expressly retained factors which mitigate sentence (which are not strictly relevant to the assessment of seriousness) because they were thought to be nonetheless desirable.

133

An English empirical study of 100 cases comprising a mix of contested and guilty pleas in the magistrates' courts revealed more than 299 different mitigating factors mentioned in the sentencing speeches: Shapland, Between Conviction and Sentence, (1981). For examples of the wide range of mitigating factors accepted by the English Court of Appeal see Thomas's Encyclopedia of Current Sentencing Practice, chapter C.

134

3 Frewen 267.

135

3 Frewen 276. See also The People (DPP) v McDonagh 3 Frewen 265 in which Walsh J said: “The fact that they had either good advice or the good sense to plead guilty in these cases probably saved them six to seven years,”ibid at 266–267.



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to allow mitigation of sentence, stating that the plea was “a business-like and hard-headed assessment of the situation in which the applicant was” and was lacking in any sense of remorse. Decided examples of mitigating factors include an early admission of guilt in rape cases;136 being as helpful to the court as possible in cases of contempt;137 and evidence that the appearance of the girl led the offender to believe she was over seventeen years of age in cases of unlawful carnal knowledge of a girl under fifteen years of age.138 Also, in The People (DPP) v Maloney the court indicated that “co-operation by an accused or convicted person with the police authorities in finding other persons who are involved in the crime may be a ground, and often is a ground, for imposing a more lenient sentence than would otherwise be appropriate.”139

1.74

The practice of allowing a reduction in sentence on the basis that the offender shows a likelihood of successful integration into society must surely be flawed in this country. One imagines that a prisoner after 17 years of imprisonment has not got a much greater chance of re-integration into society than a prisoner who has served 21 yeas. In this context it is important to realise that imprisonment has very few, if any, positive effects,140 and that any significant sentence of imprisonment is almost certain to defeat the benefits which a reduction in sentence is thought to achieve. One may well ask if it is fair to allow a reduction at all if it rests on little more than a pious aspiration.141

1.75

It is not clear how the sentencer decides the particular amount by which to reduce sentence when mitigating factors exist. Thomas remarks that because mitigating factors rarely occur singly, and the weight of a combination of mitigating factors will usually be greater than the sum of their individual values considered separately, it is not possible to construct a negative tariff of mitigating factors showing that a particular factor will normally justify a reduction of a specified proportion of the notional level of sentence fixed by reference to the facts of the offence.142 All we can say, therefore, is that certain factors can be identified as mitigating factors likely to lead to some reduction in the overall severity of sentence.

1.76

A recent decision of the Central Criminal Court combined unusual examples of mitigating factors with sentencing specificity. Mr Justice Carney, imposing a sentence of three years penal servitude after a plea of guilty to incest, suspended two years of that sentence “to make (his) disapproval of specific features of the prosecution.” One year was suspended because, in the opinion of the judge, there was no evidential basis for the preferring of rape charges, which had earlier been dropped. The other year was suspended because the judge did not accept the explanation given by the DPP for a six month delay in


136

The People (DPP) v Tiernan [1988] IR 250.

137

In Re Kevin O'Kelly 1 Frewen 366.

138

The People (AG) v Kearns [1949] IR 385.

139

3 Frewen 267, per Finlay CJ at p269.

140

See Deprivation of Liberty para 1.80, infra.

141

See Chapter 4, infra. (A Coherent Sentencing Policy).

142

Thomas, Principles of Sentencing, p194.



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initiating charges “(a)fter a complete confession had been obtained and a false allegation of rape had been cleared up”.143

The Range of Choice

1.77

The decision as to the appropriate measure or penalty is characterised by a wide degree of discretion on the part of the sentencer in relation to both the nature and extent of the penalty or measure to be imposed.

Options as to the nature of sentence

1.78

Table A sets out the range of options as to the nature of sentence available to sentencers upon conviction.

1.79

The District Court also has a number of sentencing options available to it which may be imposed upon proof of guilt, but without the need for conviction. Table B sets out the options available to the District Court without conviction.


143

Judge criticises press reports of incest case, Irish Times 14–7–92.



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TABLE A: OPTIONS UPON CONVICTION
TypeVarietiesAuthorityJurisdiction
A. Custodial1. Penal ServitudeStatutoryHigher Courts
2. Imprisonment with hard labourStatutoryHigher Courts
3. Imprisonment simpliciterCommon Law/statuteAll144
4. DetentionStatutoryAll145
B. Suspended1. Bound by recognisancesJudicialAll
2. Recognisance and conditionsJudicialAll
C. Adjourned Sine Die No express AuthorityAll
D. Fine1. GenerallyCommon Law/statuteAll146
2. With ImprisonmentStatutoryAll147
E. Probation1. RecognisanceP.O.A. 1907 s1(2)Higher Courts
2. SupervisedP.O.A. 1907 s2(1)Higher Courts
F. Deferred Sentence No express AuthorityAll
G. Community Service Criminal Justice (C.S.) Act, 1983All148
H. Medical Treatment1. Recognisances28 M.O.D. Act, 1977All
2. Custodys28 M.O.D. Act, 1977All
I. Disqualification StatutoryAll
J. Compensation P.O.A. 1907All
K. Charges considered s8 Criminal Justice Act, 1951All
L. Confiscation StatutoryAll
M. Other options for Juveniles1. Reformatory Schools58 Children Act, 1908District Court
2. Whipping149s4(1) Summary Jurisdiction over Children (Ireland) Act, 1884District Court


144

12 months maximum for most cases in District Court.

145

12 months maximum for most cases in District Court.

146

£ 1000 maximum for most cases in District Court.

147

£ 1000 maximum for most cases in District Court.

148

Except Special Criminal Court.

149

Amounts to a breach of Article 3 of the European Convention on Human Rights– See Tyrer v UK 2 EHRR 1 (birching is degrading); Corporal Punishment in the Isle of Man (1978) 27 ICLQ 665.



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TABLE B: OPTIONS WITHOUT CONVICTION IN DISTRICT COURT

TypeVarietiesAuthority
E. Probation1. DismissalP.O.A., 1907
2. RecognisancesP.O.A., 1907
3. Recognisances and conditionsP.O.A., 1907
4. Formal ProbationP.O.A., 1907
K. Compensation P.O.A., 1907
M. Juveniles1. Care of Relatives58, Children Act, 1908
2. Industrial Schools58, Children Act, 1908
3. Monetary Payment by Parent/Guardians99, Children Act, 1908
4. Good Behaviours99, Children Act, 1908
N. Adjourned Supervision No express Authority

We shall now examine in more detail the law governing the imposition of these various sentencing options.

(a) Deprivation of Liberty

1.80

Convicted persons may be deprived of their liberty by being sentenced to penal servitude, imprisonment, or, in the case of certain young persons, detention.

Penal Servitude

1.81

Penal servitude was substituted for deportation to convict settlements in the British colonies after the abolition of slavery by section 2 of the Penal Servitude Act, 1857.

1.82

Section 2 of the Prisons (Ireland) Act, 1856, provided for the Minister for Justice to set apart certain places of confinement known as 'convict prisons' for prisoners serving a sentence of penal servitude, but no such order was ever made, so nowadays, for all practical purposes, there is no distinction in the treatment of prisoners sentenced to penal servitude and those sentenced to imprisonment.150 Penal servitude was abolished in England by the Criminal Justice Act, 1948, and the last Irish statute to prescribe a sentence of penal servitude was the Criminal Justice Act, 1964, s2.151

1.83

Penal servitude may only be imposed under statute, and in most cases


150

Annual Report on Prisons and Places of Detention, (1982, Pl 1811), p71.

151

I.e. mandatory penal servitude for life in cases of non-capital murder. The Criminal Justice Act, 1990, s2, replaces this with imprisonment for life.



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the particular statute will specify the maximum term which may be imposed. If not, the maximum term is to be five years, except for felonies created by statutes in force on 5th August 1891, for which the maximum term is to be seven years.152

1.84

A person undergoing penal servitude may not be elected to either House of the Oireachtas.153 Since penal servitude was introduced in direct substitution for the sentence of transportation, it cannot as such be imposed in a manner not applicable to transportation.154 Therefore unlike imprisonment, it cannot be ordered to commence at a date prior to the date on which sentence is pronounced.155 Bearing in mind that there is no difference in the treatment of offenders undergoing sentences of penal servitude and those serving terms of imprisonment, it is undesirable that these residual disqualifications for persons undergoing penal servitude should be retained. It may be suggested that penal servitude is to be considered a stronger punishment than imprisonment simpliciter, but the indications are that penal servitude is an anachronism and in that case, in the interests of fairness and consistency, penal servitude should be abolished in favour of imprisonment.

Imprisonment

1.85

Imprisonment may be awarded in lieu of penal servitude for a term not exceeding two years, unless any act provides otherwise.156 Some older statutes provided for imprisonment with hard labour, and it has been held that in such cases, the maximum term is to be two years.157 Imprisonment with hard labour attracts many of the disqualifications which carried by penal servitude, and since the indications are that it too is a relic of bygone times, it may well be taken off the statute books.

1.86

Since 1964, imprisonment has been favoured over penal servitude and imprisonment with hard labour in statutes creating offences, and such statutes have stated the maximum158 term which may be prescribed. There was no limit at common law to the term of imprisonment which could be imposed, and that remains the case for all common law offences.159 However, the maximum sentence of imprisonment which may be imposed in the District Court is twelve months,160 except in certain circumstances governed by the Criminal Justice Act, 1984, in which a consecutive sentence may extend the aggregate sentence to a maximum of twenty four months. Section 102 of the Children Act, 1908, forbids sentencing persons under 17 years of age to penal servitude or imprisonment.


152

Criminal Law (Ireland) Act, 1828, s15; Penal Servitude Act, 1857, s2; Penal Servitude Act, 1891, s1.

153

Electoral Act, 1923, s51, s57.

154

The People (AG) v Poyning [1972] IR 402.

155

Ibid.

156

Penal Servitude Act, 1891, s1 (2).

157

AG v Duffy [1931] IR 144.

158

Or mandatory term; e.g. Air Navigation and Transport Act, 1973, s11, s16, – life imprisonment mandatory for unlawful seizure of an aircraft or committing an indictable act of violence against a person on board; Criminal Justice Act, 1990, s2, – mandatory life sentence for treason and murder.

159

The People (DPP) v Giles [1974] IR 422.

160

Criminal Justice Act, 1951, s4 and Criminal Procedure Act, 1967, s13 (3) (a).



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However an exception to this exists in relation to young persons between the ages of fifteen years and seventeen years who are of “so unruly a character” or “so depraved a character” that they are not fit persons to be detained in special places for the detention of young persons.161 Under s5(1) of the Summary Jurisdiction Over Children (Ireland) Act, 1884 district judges are confined to sentencing young persons (between fifteen and seventeen years of age) convicted of an indictable offence to no more than three months imprisonment (with or without hard labour) following conviction of an indictable offence tried summarily.162

1.87

Detention in St Patrick's Institution163 may be prescribed against a juvenile offender between the ages of seventeen and twenty one in lieu of imprisonment. A young person between the ages of fifteen and seventeen may only be sent there in exceptional circumstances.164 A child between the ages of seven and fifteen may not be sentenced to a term in St Patrick's Institution, but may be sent to a reformatory or industrial school.165 In all of the cases set out above, detention is merely one option from a number of methods of sentencing young offenders, and the choice is at the discretion of the court.166

Modern attitudes towards imprisonment

1.88

The Whitaker Committee of Inquiry into the Penal System noted that there exists an over-reliance on the use of imprisonment and custodial sanctions despite a general effort by the courts to use their imprisonment powers sparingly.167 The Committee found that imprisonment accounted for one-fifth of all sentences in the District Court, and about half of all sentences in the superior courts. Also noted was an increase in the average length of prison sentences since the 1970's, which was further facilitated by the increase in the sentencing powers of the District Court by sections 11 and 12 of the Criminal Justice Act, 1984.168 The Committee predicted that this combination of factors would lead to a “prison crisis” due to a rising prison population and overcrowding. The Annual Report on Prisons and Places of Detention, 1988 bears out these predictions:

“The prisoner population has been increasing steadily in recent years with the result that considerable stress has been placed on available accommodation. The emergence in prisons of offenders with the HIV positive virus has also had to be dealt with within the limits of existing accommodation.”169


161

Ibid.

162

See Hutch v Governor of Wheatfield Prison, Supreme Court, unreported, 18–11–92; see also Supreme Court limits sentencing of young persons to three months, Irish Times, 19–11–92 p4.

163

Formerly referred to as “Borstal”–Prevention of Crime Act, 1908; Criminal Justice Act, 1960, s102.

164

Children Act, 1908, s102.

165

A Report on the Law and Procedures Regarding the Prosecution and Disposal of Young Offenders, Denis C. Mitchell, 1977.

166

See para 1.125 et seq, infra. (Young Offenders).

167

Report of Committee of Inquiry into the Penal System, (PI 3391, 1985), p45.

168

Ibid. See para 1.137 et seq, infra. (District Court).

169

Annual Report on Prison and Places of Detention, 1988, (pl 7039), p7.



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1.89

The Whitaker Committee felt that imprisonment should be imposed merely to deprive the prisoner of liberty, not to deprive him of any other rights, i.e. “offenders are sent to prison as punishment, not for punishment”:170

“Nothing should be done to inflict hardship or punishment beyond that inevitably consequential on the deprivation of liberty involved in imprisonment.”171

1.90

However, in reality, it appears that prison conditions and overcrowding make this an ideal beyond reach, and it is not inconceivable that prison conditions due to overcrowding could become so bad as to ground an action under Article 3 of the European Convention on Human Rights (i.e. “inhuman or degrading treatment or punishment”).172

1.91

With this in mind Ireland recently ratified the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,173 which empowers an international committee of experts “chosen among persons of high moral standing, known for their competence in the field of human rights or having professional experience in the areas covered by the Convention” to visit any place of detention in the State. The Committee will draw up a detailed report on the conditions in the place of detention and transmit this to the Government with recommendations for improvement. If the State refuses to carry out the recommendations the Committee may make a public statement on the matter, with the aim, it seems, of embarrassing the Government into taking positive action.

1.92

Other international obligations include the UN International Covenant on Civil and Political Rights which provides in Article 10 that all persons deprived of their liberty

“shall be treated with humanity and with respect for the inherent dignity of the human person.”174

1.93

The impending accommodation difficulties coupled with the severe loss of liberty in forbidding surroundings,175 and the enormous cost of imprisonment to the State,176 all led the Whitaker Committee to conclude that


170

Ibid, para 4.5; see Editorial, An Unjust Measure of Pain – The Irish Prison System 8 ILT 213 (1990).

171

Whitaker Report, para 2.16, p12.

172

In the US of the 1960's many cases succeeded on the Eighth Amendment Grounds of “cruel or unusual punishment”: D Rothman, Decarcerating Prisoners and Patients in Sentencing, (Gross and von Hirsch eds, 1981) pp130 et seq. The Canadian Sentencing Commission reported that “in 1982 there were no fewer than 32 American states or territories which were either under court order due to the degraded conditions of confinement resulting from prison over-population or were involved in litigation likely to result in such court orders” and that in “Canada, it is not inconceivable that prison overcrowding may lead to court litigation on the basis of the Charter prohibition of cruel and unusual punishment” see Sentencing Reform: A Canadian Approach (1987) p132. Ireland is now a party to the UN International Covenant on Civil and Political Rights which forbids such punishment in the same terms.

173

See O'Malley, A Ray of Hope for Prisoners – The New European Convention Against Torture 8 ILT 216 (1990).

174

See Editorial, supra, n.171.

175

Whitaker Report, p38, para 4.2.

176

Ibid, para 4.3.



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imprisonment should only be imposed as a last resort:

“Broadly, the Committee's view is that imprisonment should be imposed only if the offence is such that no other form of penalty is appropriate ...”177

1.94

To facilitate this move, the Committee recommended the extension and strengthening of existing forms of non-custodial sanctions. Imprisonment would only be imposed after consideration of a full personal report on the offender from the Probation and Welfare Service, supplemented, where appropriate, by a psychological and medical/psychiatric report,178 so as to be certain that no other penalty was appropriate.

(b) Suspended sentence

1.95

A suspended sentence is imposed by prescribing a custodial sentence and then suspending its operation on condition that the offender enters into a recognisance, with or without sureties, to keep the peace and to be of good behaviour for a specified period. Further conditions may be imposed, at the court's discretion, such as an obligation to pay compensation, or to stay away from a certain person or place.

1.96

Unlike England, there is no statutory authority in Ireland for the suspension of prison sentence.179 However in The State (McIlhagga) v Governor of Portlaoise Prison, O Dáláigh CJ declared that the suspended sentence had been long recognised as “a valid and proper form of sentence.”180 In fact, in People (DPP) v Dennigan,181 the Court of Criminal Appeal recognised a power to suspend even the consecutive sentences required by s11, Criminal Justice Act, 1984.

1.97

Sometimes the court may adjourn the matter of sentence for a certain time to allow the offender to show good behaviour, and then pass a derisory sentence. Alternatively, the court may remand the accused in custody prior to sentence in order to give him a “taste of prison.”182

1.98

The Whitaker Committee of Inquiry into the Penal System said of suspended sentences:

“Suspended sentences are unsatisfactory as alternatives because they lack a clear status. There is no mechanism by which non-compliance with the court's conditions is automatically brought to the attention of the


177

Ibid, p45.

178

Ibid, p11.

179

Although this was countenanced by s50 of the Criminal Justice Bill, 1967 which proposed the introduction of the suspended fine or sentence of imprisonment. The Bill encountered opposition and lapsed.

180

Supreme Court, unreported, 29 July 1971.

181

3 Frewen 253.

182

Whitaker Report, p215.



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court. The District Court Rules, moreover, effectively limit the period of a suspension to six months. If these defects were removed, a suspended sentence might, at the same time, be more acceptable to the judiciary and more obviously a penalty to those on whom it is imposed.”183

(c) Adjournment Sine Die

1.99

The practice of adjourning indefinitely has been used by the Circuit Criminal Court to circumvent some of the restraints placed on it by the Probation of Offenders Act, 1907.184 In effect the case is completed although no formal disposal is indicated in the court records.

(d) Fines

1.100

At common law, the court has discretion to impose fines upon conviction for any misdemeanour and there is no limit on the amount of the fine which may be imposed.185 In cases of felony the court has no such power except where the crime is manslaughter.186 Fines are normally provided for by statute, and many statutes provide for a higher amount to be imposed when conviction is on indictment. Statutes providing for the fining of offenders commonly state the maximum amount of the fine, and in most cases a fine or imprisonment or both may be imposed at the discretion of the court. The only guidance in the exercise of this discretion is to be found in the District Court Rules,187 which state that the means of the offender should be taken into account when determining the size of a fine. Default in the payment of a fine will incur imprisonment or detention, and the District Court Rules, 1948,188 set out the “exchange rate” between fines and prison sentences as follows:

For any penaltyThe imprisonment not to exceed
not exceeding 10/- 7 days
exceeding 10/-but not exceeding £114 days
exceeding £1but not exceeding £2One month
exceeding £2but not exceeding £5Two months
exceeding £5but not exceeding £10Three months
exceeding £10but not exceeding £30Four months
exceeding £30 Six months

1.101

The law in relation to fines thus appears to be much in need of reform.


183

Whitaker Report, p46.

184

I.e. it may only apply the Act upon conviction whereas the District Court may apply the Act prior to conviction; Whitaker Report p217; see para 1.102, infra. (Probation).

185

The People (DPP) v Giles [1974] IR 422. But the jurisdiction of the District Court is inherently limited; see para 1.137 et seq, infra. (District Court).

186

Offences Against the Person Act, 1861, s5.

187

District Court Rules, 1948, rule 65(1)(a). These, of course, apply only to the District Court.

188

Ibid, rule 65(3).



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Some of this has been dealt with in the Commission's Report on Indexation of Fines.189 The Whitaker Committee noted:

“In the case of fines, the sentencing ranges available to the courts are frequently fixed in sums that are far below what would be regarded as reasonable at the present time .... Given the cost to the community of imprisonment, it would be sensible to remove from the offender the option of accepting prison and, wherever practical, to employ other means of enforcement, such as confiscation of property or attachment of income.”

(e) Probation

1.102

Probation is governed by the Probation of Offenders Act, 1907. The Act invests in the court the discretion to discharge the offender conditionally upon entering into recognisances, with or without sureties, to be of good behaviour and to appear for sentence if called at any time during a nominated period not exceeding three years in length.190 In the exercise of this discretion the court is to have regard to “the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed”, and it must appear “inexpedient to inflict any punishment or any other than a nominal punishment” or “expedient to release the offender on probation.”191 The District Court is given discretion to dismiss the information or charge, or to release the offender on probation, and may do so at any time prior to or consequent upon conviction, provided it is satisfied that the charge is proved. Superior courts, on the other hand, do not have discretion to dismiss the information or charge, and may only use the Probation Act once a conviction has been obtained. However, the Circuit Criminal Court has circumvented this statutory limit by adjourning cases indefinitely.192

1.103

The court may also order the offender to pay damages for injury or compensation for loss, and to pay the costs of proceedings. The court is given the discretion to attach conditions to the recognisance that the offender be under the supervision of such person as may be named in the order during the period specified in the order and such other conditions for securing such supervision as may be specified in the order. Further conditions may be attached by virtue of s2(2), such as “prohibiting the offender from associating with thieves and other undesirable persons, or from frequenting undesirable places; the abstention from intoxicating liquor, where the offence was drunkenness or an offence committed under the influence of drink; and generally for securing that the offender should lead an honest and industrious life.”


189

LRC 37–1991.

190

The court has inherent power to pass sentence subsequently: R v Spratling [1911] 1 KB 77.

191

Probation of Offenders Act, 1907, s1(1).

192

See Whitaker Report, p217, and para 1.99, supra. (Adjournment Sine Die).



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1.104

Failure to observe the conditions of a recognisance will lead to a warrant for arrest being issued against the offender. The Whitaker Committee of Inquiry into the Penal System recommended that failure to observe the conditions of a recognisance, or to find securities, should result in imprisonment in only the most serious cases. The 1907 Probation Act required revision, the Committee said, to reflect current court practices; the present range of non-custodial alternatives; and the recommendations of the Committee.193

1.105

The Act provides for the appointment of Probation Officers whose function is to monitor the progress of the offender on probation. The Probation Officer may apply to the court to vary the conditions of release contained in the recognisance and the court may do so if satisfied that the conduct of the offender has been such as to make further supervision unnecessary.194

1.106

The Court of Criminal Appeal has somewhat limited the discretion of the court in its application of the Probation Act. In The People v Buckley,195 Maguire CJ disapproved of repeated application of the Act to the same offender for serious offences, saying:

“It is difficult to see why the Probation of Offenders Act was applied more than once, and if the framers of the Act were justified in allowing an opportunity to reform, and if, as in this case, an opportunity to reform was allowed, it was not availed of. That this opportunity should have been availed of is shown by the fact that these people come before the Court again. In such cases it is farcical that the Probation Act should be applied again.”

(f) Deferred sentence

1.107

A deferral may occur where a person is sentenced to a custodial term but a warrant of custody is ordered not to issue for a specific length of time. If the defendant is of good behaviour during this period the sentence is deemed to have been administered; if not, the court retains the ability to enforce the penalty.196

(g) Community service

1.108

The Criminal Justice (Community Service) Act, 1983 gives the court197 the discretion to make a community service order in respect of any offender over sixteen who has been convicted of an offence for which the appropriate sentence would otherwise be custodial. A community service order ('CSO') requires the offender to perform unpaid work for a specified number of hours between 40 and 240 hours. The court's discretion in this decision is guided by the provisions of


193

Whitaker Report, p46.

194

Probation of Offenders Act, 1907, s5.

195

1 Frewen 190.

196

See Whitaker Report, p216.

197

Except the Special Criminal Court – s1(1).



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s4(1):

“A court shall not make a community service order unless the following conditions have been complied with:


(a)


the court is satisfied, after considering the offender's circumstances and a report about him by a probation and welfare officer (including, if the court thinks it necessary, hearing evidence from such an officer), that the offender is a suitable person to perform work under such an order and that arrangements can be made for him to perform such work, and


(b)


the offender has consented.”

1.109

A Probation and Welfare Officer is responsible for the offender complying with the CSO. An offender who does not turn up for the work specified on the days agreed will then be brought before the courts. The judge may then activate a different form of sentence or fine the offender for not complying with the order.198

1.110

At present, community service is available only as an alternative to imprisonment for criminal offences, although there is much to be said in favour of extending it as an alternative to imprisonment for non-payment of fines or, indeed, non payment of compensation.199 The Whitaker Committee noted that there is much to recommend greater use of community service, and recommended that the progress of CSOs be carefully monitored to ensure that (a) the number of hours worked is a realistic alternative sanction, (b) the work arranged is both of benefit to the community and a positive experience for the offender, and (c) they are effective in keeping offenders out of crime for at least the period covered by the order. By doing so, the CSO would be easily accepted by the community and the judiciary as a valid sanction.

(h) Medical Treatment or Therapy

1.111

Section 28(1)(a) and (b) of the Misuse of Drugs Act, 1977 (as amended) allows the court, if having regard to the circumstances of the case the court thinks it appropriate to do so,200 to request “a health board, probation and welfare officer” or other body or person considered by the court to be appropriate to furnish the court with:


(a)


“a medical report in writing on the convicted person together


198

Criminal Justice (Community Service) Act, 1983, ss7 and 8.

199

See Hussey, Alternatives to Custody, (Presidential Address to Medico – Legal Society), (1989) 7 ILT 74, p76.

200

It was formerly the case that reports had to be furnished in respect of all offenders under ss3, 15, and 16 of the Act. Since 3rd August 1984 the furnishing of reports is discretionary –Misuse of Drugs Act 1984 (Commencement) Order, 1984 (SI No 205 of 1984). See generally Charleton, Controlled Drugs and the Criminal Law, (1986) pp 149–159.



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with such recommendation (if any) as to medical treatment which the person making the report consider appropriate to the needs, arising because of his being dependent on drugs, of convicted person” and


(b)


“a report in writing as to the vocational and educational circumstances and social background of the convicted person together with such recommendations (if any) as to care which the body or person making the report consider appropriate to the said needs.”

Having considered such reports the court may exercise the extended sentencing powers of section 28(2).

1.112

Section 28(2) provides that a court may substitute the following in lieu of other penalties available for the relevant offences:


(a)


the defendant's recognisance to participate, usually under supervision, in a specified programme of treatment, therapy, or education appropriate to his/her situation, or


(b)


detention in custody in a treatment centre.

1.113

The provisions of s28(2)(b) are in any case theoretical; the reality is that no custodial treatment centre yet exists. The nearest things are centres such as Coolmine, which are residential treatment centres attended on a voluntary basis.201

1.114

Another form of “treatment” is to be found in Section 26 of the Children Act, 1908 which empowers the court to order that a parent, who is convicted of certain offences under that Act and who is an “habitual drunkard”, be detained in a “retreat”. Again, there is not any centre for custodial treatment, although there are certain organisations which will help voluntary attenders, such as the Stanhope Street Clinic and the Rutland Centre.

1.115

Apart from these inept statutory provisions, the only course of action available to a sentencer who feels that an offender should receive psychiatric treatment is to sentence that person to custody with a recommendation that he be sent to the Central Mental Hospital. The Interdepartmental Committee on Mentally Ill and Maladjusted Persons observed:

“... many persons are dealt with by the courts as 'normal' offenders who are either not responsible (or not fully responsible) for the conduct charged against them or who, even if fully responsible for such conduct, are in need of psychiatric or other special treatment. The inability, or


201

See Hussey, op cit, p175.



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the restricted ability, of the courts to order that convicted persons receive appropriate psychiatric treatment is a grave defect in the present state of the criminal law.”202

(i) Disqualification

1.116

The Road Traffic Acts, 1961 to 1977 give the courts the power to disqualify an offender guilty of an offence under those Acts from holding a driving licence for such period as the court thinks fit. In all cases the disqualification is ancillary to some other form of penalty. In some cases such disqualification is mandatory, but for other offences the disqualification may be imposed at the discretion of the court. For such offences the Acts set out a minimum term of disqualification to guide the court. Section 27 of the 1961 Act empowers the court to disqualify a person from holding a driving licence if the person is convicted of any offence and used a motor vehicle in the course of commission of the offence. Such discretion may only be exercised upon hearing the appropriate evidence as a separate matter, and the disqualification should not be treated as the imposition of an additional punishment for an offence under the Act of 1961.203

1.117

Other forms of disqualification, such as disqualification from jury service204 or from becoming a director of a company,205 are consequential upon being convicted and receiving some other form of penalty.

(j) Compensation

1.118

An order to pay compensation can only be imposed with statutory authority at present as an ancillary order attached to a Probation Act disposal206, or an order for Community Service.207 The District Court is limited in the exercise of this discretion in that the maximum amount of compensation payable is fixed at £10, unless the specific enactments relating to the particular offence set a higher limit.208 A compensation order may also be made a condition of a suspended sentence, in which case it appears that there is no maximum limit on the amount of compensation payable, save in the District Court where the amount must not be so great as to bring the offence outside the minor offence category.209 The Whitaker Report recommends210 that


202

Pri 8275 (1978), para 4; see also O'Malley, Irish Sentencing Reform (1988) 6 ILT 111.

203

The People (AG) v Poyning, [1972] IR 402; The People (AG) v Michael Hogan, 1 Frewen 360. In Conroy v AG [1965] IR 411, the Supreme Court said:

“[Disqualification] in so far as it may be classed as a punishment at all is not a primary or direct punishment but rather an order which may, according to the circumstances of the particular individual concerned, assume, though remotely, a punitive character ... undoubtedly disqualification may have a deterrent quality but that does not make it a punishment. It is a regulation of the exercise of a statutory right in the interest of public order and safety.”

204

Juries Act, 1976, s8.

205

Companies Act 1963, s184.

206

Probation of Offenders Act, 1907, s1 (3).

207

Criminal Justice (Community Service) Act, 1983, s3(3) (d).

208

Probation of Offenders Act, 1907, s1 (3).

209

See para 1.137 et seq, infra. (District Court).



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compensation be given a clear statutory basis in its own right. Such reforms in England have helped to give the penalty an independent standing, by relating the amount of compensation to the degree of injury inflicted.211

1.119

The Criminal Justice Bill, 1992, recently initiated, includes detailed provisions for the payment of compensation to any person convicted of an offence. Section 6 provides inter alia:


(1)


Subject to the provisions of this section, on conviction of any person of an offence, the court, instead of or in addition to dealing with him in any other way, may, unless it sees reason to the contrary, make (on application or otherwise) an order (in this Act referred to as a “compensation order”) requiring him to pay compensation in respect of any personal injury or loss resulting from that offence (or any other offence that is taken into consideration by the court in determining sentence) to any person (in this section referred to as the “injured party”) who has suffered such injury or loss.


(2)


The compensation payable under a compensation order (including a compensation order made against a parent or guardian of the convicted person and notwithstanding, in such a case, any other statutory limitation as to amount) shall be of such amount (not exceeding, in the case of such an order made by the District Court, such amount as may stand prescribed for the time being by law as the limit of that Court's jurisdiction in tort) as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the convicted person or the prosecutor, and shall not exceed the amount of the damages that, in the opinion of the court, the injured party concerned would be entitled to recover in a civil action against the convicted person in respect of the injury or loss concerned.

...


(5)


In determining whether to make a compensation order against a person, and in determining the amount of the compensation, the court shall have regard:


(a)


to his means, or


(b)


in a case to which section 99 of the Children Act, 1908 (which empowers a court to require a parent or guardian to pay any fine, damages or costs imposed on or awarded against a child or young person), applies, the means of the parent or guardian,


210

Whitaker Report, p48.

211

Criminal Justice Acts, 1972 and 1982. This area has been the subject of a number of detailed examinations and reports in other jurisdictions. See this Commission's Report The Confiscation of the Proceeds of Crime, (LRC 35–1991) p67.



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so far as they appear or are known to the court.”

(k) Other offences taken into consideration

1.120

The court may, at its discretion, take other offences into consideration when passing sentence on a charge for which a conviction has been entered, provided the defendant pleads guilty to the other charges. S8 of the Criminal Justice Act, 1951 reads:


(1)


Where a person on being convicted of an offence admits himself guilty of any other offence and asks to have it taken into consideration in awarding punishment, the court may take it into consideration accordingly.


(2)


If the court takes an offence into consideration, a note of the fact shall be made and filed with the record of the sentence, and the accused shall not be prosecuted for that offence, unless his conviction is reversed on appeal.”

1.121

When a sentencer takes another offence into consideration it appears that he or she should pronounce the appropriate sentence for that offence as well as the sentence for the offence charged, and not simply include the sentence in the sentence for the offence charged.212

1.122

In England, where the practice of taking other offences into consideration has no statutory basis, the court cannot, in sentencing the offender, impose a sentence beyond the maximum allowed by law for the offence of which he stands convicted simply because other offences have been taken into consideration.213 In Ireland the provisions of section 8 cannot be applied where the offence of which the offender stands convicted carries a mandatory sentence;214 nor can they be relied upon where the court has no jurisdiction to try the offender on the offences admitted to, e.g. where a person convicted of a trifling road-traffic offence in the District Court seeks to invoke the section to have a murder taken into consideration.215

(l) Confiscation

1.123

A number of statutes confer on the court the discretion to order the forfeiture of property connected with the commission of an offence.216

1.124

The Whitaker Committee saw much in favour of confiscation of the proceeds of crime for offences such as drug trafficking and white collar crime,


212

The People (AG) v Higgins, unreported, Supreme Court, 22 November 1985; see para 1.151, infra. (Concurrent and Consecutive Sentences).

213

R v Tremayne (1932) 23 Cr App R 191; R v Hobson (1944) 29 Cr App R 30.

214

The People (DPP) v Gray [1984] ILRM 4.

215

Ibid.

216

For example, the Misuse of Drugs Act, 1977, s30; Fisheries Acts, 1959–1980; Firearms Acts, 1925–1971.



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where offenders may profit substantially from their criminality and where the victim(s) cannot be identified:

“It is unacceptable that offenders or their immediate families should be allowed to retain such ill-gotten gains, whether or not the offenders are given prison sentences. The courts should have the power – and access to any financial advice needed – to ensure the confiscation of assets of this kind.”217

The Commission has examined this topic separately in its Report on Confiscation of the Proceeds of Crime.218

(m) Young Offenders

1.125

The courts are given enormous discretion in their choice of method for dealing with young offenders. A full list219 of the ways in which a child or young person may be dealt with is given in section 107 of the Children's Act, 1908, which provides:

“Where a child or young person charged with any offence is tried by any Court, and the Court is satisfied of his guilt, the Court shall take into consideration the manner in which, under the provisions of this or any other Act enabling the court to deal with the case, the case should be dealt with, namely, whether–

(a) by dismissing the charge; or (b) by discharging the offender on his entering into a recognizance; or (c) by so discharging the offender and placing him under the supervision of a probation officer; or (d) by committing the offender to the care of a relative or other fit person; or (e) by sending the offender to a reformatory school; or (g) by ordering the offender to be whipped; or (h) by ordering the offender to pay a fine, damages, or costs; or (i) by ordering a parent or guardian of the offender to pay a fine, damages or costs; or (j) by ordering the parent or guardian of the offender to give security for his good behaviour; or (k) by committing the offender to custody in a place of detention provided under this Part of this Act; or (1) where the offender is a young person, by sentencing him to imprisonment; or (m) by dealing with the case in any other manner in which it may be legally dealt with;


217

Whitaker Report, p48.

218

LRC 35, 1991.

219

Article 40.4 of the United Nations Convention on the Rights of the Child provides:

“A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.”

Ireland ratified the Convention, on 28 September 1992, and it came into force in this jurisdiction on 28 October 1992.



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Provided that nothing in this Section shall be construed as authorising the Court to deal with any case in any manner in which it could not deal with the case apart from this section.”

1.126

Section 107 is a consolidating section – it does not legislate, but merely summarises the methods of dealing with young offenders which already exist elsewhere in the law. Thus in the case of certain methods, the court will be guided in the exercise of its discretion by the law in relation to the particular method, e.g: The Probation of Offenders, Act 1907 in relation to options (a) or (b) supra.220

1.127

The sentencing of youthful offenders is an area of the law much in need of comprehensive review; much greater, indeed, than that which can be efficiently and fairly conducted within the ambit of this report.221 Such analysis would most likely form part of an examination of the entire juvenile justice system, particularly when reforms in other jurisdictions have fundamentally questioned the need for any criminal stigma to attach to child offenders by introducing family involvement in reprimanding and dealing with such offenders. Suffice it to say that for the purposes of this analysis the methods of disposal of youthful offenders are so broad and varied that the court is vested with enormous discretion in the choice of method, although this discretion is commonly hampered – as was reflected by the recent turn of events which led to the sentencing of fifteen year old girls to imprisonment – by the corresponding lack of suitable alternative places of detention for such offenders.222

(n) Adjourned supervision

1.128

This occurs when a defendant is “remanded on establishment of guilt” and is placed under the supervision of a Probation and Welfare Officer. In effect, the offender is requested to co-operate with the Probation and Welfare Service. However the request cannot be enforced either by the court or the Probation Officer, and the practice has no statutory authority.223

Options as to the Extent of Sentence

1.129

When determining the extent of sentence, the courts are required to operate within certain parameters, i.e. (a) within the maximum, minimum or mandatory limits and (b) within the limits upon the jurisdiction of the particular court.


220

See para 1.102, supra. (Probation).

221

For a more comprehensive examination of this field see: The Reformatory and Industrial Schools Systems Report, (1970), (Kennedy Report) and A Report on the Law and Procedures Regarding the Prosecution and Disposal of Young Offenders (1977), (Mitchell Report).

222

See Judge Renews Detention Centre Plea, The Irish Times, 6th March 1991, and Youth's Jail Term Illegal, says Judge, The Irish Times, 12th February 1991; Judge refuses to release two girls (15) from Mountjoy, The Irish Times, 19 October 1990; and Girl (15) sent to Mountjoy Prison for 18 months, The Irish Times, 21 November 1990.

223

Whitaker Report, p218.



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(a) Maximum, minimum and mandatory limits
Maximum sentences

1.130

The general rule of practice of the sentencing courts is that maximum sentences are reserved for only the most serious cases.224 It is very rarely that the maximum penalty is imposed in a case. Most statutes which create an offence will lay down a maximum penalty which may be imposed. At common law there is no limit to the term of imprisonment which may be imposed,225 however in the case of an offence such as attempt to commit, and normally in the case of conspiracy to commit, the term should not exceed the maximum term of penal servitude or imprisonment which might be imposed for the substantive offence.226 Also, there appears to be no limit on the size of a fine which the court may impose for a misdemeanour at common law.227 However a child is not to be fined more than £2, and a parent or guardian of a convicted child cannot be fined more than £10 in respect of the child's offence.228

Minimum sentences

1.131

Statutory minimum sentences are not a common feature of modern Irish criminal statutes although there have been occasions in the past when the legislature prescribed minimum sentences, usually because it was felt that sentencers might not take a sufficiently serious view of the offences.229 Generally, such minima were imposed in combination with a maximum, e.g. The Larceny Act, 1861 provided for terms of penal servitude for any term not exceeding seven years and not less than three years. However, it is also possible for the legislature to express sentences as minimum penalties without imposing a maximum. Another possibility is the combination of a life sentence with a minimum in which case it becomes an indeterminate sentence beyond a minimum base. A recent example of such a measure is contained in s4 of the Criminal Justice Act, 1990, which provides:

“Where a person (other than a child or young person) is convicted of treason or of a murder or attempt to commit a murder to which section 3230 applies, the court –


(a)


in the case of treason or murder, shall in passing sentence specify as the minimum period of imprisonment to be served by


224

See The People (DPP) v Johnston 3 Frewen 276.

225

R v Castro 5 QBD 490; The People (AG) v Giles [1974] IR 422.

226

R v Pearce [1952] 2 AII ER 718; Verrier v DPP [1967] 2 AC 195. In The People v Giles, supra, however, the Supreme Court saw fit to depart from this rule where the seriousness of the offending behaviour merited a severe sentence.

227

The People (AG) v Giles, supra.

228

Summary Jurisdiction over Children (Ireland) Act, 1884, s7; Children's Act, 1908, s99.

229

See Jackson, Enforcing the Law (2 ed, 1971), p205, who cites as an example the Regulation of Railways Act, 1868 whereby it was made an offence for a railway company to provide knowingly, a special train to take parties to prize-fights or to stop an ordinary train to accommodate parties for that purpose at any station not an ordinary station punishable by a fine not exceeding £500 and not less than £200.

230

Section 3 relates to murder of: a Garda acting in the course of duty; a prison officer acting in the course of duty; a foreign head of state or member of government or diplomatic officer or murder in furtherance of an offence under ss6, 7, 8 or 9 of the Offences Against the State Act, 1939.



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that person a period of not less than forty years,


(b)


in the case of an attempt to commit murder, shall pass a sentence of imprisonment of not less than twenty years and specify a period of not less than twenty years as the minimum period of imprisonment to be served by that person.”

Mandatory sentences

1.132

For some offences, statute deprives the court of all of its discretion in the determination of the extent of sentence e.g. murder, under the Criminal Justice Act, 1990, carries a mandatory sentence of life imprisonment.231 Mandatory sentences are rare, as Griffin J noted in DPP v Gray:232

“Apart from revenue and excise offences and offences under the Customs Acts, there do not appear to be many offences in respect of which only one penalty may be imposed – murder, capital murder and treason immediately come to mind.”

1.133

Mandatory imprisonment for a term of life is the sentence which is to be imposed for the latter, and there appear to be no other offences in respect of which a mandatory custodial sentence for a lesser term is to be imposed.

Insane Offenders in Cases of Murder, Treason or Felony

1.134

If an offender is found to have been insane at the time of commission of a treason, murder or felony, then the correct verdict is one of “guilty but insane.”233 However, it has been long accepted that such a verdict constitutes in law an acquittal despite the wording of the verdict.234 Thus, none of the sentencing alternatives described supra may be imposed. However the court may not discharge the accused – it is obliged to order detention, both for the offender's good and the good of the public. The order of the court in such cases is, technically speaking, not a sentence, since there has been no finding of guilt. However, we will set it out here for the sake of completeness.

1.135

Where such verdict has been returned the court must make an order within the terms of section 2(2) of the Trial of Lunatics Act, 1883:

“Where such special verdict is found the court shall order the accused to be kept in custody as a criminal lunatic in such place and such manner as the court shall direct235 till the pleasure of the Government


231

Criminal Justice Act, 1990, s2.

232

[1987] ILRM 4, p13. See also The State (Rollinson) v Kelly [1984] IR 248.

233

S2(1) Trial of Lunatics Act, 1883.

234

Application of Gallagher [1991] IR 31. The verdict of “guilty but insane” replaced the verdict of “not guilty by reason of insanity” at the behest of Queen Victoria, displeased by the return of the latter verdict against the perpetrator an attempted assassination on her person: See O'Hanion, Not Guilty Because of Insanity [1968] 3 Irish Jurist (NS) 61.

235

Usually the court directs that the accused be detained in the Central Mental Hospital, Dundrum, Co Dublin.



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of Ireland shall be made known; and it shall be lawful for the Government of Ireland thereupon and from time to time to give such order for the safe custody of the said person during pleasure in such place and in such manner as to the Government of Ireland may seem fit.”

1.136

Until recently it had been common for the courts to order the accused to be detained “until further order of this court.”236 That practice was expressly disapproved of by the Supreme Court in Gallagher237 where it was held that the decision as to the release of an insane prisoner was a matter for the executive.238

(b) Limits on Jurisdiction
The District Court

1.137

The District Court has greater limits on its discretion in the determination of the extent of sentence than the superior courts. Generally, the maximum term of imprisonment which may be imposed by the District Court for any one offence is 12 months. However, in certain circumstances, a consecutive sentence extending the aggregate term to two years may be imposed under the provisions of sections 11 and 12 of the Criminal Justice Act, 1984. The maximum fine for indictable offences tried summarily by the District Court is set at £1,000 by section 17 of the Act.

1.138

These restrictions stem from the fact that the District Court is a court of summary jurisdiction, and may only try 'minor offences' fit to be tried summarily. The established test for distinguishing between minor offences and non-minor offences is the severity of punishment authorised to be imposed.239 Severity is gauged by reference to “the loss of liberty or the intentional penal deprivation of property by means of fines or other direct means of deprivation.”240 Therefore the court is not only limited in the length of custodial sentence or the amount of fine it may impose, but also in the amount it may confiscate.241

The Circuit Court

1.139

The Circuit Court, on the other hand, does not have such inherent limits


236

The People (DPP) v O Mahony [1986] ILRM 244; The People (DPP) v Neilan [1990] 2 IR 267; The reason being that in The State (O) v O Brien [1973] IR 50 some doubt had been cast on the constitutionality of a similar form of order which placed a young offender in detention “until the pleasure of the Government of Ireland be known as to him”.

237

Supra, n.235.

238

However in The People (DPP) v Ellis, [1990] 2 IR 291, the Supreme Court held that where an order detaining an insane offender until further order of the court had been made, justice required that the order should be allowed to stand where there had been a lapse of time and acquiescence of all the parties to such an order.

239

Mailing v O Mathghamhna [1962] IR; Conroy v AG [1965] IR 411; Re Haughey [1971] IR 247.

240

Conroy v AG [1965] IR 411.

241

Kostan v Ireland and the Attorney General, unreported, High Court, 10 February 1978 – possible confiscation of fish and fishing gear worth an estimated £102,040 held not to be consistent with a minor offence.



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upon its sentencing jurisdiction, although at present the Circuit court cannot try offences of rape,242 treason, murder, piracy or genocide.243 Because of this wider jurisdiction, District Courts will commonly send forward to the Circuit Court persons who have pleaded guilty in that court and who the District Judge believes are charged with offences of such seriousness as to warrant more severe sentences than the sentencing restrictions of the District Court allow.244

The High Court

1.140

The High Court, when it exercises its original criminal jurisdiction, is known as the Central Criminal Court,245 and at present has exclusive jurisdiction to try prosecutions for treason and related offences, murder and related offences, piracy, genocide, certain offences under the Offences Against the State Act, 1939, and certain sexual offences under the Criminal Law (Rape) (Amendment) Act, 1990. However, there is no constitutional prohibition against the legislature conferring exclusive jurisdiction to try indictable offences on the Circuit Court or District Court thereby depriving the High Court of authority to try those cases, so long as the High Court retains its supervisory jurisdiction over the lower courts.246

The Special Criminal Court

1.141

The Special Criminal Court was provided for by Part V of the Offences Against the State Act, 1939. It was established in August 1939 and remained in existence until 1962. It was re-established in 1972247 and has remained in existence since then. Its jurisdiction is generally exercised in respect of scheduled offences set out in the 1939 Act, i.e. all offences under the 1939 Act and all offences under the following: Malicious Damage Act, 1861; Explosive Substances Act, 1883; Firearms Acts, 1925–1971; and s7 of the Conspiracy and Protection of Property Act, 1875. The most severe sentence which may be imposed under these Acts is penal servitude for life. The Court also has jurisdiction to try any case which the Director of Public Prosecutions brings before it, certifying that, in his opinion, the ordinary courts are not adequate for trying the accused on the charge.248

Summary

1.142

From this discussion of the range of choice available to sentencers both as to the nature of sentence to be imposed and the extent of sentences imposed, it clearly emerges that there is little in the way of developed principles for the imposition of sentence, in the form of either legislative or judicial


242

Criminal Law (Rape) (Amendment) Act, 1990, s10.

243

Courts of Justice Act, 1924, s49.

244

See Whitaker Report, p 197.

245

Courts (Supplemental Provisions) Act, 1961 ss11 and 25(2).

246

Tormey v Ireland [1985] IR 289.

247

SI 142 of 1972.

248

Offences Against the State Act, 1939, s46. The Director's decision is not reviewable: Foley v DPP, unreported, High Court, 19 June 1989; Savage v DPP [1982] ILRM 385.



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pronouncements. Thomas gives a succinct summation:

“Modern sentencing legislation, with few exceptions, confers extensive discretion on the sentencing judge, both in the range of punitive sentences which may be imposed and in the choice of alternative dispositions. Criminal statutes generally authorize terms of imprisonment far longer than are normally imposed in practice, and Parliament, in creating an increasing variety of non-custodial sentences, has generally been content to establish relatively broad conditions of eligibility without requiring sentencers to use particular measures in any specified class of case. With the exception of a few general indications of legislative preferences in the choice of sentences, statutes do not seek to influence the details of sentencing practice.”249

1.143

Almost every type of sentence discussed above is, as we have seen, in need of some reform or other, and the legislative details of each give little more than the most general indication of the area of application of the given option. Thus, it is difficult in many cases to say whether a given set of options are simply alternatives to each other, (i.e. interchangeable) or whether each should be confined to a specific area of application.

1.144

The legislature's provision of penal policy in relation to the sentencing process shows itself to have been “haphazard” and to “lack co-ordination.”250 New measures which have been introduced have not been properly grounded in either penal theory or sentencing practice, and so no guidance can be given to the courts on the types of offence and offender for whom the measures might be appropriate.251 The great difficulty for the legislature, however, is that there is no uniform consensus on sentencing practice because there is no systematic policy which sentencers follow.

D. REASONS FOR AND PRONOUNCEMENT OF SENTENCE

Reasons

1.145

A court, when passing sentence on an offender is not required to give any reasons for its decision. Occasionally, however, the sentencer will indicate that certain factors of the offending behaviour or of the offender's character or antecedents led the court to choose a particular approach, be it retributive, rehabilitative or deterrent. For example, the sentencer may indicate that the offender's exemplary behaviour while in custody led the court to adopt a rehabilitative approach; or that the crime in question was so prevalent as to merit a deterrent approach.252 Rarely, if ever, however, does the court give its reasons for choosing a particular penalty or measure, beyond stating that it is


249

Thomas, Principles of Sentencing, (2 ed, 1979) p3.

250

Ashworth, Sentencing and Penal Policy, (1983), p135, commenting on the similar state of affairs in England.

251

Ibid.

252

See for example the cases outlined in paras 1.45 et seq, supra. (Choice of Approach).



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“satisfied” that the chosen penalty or measure is appropriate in the circumstances. Some understanding of the judicial reluctance to state reasons may be gained from the words of Mansfield LC (1705–93) who gave this general advice:253

“Consider what you think justice requires and decide accordingly. But never give your reasons: for your judgment will probably be right but your reasons will certainly be wrong.”

1.146

Not surprisingly, however, such reluctance to state reasons has a number of unsatisfactory consequences which we will examine at a later stage.254

Pronouncement

1.147

The Court is, however, obliged to ensure that the offender is given an opportunity to be made known of his obligations under the sentence. In The State (Kiernan) v de Burca255 a Circuit Court judge heard an appeal from the District Court. He affirmed the fine and expenses awarded by the District Judge but did not say anything about imprisonment if the fine was not paid. Provision for this was made subsequently by the County Registrar when drafting the order. Maguire CJ, delivering the unanimous opinion of the Supreme Court, said it was “a fundamental rule that pronouncement of sentence following a conviction was an essential part of the administration of justice in the case.” In Molloy v Sheehan256 the Supreme Court, referring to Kiernan's case, restated this “fundamental rule” as “the sentence must be spoken in court.”

E. COMMENCEMENT OF SENTENCE

1.148

Unless the Central Criminal Court otherwise directs, every order made by that court shall take effect from the date on which the order is made.257 Sentences imposed in the Circuit Court shall run from the date specified in the judge's order; if no date is specified the order is bad and may be quashed in judicial review proceedings.

1.149

A sentence of penal servitude may be ordered to take effect from the date on which sentence is pronounced, or at some time in futuro258 following the determination of a term of imprisonment or penal servitude;259 but cannot be ordered to take effect from a date prior to the pronouncement of sentence.260

1.150

Conversely, imprisonment can be ordered to take effect from a date prior to the pronouncement of sentence, and commonly is, to take account of the


253

Harmer, Structure and Content of a Reasoned Award, (1988) JCI Arb 163.

254

See Chapter 13, infra. (Reasons)

255

[1963] IR 348.

256

[1978] IR 438, per Kenny J.

257

Order 85, rule 9, Rules of the Superior Courts (1986).

258

The State (Jones) v O Donovan [1973] IR 329; The State (McNally) v O Donovan [1974] IR 272.

259

Criminal Law (Ireland) Act, 1828, s20.

260

The State (Jones) v O Donovan, supra; see para 1.81 et seq, supra (Penal Servitude).



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period of remand spent in custody pending trial and determination of sentence.

Concurrent and Consecutive Sentences

1.151

The question of whether custodial sentences should be ordered to run concurrently or consecutively can arise in a number of situations. The offender may have been convicted on a number of counts in the same indictment or at the same sittings; he may already be serving a sentence; or there may be a prior suspended sentence or conditional discharge which may have to be considered for activation. The general rule for imposition of concurrent sentences is that all sentences in respect of two or more offences committed in the course of a single transaction should be concurrent rather than consecutive.261 For example, in The State (Brien) v Kelly,262 where the accused pleaded guilty to five counts of rape, buggery, unlawful carnal knowledge, indecent assault and assault occasioning actual bodily harm, all of which related to the same person, place and occasion, the Supreme Court upheld the concurrent sentences of three years detention in respect of counts 1 and 2 and two years detention in respect of count 3 which were imposed by the Circuit Court. However, difficulty may often arise in establishing a sufficiently precise definition of whether or not the charges relate to a single transaction, and there appears to be no rule of law or practice which identifies the limits of the single transaction concept.263

1.152

When the offences arise out of the same transaction the sentencer should pronounce sentence individually for each offence and not merely take them all into consideration in determining the sentence for one. In The People (AG) v Higgins,264 the accused was charged on a number of counts arising out of the same incident but varying in seriousness. The trial judge imposed sentence on him in respect of one count, taking the others into consideration. In delivering the opinion of the Supreme Court, Finlay CJ said obiter:

“Having regard to the possibility that always exists of a court of appeal setting aside on some technical or other ground the conviction an a particular count, but leaving undisturbed the convictions reached on other counts on the same indictment, even though they arise out of the same incident, this would appear to be an undesirable and unsatisfactory procedure. Appropriate sentence should, in my view, be imposed on all counts in respect of which an accused person is convicted by a jury.”

1.153

Where, however, the offences do not arise out of the same transaction the court has a discretion as to whether the sentences should be consecutive or concurrent. Where the offender is convicted of a subsequent offence whilst serving a sentence of imprisonment or penal servitude, he may be sentenced to a consecutive term of imprisonment or penal servitude to commence on the


261

Thomas, Principles of Sentencing, pp52 et seq.

262

[1970] IR 69.

263

See Thomas, Encyclopedia of Current Sentencing Practice, Chapter A5 for examples of the emerging English principles in this regard.

264

Unreported, Supreme Court, 22 November 1985.



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expiry of an existing term,265 even though the aggregate may exceed the maximum which may be imposed for either offence. A consecutive sentence is mandatory for offences committed while on bail.266

1.154

On the issue of concurrent and consecutive sentences, the English Court of Appeal has developed a principle known as the Totality Principle. The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive or concurrent in accordance with the “single transaction” rule, to review the aggregate sentence and consider whether it is just and appropriate.267 In R v French,268 Lane LCJ gave the following guidance:

“We would emphasise that in the end, whether the sentences are made consecutive or concurrent, the sentencing judge should try to ensure that the totality of the sentences is correct in the light of all the circumstances of the case.”

1.155

In England, therefore, where the sentences are made consecutive, the final duty of the sentencer is “to make sure that the totality of the consecutive sentences is not excessive.”269 In the recent case of The People (DPP) v Healy,270 the Irish Court of Criminal Appeal appears to have approved of a similar approach being taken by Irish sentencers where consecutive sentences are concerned. The Court was considering the effect of section 11 of the Criminal Justice Act, 1984 which requires a consecutive sentence to be imposed for all offences committed while on bail. McCarthy J, for the Court, took the opportunity to indicate how section 11 should be approached:

“In the application of s 11 of the Criminal Justice Act, 1984, the sentencing court should determine the sentence appropriate to the offence or offences on the indictment to which the section applies, without regard to the fact that it must be a consecutive sentence under the provisions of s11, and direct that such a sentence shall be consecutive on any sentence for a previous offence. That is not to say that, in a proper case, the sentencing court, in the case of grave offences, should not adjust the sentence downwards where not to do so would impose a manifestly unjust punishment on the accused.”


265

Criminal Law (Ireland) Act, 1828, s20; See also Criminal Justice Act, 1951, s5, as amended, which governs consecutive sentences in the District Court.

266

Criminal Justice Act, 1984, s11; but the aggregate cannot exceed two years imprisonment or detention where sentence is passed by the District Court. See The People (DPP) v Michael Farrell 3 Frewen 257. However, such a mandatory consecutive sentence may be suspended in exceptional circumstances, per the Court of Criminal Appeal, The People (DPP) v Dennigan 3 Frewen 253. See generally O'Malley, Principles of Sentencing [1991] 2 ICLJ 138, pp161–168.

267

See Thomas, Principles of Sentencing, p56.

268

(1982) 4 Cr App R (S) 57.

269

R v Bocskei (1970) 54 Cr App R 519.

270

[1990] 1 IR 388.



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F. APPEALS AGAINST SENTENCE

1.156

An offender who is dissatisfied with the severity of a sentence imposed on him by the sentencing court may have a right of appeal to a superior court against sentence. A right of appeal may only be conferred by the Constitution or by statute271 and it may be noted at the outset that the prosecution has no statutory right to appeal a lenient sentence.

1.157

The appellate courts for criminal appeals in Ireland consist of:


(i)


The Circuit Court: On appeal from the District Court;


(ii)


The Court of Criminal Appeal: On appeal from the Circuit Court;272 the Central Criminal Court; or the Special Criminal Court; and


(iii)


The Supreme Court: On appeal from the Central Criminal Court.

1.158

It will be noted that a person convicted and sentenced in the Central Criminal Court has a choice of appealing to either the Court of Criminal Appeal or the Supreme Court; but having appealed to the one he cannot appeal to the other.273 The High Court may also hear appeals by way of case stated from the District Court once the District Judge has given his decision,274 and the Supreme Court may deal with appeals by way of case stated from the Circuit Court275 on matters pending in that court.

Appeals to the Circuit Court

1.159

The right of appeal to the Circuit Court is conferred on the appellant as of right by statute.276 An appeal in the Circuit Court is a full re-trial (the judge sitting alone without a jury). Thus it has been held that the appeal cannot be against conviction only277 and the court may increase the sentence notwithstanding the fact that the appellant did not appeal against sentence.278 The Circuit Court will re-hear the case, both on the facts and the law, though in an appeal against sentence it will confine itself to the factors relevant to sentencing.279 The prosecution has no such right to appeal against conviction or sentence.280


271

The People (AG) v Kennedy [1946] IR 517; The People (DPP) v O Shea [1982] IR 384.

272

Including an appeal against sentence where the accused pleads guilty in the District Court and is returned to the Circuit Court for sentence: Criminal Procedure (Amendment) Act, 1973, s1.

273

The People (AG) v Conmey [1975] IR 341.

274

Summary Jurisdiction Act, 1857, s2; Courts (Supplemental Provisions) Act, 1961, s51.

275

Courts of Justice Act, 1947, s16.

276

Courts of Justice Act, 1928, s18; Criminal Justice Act, 1951, s24; Courts of Justice Act, 1953, s33.

277

The State (Aheme) v Governor of Limerick Prison [1983] ILRM 17, 22.

278

The State (O Rourke) v Martin [1984] ILRM 333. The jurisdiction of the Circuit Court on appeal is, however, limited to that of the District Court.

279

Courts (Supplemental Provisions) Act, 1961, s50.

280

Foley v Clifford [1946] Ir Jur Rep 53.



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Appeals to the Court of Criminal Appeal

1.160

A person convicted on indictment has no absolute right of appeal to the Court of Criminal Appeal against conviction or sentence: leave to appeal must first be obtained.281 Such leave may be granted by the trial judge, or, if the trial judge refuses, from the Court of Criminal Appeal by way of an application for leave to appeal.282 The grounds on which the accused seeks leave to appeal are generally substantially the same as those of the appeal, so the Court usually treats the preliminary application as the hearing of the appeal. This is particularly the case in appeals against sentence, so that such appeals are seldom the subject of considered judgments and the decisions are delivered extemporaneously. The judgment is pronounced by only one member of the three judge court, and unless the court otherwise directs, no judgment with respect to the determination of any question may be pronounced separately by any other member.283

1.161

Unlike appeals to the Circuit Court, an appeal to the Court of Criminal Appeal is heard on the basis of the transcript of evidence taken at the trial of the appellant, though the court may request a report from the trial judge as to his opinions, and may requisition the original indictment, depositions, exhibits and record from the trials book. Also, unlike an appeal to the Circuit Court, an appeal to the Court of Criminal Appeal may be against conviction only– in which case the appellant is dominus litis and the court is not entitled to deal with sentence.284 It is only in appeals against sentence only or against conviction and sentence that the court may “remit, reduce or increase or otherwise vary the sentence.”285Ryan and Magee sum up the current situation in regard to appeals against sentence to the Court of Criminal Appeal thus:286

“There are few reported decisions of the Irish courts dealing with the principles on which they will act in relation to appeals against sentence, since such appeals are seldom the subject of considered judgments. The Court of Criminal Appeal has, however, repeated, in line with its English counterpart, that it will not interfere with a sentence, even though the members of the Court might themselves have been more or less severe if dealing with the case themselves, unless the trial judge has erred in principle287– although in practice the Court may seem occasionally to make an exception to prove its rule. The fact that a co-accused may have received too lenient a sentence is not a ground for interfering with a sentence properly imposed on an appellant.288 The Court will, however, vary the sentence if the trial judge was not informed or


281

Courts of Justice Act, 1924, ss31, 63.

282

Ibid.

283

Courts of Justice Act, 1924, s28.

284

The People (AG) v Earls [1969] IR 414.

285

Courts of Justice Act, 1924 s34.

286

Op cit, p433.

287

See Archbold §7-633 seq,; R v Ball 35 Cr App R 164. See the statement of the Court of Criminal Appeal in The People (DPP) v Michael Walsh 3 Frewen 248, discussed immediately below.

288

The People (AG) v Poyning [1972] IR 402. See also The People (DPP) v Johnson 3 Frewen 276.



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misinformed as to some material factor,289 and if there is merely a technical flaw in the sentence, the proper course is for the Court of Criminal Appeal to vary it, for example by substituting a sentence of imprisonment for one of penal servitude.”290

In The People (DPP) v Michael Walsh,291 the Court of Criminal Appeal emphasised that there exists a clear division between the function of the court in revising sentence, which is to see if an error has occurred, and the function of the Executive in granting remission. Here, a plea for leniency and mercy for the applicant in all the circumstances that had happened since his imprisonment were matters appropriate to a petition to the Minister for Justice.

Appeals to the Supreme Court

(i) Under article 34.4.3 of the Constitution

1.162

A person convicted and sentenced in the Central Criminal Court may appeal to the Supreme Court by virtue of Article 34.4.3 of the Constitution which provides that the Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court.292

1.163

The prosecution has a corresponding right of appeal to the Supreme Court, but the Supreme Court has held that in appeals against conviction it will not disturb a verdict properly arrived at and supported by evidence, such as an acquittal duly recorded by a jury on consideration of the evidence.293

1.164

Whether, in an appeal against sentence by the prosecution, the Supreme Court will disturb a sentence imposed by the Central Criminal Court – thus giving the prosecution an effective right of appeal against leniency of sentence – remains to be determined. However, some indication as to the likely response of the Supreme Court to such an appeal may be divined from the case of The People (DPP) v Quilligan and O'Reilly (No. 2),294 where a Supreme Court majority held that the jurisdiction to hear an appeal did not ipso facto carry with it the jurisdiction to order a re-trial, even though the trial judge had erred in law in directing an acquittal. The majority was persuaded by the fact that if a re-trial was ordered, the defendants could complain that they were not being treated equally with other persons whose acquittals had been appealed by the prosecution under the provisions of s34 of the Criminal Procedure Act, 1967, which allows for the prosecution to make a case stated without prejudice to the verdict. Also persuasive was the fact that the legislature had not conferred any


289

The People (AG) v Earls [1869] IR 414. See also The People (DPP) v Dennigan 3 Frewen 253.

290

The People (AG) v Power, unreported, Court of Criminal Appeal, 31st July, 1975; The State (McDonagh) v Frawley [1978] IR 131

291

See also In the Case of Michael Connolly 3 Frewen 1.

292

The People (AG) v Conmey [1975] IR 341; The People (DPP) v O Shea [1982] IR 384. In The People (DPP) v Conroy (No 2) [1989] IR 160 this was invoked to appeal a sentence imposed by the Central Criminal Court.

293

The People (DPP) v O Shea, supra.

294

[1989] ILRM 245.



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specific jurisdiction to order a re-trial on the Supreme Court.

1.165

It can be argued, thus, that the Supreme Court could adopt a similar non-interventionist approach to prosecution appeals against sentence. Indeed the whole tenor of the Supreme Court's rulings in Quilligan (No. 2) and in The People (DPP) v O'Shea295 would seem to suggest a dissatisfaction with the entire idea of prosecution appeals other than those which decide a point of law without disturbing the findings of the lower court. However, on a stricter reading of Quilligan (No. 2) it can be argued that, since there is no equivalent of s34 of the Criminal Procedure Act, 1967 in relation to sentence, there would be no reason for other defendants to complain that they were treated unequally, and consequently, the Supreme Court could safely disturb a sentence imposed by a lower court. Also, unlike Quilligan (No. 2) where there could be found no inherent or legislatively conferred jurisdiction to order a re-trial, the Supreme Court has inherent jurisdiction to disturb a sentence imposed by a lower court, and had done so in appeals against sentence by the defence.296 Finally, there would be less likelihood of the danger of double jeopardy, (a danger which the Supreme Court found persuasive in Quilligan (No. 2)), since, a review of sentence does not amount to a breach of the double jeopardy rule.297 This is an area, thus, which would benefit from some judicial or legislative statement.298

(ii) Under s29 of the Courts of Justice Act, 1924

1.166

A sentence imposed by the Court of Criminal Appeal may be appealed to the Supreme Court if the Court of Criminal Appeal, the Attorney General or the DPP certifies that the decision involves a point of law of exceptional public importance.299 An example of such an appeal is the recent case of The People (DPP) v Tieman300 where the point of law of exceptional public importance was certified by the Attorney General to be the guidelines which the court should apply in imposing a sentence for rape. Although such appeals are technically by way of case stated, since the foundation for appeal is a point of law, the Supreme Court is not limited to the point of law certified as being of exceptional public importance, but may also consider other grounds of appeal.301


295

[1982] IR 384.

296

The People (DPP) v Conroy (No 2) supra n.294.

297

See US v Di Francesco (1980) 499 US 177.

298

We examine the issue of providing a prosecution right to appeal more fully in Chapter 14 infra.

299

Courts of Justice Act, 1924, s29.

300

[1989] ILRM 149.

301

The People (AG) v Giles [1974] IR 422; The People (DPP) v Shaw [1982] IR 1; The People (DPP) v Kelly (No 2) [1982] IR 90.



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CHAPTER 2: SENTENCING POLICY

2.1

A sentencing policy may operate at any number of levels – however, the most fundamental issues which a sentencing policy should at least address are:


(a)


How does the criminal justice system sentence offenders?


(b)


Why does the criminal justice system sentence offenders?

2.2

It is central to a consistent and just sentencing system that a coherent sentencing policy on how the criminal justice system sentences offenders be clearly articulated, since sentencing policy governs the decisions made at two stages in the criminal process. In fact, the question of how offenders are to be sentenced is at the heart of the sentencing process and will receive the greater part of our attention in this paper. As we have seen,1 sentencing policy shapes the decisions made by the sentencing judge when choosing the approach to adopt in individual cases, which in turn affects both the nature and extent of the sentence imposed. Incoherence in policy governing these matters can lead to inconsistent sentencing decisions being made. Secondly, sentencing policy comes into play when the legislature is formulating penal policy – such as deciding what type and amount of penalties to attach to newly created offences in criminal statutes, or creating new forms of penalty or sentencing alternatives for the courts to implement. The introduction of new measures can be effectively set at nought by the judiciary if it is not done in close co-ordination with sentencing policy; but if that policy is not coherent then they may still fail to meet their objectives if they conflict with the policies of the sentencers who individuate them.

2.3

However, consistency in sentencing is of little value if the sentences


1

See para 1.45 et seq, supra. (The Choice of Approach).



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imposed cannot legitimately be justified, and therefore decisions about how we sentence offenders must be made within the context of what we know about why we sentence offenders. No sentencing policy can be complete and useful if it is not formulated within this context.

2.4

In this chapter we identify the need for coherence in sentencing policy by examining the consequences of incoherence. Before we start, let us first clarify the nature of sentencing policy.

2.5

Sentencing policy governs the sentencing decision by providing the sentencer with a framework within which to operate by prompting him or her towards one approach or another depending on the circumstances of the case:2 for example, a general policy might require that drug offenders should be given deterrent sentences.3 In short, sentencing policy governs the choice of approach in the sentencing decision by indicating the type of approach to be adopted and providing some indication of the type of principles which should govern the choice of penalty or measure. It is clear, therefore, that in order to have meaning in practice, a general sentencing policy must be supplemented by specific principles governing the choice of penalty or measure which mechanically provide set answers which must be given when certain circumstances exist: for example, a specific principle might be such that sentencers following a retributive approach are required to impose a sentence of 17 years' imprisonment on any offender responsible for a violent rape, but who admits guilt at an early stage in the investigation.4 In other words, specific principles govern the choice of a particular penalty or measure by providing a set of consequences which are to follow upon the existence of certain factors being established.5

As we shall see, an acceptable set of specific principles governing the imposition of sentence cannot be developed without there first existing a coherent general policy governing sentencing.6 It is not within the scope of our remit to come up with a set of specific sentencing principles; rather, the aim of this paper is to propose a coherent general framework from which a set of specific principles may be developed.

2.6

Let us also make the observation at this point that in this jurisdiction neither our sentencing policy nor our specific principles governing the imposition


2

See Galligan, Guidelines and Just Deserts: A Critique of Recent Trends in Sentencing Reform [1981] Crim LR 297, p310.

3

See para 1.55, supra. (A Deterrent Approach).

4

See para 1.43, supra. (Choosing the Appropriate Penalty).

5

Thus, in Minnesota, where a sentencing commission was established to examine and improve the way in which sentences of imprisonment were imposed, the Commission began by reforming sentencing policy, and eliminated the difficulties which surround the choice of approach in sentencing by stating that the approach to be adopted in all cases was to be “just deserts” (which, for the moment, we may describe as a modification of the retributive approach). Thus the type of principles which were to govern the choice of penalty or measure in all cases were to be those which follow upon the adoption of a “just deserts” approach. The Commission then undertook a reform of the specific principles governing the choice of sentence following a “just deserts” approach. It produced a grid or table consisting of a scale of offence severity on one axis and a scale of prior offence record on the other. Having established the seriousness of the offending behaviour and the prior record of the offender, the sentencer was given the length of the sentence of imprisonment which was to be imposed.

6

See para 2.33 et seq, infra. (Inability to Develop Specific Principles).



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of sentence are adequately developed; as we have seen, existing sentencing policy does not always assist sentencers in deciding what approach to adopt when sentencing a particular offender, and there are few specific principles upon which a sentencer may rely to find the appropriate penalty or measure having adopted a particular approach.7

2.7

Let us now examine the importance of a coherent sentencing policy in a rational sentencing system.

No Policy

2.8

If no sentencing policy existed then there would be no right or wrong answers to the two questions of why and how offenders are sentenced, and the sentencing system would be bereft of any useful sentencing principles. The criminal law would consist merely of criminalising statutes with attached penalty scales and a general mandate for the courts to sentence within the prescribed ranges. The courts could sentence for any reason, in any manner, and upon any basis they saw fit.8

Incoherent Policy

2.9

Where two or more considerations may be relied upon to decide 'why' and 'how' offenders are sentenced, and all of these considerations are equal and interchangeable, then an incoherent sentencing policy exists. Since one consideration may lead to a sentence dramatically different to that which another may have led to, like cases may be treated differently, and justifiably so, but there is nothing to determine which consideration is the correct one and which one should prevail. The end result is inconsistency in the way in which the criminal justice system deals with offenders, exhibiting what may be perceived as disparity, and undermining confidence in the criminal justice system.

2.10

Traditionally, in Ireland and many other jurisdictions, sentencing policy has been formulated by reference to the traditional objects of sentencing. The traditionally recognised objects or purposes of sentencing are retribution, rehabilitation, deterrence and incapacitation, although some modern writers make reference to less well recognised objects such as reparation or compensation of the victim.9 These expressions are commonly embodied in the penal codes of other jurisdictions.10 Although sometimes there have been general attempts to prioritise certain objects by the judiciary,11 the objects are generally interchangeable and there is usually no principle which governs how one object should be found to be more suitable than another in a given case, so our sentencing policy is best described as “incoherent.” What follows is an


7

See para 1.38, et seq, supra. (The Sentencing Decision).

8

See Jareborg, Introductory Report on Disparities in Sentencing: Causes and Solutions, Council of Europe, (1987), p10.

9

See Wasik, The Place of Compensation in the Penal System, [1978] Crim LR 599.

10

E.g. the American Model Penal Code §1.02(1).

11

See the general guidance of Walsh J in The People (AG) v O Driscoll, para 1.49, supra.



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examination of some of the problems presented by an incoherent sentencing policy.

Problems with Incoherent Sentencing Policy

1. Fair notice

2.11

In a sentencing system such as ours which has an incoherent policy governing the choice of approach by the sentencer, the resulting inconsistent decisions can do violence to notions of Fair Notice– as when a defendant who reasonably expects a trivial sentence receives a lengthy one, giving the defendant, as Finlay CJ described it in Conroy (No. 2), a “substantial sense of grievance at unfair treatment which may be caused by apparently unequal sentences.”12 What is unfair is that in the absence of a coherent policy, the defendant and his or her counsel will have to rely on their own ingenuity in deciding what factors to bring to the attention of the sentencer which they feel will influence him or her to choose one approach over another. This is not an easy task, since, essentially, the “goalposts” are not defined – if sentencers themselves do not have a policy on which factors should influence their choice of approach, how, then, are defendants to inform sentencers of the factors relevant to their particular case? In Conroy's case,13 for example, the Supreme Court found on appeal that the trial judge had overlooked evidence of a high standard of behaviour on the part of the offender while on remand in custody, which, if considered, should have led to the adoption of a rehabilitative approach. Conroy had the good fortune to have this factor recognised on appeal and his sentence reduced accordingly; but one may ask how many other offenders are sentenced without consideration of such factors because they and their counsel do not have “fair notice” of the importance or relevance of these factors?

2. Conflicts with penal policy

2.12

A sentencing judge could wittingly or unwittingly usurp the legislature's penal policy by imposing a trivial sanction for a crime which the legislature has presumed would call for a more severe one – say insider trading. The legislature may have allowed for a high maximum penalty in the hope that severe sentences would be imposed to deter, yet the judge may impose a trivial sentence in order to promote rehabilitation. The problem becomes more acute when the legislature introduces new penal measures (i.e. new types of sentence) which may have the aim of fostering one approach or aim; the courts may misuse them or completely ignore them if they do not correspond with their personal sentencing policies. The legislature and the judiciary could end up acting at crossed purposes.


12

[1989] IR 160, 164; also The People (AG) v Poyning [1972] IR 402 and The People (DPP) v Healy [1990] IR 388; see para 1.57, supra. (Differing principles). Of course, where sentencing policy is incoherent it matters not that the sentences are apparently unequal if the inequality is based on differences in the circumstances of the offending behaviour and the character of the accused which may supposedly merit different approaches being adopted.

13

Supra.



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2.13

Ashworth comments on the effect this problem has had on English penal policy:

“It is clear, not only from the period 1979 – 1981 but also from 1967 onwards, that the introduction of new forms of sentence will only achieve the policy objectives of their proponents if close attention is paid to their integration into sentencing practice. In blunt terms, the courts can make or break a new penal measure. This indicates the desirability of providing guidelines for sentencers, once it has been decided exactly how the new measure ought to fit into sentencing practice. The great difficulty is that there exists no systematic knowledge about sentencing practice.”14

He concludes:

“It therefore follows that co-ordination of policy, from prosecution through to parole (including procedural issues such as expediting criminal trials), is essential if the criminal justice system is to be shaped so as to achieve agreed policy objectives.”15

2.14

It is clear, therefore, that although sentencing is but one stage in the criminal process, the policies at play there may have profound repercussions on the other stages. If there is not a coherent policy in operation at the sentencing stage then it becomes increasingly unlikely that the other stages will achieve their objectives. This is of importance not simply to the other stages in the criminal justice system but to sentencing itself. If there is not a coherent policy governing sentencing practice then it is increasingly difficult for the legislature to introduce penal measures which will fit neatly into sentencing practice.16 Certainly, it will be impossible to co-ordinate policy throughout the entire process without at first clarifying the policies of the individual components.

3. Accommodation of abuse

2.15

Incoherent sentencing principles can accommodate abuse since each judge is virtually free to impose any sentence he or she feels appropriate. A sceptic might conclude that the use of the objects to justify a chosen sentence is a convenient means of rationalising results for which the sentencer has another reason –“window dressing” as Robinson describes it.17 Under this cynical view, the objects offer hidden flexibility to sentencers helped by the lack of a single overriding principle. Although we do not share in this scepticism, we agree that in our incoherent sentencing policy, the absence of a single guiding principle means that the choices made will be, at best, inconsistent.


14

Sentencing and Penal Policy, (1983) pp135–36.

15

Ibid, p137.

16

See our conclusions on the range of choice available to Irish sentencers in para 1.142 et seq, supra. (Range of Choice – Summary).

17

Commissioner Paul Robinson of the U.S. Sentencing Commission, Legality and Discretion in the Distribution of Criminal Sanctions, (1988) 25 Harvard Journal on Legislation 393, p398.



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2.16

Yet, while it is hoped that our sentencers would not knowingly allow a particular personal bias to affect their sentencing decisions, it remains questionable whether there is widespread unconscious bias; it is unlikely that sentencers nowadays allow their choices to be influenced by “demographic” factors such as sex, politics, religion or race,18 but there is some evidence that the age of the sentencer19 or the degree of urbanization of the community in which the sentencer lives,20 may lead towards an “invisible” bias in favour of one approach over another. For example, Hogarth found that in Canada urban magistrates tend to favour a retributive approach more than their rural counterparts.21 In the absence of a coherent policy, thus, there is greater room for demographic factors to have an influence on the sentencer's choice of approach to sentencing an offender, since there is no standard or accepted policy to point him or her in the direction of any single approach.

4. Failure to achieve any object

2.17

When several conflicting principles are pursued simultaneously, the resulting sentence may frustrate them all.22 The sentence may rely too much on rehabilitation to satisfy retributive factors, yet it may not use deterrent factors enough to have any use as a preventive strategy. When the principles of sentencing are in conflict, as they are, following a little of each may achieve no purpose at all.

5. Public distrust

2.18

When conflicting principles are simultaneously relied upon, the public will almost certainly experience the sentencing system as exhibiting disparity. The public assume the system to be coherent – and probably suppose that sentences will reflect common-sense principles of desert (i.e. that the severity of the sentence will reflect the seriousness of the crime).23 Thus when similar offenders who have committed similar crimes receive dissimilar sentences the public tends to see this as disparity.24 Part of the public's concern is expressed as dissatisfaction that certain offenders (in particular violent offenders) are not dealt with harshly enough by the system,25 or in calls for a prosecution right to appeal against a lenient sentence.26


18

See Mc Conville and Baldwin, The influence of Race on Sentencing in England, [1982] Crim LR 652.

19

Hood, Sentencing and the Motoring Offender, (1972), p140; Hogarth, Sentencing as a Human Process, (1971), p211.

20

Hogarth, Ch 13.

21

Ibid.

22

See Jareborg, Introductory Report, in the Council of Europe's Disparities in Sentencing: Causes and Solutions, (1987).

23

Walker and Hough found that in England most people surveyed believed that the best system of sentencing is one which “gives the offender what he deserves” see Ashworth, Criminal Justice and Deserved Sentences, [1989] Crim LR 840.

24

Jareborg, op cit, p11.

25

See the reports of the controversy which arose when the then President of the Circuit Court suspended part of the sentence of a sex offender; e.g. Sex Case Row Judge Explains His Sentence, The Irish Independent, 6th November 1990; Rape Sentence is Queried by Burke, Irish Press, 21 November 1990.

26

The calls have been answered in Ireland by the publication of the Criminal Justice Bill, 1992. See Chapter 14, infra. (Prosecution Appeal Against Sentence).



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2.19

This distrust may owe part of its existence to the manner in which the news media inform the public of sentencing decisions. Generally, the media tend to devote more attention to sentences that are seemingly unusual in some way – unusually lenient or unusually harsh – which leaves the public with less opportunity to form a rounded opinion of sentencing. Ashworth remarks:

“Newspapers tend to print headlines such as 'Rapist gets only 18 months' rather than 'First offender of exemplary previous character imprisoned for 18 months'.”27

2.20

Most journalistic comment fails to recognise the distinction between inequality of sentence severity based on the type of offence and inequality of sentence severity based on differences in the seriousness of the offending behaviour and the character of the offender. But not all the blame for public distrust of the sentencing system must be laid at the door of the media. Sentencers themselves rarely give any indication of the factors of the offending behaviour and character of the offender which led them to impose (to continue with the above example) an 18 month sentence on the particular offender when others of a less righteous character receive 5 years. The failure to provide reasons may equally be construed by the public as illustrating that sentencers themselves are unsure of the criteria which govern their choices. Certainly the public cannot rest secure in the knowledge that there is no coherent policy which sentencers follow in making their choices.

2.21

In this context it is hardly surprising that the public does not understand the sentencing system and is critical of it. This has profound consequences for the criminal justice system, because sentencing is:

“... the punchline of the criminal justice system. It is at this point that the law is seen to have its impact. The sentencing stage provides the most tangible, public demonstration that the criminal law is not just a declaratory model code, but is a set of rules which are to be enforced by punishment. The whole apparatus of investigation, prosecution and trial is in many respects simply a prelude to the punishment of the guilty. And similarly, a range of institutions and personnel which makes the correctional component of the criminal justice system is largely about administering the sentencing decisions of the courts. The importance of the sentencing stage can hardly be overstated.”28

Victims

2.22

Victims of crime, too, commonly remark that the system does not respond to their dilemma. The incoherence of the principles pursued renders sentences unpredictable and very often the victims of a crime will complain that


27

Ashworth, Sentencing and Penal Policy, p143.

28

Sallmann and Willis, Criminal Justice in Australia, (1984) p157, cited with approval by the Victorian Sentencing Committee in their Report, Sentencing, (1988) p15.



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“justice was not done”, and express distrust of the criminal justice system.

2.23

A positive response to the victim's dilemma was contained in section 5 of the Criminal Justice Bill, 1992 which provided:


(1)


In determining the sentence to be imposed on a person for an offence to which this section applies, a court shall take into account, and may, where necessary, receive evidence or submissions concerning, any effect (whether long-term or otherwise) of the offence on the person in respect of whom the offence was committed.


(2)


This section applies to:


(a)


a sexual offence within the meaning of the Criminal Evidence Act, 1992,


(b)


an offence involving violence or the threat of violence to a person, and


(c)


an offence consisting of attempting or conspiring to commit, or aiding, abetting, counselling, procuring or inciting the commission of, an offence mentioned in paragraph (a) or (b).”

2.24

If a similar section became law, courts in sentencing should make clear what proportion of their sentences in these cases is referable to the effect of the offence on the victim.

6. Disparity and inconsistency

Disparity

2.25

Incoherent sentencing principles can lead to what is perceived as disparity. Disparity, simply put, is a difference in sentencing which cannot be justified. But without a single over-riding policy or approach to say what is or isn't justified, it is very difficult to say that disparity exists. Disparity depends on one's theory of sentencing:

“Since disparity is a notion of formal justice, it presupposes a distinction between relevant and irrelevant factors. The distinction requires substantive criteria about what is relevant and irrelevant.”29

2.26

Forst comments:30

“Anyone who wants to show disparity in sentencing must demonstrate


29

Jareborg, op cit, p8.

30

Forst, ed, Sentencing Reform: Experiments in Reducing Disparity, (1982), p30.



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that the different sentences meted out to persons committing the same offence under similar circumstances cannot be justified by reference to some legally relevant variables, that is, to factors that have some rational relationship to the aims of the criminal law. This is a tall order to fulfil, since the aims of the criminal law are rarely clearly articulated.”

2.27

There is no single policy or approach in our system, so like cases may be treated differently, and justifiably so. Two judges suggesting different sentences for an identical case might both be right (or, for that matter, wrong) if one accepts the legitimacy of different priorities being given to different approaches to sentencing.31 Disparity would be enormously difficult to detect because almost any factor can be of relevance to one of the alternative objects of sentencing:

“Particular offence or offender characteristics may well justify different sentences, in terms of either type or severity, for apparently similar offences. Whether such differences will amount to disparity will depend on their compatibility, not with one another, but with the stated goals and policies of the sentencing process. For example, on 2 July 1987, in Limerick Circuit Court, a 24-year-old man was sentenced to 4 years imprisonment when convicted of raping a 62-year-old woman. On the same day, in Dublin Circuit Court, a 60-year-old man was sentenced to 9 years when convicted of raping a 25-year-old woman and received a 5 year concurrent sentence for indecently assaulting the same victim. Did this amount to disparity? It is impossible to say in the absence of criteria against which to evaluate them.”32

2.28

Without a coherent policy, thus, the value of conducting research on the extent of disparity in sentencing must come into question. Kapardis, who conducted what many consider to be the most extensive evaluation of the evidence and research on sentencing disparity,33 concluded that nearly every method of conducting research on disparity may be criticised on a number of grounds. In order satisfactorily to prove the existence of disparity, a research


31

See the Canadian Sentencing Commission's Report Sentencing: A Canadian Approach, p73.

32

O'Malley, Irish Sentencing Reform, (1988) 6 ILT 111, p112.

33

Sentencing by English Magistrates as a Human Process, (1985).



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project would have to satisfy a large number of minimum requirements34– which as a practical matter are virtually impossible to fulfill simultaneously. The fundamental problem is that there is simply no consensus on the factors which point to the suitability of one justification or approach in any given case which would show that the sentencing practices under investigation indicate disparity. There is not, thus, a ready means by which sentencing disparity can be proven to a satisfactory level.35

Inconsistency

2.29

It is nonetheless inevitable that a high level of inconsistency will occur when sentencers make the choice as to the particular approach upon which to base their choice of sentence. Radzinowicz and Hood observe of inconsistencies that:

“They have been demonstrated again and again, in terms of areas, courts, of individual judges and magistrates. The North of England, for example, uses probation more sparingly, fines and imprisonment more readily than the South. Federal Courts in Brooklyn impose sentences for robbery averaging half as long again as those in Manhattan. A recent analysis revealed that the proportion of robbers in Birmingham getting more than 4 years was 6 times as high as that in Bristol. Magistrates impose far lower fines for motoring offences in some English courts than in others. We cannot immediately jump to the conclusion that the whole of these differences stems from unjustified prejudice, harshness, or ignorance on the part of the courts ... But even when allowance has been made for such factors, evidence remains of unjustified discrepancies ....”36

2.30

The worst type of inconsistency is inconsistency in the way in which sentencers decide on which approach to adopt when making the sentencing decision – as where one sentencer decides that a particular offender should receive a short sentence on the grounds of rehabilitation and another sentencer


34

The minimum requirements identified by Kapardis are:

(1)

define what is meant by inconsistency by: (a) stating the perspective from which the author considers it, and (b) state in which circumstances inconsistency becomes unjustifiable;

(2)

provide a control for the aim that a particular sentence is intended to serve;

(3)

provide a control for 'input' to different sentencers, or courts, being compared, by controlling for:

(a)

types of offence dealt with (in terms of seriousness, for example);

(b)

types of offenders dealt with;

(c)

types of Information about offenders made available to different sentencers (and this includes recommendations concerning disposals made by probation officers etc.);

(4)

identify the sentencer's perception of the seriousness of the offences under consideration;

(5)

identify the availability of facilities;

(6)

identify the prevalence of the offences under consideration if comparisons are made with sentences in different areas; and by

(7)

showing the validity of the methods and instruments used to obtain measures.

See Kapardis, op cit, p27.

35

See the Report of the Victorian Sentencing Committee, p154; and that of the Canadian Sentencing Commission, p74.

36

The Growth of Crime, (1977), pp212–13; 219–20.



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decides that the same offender should receive a lengthy sentence on the grounds of deterrence – because it leads to unequal treatment of offenders by the criminal justice system. The existence of such inconsistency is easily determined by taking a look at the perceptions of those who sentence and the actual results of their sentencing dispositions. Palays and Divorski describe the results of a Canadian exercise which, in the absence of an Irish analogue, we may find compelling.37

2.31

The study was conducted by furnishing over 200 Provincial Court judges with the same basic facts relating to the offence and the characteristics of the offender in five hypothetical specimen cases. The judges were individually asked to indicate the sentence they would recommend in each case and the reasons for their conclusions. In all cases there was inconsistency in the sentences recommended – in many the degree of inconsistency was quite dramatic. The study revealed the way in which sentencing judges differ in their philosophical approach to sentencing – some choosing rehabilitative approaches and others choosing retributive ones. Those sentencers who were generally more lenient tended to rely on rehabilitative reasoning while those who were more severe emphasised the seriousness of the crime.

2.32

Other studies of actual sentencing dispositions found similar inconsistency.38 We have every reason to believe that in Ireland, a fortiori, considering the similarities in sentencing structure, similar inconsistencies would be displayed here. Intuitively, the existence of inconsistency here is a certainty.

7. Inability to develop specific principles

2.33

An incoherent sentencing policy hinders the rationalisation of sentencing generally. Because there is no universal agreement as to the paramount aim or approach to sentencing, it is impossible to construct any other than the most general and piecemeal set of principles which should have application in any given case, or at all; and, consequently, it is very difficult to construct a purposeful repertoire of principles to assist sentencers in making the decision as to the appropriate penalty or measure.

2.34

Because sentencing remains an instinctive synthesis of the particular characteristics of the offender and the particular characteristics of the offence, it is not appropriate to lay down any standardisation or tariff of penalty for cases.39 Thus, for example, it is impossible to say that just because the penalty for a given case far exceeds the average sentence for that offence, the sentence on hand is wrong;40 nor, therefore, can sentencers have recourse to decided


37

Palays and Divorski, Judicial Decision Making: An Examination of Sentencing Disparity Among Canadian Provincial Court Judges in Muller, Blackman and Chapman (eds), Psychology and the Law, (1984), summarised by the Canadian Sentencing Commission in its Report, p75.

38

See Hogarth, op cit; also Lovegrove, An Empirical Study of Sentencing Disparity Among Judges in an Australian Criminal Court, (1984) 33 International Review of Applied Psychology 161; Polk and Tait, The Use of Imprisonment by Victorian Magistrates, a report prepared for the Victorian Sentencing Committee, published in full as Appendix N of that committee's report.

39

Per Finlay CJ in The People (DPP) v Tiernan, para 1.62 et seq, supra. (Choice of Penalty or Measure).

40

Ibid.



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examples or averages of sentence for that offence to assist him or her in the choice of penalty or measure.

2.35

This lack of guidance, coupled with the scant legislative guidance which exists on the use of the various sentencing options, has a number of undesirable consequences.

2.36

To begin with, sentencing judges are left to their own devices when determining the extent of the sentence imposed. How, one may ask, does a sentencer know that, say, three years imprisonment is appropriate for a given offender having regard to the seriousness of the offending behaviour? How does a sentencer know that 100 hours of community service is more likely to induce reform than 40 hours? Different judges may choose different degrees of severity when deciding on the extent of sentence for similar offenders or offences.

2.37

Secondly, sentencing judges, deciding on the nature of sentence, are given no indication of when or how to use individual sanctions open to them. How does a judge decide that, say, community service would be more appropriate than probation? There is no consensus as to whether some of the sentencing options available to the court are simply alternatives to other options, or whether they exist in their own right as the most appropriate penalty for a certain case. In some cases, sentencers may even regard a particular alternative as quite inappropriate and not use it for any offences.41 The end result may be an over-reliance on imprisonment.42 Also, different judges may impose different alternatives in sentencing similar offenders for similar crimes.

2.38

Thirdly, sentencing judges, the accused, counsel and the public are given no consistent indication as to the seriousness of particular crimes, or as to how the seriousess of crimes should be gauged. In general, the only indication of how seriously a crime is viewed by the Oireachtas is the maximum sentence which it carries.43 But even these are inconsistent and out of date, and of little assistance in gauging offence seriousness.

2.39

Finally, the worst consequence of this dearth of principles is inconsistency, and all the problems associated with it, such as sagging public confidence, and confusion for those involved in the sentencing process. In order to reverse these problems, it is necessary that a meaningful and uniform set of principles be constructed to assist sentencers. But without first laying down the underlying policy of sentencing, this would be a pointless exercise, merely replacing an unfair level of inconsistency with an equally unfair level of consistency. This happened in the USA. There, the Federal Guidelines Commission set out a list of guidelines which laid down the presumptive sentence for every crime on the statute books; the presumptive sentence was to be


41

A point made by the Supreme Court Judges of Victoria. See the Victorian Sentencing Committee's Report, Sentencing, (1988) p39.

42

This was strongly argued by the Canadian Sentencing Commission, op cit, pxxiii.

43

See para 10.1 et seq, infra. (Maximum).



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followed in all cases save in exceptional circumstances. However, the presumptive sentences were set by the Commission without it first agreeing on the underlying rationale and as a result, they embody a degree of past irrationality since they were set by reference to prior averages and not by reference to any policy. Without a policy to define what makes a case un-exceptional, an enormous volume of appeals is being generated to determine whether each case is exceptional (so as to allow departure from the guidelines) or not.44Galligan points out that reasons for departure are themselves relevant to the broader policies which inform the specific rules, and therefore they are good reasons for changing or extending the rules to take account of new or unforeseen circumstances.45 If the reason for the departure is so personal to the offender that it is incapable of being generalised and related to broader sentencing policies, then it is hard to see why it should be allowed to form part of the sentencing decision.

2.40

A coherent policy is, thus, a necessary precursor to the development and implementation of principles to assist sentencers.

Coherent Policy

2.41

A coherent sentencing policy is simply a general framework of standards which clearly articulates the object or approach to be adopted in all cases, or in any given case. It goes a long way towards eliminating the problems set out above because it lays down a defined course of action to be followed by the sentencing courts when dealing with particular offenders and offences. A defendant will have fair notice of the particular circumstances of his or her case which are relevant to the sentencing decision. The legislature and judiciary would be acting in concert because they would both be taking the same approach. There would be little possibility of abuse since there would be no room for the sentencer to take irrelevant considerations or personal bias into account. There would be no chance of failure to achieve any object because there would be no reason for the court to seek to follow more than one object simultaneously. The public would be given a clear basis for the sentencing choices made by the criminal justice system, and there would be less room for inconsistency, because the relevant characteristics of the offender and offence would be clearly identifiable in like cases, and the approach adopted in like cases would be uniform. Finally, a coherent sentencing policy would provide the framework within which a rational and consistent set of guiding principles could be constructed.

2.42

A coherent sentencing policy may be brought about in a number of ways; Jareborg identifies the following three:46


44

See para 7.82 et seq, infra. (Sentences: The Federal System of the USA) and para 9.101 et seq, infra (US Federal Sentencing Guidelines).

45

Galligan, op cit.

46

Op cit, pp 11–12.



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(a)


By making one type of approach or object the sole one. For example, if retribution was the only object which could be pursued, then only those factors of the offence relevant to retributive sentencing could be relied upon. There would be no room for a different sentence on the grounds of the offender's likelihood of, say, reform.


(b)


By confining different approaches or objects to specific areas of application. For example, by applying only a deterrent approach to crimes involving drug trafficking. Alternatively, a specific approach could be confined to specific types of penalty – e.g. a rehabilitative approach to be adopted when deciding the amount of community service to be imposed. Similarly, specific approaches could be confined to deciding whether one type of sentence should be favoured over another – so that where, say, imprisonment or community service may be imposed, a rehabilitative approach should be taken so as to suggest that community service would be more appropriate.


(c)


By ranking the approaches or objects in order of importance, so that one must be exhausted before another may be pursued. For example if rehabilitation were chosen as the dominant object, and deterrence subordinate to that, then an offender could only be given a deterrent sentence if he showed no likelihood of reform.

2.43

It should be remembered that a coherent sentencing policy is not a panacea for all the problems associated with our sentencing process – it desperately needs to be supplemented by a set of specific principles to guide sentencers in its individuation. For example, if, under a coherent policy, retribution was to be the sole object pursued in every case, two judges sentencing like offenders for like offences could still differ over the amount of punishment necessary to punish each.47 However, coherence is a fundamental of an efficient and just sentencing system without which the remaining difficulties cannot be resolved.


47

See para 9.97 et seq, infra. (Caselaw).



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CHAPTER 3: THE FORMULATION OF SENTENCING POLICY

3.1

A sentencer receives little or no guidance from the Oireachtas or from judicial precedent when choosing the correct approach to adopt in relation to a particular offender and a particular offence.1 Both the appellate courts and the Oireachtas have shown remarkable reluctance when it comes to making rules or passing laws which give helpful guidance on sentencing matters. The provision of maximum penalties alone has been of relatively little value.

3.2

The obvious route for reform is the introduction of statutory guidance for sentencers as to the factors which should influence their choice of approach in sentencing. The danger here, however, is that legislative involvement in the sentencing process may violate the constitutional separation of powers by entering the domain of the administration of justice – which is the exclusive preserve of the courts in criminal matters.

3.3

In this chapter we examine the special position of the courts in the sentencing process under the Constitution to see what interference with judicial sentencing discretion would be an unconstitutional infringement of the separation of powers.

The Evolution of Judicial Sentencing Discretion2

3.4

Judicial sentencing discretion has only emerged as a feature of the sentencing process in the last 150 years or so. Prior to the mid-nineteenth century, the sentencing judge was afforded no discretion in the case of a felony, for which the punishment was mandatory forfeiture of the lands and goods of the


1

See paras 1.45 et seq, supra. (The Choice of Approach).

2

See generally Thomas, Principles of Sentencing, (1979), pp 6–8.



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offender, and death.3 However in some cases judges would reprieve the convicted offender with a recommendation to royal clemency, usually on condition of transportation to the colonies.

3.5

Statutory reforms enacted between 1827 and 1840 gave judges the discretion to impose a sentence of transportation instead of the death penalty, and in the 1850s this discretion was widened to the imposition of penal servitude in substitution for transportation. The Consolidation Acts of 1861 established the basis for sentencing discretion as it exists today, by investing the courts with the discretion to choose the nature and extent of the sentence within broad parameters.

3.6

The task of the sentencing judge in the late nineteenth century was simply to mete out punishment in proportion to the gravity of the offence. However a marked change in attitudes became noticeable around 1907 with the introduction of The Probation of Offenders Act which empowered sentencers to adopt a rehabilitative rather than a punitive approach by dealing with the offender as an individual. In 1908 the Prevention of Crime Act introduced more individualised measures – borstal training and preventive detention for habitual offenders – which heralded the new ideal that the sentence must not only reflect the seriousness of the offending behaviour but also the characteristics of the individual offender. Subsequent legislative measures have continued in this vein, culminating in the introduction of Community Service in 1983.4

Judicial Discretion, Independence of the Judiciary, and Sentencing Policy

3.7

Article 34.1 of the Constitution ensures the independence of the judicial function from interference by the other organs of state by providing that justice is to be administered in courts – and, in criminal cases, only in courts. The selection of the sentence to be imposed in individual circumstances has been held to constitute an intrinsically judicial function, and accordingly a function which may only be exercised by judges in courts. In Lynham & Butler (No 2),5 Kennedy CJ said:

“[T]he judicial power is exercised in determining the guilt or innocence of persons charged with offences against the State itself, and in determining the punishments to be inflicted upon persons found guilty of the offences charged against them ....”6


3

In Deaton v AG [1963] IR 170 Kenny J observed:

“In the earliest days of the common law, all felonies were punishable with the death penalty and although the original classification of the offences which were felonies (the common law felonies) seems to have been made by the court, numerous other offences were made felonies by statute: all of them were punishable with the death penalty .... The judicial power does not seem to have been exercised for a period of at least 400 years prior to the enactment of the Constitution in 1922 in prescribing the punishment which had to be, or might be, imposed for a felony or misdemeanour.”

4

Criminal Justice (Community Service) Act, 1983.

5

[1933] IR 74.

6

At p99.



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The Executive

3.8

It has been stated that:

“It is a matter of considerable constitutional importance that the courts should be wholly independent of the executive, and they are. Thus, whilst the judges, as private citizens, will be aware of the 'policy' of the government of the day, in the sense of its political purpose, aspirations and programme, these are not matters which are in any way relevant to the courts' decisions and are wholly ignored. In matters of home policy, the courts have regard only to the will of Parliament as expressed in the statutes, in subordinate legislation and in executive acts authorised by Parliament.”7

3.9

Thus, in Deaton v AG,8 where the plaintiff had been convicted under legislation which provided that sentence upon conviction for certain smuggling offences under that Act was to be either a fine of £100 or forfeiture of treble the value of the goods, including the duty payable thereon, at the election of the Revenue Commissioners, the Supreme Court unanimously held that the delegation of the power to choose penalty to the Revenue Commissioners contravened the separation of powers doctrine and the independence of judicial function guaranteed by Article 34.1. O Dáláigh CJ said (for the court):

“The selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive ...

The Section ... remains intact, but with the words “at the election of [the Revenue Commissioners] deleted therefrom. Which of the alternative penalties prescribed by the section is proper to be imposed is, together with the issue of the guilt of time accused, a matter to be determined by the court that tries him.”

3.10

Similarly, in The State (O) v O'Brien,9 section 103 of the Children Act, 1908 which empowered the court to sentence a young offender guilty of murder to be “detained at his Majesty's pleasure”, was in issue. Counsel for the accused argued that the section breached the independence requirement of Article 34.1 if the correct construction of that section was to allow an offender to be sentenced for a term to be decided by the Minister for Justice. The Supreme Court agreed that the section would be unconstitutional – if that was the correct construction – however, it was not, and the section merely meant that the courts could impose an indeterminate sentence which may be remitted in accordance with Article 13.6 by the Government. Walsh J said of the wording of s103:

“If they were a correct adaptation, then the sentence was authorised by


7

British Airways Board v Laker Airways [1984] QB 142, per Donaldson MR.

8

[1963] IR 170.

9

[1973] IR 50.



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a section which purports to vest such an authority in the Executive, and, following Deaton's Case, such a statutory provision is inconsistent with the provisions of the Constitution ...”

3.11

Again, in The State (Sheerin) v Kennedy,10 a provision empowering the Minister for Justice to transfer juvenile offenders from borstal to prison was found to be unconstitutional in so far as it allowed the Minister to choose whether or not such subsequent imprisonment was to be “with or without hard labour”– in effect a selection of punishment.

3.12

It is clear, therefore, that the Executive cannot choose the penalty to be imposed in an individual case, nor may it tell the courts how to sentence. Not only would it be interfering with the judicial function, but it would be impinging upon the offender's right of fair procedures, because “the individual citizen needs the safeguard of the Courts in the assessment of punishment as much as on his trial for the offence. The degree of punishment which a particular citizen is to undergo for a offence is a matter vitally affecting his liberty.”11

The Legislature

3.13

As Kelly points out,12 Article 34.1 cannot be read as guaranteeing the courts absolute discretion in the administration of justice. The same must be said of the sentencing decision which is part of the administration of justice. For most offences, the range of penalties which may be imposed is prescribed by the legislature by statute, which the Oireachtas can modify. Thus, in The People (DPP) v Cahill13 Henchy J said:

“It is part of the judicial function to determine the nature and extent of the sentence whenever the general rule laid down by statute or common law gives a range of choice.”14

3.14

It is accepted, therefore, that it is not a breach of Article 34.1 for the legislature to deprive the courts completely of their sentencing discretion by prescribing mandatory sentences.15. In Deaton's case O Dáláigh CJ, delivering the unanimous opinion of the Supreme Court, said:


10

[1966] IR 379.

11

Per O Dáláigh CJ in Deaton, [1963] IR 170, 183. This should not be taken to mean that the executive has no role to play in the sentencing process. While the executive may not constitutionally tell the judiciary how to sentence, it has a important function in servicing the sentencing courts by providing facilities and information on the availability of sanctions and the effects of sentencing practices in the past. The English Home Office, in recognition of this important function, went so far as to provide a copy of its publication on The Length of Prison Sentences to every magistrate in the country, which summarised its findings with some general advice to sentencing Judges. Thus while the executive may not directly influence the judiciary in the exercise of sentencing discretion, it has an important role in ensuring that the judiciary has the best information available to it to exercise that discretion in the proper manner.

12

The Irish Constitution, (2 ed, 1984) p232.

13

[1980] IR 8.

14

Ibid, at p11. Emphasis added.

15

As we have already noted, it was the legislature who granted this discretion in the first place, and prior to the mid-1880's the courts had no sentencing discretion at all.



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“The Legislature does not prescribe the penalty to be imposed in an individual citizen's case; it states the general rule, and the application of that rule is for the Courts. If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment.”16

3.15

In The State (O'Rourke) v Kelly17 the Supreme Court held that:

“many of the statutory provisions on proof of certain matters make it mandatory on a court to make a specified order. Such legislative provisions are within the competence of the Oireachtas.”

3.16

However, these must be read in the light of Buckley v AG18 where it was held that the judicial process is inviolable while in actual operation. In Buckley, a dispute arose, over the ownership of about £20,000 – the remains of a fund built up by the old Sinn Féin organisation prior to fragmentation. While an action was pending in the High Court the Oireachtas passed the Sinn Féin Funds Act, 1947 of which s10 provided that all further proceedings in the High Court should be stayed. The Supreme Court found that s10 amounted to an unconstitutional interference by the legislature in the exercise of the judicial function.

3.17

Thus, while it would be unconstitutional for the legislature to interfere with the court's sentencing decision in an individual case,19 it would not offend the separation of powers doctrine for the legislature to prescribe the penalty for a class of offence, or for all offences.20

3.18

The issue which remains to be examined, therefore, is the extent to which the legislature can make provisions which govern how sentencing discretion is to be exercised by the courts. What, for example, is the constitutional position of a statutory provision obliging sentencing judges, while exercising their judicial discretion to choose a penalty within the range provided by statute, to impose a sentence from that range which is most likely to deter the offender and others,21 and not to have regard to the possibility of reform of the offender, a possibility which might have induced the sentencer to impose a more lenient sentence?

3.19

It appears that the power to restrict sentencing discretion in this manner is inherent in the legislative power to grant or deprive the courts of sentencing


16

[1963] IR 110, 182; See also the Australian case of Palling v Corfield (1970) 123 CLR 52.

17

[1983] IR 58.

18

[1950] IR 67 (The Sinn Féin Funds Case).

19

At least when the exercise of the judicial discretion is in operation: Buckley v Attorney General, supra. There is nothing unconstitutional about the legislature – or, for that matter, the Executive – interfering with the sentence imposed by the courts when the discretion has been exercised, and the sentencer is functus officio: see Deaton's case, supra.

20

However mandatory sentences may offend other constitutional obligations, such as the duty to provide fair procedures; see Chapter 10, infra. (Maximum, Minimum and Mandatory Sentences).

21

Here we are concerned with the validity of such provisions under the constitutional separation of powers doctrine. Deterrent sentences may also be objected to on other constitutional grounds, in that they punish the offender for what he or others may or may not do in the future; see Chapter 4, infra.



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discretion. The legislature has already restricted the discretion of the courts to choosing a penalty from within the range provided for by statutory maximum and minimum sentences, and the constitutionality of such restriction has not been questioned by the courts. Also, the legislature has, in some instances, restricted the discretion of the courts to impose certain penalties. For example, an order requiring a drug addict to participate in a specified programme of treatment or therapy under s28(2) of the Misuse of Drugs Act, 1977, as amended, cannot be made unless the court first considers a medical report and a social inquiry report;22 and an order under the Probation of Offenders Act, 1907, cannot be made unless the court has regard to the “character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed.”23 Thus it has been said that:

“There is no constitutional rule or convention which prevents the Legislature from restricting or removing judicial discretion in sentencing: the simple fact is that Parliament has taken little interest in the matter and has rarely legislated so as to impinge on the discretion of the courts to impose any sentence beneath the statutory maximum.”24

Judicial or Legislative Sentencing Policy?

3.20

The prevailing practice of the Irish legislature of setting the maximum penalties and leaving the courts with wide sentencing discretion amounts to a de facto delegation of the sentencing policy-making function by the legislature to the judiciary. Would it be preferable that the legislature leave the formulation of sentencing policy to the courts, or would it be more practically wise for the legislature to provide the courts with sentencing policy?

The Courts

3.21

It may be argued that the courts are in the best position to formulate sentencing policy because they deal with sentencing cases every day. However, the ability of the courts to formulate a coherent sentencing policy is to a large degree determined by the structure within which they must operate. In the Irish court system, where the principle of co-ordinate jurisdiction means that judges of the same court are largely free to disregard each other's sentencing decisions, it is in the appellate courts where sentencing policy is judicially shaped; in particular, in the Court of Criminal Appeal and the Supreme Court. Yet the appellate courts have found themselves to be largely unwilling and unable to formulate anything more than the most general of sentencing policies.

3.22

The appellate courts lack a sufficient volume of sentencing appeals from


22

See para 1.111 et seq, supra. (Medical Treatment or Therapy).

23

See para 1.102 et seq, supra. (Probation).

24

Ashworth, Reducing the Prison Population in the 1980s: the need for sentencing reforms in A Prison System for the 80s and beyond, NACRO (1985) p 10.



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which to develop a considered and principled sentencing policy. Appeals against sentence are infrequent. Rottman and Tormey found that in 1981 only 8.2% of cases were appealed from the Dublin Circuit Court to the Court of Criminal Appeal; 15.6% of cases from the Special Criminal Court; and 23.1% of cases from the Central Criminal Court – a total of 70 appeals in all, out of 30,253 criminal cases heard that year.25 What percentage of these accounted for appeals against sentence is not clear. This leads to the conclusion that only fairly severe sentences are likely to be appealed, so the appellate courts have little opportunity to examine non-serious cases.26 The facility to appeal against “conviction only” reduces this opportunity further. Secondly, the fact that the prosecution may not appeal a lenient sentence means that the appellate courts will only have opportunity to hear a “lop-sided” set of cases. Its policies would, therefore, be based on a consideration of over-severe sentences, not on cases which were too lenient.

3.23

Moreover, the courts operate in a vacuum. They do not have the benefit of the views of criminologists, psychologists, sociologists or any of the other personnel who would be expected to have compelling arguments for or against the adoption of one policy over another. In Canada, Australia and several American jurisdictions the issues of policy have been fully examined by an independent sentencing commission, comprising persons thus qualified, and have been able to establish fully acceptable and appropriate aims and policies for sentencing.27

3.24

Furthermore, there is no satisfactory system of dissemination of appellate policy decisions to the lower courts and to those involved in the sentencing process. A high proportion of the sentencing judgments of the Court of Criminal Appeal are delivered extemporaneously – so it is unlikely that many other than those present at the hearing will learn of their import. But even written judgments of the Court of Criminal Appeal are not well reported. For example, the seminal judgment of Walsh J in The People (AG) v O' Driscoll28 escaped reporting until the fortuitous publication of Frewen's Judgments of the Court of Criminal Appeal over six years later.29 The systematic reporting of sentencing judgments would be of some assistance in the development of sentencing policy; in England, the development of detailed policy did not begin until the extensive reporting of sentencing judgments in the Court of Appeal began in the Criminal Law Review in 1954, followed by Thomas's Principles of Sentencing in 1970 (which, even then, drew on many unreported decisions) and the ultimate establishment of the Criminal Appeal Reports (Sentencing) some time later. But even systematic reporting may not be enough. Despite the high level of reporting in England, their principles and policy of sentencing remain underdeveloped,


25

See Whitaker Report, pp238 and 198.

26

The English experience has been that appellate precedents on the principles governing sentencing for serious rapes, robberies and woundings are plentiful but that precedents on everyday assaults, thefts and damage are hard to find; see Ashworth, Sentencing and Penal Policy, (1983), p 40.

27

See Chapters 7 (Some Comparative Aspects of Sentencing Policy) and 9 (Implementing Sentencing Policy), infra.

28

Unreported, Court of Criminal Appeal, 3rd March, 1972.

29

1 Frewen 351.



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even though it might have been thought that the principles of sentencing would undergo rapid growth on a case-by-case basis.30Ashworth puts this down to three features of judicial sentencing decision making: the use (or non-use) of precedents; the limited coverage of appellate decisions (many of which are still delivered extemporaneously); and the limited control over decisions at the trial level.31 Many of the reported cases contain only obiter guidance, and many more may be distinguished upon the facts.

The Legislature

3.25

The legislature, on the other hand, has a number of conspicuous advantages which make it more suited to the formulation of coherent sentencing policy:


(i)


It does not rely on the volume of cases before it to pronounce on sentencing policy;


(ii)


Its policy may be made to govern some, or all, cases, and could not easily be distinguished on the basis of the facts of a previous case;


(iii)


It does not operate in a vacuum; ie it may commission research, receive submissions, and assess the information received from all relevant interested bodies (including the judiciary);


(iv)


It is in a better position to provide a sentencing policy which co-ordinates well with the policies governing other areas of the criminal justice system – such as the penal policy governing the administration of sentence;


(v)


Statutory provisions are binding on all courts, so there is no difficulty with dissemination of decided policy.

3.26

An argument against the legislative formulation of sentencing policy is that legislative rules may introduce a high level of inflexibility. If the rules are too rigid, then they may not be able to accommodate new or unforeseen circumstances. Thus, it is argued that there must be retained some degree of judicial discretion to accommodate new or unforeseen circumstances. This argument is better raised against the legislative provision of specific principles for the choice of penalty or measure rather than against the legislative provision of a general sentencing policy. It must be remembered that a sentencing policy is simply a general framework within which a sentencer must operate – it provides a set of standards by which a sentencer has to justify the decision, thereby guiding him or her as to the correct approach to be adopted. New and unforeseen circumstances may still be accommodated within that framework, and


30

Ashworth, Sentencing and Penal Policy, supra, p36.

31

Ibid.



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their inclusion may be justified by reference to the general policy.

3.27

Essentially, therefore, a legislatively formulated sentencing policy need not remove judicial sentencing discretion; rather what it would do is structure judicial sentencing discretion so that coherence may be introduced into the sentencing decision.

3.28

Other jurisdictions which have successfully achieved coherence in their sentencing policies have done so through the medium of statute;32 indeed, in England and Wales, where there exists a highly developed system of judicial pronouncements on sentencing, a legislative statement of policy was still considered necessary to achieve the necessary degree of coherence.33

3.29

Matters of policy are, in any case, the legitimate concern of the Legislature. Sir James Fitzjames Stephen is often quoted as having said that if the judiciary took on board the task of formulating sentencing policy:

“they would be assuming a power which the Constitution does not give them.“34

3.30

We accept Stephen's words as expressing the principle that the actual distribution of the policy making function between the legislature and the judiciary ought to be arranged in the most effective manner. We conclude that the legislature is better suited to the formulation of sentencing policy. We therefore provisionally recommend that the legislature undertakes the task of formulating a coherent policy governing sentencing to be set out in the form of a statute or statutes.


32

See Ch 5, infra. (Aggravating and Mitigating Factors).

33

Ibid.

34

Variations in the Punishment of Crime, (1885) 17 Nineteenth Century, p775.



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CHAPTER 4: A COHERENT SENTENCING POLICY

Preliminaries: Justifying Aims and Principles of Distribution

4.1

What is the justification for the imposition of a criminal sanction? The objects of punishment have traditionally been classified under two broad headings:


(i)


the moral approach, with which retributivism is traditionally associated, which concentrates on past activity, arguing that justice requires retribution to be exacted for blameworthy conduct; and


(ii)


the utilitarian approach, with which rehabilitation, deterrence and incapacitation are associated, which concentrates on the future beneficial consequences of the imposition of sanctions, justifying them in terms of their social utility such as crime prevention or crime control.

4.2

Much perplexity has surrounded attempts to justify sentencing by focussing on a single justification, but, equally, much confusion surrounds the idea that a plurality of different values and aims should be recognised.1 Present Irish sentencing policy epitomises the latter. Recent philosophical attempts which seek to combine morality and utility, e.g. by advocating that sanctions provide redress for the victims of crime, appear to be “more of a supplement than a replacement for the two mainstream trends.”2

4.3

A further distinction should be mentioned. When discussing the objects of sentencing, normative objects, such as retribution, rehabilitation, deterrence


1

Hart, Punishment and Responsibility, (1967), p3.

2

Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, (1987), p 127.



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and incapacitation, should be distinguished from functional objects, such as the tailoring of sanctions to suit prison capacity or the cost of imprisonment.3 Normative objects are concerned with the desired external effects of sentencing; functional objects are relevant to the internal operation of the system.4 It is widely accepted that the functional objects should only be considered as being subsidiary to the traditional normative objects. For example, as the issue of prison capacity becomes critical, the normative goals may take second place to functional considerations. It may be the availability of prison accommodation which eventually determines whether an offender is sentenced to imprisonment, not the competing need for a custodial sentence on one of the normative grounds.5 This is undoubtedly a problem for sentencers in individual cases, but should not have a place in the formulation of general sentencing policy. Ashworth elaborates:

“Sentencing by the courts is more than a tap by which to regulate the flow of offenders into our custodial institutions. Sentencing involves a public statement about an offender and an offence. It is a purposive activity, relating to the offence for which the offender has been convicted, the characteristics of the offender, and the aims of sentencing. It is not, and cannot be justified as, a mere response to economic constraints or planning failures... [I]t is surely incompatible with the nature and function of sentencing that it should be regulated by reference to whether a wing of one prison has collapsed, or whether the sewerage system of another prison has become inoperative... [I]n a system where proportionality is central, seasonal variations in sentencing policy according to the problems of the prison service are difficult to justify.”6

4.4

Subsequent discussion will be confined to the normative objects of sentencing.

4.5

While the objects of sentencing concern why we impose criminal sanctions, principles for the distribution (or allocation) of sentence concern how those sanctions are imposed, i.e. who is to receive a sentence, what kind and how severe a sentence is to be imposed? While there must be some relationship between the “ends” and the “means” of sentencing, the linkage is not a simple one. Independent moral considerations may arise at the stage of distribution which


3

Ibid, pp127–128.

4

Ibid, p128.

5

A recent example of this is to be seen in the difficulty District Judge Wine had in imposing an appropriate sentence on a young offender because of the lack of suitable facilities. See Judge Renews Detention Centre Plea, The Irish Times, 6th March 1991. Functional considerations could also be relied upon to determine the length of sentences, as Blumstein, Sentencing Reforms: Impacts and Implications, (1984) 68 Judicature 129, p132, observes:

“For example, if the jurisdiction had 1,000 prison cells available for just burglars and robbers, and if they typically sentenced approximately 400 burglars and 300 robbers, then a sentencing schedule of one year for burglary and two years for robbery (which would just use that available capacity) would be preferable to longer sentences that also had a two-to-one ratio, since the longer ones would exceed available prison capacity.”

6

Sentencing and Penal Policy, (1983), p111.



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may sometimes appear to reduce the efficacy or impact of punishment.7

4.6

It may also be simplistic to assume that tailoring the means of distribution of criminal sanctions to suit the end or aim of any chosen object of sentencing will increase the degree to which that object's ends are attained. For example, if crime prevention by way of deterrence is the chosen end, then it may be assumed that increasing the level and frequency of sanctions imposed will achieve greater deterrence; or if incapacitation is the object, it is assumed that increasing the number of persons incarcerated will reduce the crime rate. It is now widely recognised that these “simple-minded assumptions” (to quote the Canadian Sentencing Commission)8 have little or no basis in fact. Experience has taught us that simple increases in the severity or frequency of sanctions in order to improve the achievement of a single object seldom lead to the social benefits presumed to result from them.

4.7

But just as the objects of sentencing do not easily resolve the question of distribution, principles of distribution such as proportionality and parsimony are equally inadequate in solving the issue of justification. Von Hirsch, the leading exponent of the “just deserts” philosophy (which provides that sanctions should be commensurate with the blameworthiness of the offending behaviour) argues that the imposition of sanction without the support of perceptible social benefits – i.e. punishment in the purely retributivist sense – is futile:

“it is preferable to have a general justification for the criminal sanction that is expressly consequentialist in part. This makes the warrant for the existence of punishment dependent on that institution having significant crime-preventive benefits.”9

4.8

The search for a consequentialist justification cannot be resolved by looking to principles of distribution – as the Canadian Sentencing Commission observed:

“The assertion that sanctions are commensurate with blameworthiness does no more to legitimise the existence of penal sanctions than the fact that income tax is proportionate to revenue justifies the practice of taxation in itself.”10

4.9

A discussion of sentencing policy must, therefore, begin by addressing the question of the justification for imposing criminal sanctions in order to define the context in which decisions about distribution should be made. It would be wrong, however, to assume that once the problem of justification is solved (if, indeed, a solution is possible), the question of distribution is thereby also automatically resolved. While a sentencing policy must have regard to the overall


7

Hart, op cit, p9.

8

Op cit, p 130.

9

Past or Future Crimes, (1986) p59.

10

Op cit, p 131.



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objectives of punishment, it may also have to take into account other considerations, for example, the need to have regard to the fundamental rights of the offender and to considerations of cost and practicality.

Justifying the Imposition of Criminal Sanctions

4.10

Let us now examine the traditional objects of sentencing in order to define the context in which decisions about the distribution of sentence must take place.

(i) Retribution

4.11

Retribution stresses the moral obligation of the criminal law to punish offenders. No further ground other than moral obligation is offered to justify the imposition of punishment. Thus retribution has often been criticised as mere vengeance seeking. What good, it may be asked, does it do to hang a murderer? It only leaves two people dead instead of one. As Bacon once said:

“Revenge is a kind of wild justice which, the more man's nature runs to, the more ought law to weed it out.”

4.12

Utilitarians criticise retribution because of its apparent pointlessness. In Macaulay's words:

“The suffering caused by punishment is, considered by itself, an evil, and ought to be inflicted only for the sake of some prepondering good.”

4.13

Since pure retribution is grounded on moral justifications, its success cannot be measured in terms of its achievements, but rather on the strength of its moral arguments. However, many scholars have queried whether any attempt to find a sound moral argument in favour of retribution does not end up in a vicious circle. This is ably illustrated in the following extract from the Canadian Sentencing Commission's report:

“The question is this: “Why should we punish a person?” An obvious answer is “Because that person has done something wrong.” However, this answer raises another issue: should we actually impose legal sanctions on individuals for any kind of wrongdoing (being discourteous, lacking table manners, cheating at cards)? Obviously not. Only those who are guilty of the most serious forms of wrongdoing should be punished. What precisely are these? They are labelled criminal offences. And what, then, is a criminal offence? A criminal offence is a form of behaviour which is legally defined as subject to punishment. Such legal definitions vary from time to time (we do not burn witches anymore) and across countries. Finally, our original question – Why should we punish a person? – is given the uninformative answer: “Because that person has done something which we now believe requires



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punishment.”11

4.14

In one sense, however, retribution may give rise to a social benefit. A retributive response to wrongdoing is a strong expression of denunciation of the offence. “[T]he criminal justice system must involve imposing on offenders punishments of sufficient severity that it is possible rationally to say that a breach of the law, when detected, is attended by significant consequences.”12 It seems, therefore, that the place of retribution in the sentencing process is a natural phenomenon – a response to a crime which fails to condemn the actor scarcely seems morally adequate.13 To leave an act unpunished is close to condoning it since punishment acts as a re-assertion that the law has been broken and it expresses the moral indignation of the community.14 Closely related to this idea, and again separate from the purely moral justification for retribution, is the modern moral utility justification, namely, that punishment is not only permissible, but desirable– i.e. it is not just an inherent element in the moral idea of law but also socially necessary in order to maintain law:

“Society has an interest in crime control – that is, in ensuring that its laws are obeyed – and this provides a justification for taking punitive measures against those who have broken the law. Thus, on this modified version of modern retributivism, punishment is justified not merely because it is deserved but also because it contributes towards crime control.”15

4.15

One of the justifications of judicial punishment, therefore, is that without state punishment, “it seems likely that victimising conduct would become so prevalent as to make life nasty and brutish, indeed.”16 This justification, sometimes described as Montero's aim, after the Spanish jurist who articulated it, dictates that judicial punishment is necessary “to protect offenders and suspected offenders against unofficial retaliation.”17

4.16

The retributive theory of punishment is closely linked to the distributive principle of desert – the idea that the offender's punishment should in some way


11

Op cit, p141.

12

Australian Law Reform Commission Report No. 44, Sentencing, (1988), p14.

13

Von Hirsch, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (1986).

14

For this reason, former Chief Justice Warren Burger of the US Supreme Court considered retribution as having an important positive value. In an interview with CNN he said:

“There was a time when I shared the view that retribution which some people call revenge, society's revenge, was totally wrong. If the [criminal] isn't apprehended, convicted, and sent away, there is a terrible neurosis, a community mass neurosis build up. That must have some outlet. And whether we like it or not, one of the outlets is that this person is found, tried, convicted, [and] sent to prison”.

See Kiesel, Crimes and Punishment: Victim Rights Movement Presses Courts, Legislature, 70 ABA J 25, p26. (1984); Johnson, The Application of Victim Impact Statements in Capital Cases in the Aftermath of Booth v Maryland: An Impact No More? (1988) 13 Thurgood Marshall LR 109, p114.

15

Ashworth, op cit, p18.

16

Ashworth, Criminal Justice and Deserved Sentences [1989] Crim LR pp340,343, and von Hirsch, Past or Future Crimes, supra.

17

Walker, Sentencing in a Rational Society, (1971), pp3–22; Canadian Sentencing Commission, op cit, pp111–12.



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reflect the injury inflicted by him or her. The idea of subjecting the offender to the same wrong or injury which he has perpetrated seems offensive to most – even refined versions which would require the same degree of suffering are commonly considered repugnant; viz the death sentence for murderers. Therefore, modern desert theory is concerned more with proportionality; the degree of punishment inflicted on an offender for a serious offence should be in proportion to the reprehensibility of the criminal behaviour; more severe than that which would be imposed for less reprehensible behaviour and less severe than that which would be imposed for more reprehensible behaviour – even though none is equivalent to the degree of suffering resulting from the commission of the crime.

4.17

Retributive punishment should not impinge upon the personal rights of the offender beyond that amount necessary to exact retribution for the offence. The famous utilitarians Beccaria18 and Bentham19 described this as parsimony, i.e. imposing the minimum punishment consistent with the aims of the sentencing process. However, a problem arises in determining the minimum amount of punishment consistent with the aim of retribution. If we reject the idea of imposing on the offender an injury similar to that which he has inflicted, or a level of suffering equivalent to that caused by the offence, we are left with the very difficult task of assessing the level of punishment by reference to the degree of moral wrongdoing involved in the offence. But, as Hart remarks:

“... undoubtedly there is, for modern minds, something obscure and difficult in the idea that we should think in choosing punishment of some right intrinsic relation which it must bear to the wickedness of the criminal's act ...”.20

”We must start somewhere”, he said, “and in practice the starting point is apt to be just the traditional or usual penalty for a given offence.”21

4.18

In conclusion, we find that the arguments in favour of retribution alone as a justification for the imposition of criminal sanctions are rather weak. Strict retributivism is unattractive in so far as it emphasises notions of revenge. On the whole, revenge represents a justification for the imposition of criminal sanctions which civilised society should strive to avoid. Undoubtedly, there is some room for the moral utility theory of retribution as a justification for the imposition of sanctions, but some limit is necessary on the claims of strict retributivism. The principle of desert places some desirable limits on the imposition of criminal sanctions. However, desert itself raises difficult issues, such as the question of starting points and the question of what constitutes deservedness.


18

Of Crimes and Punishments, ch 23.

19

An Introduction to the Principles and Morals of Legislation, ch 14, para 6.

20

Op cit, p 163.

21

Ibid, p 162.



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(ii) Rehabilitation

4.19

The rehabilitative ideal assumes that criminal behaviour is the product of antecedent causes which may be identified and controlled, and that measures may be employed to treat the convicted offender so as to effect changes in his behaviour for his own good and for the good of society. In other words crime is viewed as a disease capable of treatment and cure. This utilitarian theory of rehabilitation of offenders is by no means a new one; it is at least as old as Plato.22 However, the rehabilitative ideal did not permeate the sentencing process until early in this century when new ideas for the treatment of offenders were developed. The key change in legal thought was the displacement of the retributive slogan, “Let the punishment fit the crime” by the new principle “Let the treatment fit the needs of the offender.”23 This change in attitudes was accompanied by legislative measures such as the introduction of probation in 190724 and the establishment of juvenile courts and borstal training in 1908.25 The rehabilitative ideal was taken to the greatest lengths in the USA. In 1870, the National Congress on Penitentiary and Reformatory Discipline recommended complete indeterminacy in sentences, which would give the authorities unlimited time to reform prisoners.26 In effect, convicted offenders could be detained in prison until deemed “cured”. By 1949 this practice had spread to most of the states, and in the case of Williams v New York, the Supreme Court said:

“Today's philosophy of individualizing sentences makes sharp distinctions, for example between first and repeated offenders. Indeterminate sentences, the ultimate termination of which are sometimes decided by non-judicial agencies, have to a large extent taken the place of the old rigidly fixed punishments. The practice of probation ... has been accepted as a wise policy .... Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of the criminal jurisprudence.”27

4.20

Rehabilitative programmes reached their peak worldwide in the 1960s and 1970s. Until 1975 all fifty American states, as well as the District of Columbia and the federal jurisdiction had indeterminate sentencing systems. The judge determined the nature of the sentence and, if imprisonment was ordered, stated the maximum or minimum sentence, or both. A parole board then


22

See Laws, Book IX (1970). Bentham, in The Theory of Legislation wrote:

“It is a great merit in a punishment to contribute to the reformation of the offender, not only through fear of being punished again, but on a change in his character and habits.”

23

See Robinson and Smith, The Effectiveness of Correctional Programs in Gross and Von Hirsch Sentencing (1981), p118.

24

Probation of Offenders Act, 1907.

25

Children Act, 1908.

26

Gross and von Hirsch, op cit, p44.

27

(1949) 337 US 241, 248. A striking feature of the opinion of the United States Supreme Court in Williams v New York is the justification of a death sentence by a philosophy of reformation and rehabilitation. Silving Essays on Criminal Procedure, (1964), p357 blames this on a “confusion of philosophical standards ... probably due to uncritical, often unconscious adaptation of theological ideas .... Of course reformation and rehabilitation by death fit very well into a theological concept of criminal law, but in secular law this type of argument sounds strange”.



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decided when the offender would be released.28

4.21

Since then, there has been a wide-spread and dramatic loss of faith in the rehabilitative theory, a development which has come to be known as the “decline of the rehabilitative ideal.”29 The 1970s and 1980s saw marked changes in the attitude of the law towards convicted offenders, who until then were considered to have forfeited all their rights upon conviction. “He was thought to be at the disposal of the state to be used for whatever ends might be thought to be expedient... since he has put himself outside the law, the criminal has no basis for complaint.”30 This utilitarian attitude changed when it became recognised that the state owed duties to criminals as much as other individuals.31 Criminal justice and punishment began to be regarded as systems concerned with the distribution, deprivation and restriction of rights, a perspective incompatible with the wide discretionary powers and indeterminate sentences associated with rehabilitation.32 It was disregard for the rights of the individual that led to the resurgence of the Kantian opposition to such forms of punishment:

“Juridical punishment can never be administered merely as a means for promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another.”33

4.22

It was felt that rehabilitative sentencing gives rise to unwarranted variation or inconsistency in sentences since it looks to offenders' needs for treatment rather than to the character of their crimes. The US Committee for the Study of Incarceration illustrated the problem thus:

“If one of two convicted burglars is thought likely to respond to community based treatment while the other seems more amenable to a prison based program, that would be a reason for putting one on probation and imprisoning the other. The difference in the two sentences is rationalised as necessary for the protection of the public: the two burglars will be less likely to return to crime if each is given treatment


28

Tonry, Sentencing Guidelines and Sentencing Commissions – The Second Generation in Sentencing Reform, Pease & Wasik(eds), (1987), p23. Belief in the rehabilitative ideal was affirmed in England with the establishment of a parole board by the Criminal Justice Act, 1967, though no such body was ever established in Ireland.

29

See e.g. Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Purpose (1981); Paul C Weiler, The Reform of Punishment in Studies on Sentencing, Law Reform Commission of Canada, (1974) p184; Ashworth, Criminal Justice and Deserved Sentences [1989] Crim LR, 840, note 16; Kevin Boyle, The Disease Concept of Crime, (1970) 21 NILQ 274.

30

Galligan, Guidelines and Just Deserts: A Critique of Recent Trends in Sentencing Reform [1981] Crim LR 297, pp297-298.

31

In the US this began with the Civil Rights Movement and cases concerning the “cruel and unusual” treatment of Black Muslim prisoners; see Rothman, Decarcerating Prisoners and Patients in Sentencing, Gross and Von Hirsch (eds), (1981), pp130 et seq. European parallels can be seen in cases such as Tyrer v UK 2 EHRR 1 concerning the whipping of offenders, and most recently the new European Convention Against Torture and Inhuman or Degrading Treatment or Punishment, (in force in Ireland as of 1 Feb 1989) which applies to all places of detention within the State.

32

See Galligan, op cit, p298.

33

Philosophy of Laws, trans Hastie, (1887), 195.



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suited to his particular need. The explanation holds, however, only if the programs work. Unless programs can demonstrably prevent recidivism, a discrepancy in the two dispositions remains unaccounted for. It is therefore essential to ask: How effective are treatment programs?”34

4.23

Concern about unwarranted variations led to extensive research into the efficacy of rehabilatitive programmes. All showed rehabilitative sentencing to have failed in fulfilling its purpose of turning offenders away from further crime.35 In 1974, Martinson, in an influential article, concluded that “nothing works”:

“With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism. Studies that have been done since our survey was completed do not present any major grounds for altering that original conclusion.”36

4.24

The US Panel on the Rehabilitation of Criminal Offenders confirmed these findings:37

“There is not now in the scientific literature any basis for any policy or recommendations regarding rehabilitation of criminal offenders. The data available do not present any consistent evidence of efficacy that would lead to such recommendations.”

4.25

However, doubts about the reliability of research into rehabilitative effects have clouded the earlier view of the hopelessness of rehabilitative efforts. The Panel added:

“The Panel concludes that Lipton, Martinson and Wilks were reasonably accurate and fair in their appraisal of the rehabilitation literature .... Two limitations, however, must be applied to their conclusions: first, inferences about the integrity of the treatments analysed were uncertain and the interventions involved were generally weak; second, there are suggestions to be found concerning successful rehabilitation efforts that qualify the conclusion that 'nothing works'.”

4.26

In 1979 Martinson was compelled to retract some of his earlier conclusions, leaving him to remark:38

“The most interesting general conclusion is that no treatment now used in criminal justice is inherently either substantially helpful or harmful. The critical factor seems to be the conditions under which the program


34

Von Hirsch, Doing Justice, (1976), p12, (emphasis added).

35

Report of the Committee of Inquiry into the Penal System, (Whitaker Report) (pl 3391, 1985), p41.

36

What Works – Questions and Answers About Prison Reform [1974] Public interest 22, p25.

37

See Canadian Sentencing Commission, op cit, p138.

38

Martinson, New Findings, New Views: A Note of Caution Regarding Sentence Reform, (1979) 7 Hofstra Law Review, 243, pp253–4.



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is delivered.”

4.27

Although detailed research on the matter is not yet available, it appears that Irish sentences, (custodial ones in particular), do not have any improving effect on recidivism.39 The Whitaker Committee concluded:

“Programmes for reform and rehabilitation have a positive value but clearly imprisonment cannot be justified merely on the grounds that it can be used to reform and rehabilitate.”40

4.28

Also, the Whitaker Committee noted that rehabilitation programmes are very expensive, and it is questionable whether the capital investment in social correction is warranted by the “expected profit”, i.e. reduced recidivism, which does not seem to be forthcoming.41

4.29

Some have suggested that even where the sentence is justified on some other grounds, rehabilitative programmes can lead to victimisation, because the coercive treatment of an offender may distress him or her contrary to principles of equality.42 The issue here is whether it is justifiable to subject one offender to an onerous programme of rehabilitation simply because of his or her supposed likelihood of reform while another offender, supposedly less likely to reform, simply has to “do time”– or vice versa. It has also been argued that it is wrong to try to change the beliefs and attitudes of an offender by any means other than argument, the giving of reasons, or by example.43 Again, the question here is whether the coercion involved in subjecting offenders to rehabilitative programmes amounts to an 'extra punishment' which those serving other sentences do not encounter.

4.30

Finally, a perplexing consequence of rehabilitative principles is that they can lead to longer sentences being imposed on offenders. Allen, one of the leading critics of rehabilitation theory, concluded:

“... Surprisingly enough, the rehabilitative ideal has often led to increased severity of penal measures .... The tendency of proposals for wholly indeterminate sentences, a clearly identifiable fruit of the rehabilitative ideal, is unmistakably in the direction of lengthened periods of imprisonment .... Experience has demonstrated that, in practice, there is a strong tendency for the rehabilitative ideal to serve purposes that are essentially incapacitative rather than therapeutic in character.”44

4.31

In conclusion, it is very difficult to accept rehabilitation as a justification


39

See para 4.32 et seq, infra. (Deterrence).

40

Op cit, p41.

41

See Weiler, op cit, p124.

42

Hondreich, Punishment, The Supposed Justifications, (1984), pp91, 102–3.

43

Ibid, p103.

44

Legal Values and the Rehabilitative Ideal, in Gross and von Hirsch (eds) Sentencing, (1981) p114.



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for the imposition of sentence, particularly since there is serious doubt as to whether or not rehabilitation works. Although some forms of sentence may have particular rehabilitative effects for some offenders, it is questionable whether rehabilitation can be pursued beyond those isolated effects so as to achieve particular results. In such circumstances, rehabilitation is little more than a general and limited effect of sentencing, and does not provide sufficient justification for variations in sentence. That said, however, there should be no objection in principle to the pursuit of rehabilitative programmes in dealing with sentenced offenders (except, perhaps, where such programmes are coercive) where sentence is justified on some other grounds. We are satisfied that there is a place for such programmes and would echo the recommendations of the Whitaker Committee of Inquiry that those incarcerated by society should have caring and developmental attention.45

(iii) Deterrence

4.32

Deterrence, like rehabilitation, is another utilitarian concept. The object of deterrent sentencing is to restrain or dissuade persons from future criminal action either by describing the potential punishment, or by applying the punishment in order to engender fear.

4.33

It is common in discussions on deterrent sentencing to distinguish between general and individual deterrence. General deterrence is used to describe threats directed at people who have not experienced the distasteful consequences of sentence, while individual deterrence refers to threats directed against persons who have. In some of the literature on deterrence, it is only general deterrence that is classified within the concept, it being argued that any change in the behaviour of the offender, as a result of the sanction being imposed, should be treated as rehabilitation rather than deterrence.46 Essentially, however, general and individual deterrence are attempts to do the same thing: “the difference is merely that the former relies on imagination, the latter on memory.”47

4.34

A second distinction is between absolute and marginal deterrence.48 Absolute deterrence refers to the deterrent effect of the criminal justice system as a whole, such as the effect of a larger police force or an increase in all the maximum penalties. Marginal deterrence, on the other hand, relates to the use of deterrence in sentencing, and, as such, is the main focus of our attention. The argument in support of marginal deterrence is that an increase in a particular sentence imposed on an offender will result in an increased deterrent effect within the community.


45

Op cit, p40.

46

See e.g. Gross and von Hirsch (eds) Sentencing (1981).

47

Nigel Walker, The Efficacy and Morality of Deterrents, [1979] Crim LR 129, p131.

48

See Zimring and Hawkins, Deterrence: The Legal Threat in Crime Control, (1973) p14; von Hirsch, Doing Justice, (1976), p61; Walker Sentencing (1985), p95; and Victorian Sentencing Commission, Sentencing, (1988), p69.



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4.35

Deterrence, both general and individual, has been one of the traditionally accepted aims of the criminal law. Nonetheless, moral objections have been raised against the deterrent theory, in particular against general deterrence49:

“... punishment on the basis of deterrence is inherently unjust. For if an example is made of a person to induce others to avoid criminal actions then he suffers not for what he has done but on account of other peoples' tendency to do likewise.”50

4.36

Recently there has been a growing awareness of the limits of the individual deterrent effects of sentences.51 Factors such as the high recidivism rate and the “undeterrability” of compulsive and impulsive offenders have called the success of the goal of individual deterrence into question. It is acknowledged that a large proportion of our prison inmates have been convicted on previous occasions.52 American research on career criminals has indicated that the threat of penalty was not an important factor to them.53 In fact some offenders find it easier to bear the consequences of subsequent sentences because the uncertainty and fear elements have been removed by the experience of punishment in the past. For this reason individual deterrence theories are widely discounted, and recent deterrent thought has focussed on general deterrence.

4.37

As regards the success of general deterrent strategies, however, the realisation has been that not enough is known about their effect. Little is known about the ways in which potential offenders arrive at probabilities of detection, conviction and sentence. The US National Academy of Science's Panel on Research on Deterrence and Hesitative Effects concluded:

“In summary ... we cannot yet assert that the evidence warrants an affirmative conclusion regarding deterrence. We believe scientific caution must be exercised in interpreting the limited validity of the available evidence and the number of competing explanations for the results. Our reluctance to draw stronger conclusions does not imply support for a position that deterrence does not exist, since the evidence certainly favours a proposition supporting deterrence more than it favours one asserting that deterrence is absent. The major challenge for future research is to estimate the magnitude of the effects of different sanctions on various crime types, an issue on which none of the evidence available thus far provides very useful guidance.”54


49

Since Individual deterrence is more properly described as a rehabilitative object (in that it attempts to reform the offender personally), the same objections as apply to rehabilitation as a distributive principle can be applied to it. See para 4.19 et seq, supra. (Rehabilitation).

50

Bittner and Platt, quoted by Andenaes, Morality of Deterrence, (1970) 37 U Chi LR 649.

51

See Zimring and Hawkins, op cit; Beyleveld, A Bibliography on General Deterrence Research, (1980).

52

The Annual Reports on Prisons and Places of Detention for the years 1987 and 1988 indicate that of those in custody upon conviction during each year, 2,636 out of 5,106 (51.5% approx) and 2,075 out of 4,697 (44.2% approx) respectively had served custodial sentences in the past. This may only indicate that former prisoners are more likely to be detected re-offending, but we are informed that the general feeling is, taking all forms of sentence into account, that the recidivism rate is in fact much greater.

53

Petersilia, Greenwood and Marvin, Criminal Careers of Habitual Felons (1978) p119.

54

Deterrence and Incapacitation in Sentencing (Gross and von Hirsch eds) (1981) pp228 et seq.



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4.38

Nagin (cited with approval by both the Canadian Sentencing Commission and the Victorian Sentencing Committee) was more blunt:

“... despite the intensity of the research effort, the empirical evidence is still not sufficient for providing a rigorous confirmation of the existence of a deterrent effect. Perhaps more important, the evidence is woefully inadequate for providing a good estimate of the magnitude of whatever effect may exist.

Policy makers in the criminal justice system are done a disservice if they are left with the impression that the empirical evidence, which they themselves are frequently unable to evaluate, strongly supports the deterrence hypothesis.”55

4.39

Other studies have come to similar conclusions.56 The Whitaker Committee noted:

“It is difficult to find convincing proof that imprisonment operates as a major or universal deterrent.”57

Some of the argument against deterrence has rested on findings that many acts, particularly acts of violence, are impulsive, while other acts are compulsive, and as such cannot be influenced by deterrents.58

4.40

On the other hand, it has been contended that deterrence is an obvious effect of having a criminal justice system which imposes legal sanctions. Historical examples in support of this are the upsurges in looting, violence and corruption which took place in Melbourne in 1923 during a police strike, and in Denmark during German occupation when the Danish police force was interned.59 Who can ever say how many are deterred from a first offence?

4.41

It is also possible that Parliament may decrease the general level of crime simply by choosing to increase the minimum sentence for all crimes. If deterrence occurs in such situations, it is not because of individual sentences, but because the system as a whole treats offenders more seriously.60

4.42

None of the empirical research alluded to contradicts the proposition that the certainty of punishment is more likely to have a deterrent effect than the severity of punishment. Beyleveld concluded that:

“recorded offence rates do not vary inversely with the severity of


55

Blumstein, Cohen and Nagin (eds) Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (1978) pp135, 136.

56

See Fattah, A Study of the Deterrent Effect of Capital Punishment with Special Reference to the Canadian Situation, (1976); Cousineau, Legal Sanctions and Deterrence (1986)

57

Op cit, p41.

58

Walker, op cit, p132.

59

Victorian Sentencing Commission, Sentencing, (1988), p74.

60

Australian Law Reform Commission Report No. 44, Sentencing, (1988), p18; Andenaes, op cit, p651.



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penalties (usually measured by the length of imprisonment) ... inverse relations between crime and severity (when found) are usually smaller than inverse crime-certainty relations.”61

4.43

Our conclusions coincide with those of the Canadian Sentencing Commission:

“To summarise: it is plausible to argue that a general effect of deterrence stems from the mere fact that an array of sanctions are known to be imposed with some regularity. However, it can be questioned whether legal sanctions can be used beyond their overall effect to achieve particular results (e.g., deterring a particular category of offenders, such as impaired drivers). In other words, deterrence is a general and limited consequence of sentencing. It is not a goal that can be attained with precision to accommodate particular circumstances (e.g., to suppress a wave of breaking and entering dwelling houses).”62

(iv) Incapacitation

4.44

Incapacitation has been defined as:

“... the effect of isolating an identified offender from larger society, thereby preventing him or her from committing crimes in that society.”63

There are two species of incapacitation, collective (or general), and selective. The former refers to a strategy which would impose a prison term on all persons convicted of crime, whilst the latter refers to incapacitative policies which attempt to predict which offenders are more likely to re-offend – i.e. “dangerous” offenders.64

4.45

It is obvious that incapacitation is an immediate and direct effect of custodial sentences since society at large is protected from the possibility of repeat offences so long as the prisoner is detained.65 There is, consequently, little convincing argument to the effect that incapacitation cannot be achieved –


61

Op cit, p306. See Canadian Sentencing Commission, op cit, p137.

62

Ibid, p138.

63

National Academy of Science's Panel on Research on Deterrent and Incapacitative Effects, op cit.

64

Von Hirsch, Doing Justice, p80. This idea is not new; it was formulated at the turn of the century by the Italian positivist school of Cesare Lombroso, Enrico Ferri and Rafaele Garofolo. It was introduced in one way or another in many continental countries. See Radzinowicz and Hood A Dangerous Direction for Sentencing Reform, [1978] Crim LR 713, p719. Early expressions of the philosophy in this jurisdiction may be seen in the Criminal Law (Ireland) Act, 1828, which provided for exemplary sentences for felonious recidivists, and in the Prevention of Crime Act, 1908, which provides that an “habitual criminal” may be kept in detention for lengthened periods of years if the court is of the opinion by reason of his or her criminal habits and mode of life that it is expedient for the protection of the public. Article 5(1)(c) of the European Convention on Human Rights provides that a person may be deprived of liberty in accordance with law for the purpose of bringing the person before a competent legal authority “when it is reasonably considered necessary to prevent his committing an offence.” However, the exercise of such a power may not be permitted by Irish constitutional law, see para 4.49 et seq, infra.

65

See the Whitaker Report, p41.



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so long, that is, as places of detention successfully contain their inmates.66

4.46

However, in relation to selective incapacitation, which relies on predictions of “dangerousness”, there seems to be great difficulty in finding an accurate means of predicting recidivism; many offenders predicted to be dangerous turn out to be “false positives”, i.e. they do not commit their expected crimes when left at large.67 The Floud Report, commissioned by the Howard League for Penal Reform, conceded that the “false positive” rate for predictions under its scheme of proposals was at least 50% and possibly as high as 66%.68 Similar rates were found for the American strategies proposed by Dr Peter Greenwood of the RAND Corporation.69 Floud justified these inaccuracies on a principle of “just re-distribution of risk”– society is entitled to be relieved of the risk of being harmed, at the cost of mistakenly imprisoning an offender. However, the justice begins to “wear thin”70 when the best prediction rates possible are so low.

4.47

After the Floud Report, the need for selective incapacitation was questioned. The general conclusion of the Home Office's Report Taking Offenders Out of Circulation71 was that serious crimes are so infrequent that predictive sentencing lends little to policies of crime reduction. A number of criminologists have therefore concluded that incapacitative sentencing is normally unacceptable in principle and incapable of just administration in practice. Norval Morris remarked:

“Since we cannot make reliable predictions of dangerous behaviour, considerations of justice forbid us to confine people against their wishes in the name of public safety for longer periods than we can justify on other grounds.”72

4.48

Radzinowicz and Hood add that “the concept of 'dangerousness' is so insidious that it should never be introduced in penal legislation.”73

4.49

It may be argued that incapacitation is at odds with our constitutional jurisprudence, since it punishes the offender without trial or conviction, contrary to the principles laid down by the Supreme Court in The People (AG) v O'Callaghan74 and Ryan v DPP.75 While, as we shall see, there is some


66

The Canadian Sentencing Commission complained, however, that successful incapacitation merely transfers the problem of crime from society at large to society within the prison walls: “no environment known to man is more crime ridden than a prison”: Sentencing Reform: A Canadian Approach, p130. We find this argument a little too general.

67

Von Hirsch, Deservedness and Dangerousness in Sentencing Policy, [1986] Crim LR 79. (Hereafter “Deservedness”).

68

Floud and Young, Dangerousness and Criminal Justice, (1981). See Floud, (1982) 22 British Journal of Criminology.

69

Von Hirsch, Deservedness, p81.

70

Ashworth, op cit.

71

Taking Offenders out of Circulation, Home Office, (1981).

72

See Floud, Dangerousness and Criminal Justice (1982), 22 British Journal of Criminology 216.

73

Radzinowicz and Hood, op cit, p722.

74

[1966] IR 501.

75

[1989] IR 399.



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judicial support for that view, it cannot be regarded as conclusive. The better view would appear to be that, however frail incapacitation may be, viewed in penological or sociological terms, there is no good reason for treating it as constitutionally suspect.

4.50

In this context, it is essential to bear in mind the distinction between the situations addressed in O'Callaghan and Ryan and those now under consideration. Where an accused person is refused bail because of the alleged likelihood that he or she will commit offences while at liberty, this can only be on the factual basis that he or she has in the past committed crimes while on bail or because he or she now stands charged with crimes so serious that the risk cannot be taken, in the interests of society, of leaving him or her at large pending trial. The law must assume, however, that he or she has received the appropriate punishment for the crimes he or she has already committed. Thus, the only factual justification for depriving him or her of liberty is the possibility, or even the probability, that he or she will commit crimes in the future. He or she is thus, unarguably, being punished for crimes that he or she has never committed and, ex hypothesi, will never commit. There is thus an irreconcilable conflict with the constitutional imperative identified by Walsh J in O'Callaghan, i.e. that no person should be punished in respect of any matter upon which he or she has not been convicted.76

4.51

In contrast, in the cases now under consideration, the sentence in question is expressly imposed as a punishment for a crime in respect of which the person has been convicted. It is, of course, true that, in such cases, the court in imposing the sentence is expressly taking into account the fact that it will defer the accused's return to a life of crime. It may be that, as we have already observed, the actual incidence of recidivism renders dubious the penological justification for this approach, but that argument goes to the supposed efficacy of the sentence and not its constitutional propriety. It may even be that the form of sentence is constitutionally suspect, but, if it is, it must be for reasons different from those which invalidated the deprivation of bail in Ryan and O'Callaghan, where the imprisonment of the applicants constituted a punishment for offences which they had not committed and could never commit.

4.52

The fallacy underlying the constitutional criticism of incapacitation may be illustrated by an example. Two people are convicted of taking part in an armed robbery. Criminal A with no previous convictions, admits his guilt from the outset, co-operates with the Gardai and impresses the prison authorities during his period on remand with his desire for rehabilitation. Criminal B has a lengthy record of previous convictions, refuses to co-operate in any way and maintains a defiant plea of not guilty, but is none the less convicted. Criminal A is given a six year sentence and criminal B a ten year sentence. In passing sentence on A, the judge says that a lesser sentence is being imposed in the belief that, having regard to his lack of previous convictions and his conduct since


76

Op cit, p516; quoted with approval by Finlay CJ in Ryan, [1989] IR 399, 405.



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his arrest, there is some prospect that he will abandon the life of crime which he has embarked on when he is released.

4.53

This is an example of the rehabilitative approach which we have already discussed. No one has suggested that it is constitutionally frail. Indeed, it is in total harmony with the views expressed on a number of occasions in the Court of Criminal Appeal as to the objects which should be borne in mind when sentence is being imposed. Yet, by inevitable implication, B, in the example cited, is deprived of four years of liberty, precisely because the trial judge considers that the likelihood in his case is that he will return to his life of crime. If one were to use language in a loose and vague sense, one would then say that B is being punished for a crime he has never committed. But this analysis demonstrates how misleading and imprecise that description is: it would be more accurate to say that B is punished for a crime of which he has unquestionably been convicted, but the court, in imposing sentence, is having regard to the likelihood of his future conduct on release, based on the information available to the court, including his previous convictions.

4.54

The criticism on constitutional grounds of incapacitation also fails to take into account the fact that the sentencing process necessarily excludes the rigid application of certain norms of the criminal law which can be regarded as, in other contexts, essential aspects of the constitutional guarantee of fair procedures. Thus, it is a fundamental maxim of the law that a person may not be convicted twice of the same crime: nemo debet bis vexari pro eadem causa. Yet this maxim is in theory violated every time a trial judge imposes a heavier sentence because of the accused's previous criminal record. In many cases, particularly where more than one defendant is before the court, there is no difficulty in identifying the additional period which the court has added to a sentence because of the accused's previous convictions. Yet he or she has already received the appropriate punishment in respect of those convictions so that it is impossible to avoid a conclusion that he or she is being punished again for the same offence. There may indeed be those who would argue that there is a basic injustice in this system and that a person is entitled to be regarded as having “a clean slate” for every purpose, including punishment for a subsequent offence, once he or she has, in the familiar cliche, “paid his debt to society.”

4.55

But if that is in truth the position, then it has to be said that an enormous number of sentences which have been imposed by the courts since the foundation of the State were vitiated by a fundamental constitutional frailty. We unhesitatingly prefer the view that, in the matter of sentencing, the maxim nemo debet bis vexari must yield to the common good which requires that each individual should be punished according to his or her specific circumstances, including, where relevant, his previous criminal record.

4.56

As we have mentioned, there is one authority which might suggest a



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different view, i.e. The People (DPP) v Carmody.77 In that case, the applicants were habitual criminals, the first applicant having convictions beginning in 1968 and the second applicant having convictions dating back to 1961. The convictions were, in the main, for burglary. They had served numerous terms of imprisonment imposed by the District Court, primarily for periods up to 12 months. In the instant case, they were charged with burglary and pleaded guilty to the charges in the Circuit Court. The Circuit Court judge, Judge Murphy, imposed a sentence of six years imprisonment on each applicant, stating that the applicants were not:

“amenable in any manner to the ordinary constrictions of the society in which they live and ... are preying on innocent people ... my primary duty is to protect those people.”78

4.57

The Court of Criminal Appeal substituted a sentence of three years imprisonment in each case. For the court, McCarthy J, having cited the remarks of the learned trial judge, went on to quote the passage from the judgment of Walsh J in O'Callaghan79 which we have already discussed. However, the learned judge also referred to the observation of Walsh J. in The People v O'Driscoll80 that the objects of passing sentence are not merely to deter a particular criminal from committing a crime but to induce him or her in so far as possible to turn from a criminal to an honest life. McCarthy J also referred to section 10 of the Prevention of Crime Act providing for the preventative detention of habitual criminals and to the fact that there were no facilities in the State for providing such detention. He then added:

“The court is satisfied that the only justification for the radical departure from the previous measures of imprisonment, mostly at District court level, was an understandable attempt to procure reform by prevention. Absent the use of appropriate statutory provisions, however, such is not an acceptable basis for the particular sentence.”81

4.58

It is not clear, accordingly, whether the Court was suggesting that an incapacitative approach was invalid having regard to the provisions of the Constitution, because of the principles laid down in O'Callaghan. That would seem to be one reading of the judgment. On the other hand, the reference by McCarthy J to the absence of “appropriate statutory provisions” would suggest, by implication at least, that, were such statutory provisions in place, they would not be constitutionally invalid. The judgment, with respect, does not make it clear why the courts, on whom the exclusive constitutional responsibility of imposing sentence rests, are in some sense precluded from laying down a rule which, it would seem, is within the competence of the Oireachtas to lay down. Apart altogether from that consideration, it is our view that the authority of the


77

[1988] ILRM 370.

78

Ibid, p371.

79

See para 4.50, supra.

80

1 Frewen 351, p359.

81

Ibid, p371. (emphasis added).



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judgment is weakened by the fact that it does not address the arguable distinction that exists between the withholding of bail from an innocent person and the imposition of sentence on a guilty person and which, as we have already suggested, is a crucial distinction between the Ryan situation and the Carmody situation.

4.59

As we have pointed out, a number of criminologists have concluded that incapacitative sentencing is normally unacceptable in principle and incapable of just administration in practice. We would reiterate our view, however, that, if the burden of criminological opinion was to contrary effect, there would be no constitutional objection to the courts adopting an incapacitative approach where that was appropriate.

4.60

Another disturbing feature of incapacitative ideology is the fact that theories of selective incapacitation for serious offenders accept the notion of there being a certain class of offenders meriting different treatment to other offenders.82 It is unjust, if not unconstitutional to put someone in jail on the basis of a judgment about a class, however accurate, because that denies his or her claim to equal respect as an individual.83 It is even more heinous if the judgment is based (as it was proposed in some American schemes) not on the criminality of the offender at all, but on factors such as employment history or drug addiction.84 This notion can be strongly argued to be repugnant to our Constitution which places primary emphasis on the rights of the individual.85

(v) Compensation

4.61

The object of compensating the victim requires the offender to make reparation or to pay compensation for injury caused to his or her victim in circumstances where the conduct of the offender is criminal.86 It seems that the payment of compensation by the offender to the victim or the victim's kin formed the basis of the early criminal law. Payments were scaled in accordance with the seriousness of the injury and the social standing of the parties involved.87 As State involvement in the criminal law grew, so too did the notion that crime was an injury against the State rather than against the individual victim. So the State began to claim an increasing proportion of the compensation.88 Gradually, two distinct and separate types of proceedings arose out of criminal conduct; criminal proceedings, by the State for infraction of a public duty, and civil proceedings by the victim for infringement of a private right. Compensation of the victim became the principal remedy of the law of torts, which aims to achieve restitutio


82

O'Malley, Bail and Predictions of Dangerousness, (1989) ILT 41.

83

Dworkin, Taking Rights Seriously, (1978), p13.

84

Von Hirsch, Deservedness, p80. Greenwood's seven predictive factors are: (1) Prior convictions of instant offence type; (2) Incarceration for more than half the preceding two years; (3) Conviction before the age of 16; (4) Time served in a juvenile facility; (5) Drug use during the preceding two years; (6) Drug use as a juvenile; (7) Employment for less than half of the preceding two years.

85

O'Malley, op cit, p44.

86

See the Report of the Victorian Sentencing Committee, p108.

87

Pollock and Maitland, History of English Law, p451; see Wasik, The Place of Compensation in the Penal System [1978] Crim LR 599.

88

Ibid.



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in integrum, while the criminal law concerned itself with more penal considerations.

4.62

In recent times it has been thought to be absurd that the State should undertake to protect the public from crime and then, when crime occurs, take the entire payment but offer no effective89 remedy to the victim.90 Consequently, some statutory provisions were enacted to enable sentencers to order the offender to pay compensation to the victim.91 These, however, have been piecemeal and of little practical value to victims.92 In practice the courts have introduced the idea of compensation into the terms and conditions of other orders, such as postponed sentences, even though this practice has no statutory basis.93

4.63

Compensation seeks to justify sentencing on the basis that it addresses the primary concerns of the victim of crime. These are thought to be:94


(a)


gaining recognition for the fact that the victim has suffered harm to life, liberty or property in consequence of the offence; and


(b)


having the harm redressed.

The theory is, thus, both punitive and utilitarian; it seeks to punish the offender95 and to provide some benefits to the victim.

4.64

The theory is, however, beset by a number of practical difficulties which call the efficacy of compensation theories into question. To begin with, compensation depends on the economic means of the offender.96 The danger, thus, is that the offender will not have the means to compensate the victim. Secondly, not all crimes are against readily identifiable victims, e.g. traffic


89

Civil remedies against offenders are generally felt to be ineffective means of achieving compensation. The principal defects of the civil remedies are that the offender might never be apprehended, or may be impecunious, or the victim may lack the determination or ability to enforce his means of redress for the infringement of the private right; see the Council of Europe, Compensation for the Victims of Crime, (1975) p3 et seq.

90

See Schafer, Victimology: The Victim and his Criminal, (1977), p20; Wasik, op cit.

91

See para 1.118, supra. (Compensation).

92

Outside the sentencing courts, however, compensation schemes have been set up by the State in response to the argument that the State owes some duty (whether legal or moral) to the victims of crime to ensure that they are adequately compensated. The State, rather than the offender, pays the compensation. Originally these schemes gave the victims statutory rights to compensation – see e.g. the Malicious Injuries Act, 1861– but nowadays the giving of legal rights to compensation is avoided. The Criminal Injuries Compensation Tribunal, established in 1974, operates on such a non-legal basis.

93

See para 1.118, supra. (Compensation).

94

See the Australian Law Reform Commission's Discussion Paper Sentencing: Procedure (ALRC DP 29), p18.

95

That requiring the offender to compensate the victim can punish the offender was recognised by Bentham:

“Exacted at the expense of the evil doer, compensation necessitates suffering: exacted in consideration of, and in proportion to, the evil done by him, that suffering, by the whole amount of it, operates as punishment.”

Collected Works, Book 1, Ch IV, p23.

96

We shall not deal here with the compensation of victims from the confiscated proceeds of crime. This has been dealt with elsewhere; see this Commission's Report on the Confiscation of the Proceeds of Crime, (LRC 35–1991); see also para 1.122 et seq, supra (Confiscation and para 1.117 et seq, supra (Compensation).



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offences. In many cases, therefore, it is difficult to determine who should be compensated. Thirdly, compensation theory fails to take into account the fact that the criminal law has other concerns such as ensuring that the law is observed.

4.65

Since compensation depends on the economic means of the offender, principles of sentencing which have compensation of the victim as their basis carry the danger of discriminating between wealthy and less wealthy offenders – wealthy offenders being in a better position to escape punishment because of their economic status.97 The end result of this is disparity in the way in which offenders are treated. Another problem is the fact that under a compensation approach a detailed examination of the extent of the loss or injury suffered by the victim has to be conducted. This can lead to significant delays in the criminal justice process, requiring the criminal justice system to enforce what are essentially civil proceedings. Some jurisdictions have confined the use of compensation orders to situations in which no civil proceedings against the offender are contemplated by the victim.98

4.66

Sentencing, as a means of providng compensation, has a number of drawbacks. It is doubtful if sentencing can adequately achieve this objective in the great majority of cases. Sentencing is a haphazard means of securing compensation because the offender may, after all, be impecunious. It is, nonetheless, an undeniable fact that compensation of the victim is desirable where it may be achieved99 and we are at one with the Whitaker Committee on this. On the whole, however, there is only limited scope for this, and there is still the danger that wealthy or well heeled offenders may be able to buy their way out of justice.

Summary

4.67

Our examination of the way in which the traditional objects of sentencing answer the question “why does the criminal justice system sentence offenders?” leads us to a number of conclusions. The capacity of the utilitarian concepts of rehabilitation, deterrence, incapacitation, and, compensation (in so far as it is utilitarian) to achieve their objectives has been thrown into doubt by the results of research. On the other hand, retributive justifications for the imposition of criminal sanctions do not rest on a secure foundation. What we are left with are doubts about the traditional, utilitarian justifications for sentencing, one weak moral justification the success of which cannot be appraised and a general feeling, which cannot be substantiated, that the imposition of criminal sanctions may have some effect on crime prevention and crime control because of


97

See the Report of the Victorian Sentencing Committee, p109. A similar argument can be made against the use of fines.

98

Ibid. For these reasons the English Advisory Council on the Penal System recommended that compensation should not be ordered:

(i)

where enforcement appears impracticable because of the offender's lack of means; or

(ii)

where there is a need to resolve difficult issues of liability or quantum.

99

See the Report of the Whitaker Committee of Enquiry into the Penal System, p48.



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deterrent or incapacitative effects. We know a lot about what punishment cannot achieve, but we know a lot less about what it can achieve. There is no simple answer to the question “why does the criminal justice system sentence offenders?”. It is in this context that decisions about the distribution of sentence will have to take place.

4.68

These conclusions suggest restraint in the distribution of sentence. Since criminal sanctions involve pain and deprivation, they should be used all the more sparingly if we are uncertain of their benefits either to society or to its individual members.100

4.69

It should also be remembered that the capacity of sentencing to achieve its objectives will be conditioned by other elements within the overall criminal justice system. Sentencing is only one stage in a number of stages concerned with the enforcement of the criminal law, each of which has its own decision making processes and its own personnel to make those decisions. Sentencers have little control over what happens to offenders in the pre-sentencing and post-sentencing stages of the criminal justice system, such as deciding when to initiate prosecution, or deciding when a prisoner should be released from prison. This places dramatic limits on what sentencing may achieve: for example, if a sentencer imposes a severe sentence in order to deter the offender, the sentence might later be deprived of deterrent effect by an executive decision to grant a full temporary release in order to rehabilitate (or, perhaps, simply to abate prison overcrowding).101

4.70

Another limit on the capacity of sentencing is the low percentage of offenders it actually deals with. To begin with, it is not known what percentage of the offences which actually occur are reported to the prosecuting authorities, although it is not unreasonable to assume that a sizeable proportion of offences against the person go unreported – with the exception of high visibility, serious crimes such as murder.102

4.71

Nor will every offender who is detected come before the courts at the sentencing stage. The prosecutorial agencies may decide not to prosecute the matter, and even if they do, there may not be a conviction.

4.72

The fact that the application of the sentencing process is limited to a very small proportion of actual offenders casts further doubt on the idea that sentencing functions to protect the public and to prevent crime.103 The goal


100

See the Canadian Sentencing Commission, op cit, p145.

101

See Ch 15, infra. (Penal Policy).

102

Manning found from a study of police work in the United States and England that the amount of unreported crime was between four and nine times higher than the official rates, depending on the nature of the offence; Manning, Police Work, (1977). The Canadian Sentencing Commission report the results of a Canadian Urban Victimisation Survey in 1982 which found that only one-third of assaults, sexual assaults, thefts, and vandalism were reported to the police; See Sentencing Reform: A Canadian Approach, note 16, p124.

103

The Canadian Sentencing Commission concluded that the percentage of offenders actually dealt with by the sentencing process could be as low as 3%, taking unreported crime into account: see p119 of that Commission's Report.



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of protecting the public from offenders and preventing crime is better viewed as the preserve of the entire criminal justice system, achieved through the work of the investigatory and policing agencies such as the Garda Síochána and the various Governmental agencies concerned with the control and regulation of agriculture, fisheries and health etc. rather than as the primary responsibility of the courts.

Principles of Distribution

(i) “Just Deserts”

4.73

The principle of desert as a means of restricting the distribution of sentence in accordance with principles of fundamental justice and parsimony has proved attractive in jurisdictions in which reform of the sentencing process has taken place. This principle has become known as “just deserts”. Interest in the “just deserts” theory as a fundamental basis for sentencing reform has increased since the 1970s with the publication of several works on deservedness,104 and it has become influential in sentencing reform in the United States,105 Canada,106 Australian Federal Jurisdiction107 and Victoria,108 Sweden,109 Finland,110 and, lately, Britain.111 Such reform has begun with the recognition of “just-deserts” as an integral part of criminal sanction, regardless of its ultimate purpose, and has followed the “just deserts” premise that punishment should be imposed only in a just and fair manner. The main advantages of “just deserts” centre around the concept of justice (which, admittedly, can be somewhat nebulous in character). The following principal characteristics of the “just deserts” principle are generally accepted as promoting the aim of justice:112


(i)


legal order;


(ii)


equal protection of individuals;


(iii)


fairness;


(iv)


satisfaction to victims of offences and to others;


(v)


culpability determined by the exercise of free choice.


104

Notably Andrew von Hirsch's Doing Justice (1976) and Past or Future Crimes? (1986).

105

See para 7.82 et seq, infra. (The Federal System of the USA).

106

See Sentencing Reform: A Canadian Approach, Canadian Sentencing Commission, (1987).

107

See ALRC No. 44 (1988) Sentencing, p14.

108

See Victorian Sentencing Committee, Sentencing, (1983).

109

See Fängelsestraffkomittén, Paföld för Brott, (1986).

110

See Penal Code of Finland, Chapter 6, revised in 1976.

111

White Paper Crime, Justice and Protecting the Public, 1990, cm 965, p5: “The Government's aim is to ensure that convicted criminals in England and Wales are punished justly and suitably according to the seriousness of their offences; in other words that they get their just desserts (sic).”

112

Hondreich, Punishment: The Supposed Justifications, (1984), pp35–37; see also the report of the Victorian Sentencing Committee, p92 and ALRC DP 29, p19.



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4.74

In a recent English survey, Walker and Hough found that the most popular type of sentencing system was one which “gives the offender what he deserves.”113 Thus it is argued that a sentencing system based on “just deserts” is likely to improve public support for and confidence in sentencing and the criminal justice system.114

4.75

The “just deserts” principle of distribution requires the severity of the sentence to be in proportion to the seriousness of the offending behaviour. “Just deserts” has sometimes been suspected of simply being retribution revamped. But Andrew von Hirsch, the leading exponent of the philosophy, explains the difference thus:

“The principle of commensurate-deserts addresses the question of allocation of punishments – that is, how much to punish convicted offenders. This allocation question is distinct from the issue of the general justification of punishment – namely, why the institution of punishment should exist at all.”115

4.76

Seriousness, under the “just deserts” theory, is gauged by reference to two factors:116


(a)


the harm caused or risked by the offending conduct, and


(b)


the culpability of the offender in committing the crime.

“Just Deserts” – Harm, Culpability

4.77

The role of harm in gauging the seriousness of the offending conduct is nothing new: for example, the maximum penalty for murder has always been set at a higher level than that for assault because of the greater harm which results from the former. By focussing on the degree of harm, the “just deserts” theory directs sentencers to give more consideration to the harmfulness of the offending conduct within the scale of maximum or minimum penalties. This in turn should stimulate the development of more sophisticated doctrines on how to assess harm. In some jurisdictions, reforms have gone so far as to pre-determine these


113

Public Attitudes to Sentencing (1988), cited by Ashworth in Criminal Justice and Deserved Sentences, p251. 44% of respondents favoured a desert based sentencing system.

114

Ashworth, op cit. See also ALRC 44 op cit, p14; Canadian Sentencing Commission's report op cit. Chs 3 and 4; and Victorian Sentencing Committee's report op cit, p15.

115

Neoclassicism, Proportionality, and the Rationale for Punishment: Thoughts on the Scandinavian Debate, 29 Crime and Delinquency 211. Emphasis added.

116

See e.g. von Hirsch, Past or Future Crimes, Ch 6; The US Committee for the Study of Incarceration said of “just deserts” that:

“The principle looks retrospectively to the seriousness of the offender's past crime or crimes. Seriousness depends both on the harm done (or risked) by the act and on the degree of the actor's culpability. (When we speak of seriousness of “the crime”, we wish to stress that we are not looking exclusively to the act, but also to how much the actor can be held to blame for the act and its consequences.)”

Op cit; see also Ch 5, Infra. (Aggravating and Mitigating Factors).



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relationships for the sentencing judges by getting sentencing commissions to produce elaborate grids or tables of appropriate sentences for given offences. Some research has already shown that the degree of harm caused or risked can be gauged by reference to the public perception of the seriousness of such conduct.117 Others have countered that the harmfulness of criminal conduct should not be measured by what people think it is, but by what it really is.118 A simple criterion might be the amount of violence involved – but one can see the limitations of this when economic crimes (which do not, normally, involve violence) are considered.

4.78

Von Hirsch suggests a broader criterion well suited to both the judicial assessment of harm and the assessment of harm by a sentencing commission: harms may be graded according to the degree to which they restrict peoples' ability to direct the course of their own lives.119 Thus, for example, murder is the gravest harm, since it deprives the victim completely of his or her choices; and economic crimes are also accounted for, because they threaten peoples' choice of livelihood.120 Of course, this test needs to be developed to deal with crimes such as tax evasion which injure collective interests – but it is doubtless a start.

4.79

Culpability is already a factor of some importance in the criminal law. Culpability refers to the factors of intent, motive and circumstance that determine how much the offender should be held responsible for his or her actions, and, as such, affects the assessment of harm: “The consequences that should be considered in gauging the harmfullness of an act should be those that can fairly be attributed to the actor's choice.”121 The substantive criminal law already provides some principles for the assessment of punishment on the basis of culpability – duress, provocation, and ignorance of the law are not normally defences to liability for the crime itself, but are frequently availed of as excuses in mitigation of the severity of sentence.122 By explicitly emphasising culpability, the “just deserts” theory calls upon the sentencing courts (or sentencing commissions in jurisdictions where such bodies have been set up to establish sentencing guidelines) to calibrate the individual sentence more carefully according to the degree of harmfulness which may fairly be attributed to the offender's choice.123


117

E.g: Sparks, Genn & Dodd, Surveying Victims: A Study of the Measurement of Criminal Victimisation, (1977), Ch 7.

118

Von Hirsch, supra, p45; Sparks, Genn & Dodd lamented tha fact that although their survey of some 500 Londoners showed that public opinion was “agreeably rational” and illustrated a broad consensus, the example they gave of the sale of marijuana to a 15-year-old received a higher harm score, on average, than rape. This, they suggested, “resulted from a general ignorance among our sample as to the nature of marijuana”. Ashworth, Sentencing and Penal Policy, comments: “This directly raises the issue of the assumptions upon which the answers were founded”.

119

Von Hirsch, op cit; also Feinberg, Harm to Others, (1984).

120

See von Hirsch, Principles for Choosing Sanctions: Sweden's Proposed Sentencing Statute, (1987) 13 New England Journal on Civil and Criminal Confinement 171.

121

Von Hirsch, Past or Future Crimes, p65.

122

See Wasik, Excuses at the Sentencing Stage [1983] Crim LR 450.

123

In many jurisdictions the courts have been given extra assistance in the form of statutory lists of aggravating or mitigating factors which specifically address the mental state of the actor and the assessment of culpability. See Ch 7, infra. (Some Comparative Aspects of Sentencing Policy).



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4.80

An important characteristic of the “just deserts” theory is the assertion that the principle of proportionality must be given priority in deciding the level of sentence. Two forms of proportionality are involved in “just deserts”.

4.81

The first, cardinal proportionality, is concerned that the absolute level of the penalty scale should not be disproportionate to the magnitude of the offending behaviour. The US Committee for the Study of Incarceration observed that:

“The principle of commensurate deserts imposes, in the first place, an ordering of penalties. Punishments are to be arranged so that their relative painfulness corresponds with the comparative seriousness of offences.”124

4.82

The Australian Law Reform Commission added that:

“A criminal justice system which delivered punishments that were excessively harsh would be as ineffective and unjust as one which delivered punishments that were too lenient. In the latter case, the law is likely to be simply disregarded. In the former, informal means may well be taken to avoid subjecting offenders to the excessively harsh punishments. The level of severity of punishment must strike a balance between these two extremes .... Striking that balance necessarily involves selecting a punishment that conforms to the so-called 'principle of parsimony' or 'economy' – the punishment chosen should not exceed that which is necessary in the circumstances.”125

4.83

The second limb of the proportionality requirement, ordinal proportionality, requires that a sentence should be determined by comparison with similar criminal acts and compared to crimes of a more or a less serious nature. The sentence “ought to reflect the relative reprehensibleness of those acts .... [O]rdinal proportionality is concerned with preserving a correspondence between relative seriousness of behaviour and relative severity of sentence ....”126 The Committee for the Study of Incarceration observed that:

“Spacing is likewise important: penalties ought not, for example, to be crowded together so closely as to obscure distinctions in seriousness among offences. The principle also requires that infractions of equal seriousness be punished with equal severity. For a given category of offence, therefore, a specific penalty level should be set that is applicable to all instances, except when special aggravating or mitigating circumstances can be shown to have existed.... Commensurate deserts restricts severe punishments to serious crimes. The penalty scale ought not be inflated so much that non-serious crimes also receive severe


124

Victorian Sentencing Committee, p91.

125

ALRC No. 44, op cit, pp14, 15.

126

Ashworth, op cit, p344.



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penalties (severe, that is, ... in [a] sense of being very unpleasant, given the prevailing tolerances for suffering). Severe punishments for non-serious offences overstate blame: the offender is being treated as more reprehensible than the harmfulness of his acts (and the extent of his culpability) justify. This objection holds even if the whole scale has been elevated so much that the penalty ranks low in comparative harshness alongside other penalties. Irrespective of other penalties, when an offender has been visited with much suffering the implicit condemnation is great ....”127

4.84

It is the requirement of ordinal proportionality which elevates the “just deserts” principle from the status of a mere limiting principle to that of a determining principle.128 A limiting principle sets the upper limit of the penalty which may be imposed, but does not define its extent below that. For example, the pure retributive principle of desert is a limiting principle. It requires that punishment should not exceed the seriousness of the crime – but it does not prevent punishment from being less severe than that merited by the crime. “Just deserts”, on the other hand, is a determining principle, because it actually defines the magnitude of the penalty; i.e. it must not be less severe than other penalties for less serious crimes. The US Committee for the Study of Incarceration commented:

“Imposing only a slight penalty for a serious offence treats the offender as less blameworthy than he deserves. Understating the blame depreciates the values that are involved: disproportionately lenient punishment for murder implies that human life – the victim's life – is not worthy of much concern; excessively mild penalties for official corruption denigrate the importance of an equitable political process. The commensurateness principle, in our view, bars excessive leniency as well as disproportionate severity.”129

Implementing a “Just Deserts” System
(a) Fixing the Levels

4.85

First, there is the task of fixing the levels of proportionality which are required by the theory. There are three means by which these levels can be determined:


(a)


prescriptive, i.e. decided anew without reference to what is current in sentencing theory; or


(b)


descriptive, i.e. decided by reference to what is current in judicial sentencing practice; or


127

Victorian Sentencing Committee, p91.

128

See von Hirsch, Past or Future Crimes, op cit, Chapter 4.

129

See von Hirsch, Doing Justice, (1976), p73.



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(c)


a combination of both.

4.86

Since there is no fixed notion of how to fix the overall level of penalties so as to achieve cardinal proportionality, then, in order to fix a “starting point”, difficult decisions have to be made. The “just deserts” principle proceeds on the assumption that one can arrive at a degree of consensus concerning these issues.130 Some have argued strongly in favour of a reduction in the severity of the penal sanctions as part of their “just deserts” approach, whilst others have employed a greater use of custodial sentences as part of theirs.131 In the USA deterrence has been relevant in determining the appropriate scale.132 Commonly, confusion has arisen between the “just deserts” philosophy and the underlying justifying aims which some jurisdictions have continued to employ. Some jurisdictions have, pragmatically, adopted a descriptive system.

4.87

Next is the matter of ordinal proportionality. Since the “just deserts” theory requires that a serious offence not be punished more leniently than a less serious one, (i) a hierarchy of crimes has to be constructed i.e. crimes will have to be ranked in order of seriousness, and (ii) a hierarchy of penalties, i.e. all sanctions should be ranked in order of severity. Such hierarchies can be constructed either before a “just deserts” sentencing regime is effected, or they can be developed by the courts once such a system is put into operation.

4.88

Independently developing a hierarchy of penalties is not, as it may seem to be, such a difficult task; it could, theoretically, be measured by reference to public opinion.133 The approach of jurisdictions such as Michigan134 has been to use a “descriptive” rather than a “prescriptive” system of measurement to arrange a hierarchical ordering. This approach plainly necessitates the rigorous examination of current practice and the compilation of statistics – but the task is by no means impossible.

4.89

In a hierarchy of penalties, all the sentencing options would have to be viewed in terms of the degree to which they deprive the offender of his rights. Imprisonment, naturally enough, would be the most serious penalty. The fine, would be well suited for offences in the middle of the range of seriousness where imprisonment is considered to be too severe.135 Similarly, community service may be viewed as a lesser sanction in that it deprives the offender of leisure and


130

There is no doubt even from public surveys which have been done that a high degree of consensus can be achieved, but it has been by no means uniform.

131

Tonry, Sentencing Reform Impacts, (1987) p4.

132

Von Hirsch, Doing Justice, p94.

133

This Commission has already referred (in its report, The Indexation of Fines (LRC 37–1991) to a number of surveys indicating that the public perception of the severity of sanctions is relatively consistent. However the practicalities of determining public opinion put great constraints on such a system. See the experimental studies of Kapardis and Tarrington, An Experimental Study of Sentencing by Magistrates 1981 Law and Human Behaviour 107, and Sebba and Nathan, Further Exploration in the Scaling of Penalties (1984) 24 BJ Crim 221, referred to in Indexation of Fines p17, note 12.

134

See McComb, An Overview of the Second Edition of the Michigan Sentencing Guidelines, Michigan Bar Journal, September 1988, p863, and para 9.43 et seq, infra. (Michigan).

135

Wasik and von Hirsch, Non-Custodial Penalties and the Principles of Desert, [1988] Crim LR 555.



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exacts unpaid labour.136 Discharges would then suit the least serious offences. As for probation, the punitive element can be found in the conditions which are imposed. However, it would not be easy to accommodate the suspended prison sentence, since, in terms of discomfort to the offender, it has most in common with the conditional discharge; yet it involves a giant step in severity for the act of default. Clearly a sentencing framework based on deserts can incorporate extensive use of non-custodial sentences. “They would no longer be associated primarily with rehabilitative aims nor be regarded merely as substitutes for incarceration.137 They would instead be seen as penalties in their own right, ranged on a scale below immediate custody, and involving varying degrees of punitiveness.”138 The Whitaker Report shows much in favour of such a principle. It says of probation orders:

“since they restrict the offender's freedom of choice and have specific guarantees of compliance they must be regarded as a form of punishment ...”139

4.90

The task of constructing a hierarchy of crimes is complicated by the large range of crimes. Nonetheless, in the United States, sentencing commissions which have been given this task have been able to formulate rankings of seriousness for their guidelines without generating controversy, which may indicate that the task is a manageable one if approached rationally.140 A feature of the US rankings has been the construction of a sentencing “grid” or table.141 A disadvantage of these grids is their inflexibility, and their occasional failure to take important circumstances into account when addressing the seriousness of offending behaviour. The Australian Law Reform Commission was, thus, less than enthusiastic about such ranking of offences according to seriousness:

“In the Commission's view, it is not possible to impose a rigid structure for this purpose. Individual variations, especially of the circumstances and characteristics of offenders, cannot be exhaustively listed. For this reason, the Commission accepts that the present role of the courts in exercising the sentencing discretion should remain.”142

4.91

This is also the procedure envisaged by the British Government in its recent sentencing reform.143

4.92

However, in order to give the courts a starting point from which to


136

It appears that the “most sophisticated community service programme, operated by the Vera Institute of Justice in New York, treats the sanction in this fashion – as a sanction that is punitive but less severe than imprisonment”Ibid, p567.

137

Argued strongly by the Canadian Sentencing Commission, Sentencing Reform, 1987, Ch 12.

138

Wasik and von Hirsch, op cit, p572.

139

Op cit, p32.

140

See Ch 9, infra. (Implementing Sentencing Policy: Presumptive Guidelines, Stating Points and Judicial Guidance).

141

Ibid.

142

ALRC, 44, Sentencing, p17.

143

See Criminal Justice Bill, 1990, and White Paper.



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develop a structure for determining the seriousness of a given offence, many jurisdictions have reviewed their set of maximum penalties so as to produce a working hierarchy of maxima. This hierarchy gives sentencers some idea of the seriousness of an offence compared to other offences, and assists them in choosing the level of severity of sentence by giving them an example of the sentence suitable for the worst example of that offence.144

4.93

The Canadian Sentencing Commission undertook the ranking in order of seriousness of the over 300 offences in their Criminal Code, Narcotic Control Act, and Food and Drugs Act. The Commission said:

“Ranking all the criminal offences under consideration by this Commission was a complex and time-consuming exercise. As in determining the scale of maximum penalties, reference had to be made to policy, theory and data on sentencing practice.

The ranking also drew upon the diverse experiences of the Commissioners, the findings of public opinion research, similar exercises by sentencing commissions in other jurisdictions, and research on the penalty structures in other countries. Thus it was a multi-stage process in which the subsequent ranking was refined to reflect these diverse sources of information. The final step involved a comparison between the ultimate ranking by the Commissioners and rankings derived from members of the public. This revealed a high degree of consistency between the two populations. Hence, although one can never say with empirical certainty that a certain crime is worse than another in all circumstances, some consensus exists on the perceived seriousness of different offences.”145

4.94

In its Discussion Paper, Sentencing: Penalties, the Australian Law Reform Commission agreed with the hierarchical ranking of maximum penalties in terms of offence seriousness:

“Offences should be divided into specified categories according to seriousness. This ranking should take into account both public perception and sentencing practice. It is tentatively proposed that there be eight categories of offences. The proposed hierarchy is not comprehensive.”146

4.95

In its final report, the Commission upheld this view, adding that:

“In the long run, a review of this kind would make a significant contribution to the development of coherent and consistent sentencing


144

See para 10.12, et seq, infra. (Review of Maxima in Other Jurisdictions).

145

Canadian Sentencing Commission, op cit, p205.

146

ALRC, DP 30, 1987 para 122–130.



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policy and practice.”147

(b) Prior criminal record

4.96

Another issue which has to be addressed in developing a “just deserts” approach is whether or not a prior criminal record is to be considered a relevant factor in determining the deservedness of a particular sanction by a particular offender. Most penal systems impose less punishment on first offenders than on those who have previous convictions. Yet desert theorists have argued that considering the prior offence record is not germane to an offenders deserts – the person has been punished already for his earlier convictions; therefore the existence of prior record is irrelevant.148

4.97

The issue of prior record show up the tension between the philosophies of due process (in the form of “just deserts”) and crime control. A crime control approach might approve of incapacitating recidivists by imposing longer custodial sentences on them, but departures of this kind challenge the philosophical underpinnings of “just deserts”.149 Nonetheless, within certain limitations, prior record may be relevant to the culpability of the offender for the offending behaviour, particularly if the prior offence is sufficiently close in nature, seriousness and time to the the offence for which the offender is being sentenced. Many desert theorists, thus, continue to concede a limited role to prior criminal record.150 This issue will be examined in detail in Chapter 6.

(c) Mitigation

4.98

Since the “just deserts” theory relies only on the seriousness of the offending behaviour to determine the extent or severity of sentence, the only factors which will be relevant in mitigation will be those which reduce the seriousness of the offending behaviour. Thus, if “just deserts” were to be adopted as the sole or dominant principle by which sentence could be determined, many of the traditional grounds of mitigation of sentence151 would be lost; e.g. the impact the sentence may have on third parties dependent on the offender. This may pose a problem if the traditional factors which mitigate sentence are still thought to be important in their own right.

4.99

The solution to this problem in most jurisdictions which have adopted a “just deserts” approach has been to give sentencers a list of exceptional factors which may be considered in mitigating the sentence of the offender.152 The task of compiling such a list is not a difficult one, but it does require some


147

ALRC 44, Sentencing, (1988) p33. See further para 10.12, et seq, infra. (Review of Maxima in Other Jurisdictions).

148

Fletcher, Rethinking Criminal Law (1978), pp460 et seq; Singer, Just Deserts: Sentencing Based on Equality, (1979), ch 5.

149

Ashworth, op cit, p347.

150

See the discussion on prior criminal record in Ch 6, infra. (Prior Criminal Record).

151

On the distinction between factors which mitigate seriousness and factors which mitigate sentence see para 1.71 et seq, supra (The Mitigation Decision).

152

See Chap 5, infra (Aggravating and Mitigating Factors).



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careful thought, particularly in this jurisdiction where there is not available a ready consensus or set of precedents which set out the factors commonly taken into account by our sentencers.153 These issues are dealt with in detail in the next chapter.

(d) Promoting the justifying aims

4.100

Finally, there lies the deepest criticism of the “just deserts” theory, i.e. that it is an uncaring means of dealing with offenders, because it ignores the causes of crime and shows little interest in constructive ways of tackling crime.154 This is an echo of the traditional criticism of retribution, made, usually, by those who confuse “just deserts” with retributivism. However, it is true that “just deserts” provides no justification for the imposition of sentence, and its principles give little recognition to policies of crime prevention and control. For this reason “just deserts” should be seen only as a foundation for distribution of sentences, and not a rationale for the criminal justice system as a whole. For example, correctional institutions may continue to maintain rehabilitative programmes in their treatment of offenders (provided there are sufficient arguments in their favour) within the “just deserts” sentencing framework.155 Other objects may also be pursued.

4.101

As we have already stated, the “just deserts” theory does not exclude consideration of the traditional objects, which may be considered so long as they do not violate the requirements of cardinal and ordinal proportionality. Certain hybrid schemes have been developed with the purpose of linking the “just deserts” approach with traditional justification for punishment.

(ii) Hybrid Principles

4.102

Hybrid principles involve the consideration of more than one principle of distribution. To be coherent, however, they require a structure or a system of priorities which resolves conflicts which may arise between conflicting principles. Jareborg describes two means by which this can be achieved:156 (i) giving different principles priority in different areas of application, say for different types of crime, or for different types of penalty; or (ii) ranking different principles in order of priority.

4.103

Recent years have seen a growing interest in the construction of hybrid models for the distribution of sentence, although as yet these experiments have for the most part,157 not influenced sentencing reform. Foremost amongst these theories are those of Professor Paul Robinson, former commissioner with


153

See para 5.51 et seq, infra (Factors which Mitigate Offence Seriousness).

154

Ashworth, op cit, p348.

155

See para 4.102 et seq, infra (Hybrid Principles).

156

Op cit, p12; see para 2.41 et seq, supra (Coherent Policy).

157

The “Choice of Method” hybrid, discussed below, has, however, found some application in jurisdictions where sentencing reform has taken place; see Ch 5, infra (Aggravating and Mitigating Factors).



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the US Sentencing Commission.158

4.104

This scheme recognises the dominance of the “just deserts” theory as the most suitable single principle for distribution, but he observes that pure “just deserts” principles may impose sanctions which occasionally cost more than the crime they prevent, and fail to impose sanctions where opportunities for efficient crime prevention are great. His hybrid scheme identifies the “alignments of conflict” which may arise in sentencing as (a) “just deserts” vs deterrence and incapacitation; (b) deterrence vs “just deserts” and incapacitation; and (c) incapacitation vs “just deserts” and deterrence.159 Robinson then puts forward a number of mechanisms that may be adopted to define which purpose should be followed when a conflict of purposes arises in any given situation.160

4.105

Perhaps the most appealing of Robinson's mechanisms is the “method of sanction”,161 under which, so long as just deserts is followed to decide the extent of sentence (i.e. severity), other objects may be considered to decide the nature of punishment (i.e. the method by which punishment is carried out). If, for example, a brief period of imprisonment is about as severe as a stiff noncustodial sentence, the choice between these penalties might be made on the grounds of incapacitation.

“If one month in the state prison is the punitive equivalent to five months of weekends in the local jail, then desert is satisfied even if the more blameworthy offender gets probation, with a condition of seven months of weekends in jail, while the less blameworthy offender goes to prison for one month.”162

4.106

One vital requirement is noted:

“It is critical, of course, that the sanction equivalencies be properly set.


158

See Hybrid Principles for the Distribution of Criminal Sanction (1988) 82 Northwestern LR 19, with commentaries by Blumstein, Stein, von Hirsch and Zimring.

159

Ibid, p26. Rehabilitation is left out for the sake of simplicity, because of doubts about its efficacy, but can be re-introduced into the theory without difficulty if needs be.

160

One mechanism involves establishing priorities. Under a “simple priority” approach different types of principle are ranked, and the primary principle controls whenever a conflict arises. The obvious problem with this method is that there is great doubt about the success of achieving some of the underlying goals such as incapacitation or deterrence.

Another approach, the “contingent priority” mechanism, tries to counter some of the arguments against the efficacy of utilitarian principles by giving a given principle priority in certain situations only when a defined level of efficacy or reliability is guaranteed; e.g. deterrence might only be given priority if the situation is one in which empirical evidence supports a minimum rate of effectiveness of deterrence. But it must be remembered that giving priority to crime control strategies that call for the imposition of unequal punishment on those convicted of equally serious conduct – e.g. selective incapacitation or in terrorem punishment– violates the “just deserts” principle of ordinal proportionality.

A third mechanism relies on the distinction between determining and limiting principles of distribution. Robinson explains: “One might, for example, treat one of the utilitarian purposes, such as deterrence, as a limiting purpose and thus use it not to formulate doctrines of distribution, but to exclude certain formulations generated by a desert priciple – such as those that exceed a net social cost.” Again, however, there are difficulties in measuring the efficacy of the utilitarian principles in finding sentences which do not exceed “net social cost”.

161

Robinson, op cit, pp34–36.

162

Ibid, p35.



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Some empirical research has been done on perceptions of relative seriousness of sanctions163 but the work is still in its infancy.”

4.107

In some situations, however, it may be unnecessary to establish sanction equivalencies. For example a very lengthy or life sentence can clearly satisfy the goals of retribution or incapacitation, but there is simply no rehabilitative alternative.164 What are we to do, for example, with a murderer desperately in need of rehabilitation?165 The limitations of the choice of method hybrid should, thus, be noted – it does not propose to provide utilitarian solutions to all sentencing decisions; it merely uses utilitarian knowledge to answer questions which have no answer in “just deserts” principles.

4.108

The separation of the extent of sentence from its nature has a number of advantages. For one thing, broad judicial discretion can be maintained in determining the nature of sentence within a narrow framework of judicial discretion as to the extent of sentence (such as guideline sentencing grids),166 thus satisfying those who object to the deprivation of judicial discretion at the sentencing stage. Secondly, leaving the decision as to the nature of sentence to the judiciary is justified because principles for selecting the appropriate method of sentence are as yet less obvious than principles for determining its extent. Thirdly, by allowing the nature issue to rely on the known effects of certain types of sentence, sentencing can make use of the knowledge that is available about the utilitarian effects of sentencing, even though such knowledge might not be sufficient to provide a basis for the use of utilitarian principles of distribution. Thus the choice of method hybrid is flexible enough to include consideration of aims such as redress for the community or the individual victims of crime.

Provisional Recommendations

4.109

We now make the following provisional recommendations.

We provisionally recommend that the legislature sets out by way of statute a clear statement that the sentence to be imposed on an offender be determined by reference to the “just deserts” principle of sentencing and that the legislation should include the following provisions:


163

Buchner, for example, makes comparisons between the severity of sentences according to the perceptions of judges (for example, 3–23 months in the county prison is approximately equal to 9 years probation). See Scale of Sentence Severity, (1979) 70 J Crim L & Criminology 182; see also Erickson & Gibbs, On the Perceived Severity of Legal Penalties, (1979) 70 J Crim L & Criminology 102 (field surveys in four Arizona cities on public perceptions of severity of various sanctions); Sebba, Some Explorations in the Scaling of Penalties, (1978) 15 J Res Crime & Delinq 247 (tentative findings of exploratory study measuring the relative severity of various penalties); and note 136 supra.

164

See Schwartz, Sentencing Guidelines Under Legislative or Judicial Hegemony 67 Virginia LR, condensed in Tonry and Zimmring (eds) Reform and Punishment (1983) pp71 et seq.

165

A similar problem was observed by two German criminologists, Horn and Schoech, when considering a vaguely similar scheme for Germany; see para 7.122 et seq, infra (Sentencing Policy on the Continent). Also, it is not always possible to say that of two or more equivalent senctions, the one is more, say, rehabilitative, than the other(s).

166

See para 9.24 infra (The Guidelines Movement in the US States).



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The severity of the sentence to be imposed on a person found guilty of an offence should be measured in proportion to the seriousness of the offending behaviour.

The seriousness of offending behaviour should be measured by reference to:


(a)


The harm caused or risked by the offender in committing the offence; and


(b)


The culpability of the offender in committing the offence.

In determining the severity of the sentence to be imposed, the sentencer should not have regard to:



The rehabilitation of the offender; or



The deterrence of the offender or others from committing further crime; or



The incapacitation of the offender from committing further crime.

4.110

We provisionally recommend that the legislation employ a choice of method hybrid for the determination of which of two or more competing sanctions of equal severity should be imposed. The following provisions should be included:


(a)


A sentencer in choosing between two sanctions of equal severity, may have regard to:



the rehabilitation of the offender;



the deterrence of the offender or others from committing further crime;



the incapacitation of the offender from committing further crime;



the provision of redress to the victims of the offence or to the community;



and should choose the sanction which is more likely to achieve rehabilitation, deterrence, incapacitation or redress as the case may be;


(b)


a sentence of imprisonment should always be regarded as a sanction of last resort, and should only be imposed:



when no other form of sentence, being equal in severity, would incapacitate sufficiently the offender from committing further crime; or



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when there is no other form of sentence which is equal in severity and which would reflect the seriousness of the offending behaviour; or



when the offender has shown wilful non-compliance with the terms of another form of sentence and there is no other form of sentence which, being equal in severity, would compel compliance.



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CHAPTER 5: AGGRAVATING AND MITIGATING FACTORS

5.1

In Chapter 11 we noted a distinction between two types of factors which may have an aggravating or mitigating effect on the severity of the sentence to be imposed. These we classed as


(a)


factors which aggravate or mitigate the offence; and


(b)


factors which mitigate sentence.

5.2

The former concern the circumstances of the offending behaviour, such as the type of harm caused and the degree of intent of the offender; but the latter concern the personal circumstances of the offender which do not relate to the offending behaviour, such as the impact the sentence may have on the offender or on others dependent on him or her. In this Chapter we examine both types of aggravating or mitigating factors to determine their role in the “just deserts” sentencing system proposed by this paper.

5.3

It should be stressed that the factors which we are examining here are factors which should be considered by the sentencer when determining the severity of the sentence to be imposed. When a factor is found to be irrelevant to this decision, that is not to say that it is irrelevant to all of the decisions to be made in sentencing – it may still be of relevance when determining the type of sentence to be imposed where there is available to the sentencer a range of sentence types of equivalent severity. For example, if the fact that the sentence would deprive the offender's family of parental support is considered not to be relevant to sentence severity, it may nonetheless be a valid factor in persuading the sentencer to choose community service over imprisonment where the terms


1

See para 1.71 et seq, supra (The Mitigation Decision).



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of each sentence are thought to be equivalent.

An important distinction

5.4

We should begin by explaining the importance of the distinction between factors which aggravate or mitigate the offence and factors which mitigate sentence.

5.5

To begin with, they arise at different stages of the sentencing decision. Factors which aggravate or mitigate the offence arise for consideration when the sentencer is deciding the seriousness of the offending conduct for which the offender is to be held responsible. Although this may include a consideration of the state of mind or the culpability of the offender during the commission of the offence, the sentencer is, at this stage, primarily concerned with the offending behaviour rather than with the offender personally.

5.6

Factors which mitigate sentence arise later. When the sentencer considers these factors, he or she has decided the seriousness of the offending conduct for which the offender is responsible, but now asks if there is any reason why the offender should not suffer the full punishment which should attach to such responsibility or blameworthiness. Mitigation of sentence is the making of a concession: the sentencer is saying “although you are undoubtedly responsible for the offending conduct and should be punished for it, I am letting you off a little because of your personal circumstances.”

5.7

If there is confusion between the two types of factors a problem arises. If the confused sentencer takes factors which mitigate sentence into account at the “determination of seriousness” stage then the offender will be found to be less responsible or blameworthy than he or she actually is. The following example may help to make this clear.

5.8

Let us say that an offender is being sentenced for a rape in which he was the ringleader of a group of offenders and in which he, but not the others, used a great deal of violence. Let us also say that the offender is a single parent and there is no other relative or friend who can look after the child. If the sentencer, when determining the seriousness of the offence, takes into account not only the fact that the offender acted as ringleader and used violence as factors which aggravate the offence but also the fact that the offender leaves behind a child with no one to care for it as a factor which mitigates the offence, then the offence will be considered to be less serious than it actually was; the offender's conduct could even end up being viewed as less serious than that of his co-offenders who played lesser roles in the rape and who did not use violence.

5.9

At the end of the day it may not matter to the sentence whether the personal factors entered into the calculation of the seriousness of the offence or whether they were kept until later as factors which mitigate sentence – the final sentence will probably be substantially the same. What does matter, however, is that the sentencing process fails to recognise the full extent of the offender's



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blameworthiness and to make him or her accountable for it when factors which mitigate sentence are mistaken for factors which mitigate the offence. There is much to be said, therefore, for a sentencing provision of some sort which would direct the attention of sentencers to the distinction between factors which aggravate or mitigate the offence and factors which mitigate sentence.

5.10

Secondly, the distinction between factors which aggravate or mitigate the offence and factors which mitigate sentence must be clearly maintained when considering their respective roles in a “just deserts” sentencing system.

5.11

In current sentencing practice, where sentences may be imposed on the basis of rehabilitative, deterrent, or incapacitative principles, aggravation of offence and mitigation of both kinds may sometimes be dispensed with, as Thomas explains:

“(A)llowance for mitigation is not considered to be an entitlement of the offender. The sentencer may withhold a reduction which might normally be expected if some recognised penal objective such as general deterrence or the preventive confinement of a dangerous offender, requires the imposition of the whole of the permissible sentence.”2

5.12

The determination of sentence following rehabilitative, deterrent or incapacitative principles does not require any consideration of the seriousness of the offending behaviour – and, thus, does not involve any consideration of factors which aggravate or mitigate the offence – since these types of sentence are based on the likelihood of the offender or others re-offending rather than on the gravity of the offence.

5.13

However, in a “just deserts” system, the principle of proportionality between offence and sentence serves as the foundation of every sentence. Thus, factors which aggravate or mitigate the offence logically have a prior claim on the sentencer's attention since they form part of the determination of proportionality itself.3 Therefore, contrary to Thomas's assessment of current sentencing practice, in a “just deserts” system allowance for mitigation of the offence should be regarded as an entitlement of the offender. Furthermore, making allowance for factors which aggravate the offence should also be regarded as an essential element in the sentencing decision. If a factor which aggravates or mitigates the offence is not taken into consideration by the sentencer the oversight should form a valid ground for appeal against sentence because of disproportionality – either by the offender where the sentence is disproportionately severe because a factor which mitigates the offence has been excluded, or by the prosecution where the sentence is disproportionately lenient because a factor which aggravates the offence has been excluded.4 There would be much benefit in some sort of provision which would make it clear to sentencers that consideration of the


2

Principles of Sentencing, (1979), p194; see R v Inwood (1974) 60 Cr App R 70.

3

Wasik, Excuses at the Sentencing Stage [1983] Crim LR 450, 463.

4

See Ch 14, infra (Prosecution Appeals).



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factors which aggravate or mitigate the offence is essential in every sentencing decision and that it is no longer the case that allowance for these factors is at the discretion of the sentencer.

5.14

However, different considerations apply to factors which mitigate sentence. Since they are not concerned with the offending behaviour but rather with the offender's personal characteristics or circumstances, then, ostensibly, they are of no relevance in a “just deserts” system where sentence is determined by reference to the offence rather than the personal circumstances of the offender. As Gross observes:5

“... it is plain enough that none of them have (sic) any bearing on how culpable was the criminal conduct, for which punishment is to be imposed ...”

5.15

The net result of this conclusion is that factors such as pleading guilty, showing remorse, attempting to make redress to the victim or even the fact that the sentence will have very adverse consequences on others dependent on the offender should not have any effect on sentence.

5.16

This may be thought to be undesirable.6 However, factors which mitigate sentence can be incorporated into a “just deserts” system if they can be explained on the grounds of humane considerations or sound penal policy.7 In other words, some of the factors which are personal to the offender can still be taken into account in determining sentence severity, by way of exception to the “just deserts” principle of proportionality between offence and sentence, if it is thought that they are still desirable because they promote expediency or the smooth running of the sentencing system or because there may be a need to show mercy in the circumstances.

5.17

It should be stressed that factors which mitigate sentence, if they are to be retained in a “just deserts” system, should be given very careful consideration. Since they are exceptions to proportionality, they carry with them the danger that proportionality might be ousted in favour of utilitarian considerations. For example, if the likelihood of successful re-integration into society is seen to be a good reason for allowing mitigation of sentence then “just deserts” is replaced at the mitigation stage by rehabilitative principles and the whole point of having a “just deserts” sentencing system is overturned.

5.18

In considering which factors may be relied on in mitigation of sentence, therefore, we must be certain that there are very good grounds for making an exception to the overall policy of proportionality between the offence and the sentence. Not only must there be sound logical arguments in their favour, but


5

A Theory of Criminal Justice, (1979), p449.

6

Or even, perhaps, unconstitutional: in The State (Healy) v Donoghue [1976] IR 325 Henchy J stated obiter that the Constitution guarantees that an offender will receive a sentence “proportionate to his degree of guilt and his relevant personal circumstances”. However the importance of this depends upon how relevant is determined.

7

Wasik, op cit, p463.



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also, where allowance is made in order to provide some other benefits; such as expediency or the smooth running of the criminal justice system, there should be satisfactory evidence that those benefits will result.

5.19

Also, since factors which mitigate sentence are not inherent elements in the determination of a sentence proportionate to the offence but are exceptions then the question arises as to whether they should be an entitlement of the offender in every case, or whether they remain at the discretion of the sentencer in line with Thomas's assessment above. If they are discretionary then it is all the more important that sentencers should not confuse factors which aggravate or mitigate the offence with them because inherent elements of the offence may be excluded.

5.20

There is a clear need, therefore, for a careful delimitation of the factors which may be taken into account on mitigation of sentence.

Let us now consider the respective roles of each type of factor.

A. Aggravation and Mitigation of the Offence

5.21

A trend which may be noted in the criminal law, in Ireland and in other jurisdictions,8 over the last one-hundred years has been the gradual moving away from a specific and rigid definition of crimes in statutes which create criminal offences. The Larceny Act, 1916, for example, specifies in great detail a vast range of offences of theft, such as simple larceny; larceny of cattle and other animals; larceny of wills and written instruments; larceny of things attached or growing on land; larceny of goods in the process of manufacture; abstraction of electricity; larceny of ore from mines; larceny of postal packets; etc. Each of these offences carries with it its own range of penalties.

5.22

Modern statutes tend to be more general;9 and for a number of reasons, such as to improve the efficacy and efficiency of the investigatory and prosecutorial process; to ensure that cases do not fail on technicalities; and to increase the speed of the processing of cases. However, a consequence of this modern trend is a much wider variation in the degree of seriousness of offences within the broad definition of the offence. Modern statutes tend to prescribe a high maximum penalty which is to be imposed for the most serious variation of the offence, and which is far in excess of the least serious variation coming within the definition of the offence.10

5.23

The older statutes, by their restricted definitions of crimes, had less need for factors which aggravate and mitigate seriousness, because, by definition, their


8

See the Report of the Victorian Sentencing Committee, p239.

9

More obviously in other jurisdictions, which have undertaken a revision of their criminal statutes – e.g. the English Theft Act, 1968– than in Ireland where such revision has not, for the most part, taken place. (But see the Commission's Consultation Paper on Dishonesty, (LRC 43–1992).

10

And, as appears to be the case in Ireland, far in excess of the average sentence for the most usual variation of the crime: See para 10.12 et seq, infra (Review of Maxima in Other Jurisdictions).



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specific variations encompassed the factors which made them more serious or less serious than the other variations, such as abuse of a position of trust by a clerk or servant11 or by a tenant or lodger;12 or causing harm not only to the immediate victim but to the entire community by stealing from the mail.13 Modern statutes, on the other hand, leave the development of aggravating and mitigating circumstances to the courts. We noted earlier,14 however, that the courts have not clearly articulated those principles in a manner which is readily accessible to those involved in the sentencing process or to the public at large. There is, therefore, a need to articulate clearly the relevant aggravating and mitigating factors to be taken into account by the courts when imposing sentence.

5.24

In a sentencing system where the primary principle for the distribution of sentence is “just deserts”, the principal concern of the sentencing courts is to impose a sentence which is proportionate to the seriousness of the offending behaviour. However the concept of seriousness is not simply a matter of assessing the gravity of the offending behaviour – rather it involves both an assessment of the harm caused by the offender in committing the offence and an assessment of the culpability of the offender in causing that harm.15 The aim of a clearly articulated set of aggravating and mitigating factors should thus be to provide sentencers with a guiding framework of the factors by reference to which harm and culpability may be assessed. Such a framework is necessary to ensure a consistency of approach and a consistency of proportion in which these factors are considered and applied in the sentencing of offenders. Ashworth comments:16

“Without some framework of agreed categories, relativities and priorities, it is difficult to see how the principle of fairness which requires like cases to be treated alike could have practical application”.

5.25

It should be observed, however, that simply providing a framework of factors which aggravate or mitigate seriousness cannot make sentencing into a precise balancing exercise: it cannot be simply a matter of arithmetic calculation by adding up all the aggravating factors and subtracting all the mitigating factors and arriving at an appropriate sentence.17 By providing guidance as to the factors which aggravate and mitigate seriousness, it is contemplated that a certain degree of consistency of approach in the sentencing of offenders should unfold. The provision of such a framework should direct the courts' attention to the development of more specific principles for the consideration of such factors, such as the weight to be attached to various factors in different situations. Thus sentencers will still have to decide the weight to be attached to each factor, and then apply the relevant developed principles to arrive at a just sentence in all the


11

Larceny Act, 1916, s17.

12

Ibid, s16.

13

Ibid, s12.

14

Para 1.171 et seq, supra (The Mitigation Decision).

15

See para 4.77 et seq, supra. (“Just Deserts”– Harm, Culpability).

16

Sentencing and Penal Policy, (1983) p141.

17

See the Report of the Victorian Sentencing Committee, p142.



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circumstances of the case. The weighting of factors in different situations will, no doubt, present some awkward questions for sentencers to resolve, as Ashworth observed:18

“The great temptation, when asked whether stealing goods worth £100 from a supermarket by shoplifting should be ranked higher or lower than a theft of £10 by a person in a position of trust, is to say: 'it depends'. And so it does. But it does not depend on an infinite number of factors, and in effect the question is answered every day by courts all over the country. My guess, in the absence of sufficiently detailed statistics, is that the very few small thefts by persons in positions of trust, who are invariably first offenders, are regarded as more serious than the ordinary run of supermarket thefts by first, second or even third-time offenders. There is certainly some appellate authority which suggests that the In/Out line between custodial and non-custodial sentences is reached sooner by the 'breach of trust' offender ... It therefore appears that the position of trust generally outweighs the value of property stolen, although there must be points at which the value of the property taken in breach of trust is so small, or the property stolen in an ordinary case is so high, as to place limits on the general proposition. Fixing those points will be awkward, but in an evolving process of guidance that should not give rise to embarrassment.”

5.26

In other jurisdictions, where sentencing reform has sought to provide sentencers with a guiding framework of the factors which aggravate or mitigate the offence, the framework has taken the form of a list of examples of the types of factor relevant to the question of offence seriousness.

5.27

It need hardly be said that such a list cannot be exclusive – it is impossible to foresee every factor which may affect the harm of an offence and the culpability of an offender in every circumstance. It is thus necessary to allow the courts to develop unenumerated factors which increase or decrease the seriousness of the offence. It is imperative, however, that any such unenumerated factors be consistent with the overall theme of “just deserts” and the aims and purposes of sentencing.19 By referring to the examples given in the list of specified factors, sentencers may derive some indication as to whether or not an unspecified factor would be so consistent.

5.28

The advantage of providing such a list, apart from the fact that it provides sentencers with a readymade list of the most common factors which aggravate or mitigate the offence, is that it gives sentencers a clear indication of the type of factors relevant to the question of offence seriousness. This should direct sentencers attention to the distinction between factors which aggravate or mitigate the offence and factors which mitigate sentence, and should also be of assistance in the development of other unenumerated factors.


18

Devising Sentencing Guidance for England in Pease and Wasik (eds.) Sentencing Reform, (1987), p86.

19

Otherwise mitigating and aggravating factors could be used as a “back-door” to oust the “just deserts” principle.



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Constructing the list

5.29

We tried as far as possible to select factors which aggravate or mitigate seriousness from decided examples of such factors in Irish cases; although this was thwarted somewhat by the dearth of reported considered sentencing decisions of the Irish courts. Our chief sources were the writings of eminent criminologists and penologists;20 the recommendations of sentencing commissions and committees of other jurisdictions who have proposed similar measures;21 and the reform measures of other jurisdictions which have adopted a similar approach as part of their “just deserts” reforms of sentencing.22 We were also aided in this task by the answers of a number of members of the Council of Europe to questionnaires on the area of aggravation and mitigation.23

5.30

Our examination of these sources brought to light a broad consensus on a number of factors which aggravate or mitigate the seriousness of offending behaviour. We shall now examine these in more detail.

Factors which aggravate offence seriousness

5.31

The following factors are widely (though not universally) regarded as aggravating the seriousness of an offence:24



Premeditation or planning;



Offending as part of a group organised for crime;



Offending for profit or renumeration;



Exploitation of a weak or defenceless victim;



Abuse or exploitation of a position of confidence or trust;



Inducing a weaker or younger person to participate in the commission of the offence;



Threatening to use or actually using violence or a weapon;



Use of excessive cruelty;


20

Ashworth, Sentencing and Penal Policy, and Devising Sentencing Guidance for England; Thomas, Encyclopedia of Current Sentencing Practice.

21

The Canadian Sentencing Commission's Report Sentencing: A Canadian Approach (1987); The Victorian Sentencing Committee's Report Sentencing (1988); The Australian Law Reform Commission's Report Sentencing (1988) and its Discussion Paper Sentencing: Procedure (1987).

22

Chapter 29 of the Swedish Penal Code, Brottsforebyggande radet, (1990); Chapter 6 of the Finnish Penal Code, (1976).

23

Summary of Answers to the Questionnaire Contained in Appendix II of the Document PC-R-SN, PC-R-SN (90)6, (1990), Council of Europe Select Committee of Experts on Sentencing.

24

Prior criminal record has been excluded from this list since it merits individual and special attention; see Ch 6, infra (Prior Criminal Record).



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Knowledge that the victim's access to justice may be impeded;



Participation in a campaign of offences on multiple victims or of multiple offences;



Causing substantial economic loss for the victim;



Causing, threatening or risking death or serious injury;



Committing the offence for pleasure or excitement;



Acting as ringleader in the commission of an offence;



Offence by a law enforcement officer;



Offending while under the influence of alcohol or drugs;



Offending against a law enforcement officer.

5.32

What follows is a discussion on each of the factors listed above. Since the list draws on many sources, it may be noted that some of the factors mentioned are simply variations on the themes of some others. Where appropriate, therefore, we will deal with a number of factors together.

Premeditation or planning, offending as a member of a group organised for crime, or participation in a campaign of offences on multiple victims or of multiple offences25

5.33

Since the determination of seriousness relies on an assessment of the culpability of the offender it is axiomatic that the greater the planning or premeditation, the greater the culpability of the offender because it is more likely that the offence was deliberate and intentional. “The offender who plans his offence is not only coolly defying the law but is going to some lengths to ensure that he succeeds and, sometimes, that he is not detected. He clearly and unequivocally places his interests above the constraints imposed by society on him and all others.”26 The same concerns apply to offences committed by a member of a group organised for crime, and to offences committed as part of a campaign or sustained course of offending.27 In some cases it may be difficult to obtain sufficient evidence that the activities were part of organised crime, but there is no doubt that organised crime is one of the most calculated, deliberate and defiant types of offending and should be treated as an aggravating factor.


25

Appears as an aggravating factor in all of the sources referred to above. Premeditation was accepted as an aggravating factor in The People (DPP) v Tieman [1988] IR 250, as were carrying out the offence as part of a gang and committing the offence on more than one occasion.

26

Ashworth, Sentencing and Penal Policy, p152.

27

Although there should be limits on the degree to which the existence of prior convictions can be used as a factor which aggravates sentence; see para 6, infra (Prior Criminal Record).



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Offending for profit or remuneration28

5.34

It may be argued that committing an offence for profit or remuneration aggravates the seriousness of offending behaviour because it indicates a higher level of mens rea on the part of the offender. However, this would depend on the circumstances of the case: it probably indicates a level of intent higher than recklessness, but it may equally be seen as an excusing or mitigating factor where the offence would otherwise have been committed for gratification or pleasure. The great danger of including it in a set of enumerated aggravating factors is that it would be made an aggravating factor in all cases without due consideration being given to what it indicates about the culpability of the offender. We do not, therefore, feel that it should appear in our list.

Exploitation of a weak or defenceless victim, or knowledge that the victim's access to justice may be impeded29

5.35

Offences against weak, defenceless or vulnerable persons are, in principle, worse than crimes against persons who might have a real, in principle, opportunity of defending themselves or escaping the consequences of the offending behaviour because there is disparity between the positions of the offender and the victim. There remains the question, however, of whether an offender should also be more culpable when unaware of the weak or defenceless position of the victim. Nonetheless we are satisfied that knowingly exploiting the weak or defenceless position of others represents an aggravating factor to be taken into account when sentencing.

Abuse or exploitation of a position of confidence or trust, or offences by law enforcement officers30

5.36

The rationale underlying this factor is the concern that persons who occupy a position of confidence or trust are in such positions on condition that they maintain that confidence or trust. If the offender takes advantage of that position to further personal ends then he or she not only commits the offence charged but breaches the trust placed in him or her by society and by the victims of the offence.31 Such breaches are also usually deliberate, thus they indicate a high degree of intent.32 The same may be said of offences committed by law enforcement officers; it is essential for the upholding of law and order that the special position of trust which they hold be maintained.33


28

Appears as an aggravating factor in the Finnish and Australian reforms and is recognised in some of the member states of the Council of Europe.

29

Appears in the Swedish, Canadian, Victorian, Australian and Minnesotan Reforms and is recognised as an aggravating factor in many member states of the Council of Europe.

30

Appears in the Swedish, Canadian, Victorian and Minnesotan reforms and is recognised as an aggravating factor in many member states of the Council of Europe.

31

See Ashworth, op cit, pp 194–195; The Victorian Sentencing Committee's Report, pp253–254.

32

Ibid.

33

Ibid, p159.



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Threatened or actual use of violence or a weapon, or causing, threatening, or risking death or serious injury, or excessive cruelty34

5.37

There is little doubt that crimes of violence are the ones which cause society the greatest concern. Violent crimes which cause or risk death, serious injury, or cruelty carry grave consequences for the victim, thus the harm caused or risked is great. Where violence occurs not simply as a constituent of the offence but as an additional element – as, say, where violence is used in the course of a theft – the culpability of the offender is increased since the use of violence in such cases is regarded as wanton infliction of personal injury to further the offender's criminal activity; some would argue that the culpability of the offender on such occasions outweighs the culpability of an offender who engages simply in a violent offence which is not used in the course or furtherance of another offence:

“an impulsive killing in the course of a robbery might be thought to be more serious than a planned and premeditated murder in an impossible domestic situation.”35

5.38

At the end of the day it remains a question of the weight to be attached to the factors which aggravate in each offence, when one is concerned with the relative seriousness of the use of violence, alone or compared to the use of violence in furtherance of other offences. Nonetheless, it is clear that offenders who use violence to further an offence should be considered more culpable than others who commit the same offence without violence. Not only are they flagrantly defying the law, but they are also prepared to defy it still further to ensure success or non detection.

5.39

Similar concerns apply to threats of violence, since they add to the likelihood that the offender intended to defy the law by committing the offence and to ensure its success.

5.40

The carrying, threatened use or use of a weapon should also be viewed as a factor which aggravates culpability. Carrying a weapon indicates that the offender contemplated the use of violence and had prepared himself or herself for it, unless there is a credible excuse of self-protection against an anticipated


34

Threatened or actual use of violence or a weapon appears in the Canadian and Australian proposals and is recognised as an aggravating factor in many of the member states of the Council of Europe. Causing, threatening or risking death or serious injury appears in the Victorian proposals. The use of violence was also treated as a factor which aggravated the seriousness of a rape in The People (DPP) v Tieman [1988] IR 250, p253. The use of cruelty appears in the Canadian, Victorian and Minnesotan reforms.

35

Hadden, Offences of Violence: The Law and the Facts [1968] Crim LR 535; See Ashworth, op cit, p160.



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attack.36 Secondly, carrying a weapon makes it more likely that violence will result37– thus the harm risked by the offender is greater and the seriousness of the offence is aggravated. A third reason is that a person faced by an offender with a weapon is at a great disadvantage and this disparity should be viewed as more serious than offences where the parties meet on equal terms.38

Causing or risking substantial economic loss for the victim39

5.41

The same concerns which relate to causing or risking physical or emotional injury apply to causing or risking economic loss; though on a lesser scale. Again the harm involved may be great, and the culpability of the offender may be heightened by the intention to cause grave economic harm to the victim.

Committing the offence for pleasure or excitement40

5.42

Inherent in this factor is the notion that offenders who commit offences merely for “thrills” or for “kicks” show complete disregard of accepted community standards and the law. Theirs is the most wanton and flagrant breach of the law imaginable, and their conduct is deliberate, calculated, wholly unjustifiable and inexcusable.41

Acting as ringleader in the commission of an offence, or inducing a weaker or younger person to participate in the commission of the offence42

5.43

There are two reasons why acting as ringleader and inducing others weaker or younger (or, perhaps, even persons who are not weaker or younger) to participate in the commission of an offence should be viewed as an aggravating factor. First of all, leadership infers a degree of planning and premeditation, and therefore greater intention, to break the law of offending and to succeed in its commission. Secondly, by acting as ringleader and instigating others to join in the commission of the offence it is the ringleader who is the major cause of the


36

Ashworth, op cit, p164. Cox recognised that there were a number of factors which a sentencer ought to consider “for the purpose of resolving whether and to what extent there was deliberation in the use of the weapon”:

“How came it into the hands of the defendant? Had he been using it for some lawful purpose? Was it in his hand at the moment of the assault? Or was it snatched up as it lay near? Or was it taken from some other place of deposit? Was the possession of it prompted by any supposed requirement for defence, or was it purely aggressive”?

Cox, The Principles of Punishment, (1877) pp96–97 cited by Ashworth.

37

Ibid.

38

Ibid.

39

Appears in the Canadian, Victorian and Australian reforms and is also recognised by many member states of the Council of Europe.

40

Appears in the Victorian Proposals.

41

Cf para 5.50, infra (Other Factors which Aggravate Offence Seriousness). The Commission is currently examining privacy; the rationale for regarding pleasure/excitement as an aggravating factor may not be valid where victimless crimes are in question.

42

Playing a leading role in the commission of an offence appears as an aggravating factor in the Victorian and Australian reforms, and is recognised as an aggravating factor in many member states of the Council of Europe. Inducing a weaker or younger person to participate is a Swedish factor. In The People (DPP) v Conroy (No 2) [1989] IR 160, p165 the Irish Supreme Court recognised that acting as ringleader and inducing others to engage in the commission of the offence are factors which aggravate the seriousness of an offence.



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offending behaviour. The ringleader is thus responsible for greater harm since he or she has encouraged others to offend.

Offending while under the influence of alcohol or drugs43

5.44

This is not a widely recognised aggravating factor, and understandably so. Intoxication is commonly treated by the substantive criminal law as evidence of the absence of intent, knowledge or recklessness.44 How, then, may it be viewed as an aggravating factor? The answer may lie in an assessment of the degree of intoxication. An offender who is partially intoxicated, and has some knowledge of his or her actions, but nonetheless offends may be viewed as being in the same situation as an impulsive offender who realises what he or she is doing but loses his or her inhibitions. The fault, however, does not lie so much in the commission of the offence as in allowing himself or herself to become so intoxicated so as to be unable to control his or her actions. One solution is to sentence the offender as a reckless offender for knowingly risking to cause harm by becoming intoxicated, whether the harm was obvious to the offender or not;45 however there remains the dilemma as to whether the offender really was so intoxicated so as to be unable to control his or her actions, or was partially intoxicated and therefore closer to an impulsive offender. Ashworth concludes:

“The upshot of this argument is that intoxication is in general neither an aggravating nor a mitigating factor, and the main reason for this is that the ordinary mitigating effect of weakened self-control and less appreciation of the situation is counterbalanced by the aggravating effect of the general social propositions about the use of intoxicants”.46

At this time we do not feel that the use of alcohol or drugs should appear in our list of aggravating factors.47

Offending against a law enforcement officer48

5.45

The traditional rationale for the imposition of more severe penalties on


43

Appears as a factor which may be aggravating or mitigating in the Australian Reforms. The Council of Europe's Sentencing Committee found that among the member states of the Council of Europe:

“there was a difference in approach in respect of offences committed under the influence of alcohol; in some countries it was not considered to be a mitigating factor but it could mitigate the sentence so that treatment would be imposed. In other states it would block the defence of mistake of facts or would be considered to be a genuine mitigating factor. Other countries would consider that the offender could not have acted maliciously. In one state it was made an offence to commit an offence after having been drinking. In yet another state the judge was free to decide whether it would be considered to be aggravating or mitigating depending on the circumstances of the case.”

Summary Report of the Fourth Meeting, PC-R-SN (91) 1.

44

R v Davis (1881) 14 Cox CC 563.

45

See R v Caldwell 73 Cr App R 13, [1981] 1 All ER 961; Ashworth, op cit, p172.

46

Ibid, p173.

47

The Commission is currently examining the broader issue of intoxication as a defence to a criminal charge.

48

Recognised by the Council of Europe's Sentencing Committee as a factor which aggravates offence seriousness in some of the member states of the Council of Europe.



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offenders who commit offences against law enforcement officers was the protection of the police by means of deterrence. This justification is wholly at odds with our earlier proposals.49

5.46

However, there is an independent reason why such offences should be viewed as more serious which is in keeping with the policy adumbrated above: the Gardai and other law enforcement officers are charged with the task of enforcing law; assaulting a law enforcement officer is therefore, within the scale of values of the legal system, worse because of the implied rejection of the authority of the law. It is important to note, however, that the offender must know, suspect, or be reckless as to whether the victim is a law enforcement officer-otherwise this argument loses its force.50

5.47

This factor may even be extended beyond law enforcement officers to include ordinary citizens involved in the enforcement of the law: e.g. a private citizen who tries to apprehend an offender in the commission of the offence. The same rationale applies -rejection of the authority of the law.51

Other factors which aggravate offence seriousness

5.48

We should stress once again that a list of factors which aggravate the seriousness of the offending conduct cannot be exclusive. There may be other factors which emerge from time to time which could justifiably be treated as aggravating the offence. For this reason, we believe that there should remain a residual discretion in the courts to expand the category of aggravating factors, and this discretion should be given recognition in a statutory provision.

5.49

We would add that some limitation should be placed on the extent of this discretion to ensure that the factors so developed are in keeping with the overall policy of sentencing in a “just deserts” system. The factors developed must:


(i)


aggravate the harm caused or risked by the offending conduct; or


(ii)


aggravate the culpability of the offender for the offending conduct.

5.50

Furthermore, it may be desirable that the legislature would from time to time add to or amend the list of aggravating factors, where necessary, to reflect changes in social attitudes to certain crimes. We contemplate that, if a Judicial Studies Board is brought into being, which we recommend,52 there should be some consultation with it to determine whether the proposed changes are consistent with the principles and purposes of sentencing.


49

See paras 4.107 et seq, supra (Provisional Recommendations).

50

Cf The People (DPP) v Murray [1977] IR 360.

51

Ashworth, op cit, p159.

52

See Ch 16, Infra (Sentencing Studies).



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Factors which Mitigate Offence Seriousness

5.51

The following factors are widely (though, again, not universally) accepted as mitigating the seriousness of offending behaviour:



Duress;



Provocation;



Impulse;



Reduced mental capacity;



Strong temptation;



Offender motivated by strong human sympathy;



Offender very young or very old;



Offender played only a minor role in the commission of the offence;



No serious injury resulted or was intended;



Offender made voluntary attempts to alleviate the effects of the offence;



Excusing circumstances which, although not constituting a defence to liability, tend to justify or excuse the offence;



Offender shows no sustained motivation to break the law;



Ignorance of the law;



Mistake of fact.

5.52

We shall now examine these factors in more detail. Where appropriate, we shall, again, deal with similar factors under the same heading.

Duress53

5.53

Duress is already a defence to criminal liability at the trial stage. Duress removes the offender's voluntariness' and overbears his or her will. If the defence of duress succeeds at the trial stage when there will, of course, be no need to consider it at the sentencing stage since there will be no sentencing stage. However, if the defence fails, there may still be evidence that the offence was


53

Duress features as a mitigating factor in the Finnish, Canadian, Australian, and Minnesotan reforms.



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committed under considerable pressure not amounting to the defence of duress. This pressure may be considered at the sentencing stage as a factor which reduces the culpability of the offender. This was recognised by the English Court of Appeal in R v Taonis,54 where an offender, convicted of unlawful importation of cannabis, had been forced into acting as courier of the drugs because of threats to beat and torture the woman he was living with and that he would be falsely accused of having stolen a considerable sum of money. In reducing the sentence from four years' imprisonment to two, Scarman LJ commented:

“The experience (the defendant) has gone through was described in the Court below as truly terrifying. He did – of course as a matter of strict law – have the opportunity of going to the police. There was an interval of time during which he certainly was not under direct physical threat or pressure, and ... he could have gone to the police. He would have been very wise to have done so. In the light of the circumstances which I have mentioned, this court takes the view that the sentence was altogether too severe. We feel that the learned trial judge failed to give full or proper weight to the duress”.

5.54

It is clear that duress should be treated as a factor which mitigates the culpability of the offender for an offence.

Provocation55

5.55

Provocation is recognised as a defence to murder in Irish law, reducing the crime to “voluntary manslaughter”.56 However, for other crimes, the issue of provocation does not arise until the sentencing stage. At the sentencing stage, provocation may be viewed as a factor which reduces the culpability of the offender, depending on the relative strength of the provocation itself and the degree to which the offender's retaliation was sudden and impulsive.57 The weight and priority to be attached to each of these components is a matter which the courts will have to determine,58 but it is at least clear that swift and impulsive retaliation is far less blameworthy than planned and premeditated revenge, and that offences motivated by strong provocation are less blameworthy than unprovoked offences because it is the provocation, rather than an intention to flagrantly disobey the authority of the law, which is the primary motivation for the offending conduct.


54

(1974) 59 Cr App R 160.

55

Provocation features as a mitigating factor in the Swedish, Canadian, Victorian, Australian and Minnesotan reforms and is recognised in many of the member states of the Council of Europe.

56

See O'Slochain, The Criminal Law of Ireland, (6 ed, 1977) pp 101–104.

57

Ashworth, op cit, p 167; Victorian Sentencing Committee, Sentencing, (1988), p262.

58

See Ashworth, op cit, pp 167–171, for a discussion on some of the finer points of provocation which will have to be ironed out with the development of more specific principles. Some guidance may be obtained from the decided principles which govern provocation as an excuse to murder, but it appears that these cases are by no means coherent or consistent themselves: Ibid.



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Impulse, or no sustained motivation to break the law59

5.56

Impulsive reactions are generally the least blameworthy kind of intentional act since there has not been a careful decision to defy the law. Impulse is, thus, the corollary of planning and premeditation which acts as an aggravating factor. However, impulse can only be a significant mitigating factor if the offender was unaware of the impulsive reaction about to take place – if, say, the offender had a history of violent reactions and knew of the types of situation likely to trigger off these reactions, then he or she may be regarded as more culpable.60

Reduced mental capacity, strong temptation, or offender motivated by strong human sympathy61

5.57

The central theme of this group of factors is the idea that an offender whose judgment is impaired should be considered to be less culpable than a person of normal judgment. Thus, persons of reduced mental capacity cannot be said to be fully responsible for their offences and some allowance should be made in mitigation in recognition of their reduced intent.

5.58

An offence committed after an offender succumbs to temptation may be regarded as morally less culpable than an offence committed without temptation. Bentham wrote:82

“Authors of celebrity ... have said, that the greatness of the temptation is a reason for lessening the punishment; because it lessens the fault; because the more powerful the seduction, the less reason there is for concluding that the offender is depraved”.

5.59

In general, the existence of temptation reduces the seriousness of the offence because it explains why the offence was committed and displays that the offender was less motivated to break the law than to succumb to the temptation. Of course there are limits to this general proposition – for example, temptation should not mitigate the culpability of an offender who exploits a position of confidence or trust because temptation is inherent in such positions.63 Nonetheless, there are certain situations in which temptation may be regarded as a factor which mitigates the seriousness of offending behaviour.

5.60

Where an offence is motivated out of strong human sympathy – as where, say, a relative of a terminally ill patient switches off the life-support machine – the offender should be viewed as less culpable than a person who offends for less altruistic reasons. Again, it will be a question of degree as to when and how


59

Impulse features as a mitigating factor in some of the member states of the Council of Europe. Lack of sustained motive to break the law appears in the Victorian proposals.

60

Ashworth, Sentencing and Penal Policy, (1983), p 153.

61

All three appear in the Finnish and Swedish reforms. Reduced mental capacity appears in the Canadian, Victorian, Australian and Minnesotan reforms and is recognised as a factor which mitigates the offence by many of the member states of the Council of Europe.

62

Principles of Penal Law, Vol 1, p400.

63

Ashworth, op cit, pp200–201.



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much mitigation should be allowed, but undoubtedly there are some situations in which strong human sympathy should be a mitigating factor.

Offender very young or very old64

5.61

The question here is whether or not the young or old offender's judgment was impaired through lack of development or senility. Where the judgment of a young or old offender is impaired then he or she may be viewed as less culpable, just as an adult offender who suffers from a mental impairment would be regarded as less culpable than a younger offender of full mental capacity. We would stress that youth or old age does not per se mitigate seriousness – it is still a question of whether or not the culpability of the offender should be reduced because of impaired judgment. In People (DPP) v Simon Maguire and Patrick McDonagh,65 the Court of Criminal Appeal appeared to treat youth as a factor mitigating offence seriousness rather than sentence, but in any event declined to alter the sentence imposed on this ground.

Offender played only a minor role in the commission of the offence66

5.62

However, in People (DPP) v Dennigan,67 the CCA took the opposite view, refusing to allow the youth of the applicant as a mitigation of the seriousness of the offence, but permitting it nonetheless to be taken into account in deciding the ultimate sentence.

5.63

In certain circumstances, the fact that an offender played a minor role in the commission of the offence may mean that he or she is less culpable than some of the others who participated in the offence. Fringe members of a group should be treated as less culpable than offenders who participate more fully or lead the others. Also, where a group forms spontaneously to commit an offence, it may sometimes be the crowd atmosphere and heightened excitement which drove the offender to participate in the commission of the offence rather than a desire to flout the law.68

No serious injury resulted or was intended69

5.64

The Victorian Sentencing Committee chose to add this to their list of mitigating factors as a corollary to the principle that serious penalties ought to attend on those who engage in violent or serious crimes. When no serious injury results, the harm is less; and when serious injury is not intended, the culpability is less than when it is intended.


64

Features in the Canadian, Victorian and Australian reforms and is recognised in many of the member states of the Council of Europe.

65

3 Frewen 265.

66

Features in the Canadian, Victorian and Minnesotan reforms and as “Accessory Participation” in some of the member states of the Council of Europe.

67

3 Frewen 253.

68

Ashworth, op cit, p 198.

69

Features as a mitigating factor in the Victorian reform proposals.



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Offender made voluntary attempts to alleviate the effects of the offence70

5.65

Traditionally, this factor entered into the sentencing decision as an indicator of the offender's likelihood of reform or re-integration into society. Since these are of no relevance to sentence severity in a “just deserts” system, making allowance for voluntary attempts to alleviate the effects of the offence cannot be justified on these grounds.

5.66

How does a voluntary attempt to alleviate the effects of the offence mitigate the seriousness of the offending conduct? The answer depends on when the attempt to alleviate the effects takes place. If it is before or during the offence (say, where the offender gives a warning) then it may reduce the culpability of the offender as it shows that he or she did not fully intend all the consequences of the offence. If it occurs after the offence then it is difficult to see how it affects the offence at all; but this depends on where one draws the line between the period of “the offence” and “after the offence”– sometimes the harmful consequences of an offence may continue for weeks or months, as in rape where the victim may suffer severe psychological and emotional injury in addition to physical injury. If the offender is to be held responsible for all these harmful consequences of the offence then surely any attempt to alleviate them should mitigate the harm of the offence, even though the attempt at alleviating takes place a long time after the offending conduct. This explanation admittedly requires some stretching of the ordinary sense of “the offence”.

5.67

A simpler solution would be to exclude allowance for voluntary attempts to alleviate the effects of the offence made after the offending conduct from the question of offence seriousness, but instead, to consider it later in mitigation of sentence, since it makes sound penal sense to encourage offenders to make redress or to compensate their victims whenever possible.71

5.68

Therefore, we conclude that voluntary attempts to alleviate the effects of the offence made before or during the offending conduct should go to mitigation of the offence. Those made after the offending conduct should to to mitigation of sentence.

The existence of excusing circumstances which, although not constituting a defence to liability, tend to justify or excuse the offender's conduct72

5.69

This factor follows the logic of earlier factors such as duress and provocation, and includes excuses such as ignorance of the law; mistake of fact and necessity, entrapment or abandonment.73 In each case, the factor indicates that the offender was less culpable because through ignorance, mistake, necessity or for some other reason, he or she did not fully intend to flout the law or to


70

Features in the Finnish, Canadian and Victorian reforms.

71

See para 5.90 et seq, Infra.

72

Appears expressly in the Victorian and Minnesotan reforms.

73

See Wasik, Excuses at the Sentencing Stage [1983] Crim LR 450. Mistake as to the age of the girl in a case of unlawful carnal knowledge of a girl under fifteen was held to be a mitigating factor in The People (AG) v Kearns [1949] IR 385.



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commit the offence.

Other factors which mitigate offence seriousness

5.70

Once again, the courts should retain a residual discretion to develop other factors which mitigate the seriousness of the offending conduct, subject to the limitations that such factors must:


(i)


Mitigate the harm caused or risked by the offending conduct;

or


(ii)


Mitigate the culpability of the offender for the offending conduct.

5.71

Also, we envisage that any legislative additions or amendments to the list would involve some consultation with the proposed Judicial Studies Board to ensure that the changes are in keeping with the overall policy of sentencing.74

B. Mitigation of Sentence

5.72

Part of the tradition of Irish sentencing, and, indeed, of sentencing in other jurisdictions, lies in the discretion allowed to the sentencing judge to take a whole range of mitigating factors into account in reducing the level of severity of the sentence to be imposed. These include the age of the offender youth/old age poor health; where he or she has shown genuine remorse for the offending behaviour; where he or she has suffered extreme social deprivation; where the offence followed a period of family disturbance or financial worry; where the consequences of the offence on the offender have already been considerable; and so on.75

5.73

On a strict view of “just deserts”, these factors should be of no relevance in the sentencing decision since they have no bearing on the harm and culpability of the offender in the commission of the offence76– although some may appear to have a bearing on culpability in so far as they are put forward as the antecedent causes for the commission of the offence, these justifications are tied to rehabilitative sentences rather than to seriousness based sentences.77 Some desert theorists, Von Hirsch included, argue that the exclusion of these “past non-criminal choices” is justified since “just deserts” forbids that sentencing should be affected by social judgments upon and about offenders: thus the Minnesotan guidelines expressly preclude reliance on race, sex, employment, educational attainment, marital status, residence or living arrangements as aggravating or mitigating circumstances. Von Hirsch would contend that it is fairer to ignore such issues so as to preserve the equality before the law which “just deserts” ensures. If an offender loses his or her job because of conviction and sentence


74

See para 5.48 et seq, supra (Other Factors which Aggravate Offence Seriousness).

75

See Ashworth, Devising Sentencing Guidance for England in Sentencing Reform, Pease and Wasik(eds), (1987), p93.

76

Von Hirsch, Constructing Guidelines for Sentencing, (1982) 5 Hamline Law Review 164, 204.

77

Ashworth, op cit, p93.



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while an unemployed offender suffers no such deprivation, it is argued that the offender who loses work cannot complain that it was the law which treated him or her unfairly. Only by excluding such personal and social factors can true equality before the law be achieved.78

5.74

However, exclusion of personal and social factors may lead to other injustices. It has been observed that:

“Disparity among sentences is inequitable when it cannot be justified in principle, which is just the case when it results from disregard of the principle of proportion between crime and punishment. For this reason, biases and theories of criminal liability whose influence subverts considerations of culpability and frustrates the principle of proportionality have no proper place in sentencing deliberations. But there is another principle that must also be observed upon pain of inequitable disparity. Sometimes there are good reasons for reducing the sentence which the principle of proportional punishment would otherwise warrant, and what we might call the principle of mitigation of sentence requires us to give them effect. The principle is founded, once again, on considerations of justifiable punishment and involves certain humane considerations as well as certain practical requirements of sound policy. Disregard of this principle is therefore morally wrong and may also turn out to be imprudent administration of a system of criminal justice. If the principle is disregarded some of the time but not all of the time, there are inequitable disparities among sentences that stand independently as instances of injustice”.79

5.75

In other words, humanitarian considerations, expediency and sound penal policy may sometimes require that we make exceptions to the “just deserts” principle of proportionality between offence and sentence by way of mitigation of sentence. Gross explains:

“In the first place there are sometimes larger considerations of justice whose influence makes itself felt. In fairness to him, what a man has done that redounds to his credit ought sometimes to be admitted to counterbalance the crime that now redounds to his discredit.

The acts of a good citizen and even a virtuous human being often have a proper place and count in his favour in deciding on his sentence. Still, not every kind of creditable activity is properly taken into consideration, and we find it difficult to decide where to draw the line.

Apart from justice, there is mercy. If justice is without rigor, justice is undone; and yet the harshness often accompanying rigorous justice may be tempered without causing justice to be undone. But merciful


78

Ashworth, Sentencing and Penal Policy, (1983) p297.

79

A Theory of Criminal Justice, (1979), pp448–449.



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dispensation is not available on the easiest terms. Mercy is always given without there being a claim of right to it, and so it is exceedingly difficult to distinguish the compassion of common decency that ought to influence a sentence from the tender regard that is a precious human sentiment but has no place in the deliberations of a sentencing judge.

Sometimes compassion is not a matter of mercy but a matter of right. When suffering would be cruel, the sentence must be mitigated to prevent that. When compassion founds a claim of right, the issue, again, is a difficult one, since it is not easy to mark the point where cruelty ends and humane suffering begins.

Finally, there are reasons of expediency that seem to warrant mitigation. We wish to encourage those apprehended to co-operate in bringing others to justice, and so we reward their co-operation with lighter sentences than they would otherwise receive. But mere expediency cannot alone establish that a concession is right, and we are constantly reminded by bargains made only for administrative convenience that there are difficult questions to be answered in deciding just what kinds of sentencing bargains are proper.”80

5.76

It is no easy matter to decide what should count as a good reason for allowing mitigation of sentence once we go beyond the relatively certain considerations of culpability and harm of the offence. However, since mitigation of sentence operates as an exception to the general principle of proportionality it is possible to consider what conditions may exclude a factor from justifiably mitigating sentence. Gross, again, remarks:

“Because standards are uncertain, good reasons turn out to be problematic and considerations that ought not be admitted at all often influence the sentencing judge toward a more lenient sentence. Two general exclusionary conditions for mitigating considerations provide a foundation for suitable sentencing standards.

In the first place it is important to decide whether a proposed mitigating consideration would impair the utility of the sentence. Would what seems a good reason for reducing the sentence, if given weight, allow the guilty man in some measure to get away with his crime? If so, it is not really a good reason since the lighter sentence is then futile as a measure in support of law. But in fact sentences that promote the evils of impunity are now common place in American courts, for it is usual to give lighter sentences to those who plead guilty only because they then relieve the court and the prosecutor of the burden of a trial. It is the very essence of a fair bargain between prosecutor and the accused that the accused gets away in some measure with his crime ...


80

Ibid, pp451–452.



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Besides impairing the utility of punishment, leniency might be inequitable. When that is the case, whatever consideration it is that has dictated leniency cannot be a good reason for reducing the sentence. Inequitable disparity results when there is special treatment for some that cannot be justified by principles that apply to all, and since everyone is entitled to equal standing before the law, such treatment cannot be tolerated ...”81

5.77

Bearing these exclusionary conditions in mind, we will now examine some of the factors which are widely accepted as mitigating the severity of the sentence to be imposed on an offender. The aim of this examination is to determine which factors could appear in a list as a general guiding framework of the factors and considerations which ought to allow derogation from the principle of proportionality of sentence severity to seriousness of offending conduct. The factors discussed are drawn from the sources referred to in the discussion on aggravation and mitigation of seriousness supra.82

5.78

The following are widely accepted as factors which mitigate sentence:



The offender has pleaded guilty to the offence charged;



The offender has assisted in the investigation of the offence or of other offences;



The offender has shown remorse for the offending conduct, or has denounced his or her conduct;



The sentence would result in damage to the offender's future employment or career;



The sentence would result in financial or emotional damage to the offender's dependents;



The offender has attempted to remedy the harmful consequences of the offence;



The offender has suffered severe personal injury in consequence of the offence;



The offender, through age or ill health, would be occasioned unreasonable hardship by a sentence imposed in proportion to the seriousness of the offence;



Delay or other grievances in bringing the matter to trial;


81

Ibid, pp453–454.

82

Para 5.29 et seq, supra. (Constructing the List).



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Let us examine each of these in more detail.

The offender has pleaded guilty83

5.79

The fact that an offender pleads guilty has no bearing on the circumstances of the offence or the offender's personal characteristics. Making allowance for a discount for a plea of guilty is a purely practical concern based on the need to discourage court delays. This has the advantage of:84


(a)


encouraging shorter trials;


(b)


lightening the courts' workload thus relieving delays and backlogs;


(c)


saving the cost of legal aid, other expenses, and the inconvenience of trial; and


(d)


saving victims and witnesses from the trauma involved in giving evidence at trial.

5.80

By allowing the offender a discount for pleading guilty, the sentencing court can also “compensate” or give the offender some recognition for the fact that he or she has foregone the right to trial on a presumption of innocence.85

5.81

In Ireland, a guilty plea is almost always taken into account as a factor reducing sentence.86

5.82

See further The People (DPP) v Moloney,87The People (DPP) v Johnston,88 and The People (DPP) v Maguire and McDonagh,89 where a plea of guilty merited a 6 year reduction in a 20 year sentence of imprisonment for manslaughter.

5.83

On the other hand, allowing a discount for a plea of guilty can be criticised as taking an “easy way out” of the search for other ways of tackling the problems of delay and backlog in the courts. Also, some fear that it may increase the risk that innocent persons will plead guilty.90 Some consider that an offender who chooses not to plead guilty and is convicted is, in effect, penalised because he has not availed of the opportunity to gain the discount.


83

Appears expressly in the Australian and Victorian proposals.

84

See the Report of the Australian Law Reform Commission, Sentencing, (1988), p93.

85

In Tiernan, supra, the Chief Justice referred to the fact that the offender had pleaded guilty in “circumstances where it was possible to infer that he might have had some chance of escaping conviction for want of identification on trial”: [1988] IR 250, 256.

86

In The People (DPP) v Tiernan [1988] IR 250 the Supreme Court agreed that a plea of guilty “is a relevant factor to be considered in the imposition of sentence and may constitute, to a greater or lesser extent, in any form of offence, a mitigating circumstance”per Finlay CJ, ibid, p255. The English Court of Appeal, too, agrees, that some discount should be allowed for a plea of guilty: see R v Meade (1982) 4 Cr App R (S) 193; R v Skilton and Blackburn (1982) 4 Cr App R (S) 339; R v Williams [1991] Crim LR 150

87

3 Frewen 267.

88

3 Frewen 276.

89

3 Frewen 265.

90

See the Australian Law Reform Commission, op cit, p93.



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This perception led three members of the Australian Law Reform Commission to dissent on the view that a plea of guilty should merit a discount91– however the majority was of the view that the benefits of the discount outweigh its disadvantages and thus the discount should be allowed, provided it was stressed that the courts must not take failure to plead guilty as a factor which aggravates the sentence for a convicted offender.92 We, too, would enter the caveat that the fact that an offender has pleaded not guilty to a charge and has thereafter been found guilty should not justify the imposition of a sentence more severe than the seriousness of the offending behaviour would warrant.93 With this in mind, we believe that, on the whole, there are good grounds for making an allowance for a discount in sentence when the offender has pleaded guilty.

The offender has assisted in the investigation of the offence or of other offences94

5.84

This was recognised as a factor in mitigation of sentence by the CCA in The People (DPP) v Moloney.95 The Court observed, however, that failure to assist in investigations could not in any circumstances amount to an aggravating factor.

5.85

Again, the concern here is that assisting in the investigation by either turning oneself in or by assisting in the investigations of other offences, should help expedite the course of justice. An added advantage is the fact that witnesses and, in particular, victims, may be spared the trauma of a long wait before the matter comes before the courts. Also, as the Australian Law Reform Commission pointed out,96 allowing a discount in sentence for assistance in investigation may also give recognition to the offender for the fact that he or she may have put himself or herself in difficult circumstances and may face the threat of violence and hostility from other offenders – especially while in prison.

5.86

A serious danger which should not be overlooked is the danger that assisting information may be recycled, i.e. used at the initial stages to secure a lesser charge and again before sentence to secure a further discount. This


91

The President, Commissioner Greenwell and Commissioner Zdenkowski.

92

Ibid, p96.

93

This point has been made time and again by the English Court of Appeal: see R v Spinks (1980) 2 Cr App R (S) 335; R v Scott (1983) 5 Cr App R (S) 90; R v Evans (1986) 8 Cr App R (S) 197; R v Hercules (1987) 9 Cr App R (S) 291.

94

Features as a factor which mitigates sentence in the Victorian and Australian proposals. Some of the member states of the Council of Europe recognise a similar factor described as “disclosing the offence”. In The People (DPP) v Tiernan [1988] IR 250 Finlay CJ had no doubt that “an admission of guilt made at an early stage of the investigation of the crime ... can be a significant mitigating factor”. See also The People (DPP) v Johnston 3 Frewen 276. In In Re Kevin O Kelly 1 Frewen 366 Walsh J said that the court should have regard to the fact that Mr O'Kelly has been “as helpful as he could” to the Court. See also R v Wright, unreported, October 18 1974, Current Sentencing Practice C8.2(c); R v Lowe (1977) 66 Cr App R 122; R v Davies and Gorman (1978) 66 Cr App R 319; R v Rose and Sapiano (1980) 2 Cr App R (S) 239; R v Sinfield (1981) 2 Cr App R (S) 258; R v Thomas (1985) 7 Cr App R (S) 95; R v King (1985) 7 Cr App R (S) 227; R v Preston and McAleny (1987) 9 Cr App R (S) 155; and R v Wood (1987) Cr App R (S) 238 in which the English Court of Appeal has consistently held that a discount should be allowed where the offender has assisted in the investigation of other offences – particularly where the other offences are grave.

95

3 Frewen 267.

96

See ALRC 44, p94.



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danger would be removed by the implementation of this Paper's proposals regarding plea negotiations.97

The offender has shown remorse for the offending conduct, or has denounced his or her conduct98

5.87

It is difficult to justify allowance for a discount in sentence simply because the offender shows remorse or denounces his or her offending conduct, especially if the offender has done nothing else to show remorse other than to simply express remorse. An inherent difficulty with this factor is that an expression of remorse per se is very difficult to prove or disprove whilst at the same time being very easy to make.

5.88

The traditional justification for allowing a discount for an expression of remorse – ie. that it indicates a likelihood of successful re-integration into society – does not hold any water in a “just deserts” system. This, in addition to the difficulties in establishing whether the offender's remorse is genuine, leads us to conclude that remorse should not per se merit a discount in sentence.

5.89

On the other hand, if remorse is expressed by means of a guilty plea, or by disclosure of the offence to the investigatory authorities, accompanied by an admission of complicity, or by making voluntary attempts to redress the wrong, it at once becomes both credible and beneficial. In these circumstances we feel that remorse is something which should be taken into account in determining the amount or size of the discount for the plea, disclosure, or attempt at redress, rather than as a mitigating factor per se.

The offender has attempted to remedy the harmful consequences of the offence99

5.90

There is growing public concern that the criminal justice system should, as far as possible, ensure that the victims of crime are adequately compensated for the loss or damage they have suffered as a result of crime. Earlier in this paper we recommended that a sentencer, when choosing between two or more sanctions of equal severity, should take redress or compensation of the victim into account.100 Under this heading we examine whether there is any satisfactory justification for allowing a discount in sentence when the offender has attempted to compensate the victim.

5.91

To begin with, it is accepted by most that compensation or redress of the


97

See Ch 12, infra. (Plea Discussions and Agreements).

98

Features as a mitigating factor in the Victorian and Australian proposals, and was mentioned by Finlay CJ in The People (DPP) v Tiernan [1988] IR 250. See R v Norman unreported, 15 May 1975; Current Sentencing Practice, C6.2.(a). where the English Court of Appeal allowed a discount for remorse shown over and above the discount for a guilty plea.

99

Features in the Finnish, Swedish, Canadian and Victorian proposals and reforms. See also R v Crosby and Hayes (1974) 60 Cr App R 234; R v Stapleton and Lawrie unreported, February 4, 1977; Current Sentencing Practice C6.2(b).

100

See para 4.110, supra. (Provisional Recommendations).



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victim should be encouraged whenever possible.101 The main justification for allowing a discount in sentence is, therefore, that it would appear to be a good means of encouraging offenders to make redress.

5.92

One of the major difficulties which has to be surmounted, however, stems from the fact that it may be far easier for some offenders to make redress or compensation than others, and, thus, it may be far easier for some offenders to 'buy' a discount in sentence than for others. If a discount is allowed then it will put wealthy offenders in a better position to escape full punishment than others, and the end result will be disparity in the way offenders are sentenced.

5.93

A solution to the problem of disparity, which appears to have gained some recognition in England, is to ignore the amount or size of the compensation when determining the size or amount of the discount. In R v Stapleton and Lawrie,102 for instance, the appellants offered to pay as much compensation as they could while a co-defendant, of substantially the same complicity in the offences, offered to pay a much greater amount, £3,500, without any great difficulty. At first instance the appellants were sentenced to 30 months' imprisonment while the co-defendant was sentenced to 15 months' on the basis that he had offered to pay a large sum of compensation. The Court of Appeal rejected this basis, saying:

“In any event, we would have thought it was right that all these accused should be dealt with equally. When one looks at the sentences actually imposed and looks at the compensation point and the very infelicitous way in which it was expressed in sentencing the accused, it is clear that the difference in sentences actually passed cannot stand”.

5.94

The Court of Appeal accordingly reduced the appellants' sentences to 15 months' imprisonment.

5.95

A factor which seems to be of some importance in the English system is the felicitousness of the attempt or offer of compensation or redress.

5.96

There may, thus, be some merit in allowing a greater discount to an offender who, although of little or no income, goes to great lengths within his or her means to effect compensation or redress; but, this would mean that a wealthy offender would have less opportunity to earn such a discount.

5.97

Undoubtedly, therefore, allowing a discount for attempts at compensation or redress would provide many problems for the courts in deciding the weight to attach to that factor in mitigation of sentence. We are satisfied, however, that provided the courts are wary of the danger of disparity in the sentencing of offenders there would be some merit in allowing a discount in sentence for attempts by the offender to redress the harmful consequences of the


101

See the Report of the Whitaker Committee of Inquiry into the Penal System, (PI 3391, 1985) pp47, 48.

102

Supra.



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offence.

The sentence would result in damage to the offender's future employment or career.103

The offender has suffered severe personal injury in consequence of the offence.104

The offender, through age or ill health, would be occasioned unreasonable hardship by a sentence imposed in proportion to the seriousness of the offence.105

Delay or other grievances in bringing the matter to trial.106

5.98

These four factors are similar in nature and may well be dealt with together.

5.99

The primary justification for allowing a discount in sentence where any of these factors exists is equality of impact. The principle of equal impact is based on the argument that while it is just to impose the same sentence on two equally culpable offenders for two equally grave offences, it is unjust to do so if the two offenders have such differing 'sensibilities' in that the sentence would have a significantly different effect on each of them.107Bentham explained the principle thus:

“Rule 6. It is further to be observed, that owing to the different manners and degrees in which persons under different circumstances are affected by the same exciting cause, a punishment which is the same in name will not always either really produce, or even so much as appear to others to produce, in two different persons the same degree of pain: therefore

That the quantity actually inflicted on each individual offender may correspond to the quantity intended for similar offenders in general, the several circumstances influencing sensibility ought always to be taken into account.”108

5.100

The principle has received the greatest attention in relation to monetary penalties – The District Court Rules, 1948, for example, require sentencers imposing fines in the District Court to take the means of the offender into


103

Appears in the Victorian and Australian proposals.

104

Appears in the Swedish reforms.

105

Appears in the Swedish, Victorian and Australian proposals and reforms, and is mentioned as a factor which is recognised by some states of the Council of Europe.

106

Features in the Swedish and Australian reforms and proposals.

107

Ashworth, Sentencing and Penal Policy, (1983), p277.

108

Principles of Morals and Legislation (Hart and Burns, eds, 1970) Ch XIV, para 14, cited by Ashworth, op cit, p277.



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account when determining the size of the fine.109 But he principle may also have more widespread application – thus a sentencer may reduce a sentence of imprisonment for an offender whose life expectancy is short.110 Similarly, in The People (DPP) v O'Leary111 a 30-year old soldier was given a 3-year suspended sentence for having unlawful carnal knowledge of an 11-year-old girl. In sentencing the soldier the court referred to the fact that the accussed had an excellent employment record but would lose his job if he received a prior sentence, and in The People (DPP) v O'Sullivan112 the accused was given a suspended sentence on the basis that he suffered from a very severe muscular wasting disease which caused him great pain and discomfort most of the time.

5.101

However, there are many reasons why the principle of equal impact should not be given a role in every case. For one thing, it may be objected to on the grounds that it “enjoins the impossible”113 since the sentencer “can take this into account only in the crudest of ways: for instance, by reducing a poor man's fine or an old man's prison term. He is in the position of having to adjust something he cannot measure”.114 Secondly, the effect of the principle upon sentencing practice may be misunderstood by the public and other offenders.115 Thirdly, is the fundamental objection to the principle of equal impact-that offenders ought to have been aware of the consequences of conviction and sentence when they committed their offences. In other words, the offender ought to think about the extra consequences when committing the offence. Finally, over-reliance on the principle of equal impact may lead to injustice. Von Hirsch argues that in an attempt to produce equality of impact a court might place a middle-class offender on probation and send an offender from the ghetto to prison, even though the cases are otherwise comparable:

“More drastic measures thus come to be imposed chiefly on those of lower status who are deemed to have 'less to lose' – but only because they have lost so much already through their deprived social situation.”116

5.102

Mercy may, nevertheless, require that some recognition should be given to the principle of equal impact where to do otherwise would lead to grave injustice. We shall now examine the four circumstances outlined supra to see if they present good grounds for invoking the principle of equal impact.

5.103

Where an offender's employment or career appears to be in jeopardy because of a sentence, making allowance for a discount in sentence to


109

Rule 65(1)(a); see para 1.100 et seq, supra. (Fines). See also this Commission's (Report) on The Indexation of Fines, (LRC 37–1991).

110

See R v Wilkinson unreported, November 14, 1974; Current Sentencing Practice C2.2(b); where the English Court of Appeal remarked that “no court willingly sentences a man of 60 to spend a large part of the remainder of his life in prison”.

111

Irish Times, 12 January 1990; See O'Malley, Principle of Sentencing (1991) 12 ILT 138, p153.

112

Irish Times, 15 May 1990; and O'Malley supra.

113

Ashworth, op cit, p278.

114

Walker, Punishment, Danger and Stigma, (1980) p81, cited by Ashworth, supra.

115

Ashworth, op cit, p278.

116

Doing Justice, (1976), p90.



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compensate for the additional deprivation suffered in the loss of job would seem to make good sense.117 However, making such allowance is apt to create grave injustice where an offender who has “less to lose” (i.e. is unemployed) suffers greater deprivation because he does not have a job. In fact the English Court of Appeal would maintain that those who hold high positions are expected to maintain higher standards, so that their punishment should certainly be no less.118 Allowance for a discount in sentence when the offender's job is in jeopardy leads to the introduction of social inequality into sentencing. We would have grave reservations about making such an allowance.

5.104

Where the offender suffers severe personal injury in consequence of the offence, or, say, where a bank-robber is shot and seriously injured during the course of the offence, it is questionable whether his sentence should be reduced to take the additional suffering consequent upon the offence into account. Ordinarily, where the offender suffers extra consequences, there should not be any mitigation of sentence since the offender should have thought about them beforehand. However, where the consequences are severe, as, say, where the offender's hand is severed in the affray in which he or she participated,119 there may be good grounds for a reduction in sentence. Again, we would have grave reservations about allowing such a discount in any but the most exceptional circumstances.

5.105

Where an offender, through age or ill-health, would be occasioned unreasonable hardship by a sentence imposed in proportion to the offence, it may be right to allow some reduction in sentence. For example, a term of imprisonment may have a much worse effect on an elderly offender suffering from Parkinson's disease than on a younger offender in good health. In R v Varden120 the English Court of Appeal upheld a reduction in sentence on a seventy-one year old offender of low intelligence because his advanced age would probably make a term of imprisonment more unpleasant for him.121 Similarly, the youth of an offender may also be treated as a reason for mitigation. As Walker has pointed out, “to spend part of one's youth in prison is worse than spending part of one's middle age there.”122


117

Indeed, in Cox v Ireland unreported, Supreme Court, 11 July 1991, section 34 of the Offence Against the State Act, 1939, which provided for the forfeiture of employment and other benefits in the public sector by a person convicted in Special Criminal Court was found to be unconstitutional. The Supreme Court's decision is predicated upon the principle that the loss of such benefits was an “additional hardship” which persons not employed in the public sector did not have to endure upon conviction in the special criminal court.

118

Ashworth, op cit, p281; but cf R v Richards (1980) 2 Cr App R (S) 119, and R v Rees and Moss (1982) 4 Cr App R (S) 71.

119

This happened in R v Barbery (1975) 62 Cr App R 248. The Court of Appeal reduced the sentence. In R v Rimmer unreported, August 13, 1975, the appellant was convicted of causing death by dangerous driving. He suffered severe injuries himself which required him to spend six months in hospital. The Court of Appeal reduced the sentence but “[n]ot without a good deal of hesitation”. Notably, in The People (DPP) v Creighton Irish Times, 21 February 1991, the court reduced an eleven year sentence for rape and buggery of a teenage girl to one of eight years on the grounds that he accused had been subject to a severe attack from the victim's relatives after the offence.

120

[1981] Crim LR 272.

121

See O'Malley, Principles of Sentencing, p154, who discusses the case of Power, Irish Times, 14 December 1990. Power, a 39 year old man, was released from prison after only 3 weeks and his sentence suspended thereafter two psychiatrists certified him to be a “classic claustrophobic.” See also R v Jones (1980) 2 App R (S) 134.

122

Punishment, Danger and Stigma, (1980) p123, cited by Ashworth, supra.



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5.106

Similar concerns apply when the offender suffers from a physical disability.123

5.107

It must be stressed once again that allowance for such factors should be the exception rather than the rule. Ordinarily the offender's individual reaction to the sentence is not something which should affect its severity.

5.108

Finally, it remains to be asked whether delay or other grievances in bringing the matter to trial should count as factors which mitigate sentence. The question here is whether such delay or grievance can be viewed as, in itself, punishment. If one considers that sentencers commonly order custodial sentences to run from the date on which the offender was first kept on remand in custody pending trial and sentence,124 then such an allowance might appear to be justifiable on similar grounds – however, if the delay or grievance led to an extra period of detention on remand in custody and that period is taken to form part of the sentence, then there is no reason why any further reduction should be allowed by way of mitigation. Furthermore, if the delay resulted in the offender being at liberty for an extra period of time then he will have benefited rather than suffered, so there is no reason why a reduction in sentence should be allowed in these circumstances either. On the whole, therefore, we see no reason why delay or grievances in bringing the matter to trial should merit a discount in sentence except in the most extraordinary of circumstances, say, where an offender is remanded in custody for a considerable length of time pending sentence but receives only a fine as sentence.

5.109

We conclude that the invocation of the principle of equal impact out of merciful considerations should only be allowed in the most exceptional circumstances, and where possible should be avoided unless the sentence proportionate to the seriousness of the offence would result in manifest hardship or injustice. We contemplate that in many cases hardship and injustice may be avoided by imposing a type of sentence which would be less likely to inflame the offender's sensibilities – provided the sentence chosen is still proportionate to the seriousness of the offending behaviour. For example, where an offence is in the lower range of equivalent sentence types, hardship on an offender who is in bad-health may be avoided by imposing a fine rather than a short custodial sentence.

5.110

It is, thus, only where hardship or injustice cannot be avoided by choosing an agreeable sentencing option that the principle of equal impact should be given scope.


123

See R v Herasymenko, unreported, 12 December, 1975; Current Sentencing Practice C5.2(b).

124

See para 1.148 et seq, supra. (Commencement of Sentence).



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The sentence would result in financial or emotional damage to the offender's dependents125

5.111

This factor is not so much an example of the principle of equal impact as an extension of the principle. Here it is not the offender's “sensibilities” but those of his or her family which are being relied upon.

5.112

Thus, in Coughlan126 a woman who pleaded guilty to the manslaughter of her husband who had brutally assaulted her while she was in labour received a 5-year suspended sentence of penal servitude. Butler J highlighted the constitutional aspect of the case:

“in considering what penalty to impose, I must remember that she is the surviving parent, and the Constitution confer rights on the family and rights on the children.”

In one respect, therefore, it can be said that the constitution required steps to be taken, including the mitigation of sentence, in situations where the constitutional rights of the offenders family would be jeopardised by a sentence. This argument is not seen explored fully by the courts to date.127

5.113

One objection to this factor is that the offender ought to have thought about the consequences before committing the offence.128 The English Court of Appeal has generally taken this approach,129 and the objection is compelling in the sentencing of all but impulsive offenders. On at least one occasion, however, the Irish courts have had regard to “family support” and “being a good family provider” as elements in the sentencing decision.130 We would have serious reservations about allowing such a discount in sentence in all but the most exceptional cases, as where the sentence would deprive the offender's children of all parental care.131 Furthermore, the introduction of the role of the offender as a good family provider might be thought to discriminate against poorer offenders. Again, hardship may be avoided in cases at the lower end of offence seriousness by the imposition of non-custodial sentencing alternatives.

“Moral” accounting

5.114

A principle which appears to have gained some recognition among English sentencers, although it is unclear whether it is followed here, is that of allowing


125

Features expressly in the Victorian and Australian proposals, and is mentioned as a factor which is recognised as one which may mitigate sentence in some of the member states of the Council of Europe.

126

Irish Times, 30 May 1979; see O'Malley, supra, n.111, p157.

127

In Dunne Irish Times 29 October 1988, cited by O'Malley supra, this aspect was ignored by the court even though both parents were being imprisoned for 14 years leaving a 17-year old child to look after a 9-year old child on social welfare payments of £42.90 a week.

128

However, if we are looking at this issue from the point of view of the offender's family who cannot be faulted for his or her lack of consideration – this argument is less than compelling.

129

See Ashworth, op cit, p279. R v Ingham, unreported, October 3, 1974; Current Sentencing Practice, C4.2(a).

130

See the Report of a sentence direction by Carney J in “Judge Criticised Press Report incest case”, Irish Times, 14 July 1992.

131

R v Franklyn (1981) 3 Cr App R (S) 65; R v Vaughan (1982) 4 Cr App R (S) 83; R v Parkinson, unreported, November 4, 1976; Current Sentencing Practice C4.2(d).



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an offender a discount in sentence in recognition of some outstanding good deed done by him or her in the past. Where the court states that it is reducing the sentence which it would otherwise have passed, so as to take account of, say, the fact that the offender has saved a child from drowning, it may be seen as somehow “settling the offender's 'moral' account”– in other words, the offender may not have exhausted all possible credit for the past good deed.132

5.115

Any element of “moral” accounting would be anathema to the “just deserts” principle of proportionality between offence and sentence and opens up considerable scope for bias to enter into sentencing. The principle cannot easily be justified in terms of the offender's “moral” standing; Walker quips that he has not come across a case “in which a judge increased a man's sentence because he had evaded conscription, let a swimmer drown, or refused his sister a kidney.”133 There is also the question of where to draw the line: when does a good deed fall below the level at which a discount may be gained in sentence?

5.116

On the other hand society might lose respect for a sentencing system which failed to take account of spectacular social acts.134 There is no ready means of determining whether this is so. We have strong reservations about making allowances for past good deeds when it comes to sentencing – after all, it may be said that the function of sentencing is not to give recognition for past good deeds but rather to impose punishment for present bad ones. We would welcome views on the matter.

Conclusions and Provisional Recommendations

5.117

We conclude that there is some need for a statutory provision which would emphasise the importance of the distinction between factors which aggravate or mitigate the offence (which would be considered in all cases) and factors which mitigate sentence (which should also be considered in all cases, but should only be allowed when necessary). There is also a need for some kind of framework which would guide sentencers as to the matters relevant to the aggravation and mitigation of offence seriousness and to the mitigation of sentence so that the courts may develop such principles in a consistent and coherent manner, and which would promote consistency of approach by sentencers in the sentencing of offenders.

5.118

We envisage that such a framework would be best effected by means of a list of examples of the most common factors which affect offence and sentence. The list should be non-exclusive and should allow sentencers to develop and rely on other factors, so long as such other factors are consistent with the policies and principles of sentencing proposed in this Paper. We would invite views as to


132

Ashworth, Sentencing and Penal Policy, p306. See the cases of R v Keightley, unreported, December 20, 1971;Current Sentencing Practice C2.2(h), (the offender saved a child from drowning); R v Playfair, unreported, March 10, 1972, ibid, (the offender saved a police officer from certain death); and R v Reid (1982) 4 Cr App R (S) (the offender attempted to rescue three children from a burning house).

133

Op cit, p125

134

Ibid.



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whether there is a danger that the provision of such a list would oblige the courts to have regard to the language of the list and would result in too literal an approach.135

5.119

We provisionally recommend the introduction of a statutory provision governing sentencing which would highlight the following concerns:

In assessing the harm, culpability and circumstances which tend to aggravate the offence, the sentencer shall give special consideration to:


1.


Whether the offence was planned or premeditated;


2.


Whether the offender committed the offence as a member of a group organised for crime;


3.


Whether the offence formed part of a campaign of offences;


4.


Whether the offender exploited the position of a weak or defenceless victim or exploited the knowledge that the victim's access to justice might have been impeded;


5.


Whether the offender exploited a position of confidence or trust, including offences committed by law enforcement officers;


6.


Whether the offender threatened to use or actually used violence, or used, threatened to use, or carried, a weapon;


7.


Whether the offender caused, threatened to cause, or risked the death or serious injury of another person, or used or threatened to use excessive cruelty;


8.


Whether the offender caused or risked substantial economic loss to the victim of the offence;


9.


Whether the offence was committed for pleasure or excitement;


135

Two members of the Australian Law Reform Commission did not agree that a list of factors of this kind should be prescribed by legislation. While agreeing that, in particular cases, some or all of the matters mentioned may be relevant, and that a more structured and consistent approach to sentencing is needed, they were of the view that such a statutory prescribed list may be the least satisfactory way of achieving the desired approach. If its directory character was emphasised, it would provide very little assistance. If, on the other hand, the courts sought to give substance to the list, they would be obliged to have regard to the language of the legislation. This could lead to a very literal approach:

“What is needed here is the development of principle, not an exercise in statutory interpretation. This report recommends that a statement of reasons for sentence should be given. If the proposal is implemented, the development of consistent sentencing principles may be better achieved through the processes of the common law”.

This report, too, recommends that a statement of reasons for sentence should be given: see Ch 13, infra (Reasons).



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10.


Whether the offender played a leading role in the commission of the offence, or induced others to participate in the commission of the offence;


11.


Whether the offence was committed on a law enforcement officer;


12.


Any other circumstances which:


(a)


increase the harm caused or risked by the offender, or which


(b)


increase the culpability of the offender for the offence.

5.120

In assessing the harm, culpability and circumstances which tend to mitigate the offence, the sentencer shall give special consideration to:


1.


Whether the offence was committed under circumstances of duress not amounting to a defence to criminal liability;


2.


Whether the offender was provoked;


3.


Whether the offence was committed on impulse, or the offender showed no sustained motivation to break the law;


4.


Whether the offender, through age or ill-health or otherwise, was of reduced mental capacity when committing the offence;


5.


Whether the offence was occasioned as a result of strong temptation;


6.


Whether the offender was motivated by strong compassion or human sympathy;


7.


Whether the offender played only a minor role in the commission of the offence;


8.


Whether no serious injury resulted nor was intended;


9.


Whether the offender made voluntary attempts to prevent the effects of the offence;


10.


Whether there exist excusing circumstances which, although not amounting to a defence to criminal liability, tend to extenuate the offender's culpability, such as ignorance of the law, mistake of fact, or necessity.


11.


Any other circumstances which:



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(a)


reduce the harm caused or risked by the offender, or


(b)


reduce the culpability of the offender for the offence.

5.121

Having arrived at a sentence which is proportionate in severity to the seriousness of the offence, the sentencer should give reasonable consideration to whether there are any special reasons, by way of exception to the general principle of proportionality between offence and sentence, why a sentence of lesser severity should be imposed, such as where:


1.


The offender has pleaded guilty to the offence;


2.


The offender has assisted in the investigation of the offence or in the investigation of other offences;


3.


The offender has attempted to remedy the harmful consequences of the offence;


4.


The sentence, whether by reason of severe personal injury suffered by the offender in consequence of the offence, age, ill-health, or otherwise, would result in manifest hardship or injustice to the offender or his or her dependents.

5.122

We would welcome views on the matter of whether the sentencer should be empowered to allow some reduction in sentence for the fact that the offender has done some spectacular good deed in the past.

5.123

We provisionally recommend that the statutory lists of aggravating and mitigating factors be reviewed by the legislature from time to time in order to take new developments into account and that any alterations or amendments be made in consultation with the proposed Judicial Studies board in order to ensure that they do not undermine or conflict with sentencing policy.



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CHAPTER 6: PRIOR CRIMINAL RECORD

6.1

We have singled out the issue of prior criminal record for special attention because of the prominent position it occupies in the sentencing decision.1 It has historically been a feature of judicial sentencing practice, and certainly there is an instinctive tendency to attribute some significance to past record in sentencing. However, while its appeal as a predictive factor is considerable,2 it is not immediately obvious how it can be of any relevance in the assessment of the deserts of an offender in proportion to the seriousness of the instant offence. Fletcher3 and Singer4 have both argued that prior criminal record is of no relevance in the “just deserts” sentencing decision since its inclusion must in fact be “covertly preventive,”5 and preventive considerations are not germane to an offender's deserts.

Aggravation of Seriousness

6.2

Nevertheless, certain elements of prior criminal record may be considered germane to the “just deserts” principle. The Irish Supreme Court appears to envisage reliance on it in a manner wholly in keeping with “just deserts”.6 The existence of a prior criminal record may be seen as a factor which can be regarded as aggravating the seriousness of the offence by increasing the culpability of the offender. If this is the case, then the seriousness of the


1

There are numerous assertions to this effect in the texts on sentencing; for examples see Wasik, Guidance, Guidelines and Criminal Record in Sentencing Reform, Pease and Wasik (eds), (1986), pp 105–106.

2

The US Federal Sentencing Commission attributed great significance to criminal history in this respect in reliance on a number of authorities; eg. Moore, Purblind Justice: Normative Issues in the use of Prediction in the Criminal Justice System and Career Criminals (1986) 314; Menahan, “The Case for Prediction in the Modified Desert Model of Criminal Sentencing” 5 Int'l JL & Psychiatry 103 (1982). However Wasik, supra, casts considerable doubts on the efficacy of past record as a predictive tool.

3

Rethinking Criminal Law, (1978).

4

Just Deserts: Sentencing Based on Equality and Desert, (1979).

5

The phrase is Wasik's, op cit, p 117.

6

See The People (DPP) v Tiernan, [1988] IR 250, below.



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offence is increased, and so too must be the sentence in proportion to it. Von Hirsch explains:7

“The reason for treating the first offense as less serious is...that repetition alters the degree of culpability that may be ascribed to the offender. In assessing a first offender's culpability, it ought to be borne in mind that he was, at the time he committed the crime, only one of a large audience to whom the law impersonally addressed its prohibitions. His first conviction, however, should call dramatically and personally to his attention that the behaviour is condemned. A repetition of the offense following that conviction may be regarded as more culpable, since he persisted in the behaviour after having been forcefully censured for it through his prior punishment.”

6.3

If prior criminal record is to increase the culpability of the offender because he or she has persisted in ignoring the prohibitions of the law, then it should be observed that only a limited number of factors of prior record emerge as being of relevance.

6.4

To begin with, the prior offence(s) must be similar in nature to the offence in question before they can have any bearing on the culpability of the offender: for example, it cannot be forcefully argued that a prior conviction for a motoring offence “dramatically and personally” calls to the attention of the offender that crimes of violence are condemned by the criminal law.8 This much was recognised by Finlay CJ in The People (DPP) v Tiernan where the offender had four previous convictions: for assault occasioning actual bodily harm; for aggravated burglary associated with a wounding; for gross indecency; and for burglary. Of these, the ones which the Supreme Court considered as aggravating the culpability of the offender for a violent rape were those which involved violence and the crime involving indecency.9

6.5

Secondly, the staleness of the previous convictions should be taken into consideration. As the time between the past and current offences increases, the culpability of the offender decreases. The more distant the conviction the less plausible it is to claim that it dramatically and personally calls to the offender's attention the fact that the current offence is condemned by the criminal law. Similarly, the age of the offender at the time of commission of the previous offences should also be of relevance since an offence committed when a minor casts less light on the present character of the offender.


7

Doing Justice, (1976), p85

8

A Home Office circular of 1973 made a similar point:

“When the previous offence is for a traffic infringement, previous convictions of offences outside the traffic field will not usually be relevant. More generally, previous offences of a class different from the current offence may be able to be ignored (eg. in the case of theft, no reference may be necessary to a previous conviction of a sexual offence).”

Home Office Circular 17/1973.

9

Ibid. See also para 1.64, et seq, supra. (The Choice of Penalty).



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6.6

Thirdly, the seriousness of the prior offence may have some bearing on the culpability of the offencder for the current offence, as von Hirsch explains:10

.“.. the quality of the record should count. Someone convicted of his first serious crime would be entitled to plead that such gravely reprehensible conduct has been uncharacteristic of him, and hence he deserves to have the penalty scaled down – even where he has a record of lesser infractions.”

In other words, the prior conviction should drive home to the offender that crimes of a serious nature are condemned by the criminal law – thus he or she should have known better than to engage in further serious crime – hence he or she may be viewed as more culpable.

6.7

Number may also be of some relevance. Intuitively, one could claim that the greater the number of prior convictions the more the offender should have known not to engage in criminal conduct. The offender with the greater number of relevant prior convictions may thus be viewed as more culpable.

6.8

In this manner, prior offences may be seen as being germane to a “just deserts” based approach. Von Hirsch points out that, conceptually, this system may have one shortcoming: The offender, although it is a first offence, may already have been warned by others as to the prohibitions of the law, and consequently may be as culpable as another offender who has a prior record.11 For example, a police officer who commits a crime should be considered more culpable than an ordinary member of society committing the same crime because of his or her extra knowledge of the prohibitions of the law and his or her duty to uphold it, even though he or she may not have a prior criminal record. However, if there is a problem concerning persons who, although they do not have prior criminal records, are equally deserving of additional censure (e.g. the police officer in our example above) then all that is necessary to ensure that they are equally censured is that the sentencing court takes their special circumstances into account as factors which aggravate culpability.

6.9

The most obvious disadvantage of this approach to prior criminal record is the danger of over-reliance on “cumulative sentencing” an offender with a lengthy criminal record could end up with a substantial sentence for a minor offence. The logical solution would be to place a ceiling on the degree to which criminal history can aggravate the culpability of the offender, but, when one considers that there is no ready means by which culpability can be measured, it is difficult to conceive how such a ceiling could be defined. Even if it can be defined, there is still the question of how many past offences should be counted or how serious should a past offence be before the ceiling is reached.


10

Desert and Previous Convictions in Sentencing, (1981) 65 Minnesota LR 591.

11

Past or Future Crimes, Ch 7.



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Progressive Loss of Mitigation

6.10

An alternative means of dealing with prior criminal record within a “just deserts” system is the “progressive loss of mitigation” approach. This approach rests on a theory of desert that is primarily oriented towards the present crime, but qualified to a limited extent by considerations related to prior conduct.12 The foundation for this theory is the fact that disapprobation is addressed to the offender, even though the basis for condemnation is the conduct – von Hirsch allegorises:

“When a person commits a misdeed in everyday life ... he may plead that the misconduct was uncharacteristic of his previous behaviour. He may use such language as “I'm sorry, I don't know what got into me – it's not been like me to do that kind of thing.” ... The actor is pleading in self-extenuation that though this act was wrong, he should not suffer the full measure of obloquy for it because it was out of keeping with the standards of behaviour he has observed in the past. ... The plea, by its manifest logic, carries its greatest force when the actor has not committed the misconduct before, and it loses force progressively with each repetition.”13

6.11

Under this approach, the “just deserts” theory has to make a concession to a requirement which does not fit neatly into its logic: i.e. persons who do not have a prior criminal record must be given substantial mitigation of sentence. The first offender, according to this theory, is disapproved of less because we wish to accord him some respect for the fact that his inhibitions against wrongdoing have functioned, and to show sympathy for the lapse. He has his sentence mitigated because of the absence of a prior criminal record. The worse the record gets, the less there may be taken off the sentence in mitigation.

6.12

An English judge might respond that this is nothing new – there a “progressive loss of mitigation” system has been recognised for decades – although sometimes more in the breach than in the observance.14 In the 1973 case of Bowman, Murphy and Bromwell15 the Court of Appeal was faced with three men who had handled a substantial amount of stolen property. One had been sentenced to five years imprisonment, and another to seven years because of his 'longer and worse' record. The Court said that the wrong approach had been adopted:

“Men are not sentenced on their records. They are sentenced for their offences. If they have got bad records then nothing can be taken off by way of mitigation, while if they have not got bad records a great deal can be taken off.”


12

Past or Future Crimes, Ch 7. Also von Hirsch, Desert and Previous Convictions in Sentencing, 65 Minnesota LR 591, (1981).

13

Ibid, p82.

14

See Wasik, Guidance, Guidelines and Criminal Record in Sentencing Reform, Pease and Wasik (eds), (1987), pp 108, 123; Walker, Sentencing Theory, Law and Practice, (1985), p441.

15

See Thomas, Principles of Sentencing, (2ed, 1979) p 198.



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6.13

Again, the prior offence should be similar in nature or seriousness; some consideration should be given to the time elapsed or the staleness of the past convictions and the number. However, number is relevant under the progressive loss of mitigation theory only in that mitigation will be exhausted after a specified number of convictions.

6.14

The two systems outlined above of dealing with the question of prior criminal record within a “just deserts” system – the aggravation of culpability approach, and the progressive loss of mitigation approach – both ensure that the existence of prior criminal record does not go un-noticed by the sentencing court, and result in the repeat offender suffering an added measure of censure for his repetition. The end result of both is the same. Which method, therefore, is to be preferred should “just deserts” be adopted in Ireland?

6.15

The aggravation of seriousness model appears to represent the present approach to sentencing of the Irish Supreme Court, and thus may be thought to be preferable. If there is anything to be said against it, however, it is that there is no ceiling or upper limit to the amount by which seriousness (and, consequently, sentence) may be aggravated – thus offenders with prior records could be punished excessively more than offenders without prior records. On the other hand, it sits squarely with “just deserts” logic, since it treats the prior criminality in terms of culpability.

6.16

The progressive loss of mitigation theory is certainly engaging, but some doubt must remain, especially if our notion of desert is informed more by consideration of consequences and culpability than by the motivation of the offender. The theory does not sit so squarely with desert logic, since it requires first offenders to be given mitigation of sentence simply because they are first offenders. This cannot be explained in terms of culpability or harm. We do not know if the progressive loss of mitigation approach is, or ever was, countenanced by the Irish Courts.

6.17

Also, the unreality of the theory in present judicial practice here and elsewhere may, arguably, be replicated in reforms – it is difficult to believe that criminal history is not aggravating and cumulative simply because the accumulation of mitigation is structured and has an upper limit.16

6.18

A possible disadvantage of this approach is that, unlike the aggravation of seriousness approach where there is no limit to the amount by which sentence may be aggravated, under this approach there is no limit on the amount by which sentence may be mitigated for a first offender. However, this might not be such a bad thing in a sentencing system which aims to reduce the level of prison population. If a lower limit is to be placed on the amount of mitigation which is to be allowed, then the obvious question is how many repetitions can occur before the mitigation is lost?17Von Hirsch concedes that there is “no ready


16

Von Hirsch himself admits this problem; Past or Future Crimes, pp89–91.

17

Wasik, op cit, p 118.



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answer”, and most supporters of the theory seem content to suggest “a certain limited number of repetitions”.18

Conclusions and Provisional Recommendations

6.19

In the final analysis, we feel that we should lean as far as possible towards preserving the status quo, and that the matter of prior record should be dealt with in a manner that sits most squarely with a “just deserts” theory. This entails an aggravation of culpability model. We feel that the danger of an excessive amount of aggravation in some circumstances might be limited by introducing a requirement that sentence may not exceed a stated maximum, (expressed, perhaps, as a percentage of the un-aggravated sentence), although, admittedly, this may involve some stretch of the mind. Other jurisdictions, such as Sweden, Finland, and England and Wales, have employed prior criminal record in a manner which aggravates the culpability of the offender as part of their “just deserts” approach.19

6.20

We provisionally recommend, therefore, a “just deserts” approach which includes the consideration of relevant prior criminal record as a factor which aggravates the culpability of the offender, although we would welcome views as to the merits of adopting a progressive loss of mitigation approach in preference to this.

6.21

We therefore provisionally recommend that there be implemented a statutory provision which confines the role of prior criminal record in the determination of the severity of sentence to situations in which it aggravates the culpability of the offender in committing the offence. The statement should highlight the following concerns:

The sentencer, in determining the severity of the sentence to be imposed on an offender, may have regard to any offences of which the offender has been found guilty in the past which may be considered to increase the culpability of the offender.

In considering whether such prior offences aggravate the culpability of the offender for the offence for which he is being sentenced the sentencer should have regard to:



the time which has elapsed between the prior offence or offences and the offence for which the offender is being sentenced;



the age of the offender at the time of commission of the prior offence;



whether the prior offence or offences is or are similar in nature to the offence for which the offender is being sentenced;


18

Desert and Previous Convictions, p616. See also Ashworth, Devising Sentencing Guidance for England.

19

See Ch 7 infra (Some Comparative Aspects of Sentencing Policy).



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whether the prior offence or offences is or are similar in seriousness to the offence for which the offender is being sentenced.



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CHAPTER 7: SOME COMPARATIVE ASPECTS OF SENTENCING POLICY

7.1

A number of other jurisdictions have, in response to problems similar to those encountered in the Irish sentencing process, established sentencing commissions and sentencing reform projects to conduct a comprehensive review of sentencing policy with a view to solving some of those problems.

7.2

Two trends are evident in these reforms:


(a)


a realisation that sentencing alone cannot solve the problem of crime – a job for the entire criminal justice system, of which sentencing is only a component – and that consequently, the purpose of sentencing should be to assist in the administration of criminal justice through the imposition of fair and just sanctions; and


(b)


a rejection of rehabilitative principles of distribution in favour of the growing notion that offenders have a right to an amount of punishment which is proportionate to the reprehensibleness of the offending conduct. “Just deserts” has been favoured as a means of ensuring that offenders are sentenced in a just and fair manner, and as a panacea for the ills of inconsistency and sagging public confidence in the sentencing process.

7.3

In this chapter we shall examine the reforms which these other jurisdictions have implemented in order to make their sentencing policies more coherent and consistent. We shall also take a look at the sentencing systems in some of the member states of the Council of Europe to see how their problems correspond to ours and if they have adopted any useful techniques to solve them.



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(i) Finland1

7.4

In 1976, Finland added a new Chapter 6 to its Penal Code, dealing with choice of sentence. The new chapter marked a change in Finnish sentencing ideology away from the rehabilitative ideal towards “neoclassical” criminal policy, i.e. the structuring of sentencing discretion and the imposition of proportionate sanctions.2 Prior to that, the Finnish code had also thereto overemphasised the impact of prior criminality in comparison with other sentencing criteria, and the change in ideology gave strong support to demands to unify the prevailing sentencing practice in order to reduce disparity in sentencing. Article 1 of the new Chapter 6 makes the seriousness of the offending behaviour the most important factor in determining the severity of sentence. It reads:

“The punishment shall be measured so that it is in just proportion to the damage and danger caused by the offence and to the guilt3 of the offender manifested in the offence.”

7.5

This is in effect an expression of the “just deserts” limb of cardinal proportionality – the sentence is to be proportionate to the gravity of the crime.

7.6

A key factor in the Finnish reform is the intentional omission of the risk of future misconduct – the most important element of rehabilitation, deterrence and incapacitation. Desert is, consequently, the only principle by which the extent of sentence can be determined.

7.7

Article 1, it will be noted, contains an important description of how seriousness of the offending behaviour is to be measured -by reference to the harmfulness of the conduct and the culpability of the offender. Article 2 of Chapter 6 contains a list of more specific criteria which may be considered as increasing the seriousness of the offending behaviour. The list is not exhaustive, and the elaboration and more detailed development of these criteria is left partly to legal doctrine and partly to the courts.4 Factors which increase offence seriousness are:


(1)


The degree of premeditation;


(2)


Commission of the offence as a member of a group organised for serious offences;


(3)


Committing the offence for remuneration;


(4)


The previous criminality of the offender, if the relation between


1

Sources: von Hirsch, Numerical versus Narrative Guidelines in Pease & Wasik (eds) Sentencing Reform (1987) and Principles for Choosing Sanctions: Sweden's Proposed Sentencing Statute (1987) 13 New England Journal of Criminal and Civil Confinement 171; Sentencing Practices in Finland, Note by the Finnish sentencing expert, Tapio Lappi-Seppälä, in response to the Council of Europe's questionnaire on sentencing PC-R-SN (89) 2.

2

Straff Och Rä ttfärdighet:Ny Nordisk Debat, Hechscker, Snare, Takala and Vestergaard (eds) (1980).

3

Which, by all accounts, is taken to mean “culpability”: von Hirsch, Principles For Choosing Sanctions, p177.

4

Lappi-Seppälä, op cit, p10.



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the offences on the basis of their similarity or for another reason shows that the offender is apparently heedless of the prohibitions and commands of law.

7.8

Article 3 of Chapter 6 lists factors which generally reduce the harm or culpability of the offending behaviour:


(1)


partial duress or pressure when committing offence;


(2)


reduced mental capacity or “exceptional temptation” or “strong human sympathy leading to the offence” and


(3)


voluntary attempts to alleviate the effect of the offence.

7.9

Article 4 allows the sentencing court to take into account other (mitigating) consequences caused to the offender through the crime or the sentence when these together with the punishment would lead to an unreasonable result.

7.10

All of these factors affect the sentence within the range prescribed by statutory maxima and minima. However, in addition, there are specific provisions allowing the court to go below the prescribed minimum where the offender is aged 15–17 years; or had diminished responsibility; aided or abetted; attempted; exceeded the normal boundaries of self-defence; or, in some cases, committed the crime out of necessity.5

7.11

A puzzling provision of the Finnish Chapter 6, however, is Article 2(4) which provides that prior record may be taken into account if it suggests that the “offender is apparently heedless of the prohibitions of law.” Finnish penologists are reported to regard this as a weak point in the law, because no indication is given as to the weight that should be given to prior record, or how “heedlessness” should be judged.6

7.12

A second lacuna is the lack of guidance on the use of imprisonment. “Should a large variety of crimes be punished by imprisonment, albeit with graded durations reflecting the comparative seriousness of crimes? The statute does not say.”7

7.13

A decade of experience with the new law has indicated a trend towards giving increased attention to the degree of gravity of the criminal conduct. The provisions have developed a substantial consensus of support and virtually no sentiment favouring repeal or major alteration has been discernible in Finland to date.8 A more detailed account of their implementation is to be found at


5

Lappi-Seppälä, op cit, p10.

6

Von Hirsch, Numerical versus Narrative Guidelines, p60.

7

Von Hirsch, Principles for Choosing Sanctions, p178.

8

See von Hirsch, Principles For Choosing Sanctions, pp 177–178.



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Chapter 9 infra. (Implementing Sentencing Policy.9

7.14

In short, therefore, the Finnish reforms are characterised by:


(i)


A statute based single principle for the distribution of sentence.


(ii)


“Just deserts” adopted – limiting role (ie cardinal proportionality limb)


(iii)


A clear statement of the main factors to be taken into consideration in deciding offence seriousness, namely the harmfulness of the conduct and the culpability of the offender.


(iv)


A detailed, but not exhaustive, list of some of the factors which may be regarded as increasing (aggravating) or decreasing (mitigating) the seriousness of the offending conduct.


(v)


A detailed, but not exhaustive, list of some of the circumstances extraneous to the offending behaviour which may be regarded as mitigating the severity of the sentence to be imposed.


(vi)


Prior criminal record given a role – but extent not clear.


(vii)


No indication as to the use of imprisonment.

(ii) Sweden

7.15

In 1986, the Swedish Committee on Imprisonment (Fängelsestraffkommittén) issued its report Sanctions for Crimes10 which recommended a reduction of statutory maximum and minimum sentences for many offences, changes in the rules on parole, and an expansion of the famous day fine system.11 The Committee also drew up two new draft chapters of the penal code (Chapters 29 and 30) which were enacted by the Swedish legislature with little modification in June 1988,12 coming into effect in March 1989.13

7.16

The Swedish Penal Code had, up to this, provided merely that sentences should (1) Promote general obedience to the law and (2) foster the defendant's rehabilitation.14 It failed, however, to suggest what features of the offender or the offence ought to be given priority in sentencing, or to give guidance as to the proportionality between the gravity of crimes and the severity of punishments.


9

See Statistics, Starting Points, and Informed Judicial Discretion in Chapter 9 infra.

10

Fängelsestraffkommittén, Paföljd För Brott, (3 Vols) Stadens Offentliga Utredningar, 1986.

11

See the Law Reform Commission's Report Indexation of Fines, LRC 37 1991.

12

See von Hirsch and Jareborg, Sweden's Sentencing Statute Enacted [1989] Crim LR 275; von Hirsch Guiding Principles for Sentencing: The Proposed Swedish Law [1987] Crim LR 746, and Principles for Choosing Sanctions: Sweden's Proposed Sentencing Statute, (1987) 13 New England Journal of Criminal and Civil Confinement, 171.

13

See National Council for Crime Prevention, Sweden, 1990 Crime and Criminal Policy.

14

Swedish Penal Code, Chapter 1,7.



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Guidance was thought to be needed to supply a coherent policy for sentencing, to help choose which penal aims should predominate, and thereby to help decide what features of the offender or his offence should be given the most weight.

7.17

The Swedish Imprisonment Committee proposed a legislative statement of a single principle of distribution to guide sentencers in their choice of sentence. The legislation rests on the principle of proportionality – in effect the cardinal proportionality limb of the “just deserts” theory – ie punishments should be commensurate with the seriousness of the defendants' criminal conduct. The severity of the penalty relies chiefly on what it termed the penal value (ie seriousness) of the offence. Penal value is determined by (a) the degree of harmfulness of the conduct and (b) the offender's culpability in committing it. The concept of penal value, therefore, defines the deservedness of the offender in relation to his conduct and culpability. The new legislation provides:

“Chapter 29

On Deciding of Penalties and Remission of Sanction

Section 1

Penalties shall be decided with regard to the desirability of uniform and consistent adjudication and set within the scale of punishment applicable to the culpability of the offence or offences taken as a whole.

In assessing culpability, special consideration shall be given to the damage, injury or danger occasioned by the criminal act, to what the accused realized or should have realized, and to the intentions or motives he may have had in committing such act.”15

7.18

It will be noted that the Swedish provisions are very much in the same style as the Finnish reforms described above. This pattern continues in sections 2 and 3 which contain lists of aggravating factors (such as taking advantage of a victim's vulnerable position or other special difficulties in protecting himself) and mitigating factors (such as provocation, insanity, or compassion) which enhance or diminish the penal value or deserts of the offender's conduct.

7.19

S2 provides a list of factors which may be regarded as aggravating the seriousness of the offending behaviour:


(1)


whether the accused intended that the offence engender consequences considerably more serious than it in fact did;


(2)


whether the accused displayed especial recklessness;


15

National Council for Crime Prevention (Brottsförebyggande rådet) The Swedish Penal Code, 1990, Ch 1, §1.



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(3)


whether the accused exploited another's defencelessness or another's difficulty to defend himself;


(4)


whether the accused made grave abuse of his position or otherwise exploited a special confidence or trust;


(5)


whether the accused induced another to complicity in crime by coercion or deceit or abuse of his youth, ignorance or dependency; or


(6)


whether the offence itself formed part of a criminal activity which had been carefully planned or carried out on an extensive scale and in which the accused played a significant role.

7.20

S3 contains a list of factors which mitigate offence severity:


(1)


whether the offence was occasioned by the grossly insulting or offensive behaviour of another;


(2)


whether the accused, in consequence of mental abnormality or affect, or for some other cause, was largely incapable of controlling his or her actions;


(3)


whether the actions of the accused bore a relation to his manifestly arrested development or to his lack of experience or powers of discrimination; or


(4)


whether the offence was occasioned by strong human sympathy.

If clearly called for in view of the culpability of the offence the sentence imposed may be milder than prescribed for the offence in question.

7.21

S4 and S5 of chapter 29 provide two other factors which may be considered in determining the extent of sentence. S4 addresses how prior record affects the choice between fines and imprisonment and how it affects the amount of fines or imprisonment. To this extent, the Swedish provisions improve upon the Finnish because they clearly define the degree to which prior criminal record is a factor in determining sentence. Under S4, prior record may be taken into account in determining the severity of sentence, but only if it has not already been taken into account in determining the type of sanction or in the revocation of parole:

“In meting out punishment, the court, if insufficient regard can be paid to the circumstances in question through choice of sanction or forfeiture of conditional release, shall give reasonable consideration, besides the culpability of the offence in itself, to whether the accused has previously been guilty of an offence or offences. Special consideration shall be



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given to the extent of such previous offence or offences, to the time which has elapsed between the offences, and to whether the previous offence or offences and the new offence are similar in nature or whether in both cases they are of an especially serious character.”16

7.22

S4 thus allows some room for the possibility that prior criminality may be seen as somehow increasing the culpability of the offender – but only if the prior criminal act is closely related to the one in question. Thus, a commendable feature of the section which should be observed is its clarification of the various elements of prior criminal conduct which are to be considered in determining the weight to be attached to prior criminality; namely the type, the extent, the seriousness, and the time which has elapsed since the commission of a prior offence. This excludes from consideration the prior commission of, say, a string of parking offences in the sentencing of a burglar – even more so if they occurred some considerable time in the past.

7.23

S5 gives a list of special factors which may be considered when making the mitigation decision:

“In meting out punishment, the court shall give reasonable consideration, besides the culpability of the offence in itself, to:


1.


whether the accused suffered severe physical injury in consequence of the offence;


2.


whether the accused to the best of his ability attempted to prevent or remedy any harmful consequences of the offence;


3.


whether the accused denounced himself;


4.


whether the accused would suffer harm through expulsion from the Realm in consequence of the offence;


5.


whether the accused, in consequence of the offence, has been dismissed from his post or has been given notice of dismissal;


6.


whether the accused, in consequence of age or ill health would be occasioned unreasonable hardship by a sentence imposed in accordance with the culpability of the offence;


7.


whether an unusually long time in relation to the nature of the offence has elapsed since the offence was committed; or


8.


whether there exists some other circumstance which might require that the accused be sentenced to a lesser penalty than


16

Response of the Swedish sentencing expert, Lundquist, to the Council of Europe's questionnaire on sentencing.



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otherwise motivated by the culpability of the offence.

Should there exist some circumstance or circumstances as envisaged in paragraph one herein, the court may, should there be special grounds for so doing, impose a milder sentence than prescribed for the offence in question”.

7.24

Chapter 30 deals with the choice of the nature of sanction. The provisions of Chapter 30 are closely similar to the choice of method hybrid discussed supra.17 Whilst the determination of extent in Chapter 29 relies solely on the “penal value” or deservedness of the offender, the choice of nature of sanction relies on traditional aims such as rehabilitation (S9) and incapacitation (S7).

The important sections of the chapter (for our purposes) read as follows:

“On Choice of Sanction

Section 1

In choosing a sanction, imprisonment shall be considered a more severe sanction than conditional sentence or probation.

Section 4

In choosing a sanction, the court shall give special notice to any circumstance or circumstances suggesting the imposition of a sentence milder than imprisonment. And in so doing, the court shall consider such circumstances as are envisaged in Chapter 29, Section 5, of this Code.

In contemplating imprisonment, the Court may take into account, besides the culpability and nature of the offence or offences, the fact that the accused has previously been convicted.”

7.25

Incapacitative considerations are included in S7:

“In choosing a sanction, the court, in contemplating conditional sentence, shall consider whether there is no particular reason to believe that the accused will continue to commit criminal acts in future.”

7.26

Rehabilitative considerations are included in S9:

“In choosing a sanction, the court, in contemplating probation, shall consider whether such sanction might encourage the accused to refrain


17

See para 4.102 et seq, supra. (Hybrid Principles).



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from committing further criminal acts.

As grounds for probation, the court may consider:


1.


whether the personal or social circumstances of the accused have significantly improved in some aspect that may be assumed to bear a relationship to his criminal career;


2.


whether the accused is undergoing treatment for some abuse, or other circumstances which may be assumed to bear a relationship to his criminal career; or


3.


whether the abuse of an addictive substance or drug, or other special circumstance necessitating care or other treatment, made material contribution to the commission of the offence and the accused declares himself willing to undergo a suitable course of treatment which, drawn up on his behalf, can be organized in conjunction with execution of the sanction”.

7.27

The thrust of Chapter 30 amounts to the position that once the severity of sentence has been decided in accordance with Chapter 29, and there exist two or more types of sanction which are equal in severity, rehabilitative or incapacitative considerations may be relied upon to determine which type of sanction should be imposed.

7.28

The Swedish reforms are characterised by:


(i)


A statutory pronouncement of a single principle for the distribution of sentences (Chapter 29).


(ii)


“Just deserts” adopted – limiting limb (cardinal proportionality) –“penal value” used to measure relationship between seriousness of crime and severity of sanction).


(iii)


A clearly defined set of factors which govern the assessment of offence seriousness (the “penal value”), namely the harm or risk which the conduct involved, what the accused realised or should have realised about it, and the intentions and motives of the accused. (Ch 29, S1).


(iv)


A clear list of factors which may be regarded as enhancing and diminishing the seriousness or penal value of the offending behaviour (Ch 29, S2 and S3).


(v)


Limited and defined role for prior criminal record in determining the extent of sentence and in determining the nature of sentence, and a clear espousal of certain factors of prior criminal conduct which are to be considered in



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determining the relevance of prior offences.


(vi)


A “choice of method hybrid”. Other goals may be referred to when determining nature of sentence e.g. incarceration as opposed to community service on basis of dangerousness (Chapter 30)


(vii)


Use of imprisonment restricted.

(iii) Canada

7.29

The Canadian Sentencing Commission produced its report Sentencing Reform: A Canadian Approach in 1987. It proposed a fundamental overhaul of the sentencing system with the purpose of making sentencing “more equitable, predictable and understandable.”

7.30

The Commission found that one of the problems with their sentencing structure was:

“The almost complete absence of policy from Parliament on the principles that should govern the determination of sentences.”18

7.31

The Commission concluded that a sentencing rationale which declared purposes and principles of sentencing would provide guidance to the judiciary and enlightenment to the general public.

Purposes

7.32

In order to come to a realistic conclusion as to the purposes of sentencing, the Commission first examined the scope of the sentencing process.19 Its immediate conclusion was that the sentencing process is limited in its scope. Only a small amount of crimes committed are reported to the police, and of these it was calculated that only 8.5% actually reached the stage where the sentence was passed by a Canadian Court. This was because many of the crimes reported went unsolved, and because many of the solved cases were filtered out of the sentencing process through the intervention of social workers, police officers, and prosecutors who exercised their discretion along the way. The complete picture showed that sentencing deals with only a small amount of offenders:

“Its actual reach, as compared to the total amount of crime, is little more than a scratch on the surface and this situation is unlikely to change.”20

7.33

Thus it would be unrealistic to argue that the purpose of the sentencing


18

Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, (1987), pxxii.

19

Ibid, pp119, 120.

20

Ibid, p120.



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system should be the same as that of the entire criminal justice system, because to do so would be to make the sentencing process accountable for the entire criminal law, over which it has very limited control.21 This is of profound consequence to those who argue that the purpose of sentencing should be the protection of the public – either by means of rehabilitative programmes to prevent offenders from recidivating; by means of deterrent strategies to prevent others from offending; or by means of incapacitation to prevent certain offenders from re-offending. Since sentencing deals with only a handful of offenders, the function of protecting the public might better be viewed as the overall purpose of the entire criminal justice system, and the primary responsibility of the police, other prosecutorial and regulatory bodies, and Government agencies. The Commission neatly summed up its conclusions as follows:

“Intuitively, at least, one would rather resort to a security guard than to a sentencing judge to protect one's home.”22

7.34

On the other hand, although sentencing fulfils an indespensible public function in assisting in the administration of the criminal justice system, the primary objective of the courts is to ensure that justice is observed in the administration of criminal sanction, whereas security objectives are more akin to police work and corrections. The overriding concern of sentencing, therefore, is to ensure that members of the community are made accountable for behaviour which is victimising and flouts the basic values of society; hence the outline of the overall aim of sentencing should reflect the proposition that people should be held accountable for conduct which betrays the core values of their community.

7.35

The purpose of sentencing was formulated as follows:

“The Commission recommends that the fundamental purpose of sentencing be formulated thus: It is recognized and declared that in a free and democratic society peace and security can only be enjoyed through the due application of the principles of fundamental justice. In furtherance of the overall purpose of the criminal law of maintaining a just, peaceful and safe society, the fundamental purpose of sentencing is to preserve the authority of and promote respect for the law through the imposition of just sanctions.”23

Principles (of distribution)

7.36

As regards principles to govern the distribution of sentence, the Commission felt the need for a synthesis between “just deserts” and utilitarian principles, but noted that insensitivity to possible conflicts between objectives ascribed to the criminal justice system and objectives of the sentencing process was a feature of the status quo. Such conflicts led to inconsistency.


21

Ibid, p149.

22

Ibid, p148.

23

Ibid, pp151, 155.



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7.37

The Commission thus chose the “just deserts” limb of cardinal proportionality as the paramount consideration governing the determination of sentence. Other principles, (i.e., incapacitation, deterrence and rehabilitation) could also be considered within the framework of proportionality, but were rejected as principles for the determination of sentence for two reasons – First, they could not be proved to work, and second, sentencing alone could not solve the crime problem. So increased use of utilitarian sentences could not be promoted to the detriment of individual rights.24

7.38

The Commission proposed a two pronged reform strategy as far as principles of distribution of sentence are concerned. First a legislative statement of sentencing principles was to be made; then a rigid guideline system would be imposed with ranking of offence and penalty severity. The legislative statement of principles mentions only cardinal proportionality – ie sentence is “proportionate to the gravity of the offence and the degree of responsibility of the offender”– but it is clear from the guideline rankings that ordinal proportionality has an equally important role.25

7.39

The Commission's recommendations read:

“The sentence to be imposed on an offender in a particular case is at the discretion of the court which, in recognition of the inherent limitations on the effectiveness of sanctions and the practical constraints militating against the indiscriminate selection of sanction, shall exercise its discretion assiduously in accordance with the following principles:


(a)


The paramount principle governing the determination of a sentence is that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender for the offence.


(b)


Second, the emphasis being on the accountability of the offender rather than punishment, a sentence should be the least onerous sanction appropriate in the circumstances and the maximum penalty prescribed for an offence should be imposed only in the most serious cases.


(c)


Subject to paragraphs (a) and (b) the court in determining the sentence to be imposed on an offender shall further consider the following:


(i)


any relevant aggravating and mitigating circumstances;


(ii)


a sentence should be consistent with sentences imposed


24

Ibid Chapter 6.

25

The guidelines do not appear to be susceptible to tabulation, and they have negotiated a middle course between unfettered discretion and rigidity. See also para 9.85, et seq, infra (Canadian Guidelines).



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on other offenders for similar offences committed in similar circumstances;


(iii)


the nature and combined duration of the sentence and any other sentence imposed on the offender should not be excessive;


(iv)


a term of imprisonment should not be imposed, or its duration determined, solely for the purpose of rehabilitation;


(v)


a term of imprisonment should be imposed only:


(1)


to protect the public from crimes of violence;


(2)


where any other sanction would not sufficiently reflect the gravity of the offence or the repetitive nature of the criminal conduct of an offender, or adequately protect the public or the integrity of the administration of justice,


(3)


to penalize an offender for wilful non-compliance with the terms of any other sentence that has been imposed on the offender where no other sanction appears adequate to compel compliance.


(d)


In applying the principles contained in paragraphs (a), (b), and (c), the court may give consideration to any one or more of the following:


(i)


denouncing blameworthy behaviour;


(ii)


deterring the offender and other persons from committing offences;


(iii)


separating offenders from society, where necessary;


(iv)


providing for redress for the harm done to individual victims or to the community;


(v)


promoting a sense of responsibility on the part of offenders and providing for opportunities to assist in their rehabilitation as productive and law-abiding members of society.”

7.40

The proposals represent a clear attempt to create a system of sentencing



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based on proportionality, where the most important factor is the gravity of the offence rather than the offender's past convictions – past convictions are only a factor amongst many to be taken into account in determining the sentence level within the presumptive range or in deciding whether to depart from the presumptive sentence.

7.41

In order to assist sentencers in assessing the gravity of the offence and the degree of responsibility of the offender for the offence (ie. the seriousness of the offending conduct) the Commission proposed a non-exhaustive list of factors which aggravate or mitigate the seriousness of the offence as it appears in the presumptive guidelines.26 They were as follows:27

Aggravating Factors


1.


Presence of actual or threatened violence or the actual use or possession of a weapon, or imitation thereof.


2.


Existence of previous convictions.


3.


Manifestation of excessive cruelty towards victim.


4.


Vulnerability of the victim due, for example, to age or infirmity.


5.


Evidence that a victim's access to the judicial process was impeded.


6.


Existence of multiple victims or multiple incidents.


7.


Existence of substantial economic loss.


8.


Evidence of breach of trust (eg. embezzlement by bank officer).


9.


Evidence of planned or organized criminal activity.

Mitigating Factors


1.


Absence of previous convictions


2.


Evidence of physical or mental impairment of offender.


3.


The offender was young or elderly.


4.


Evidence that the offender was under duress.


5.


Evidence of provocation by the victim.


6.


Evidence that restitution or compensation was made by the offender.


7.


Evidence that the offender played a relatively minor role in the offence.”

7.42

The Canadian Sentencing Commission's recommendations are characterised by:


(i)


A distinction between the general justifying aims of sentencing (“purposes”) and the distribution of sentences (“principles”).


26

See para 9.85 et seq, infra (Canada – Guidelines).

27

See p320 of the Report.



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(ii)


A recognition of the limited role sentencing has to play in the protection of society and the prevention of crime as opposed to the primary role of sentencing in ensuring that the criminal justice system (which has the purpose of protecting the public and preventing crime) is assisted through the imposition of just sanctions.


(iii)


A proposed statutory statement of sentencing policy consisting of “purposes” and “principles.”


(iv)


“Just deserts” adopted as the sole principle for determining the extent of sentence.


(v)


A clear description of the factors upon which the seriousness of the offending behaviour may be assessed, namely the gravity of the offence and the degree of responsibility of the offender for the offence.


(vi)


A non-exhaustive list of factors which may be regarded as aggravating or mitigating the seriousness of offending behaviour.


(vii)


A restriction on the use of imprisonment.

(iv) Victoria

7.43

The Victorian Sentencing Committee published its three volume report Sentencing in April 1988. The Committee, after extensive analysis of the traditional aims of sentencing, noted that:

“In most statutory provisions Parliament merely sets the maximum penalty that may be imposed, and that is generally the only guidance it gives to the court on sentencing.”28

7.44

It concluded that sentencing is a purposive and complex process which requires to be justified by a number of policy aims:

“No one aim alone can justify either the process as a whole or the imposition of a particular sentence.”29

7.45

The Committee maintained the distinction, often made by scholars, between principles which justify the entire sentencing system and principles which justify the imposition of a particular sentence on an offender, noting that justification for the imposition of a particular sentence needed to be more specific.


28

Victorian Sentencing Committee Report, Sentencing, (1988), p24.

29

Ibid, p115.



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7.46

The Committee did not, however, make a distinction between the objects of sentencing and the distribution of sentences, and it is clear from the Committee's recommendations that it intended the question of distribution of sentence to be answered by reference to the justifying principles chosen by the Committee.

7.47

The first matters considered by the Committee were the principles which justify the entire sentencing system, and which are to be relied upon by parliament when fixing penalties for crimes. The Committee concluded that deterrence, rehabilitation and retribution were feasible aims of the sentencing system, whilst incapacitation, because of its inefficacy, was not. The concepts of denunciation and wilful default (ie failure to comply with the terms of a lesser punishment – as in imprisonment for fine default) were found to be mere effects of the sentencing system, rather than aims to be pursued by it. Economic considerations such as prison capacity and the cost of sanctions were found to affect the sentencing system, and thus had to be borne in mind.

7.48

The Committee concluded:

“The Committee recommends that the purpose of a sentencing system is to prevent crime and promote respect for the law by:



providing for sentences that are intended effectively to deter the persons being sentenced and all other persons from the commission of the same or similar types of offences;



providing for sentences that facilitate the rehabilitation of offenders;



ensuring that offenders are only punished to the extent justified by:



the nature and gravity of their offences;



their culpability and degree of responsibility for their offences; and



the presence of aggravating or mitigating factors.



by ensuring that appropriate use is made of the State's correctional facilities.”30

7.49

The Committee then turned its attention to the principles which should justify the imposition of sentences in individual cases, and which may be relied upon by sentencers when fixing the sentence for an individual offender.


30

Ibid, para 3.14.1.



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7.50

Primary importance was to be accorded to “just deserts”. Although it appears that the Committee was only relying on the cardinal proportionality limb of “just deserts” theory, whilst abandoning the requirement of ordinal proportionality, the Committee also proposed a comprehensive system of guidance which addressed the requirement of ordinal proportionality.31 The only purposes for which a sentence could be imposed were to be denunciation, deterrence and rehabilitation, whilst at all times the sentencing decision was to be tempered by reference to consideration of parsimony, or, in exceptional circumstances, mercy. Under no circumstances, however, could a sentence be increased beyond the limit set by the concept of desert. The Committee recommended:32

“In sentencing an offender a court must have regard to



the nature and gravity of the offence; and



the offender's culpability and degree of responsibility for the offence; and



the presence of aggravating or mitigating factors.

The sentence imposed must be the least severe sentence that the court could have imposed to achieve the purpose or purposes for which the sentence is imposed.

The only purposes for which sentences might be imposed were –



to punish justly the offender; or



to deter the offender or other persons from committing the same or similar types of offences; or



to allow for the rehabilitation or treatment of the offender;



to allow the court to denounce the conduct of the offender; or



to render the offender, if mentally ill or intellectually disabled, incapable of committing the same or similar types of offence; or



a combination of two or more of the above purposes.


31

See para 10.20 et seq, infra. (Victoria – Guidelines).

32

Ibid, para 3.15.1, p122.



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A court must impose a sentence that does not involve the immediate confinement of the offender unless –