CONSULTATION PAPER

(LRC CP 66 - 2011)

Law Reform Commission

FIRST PUBLISHED

December 2011

LAW REFORM COMMISSION’S ROLE

The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 160 documents (Consultation Papers and Reports) containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have led to reforming legislation.

The Commission’s law reform role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act.

The Commission’s role also involves making legislation more accessible through three other related areas of activity, Statute Law Restatement, the Legislation Directory and the Classified List of Legislation in Ireland. Statute Law Restatement involves the administrative consolidation of all amendments to an Act into a single text, making legislation more accessible. Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on as evidence of the law in question. The Legislation Directory - previously called the Chronological Tables of the Statutes - is a searchable annotated guide to legislative changes. The Classified List of Legislation in Ireland is a list of all Acts of the Oireachtas that remain in force, organised under 36 major subject-matter headings.

Membership

The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners.

The Commissioners at present are:

President:

Vacant at the time of going to print (December 2011)

Full-time Commissioner:

Patricia T. Rickard-Clarke, Solicitor

Part-time Commissioner:

Professor Finbarr McAuley

Part-time Commissioner:

Marian Shanley, Solicitor

Part-time Commissioner:

The Hon Mr Justice Donal O’Donnell, Judge of the Supreme Court

Law Reform Research Staff

Director of Research:

Raymond Byrne BCL, LLM (NUI), Barrister-at-Law

Legal Researchers:

Kate Clancy, LLB (Hons) (TCD)

Conor Cunningham BCL (Clinical) (NUI), LLM (UCL)

Dannie Hanna BCL (NUI), LLM (Cantab)

Donna Lyons LLB (Dub), LLM (NYU), Attorney at Law (NY)

Tara Murphy BCL (Law with French Law) (NUI), LLM (Essex), Barrister-at-Law

Máire Reidy BCL (NUI), LLM (NUI), Barrister-at-Law

Statute Law Restatement

Project Manager for Restatement:

Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor

Legal Researcher:

Elaine Cahill, BBLS, LLM Eur Law (NUI), Dipl. IP & IT, Solicitor

Legislation Directory

Project Manager for Legislation Directory:

Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law

Legal Researchers:

Aoife Clarke BA (Int.), LLB, LLM (NUI)

Barbara Brown BA (Int.), LLB, Attorney-at-Law (NY)

Rachel Kemp BCL (Law and German) LLM (NUI)

Aileen O’Leary BCL, LLM, AITI, Solicitor

Administration Staff

Head of Administration and Development:

Ciara Carberry

Executive Officer:

Ann Byrne

Legal Information Manager:

Conor Kennedy BA, H Dip LIS

Cataloguer:

Eithne Boland BA (Hons), HDip Ed, HDip LIS, LLB

Clerical Officers:

Ann Browne

Liam Dargan

Principal legal researcherS for this Consultation Paper

Tara Murphy BCL (Law with French Law), LLM (Essex), Barrister-at-Law

John P Byrne, BCL, LLM, PhD (NUI), Barrister-at-Law

CONTACT DETAILS

Further information can be obtained from:

Head of Administration and Development

Law Reform Commission

35-39 Shelbourne Road

Ballsbridge

Dublin 4

Telephone:

+353 1 637 7600

Fax:

+353 1 637 7601

Email:

info@lawreform.ie

Website:

www.lawreform.ie

ACKNOWLEDGEMENTS

The Commission would like to thank the following people who provided valuable assistance:

Liam Herrick, Director, Irish Penal Reform Trust

Ian O’Donnell, Institute of Criminology, University College Dublin

Jane Mulcahy, Irish Penal Reform Trust

Tom O’Malley, Senior Lecturer in Law, NUI Galway

Full responsibility for this publication lies, however, with the Commission.

TABLE OF CONTENTS

Table of Legislation xiii

Table of Cases xix

Introduction 1

A Background: Request by the Attorney General on Mandatory Sentences 1

B Scope of the Attorney General’s Request: “Sentences,” “Offences” and General Principles of Sentencing 1

C Scope of the Attorney General’s Request: “Mandatory Sentences” 3

D Outline of the Consultation Paper 4

CHAPTER 1 CONCEPTUAL FRAMEWORK FOR criminal sanctions and Sentencing 7

A Introduction 7

B Aims of Criminal Sanctions 8

(1) Punishment 9

(2) Deterrence 13

(3) Reform and Rehabilitation 15

(4) Reparation 17

(5) Incapacitation 18

C Principles of Criminal Sanctions 21

(1) Humanitarian Principle 21

(2) Justice Principle 24

(3) Economic Principle 43

(4) Discussion 44

D Deficiencies in the Irish Sentencing System 45

(1) Lack of Consensus 45

(2) Potential Breach of the Humanitarian Principle 46

(3) Potential Breach of the Justice Principle 47

(4) Potential Breach of the Economic Principle 52

(5) Discussion 52

E The Current Position in Ireland on Structured Sentencing and Sentencing Guidelines 52

(1) Judicial Structure 52

(2) The Irish Sentencing Information System (ISIS) 55

(3) Discussion 55

F Comparative Analysis 57

(1) England and Wales 57

(2) Australia 59

(3) New Zealand 62

(4) Canada 64

G Conclusions and the Commission’s General Approach 66

CHAPTER 2 Entirely Mandatory Sentences 69

A Introduction 69

B Abolition of the Death Penalty 69

C Section 2, Criminal Justice Act 1990 70

(1) The Meaning of “Life” 70

(2) Constitutionality of Section 2 of the Criminal Justice Act 1990 73

(3) Constitutionality of Temporary Release 74

(4) Compatibility with the European Convention on Human Rights 75

D Section 4, Criminal Justice Act 1990 83

E Comparative Analysis 84

(1) Northern Ireland 84

(2) England and Wales 85

F Conclusions and Provisional Recommendations 95

(1) Extension of the mandatory sentence 95

(2) The mandatory sentence for murder and a specific minimum term at sentencing stage 98

CHAPTER 3 MANDATORY MINIMUM SENTENCES SUBJECT TO EXCEPTIONS 101

A Introduction 101

B Offences under the Misuse of Drugs Act 1977 101

(1) History 101

(2) Application 108

(3) Discussion 131

C Firearms Offences 132

(1) History 132

(2) Application 135

(3) Discussion 145

D Comparative Analysis 145

(1) Northern Ireland 145

(2) England and Wales 147

(3) Scotland 155

(4) United States 155

(5) Canada 160

(6) Australia 162

(7) New Zealand 164

E Conclusions and Provisional Recommendations 164

(1) Possible extension of presumptive sentencing regimes 164

(2) Provisional recommendations on drugs and firearms presumptive sentencing regimes 165

CHAPTER 4 MANDATORY SENTENCES FOR SECOND OR SUBSEQUENT OFFENCES 167

A Introduction 167

B Increased Penalties for Second or Subsequent Offences 167

C Criminal Justice Act 2007 170

(1) History 170

(2) Application 173

D Misuse of Drugs Act 1977 176

G Comparative Analysis 180

(1) Northern Ireland 180

(2) England and Wales 180

(3) Scotland 181

(4) United States 181

(5) Canada 186

(6) Australia 186

(7) New Zealand 186

H Conclusions and Provisional Recommendations 186

CHAPTER 5 Summary of PROVISIONAL Recommendations 189

TABLE OF LEGISLATION

			Pg No.
Abolition of the Death Penalty Act 1989	1989 No 119	NZ	147
Acts Amendment (Abolition of Capital Punishment) Act 1984 (WA)	No 52 of 1984	Aus	145
Annotated Code of Montana		US	137
Australia Act 1986 (CW)	No 142 of 1985	Aus	147
Bail Act 1997	No 16 of 1997	Irl	273
Code of Arkansas		US	137
Code of Criminal Procedure of Alaska		US	140
Code of Delaware		US	137
Code of Georgia		US	137
Code of Indiana		US	137
Code of Iowa		US	140
Code of Laws of South Carolina		US	137
Code of Maryland		US	137
Code of Mississippi		US	137
Code of Tennessee		US	137
Code of the United States		US	137
Code of Virginia		US	137
Code of Wyoming		US	137
Codified Laws of South Dakota		US	137
Compiled Statutes of Illinois		US	137
Consolidated Statutes of Pennsylvania		US	137
Constitution Act 1867	c 3	UK	142
Controlled Drugs and Substances Act 1996	SC 1996, c 19	Can	250
Convention Rights (Compliance) Scotland Act 2001	2001 asp 7	Scot	135
Corrections and Conditional Release Act 1992	c 20	Can	143
Corrective Services Act 2006 (QL)		Aus	146
Courts (No 2) Act 1986	No 26 of 1986	Irl	36
Courts of Justice Act 1924	No 10 of 1924	Irl	163
Crime (Sentence Administration) Act 2005 (ACT)	No 59 of 2005	Aus	147
Crime (Sentences) Act 1997	c 43	UK	133
Crime and Punishment (Scotland) Act 1997	c 48	Scot	135
Crimes (Amendment) Act 1955 (NSW)	No 16 of 1955	Aus	145
Crimes (Appeal and Review) Act 2001 (NSW)	No 120 of 2001	Aus	147
Crimes (Capital Offences) Act 1975 (V)	No 8679 of 1975	Aus	145
Crimes (Sentencing Procedure) Act 1999 (NSW)	No 92 of 1999	Aus	92
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)	No 90 of 2002	Aus	254
Crimes (Sentencing) Act 2005 (ACT)	No 58 of 2005	Aus	146
Crimes Act 1900	No 40 of 1900 (NSW)	Aus	146
Crimes Act 1900 (ACT)	A1900-40	Aus	146
Crimes Act 1914 (CW)	No 12 of 1914	Aus	147
Crimes Act 1958 (V)	No 6231 of 1958	Aus	146
Crimes Act 1961	1961 No 43	NZ	147
Crimes Amendment Act 1941	1941 No 10	NZ	147
Criminal Appeal Act 1907		Irl	3
Criminal Assets Bureau Act 1996	No 31 of 1996	Irl	208
Criminal Code Act (NT)		Aus	146
Criminal Code Act 1899 (QL)		Aus	146
Criminal Code Act 1924 (T)	No 69 of 1924	Aus	146
Criminal Code Act 1968 (T)		Aus	145
Criminal Code Act 1995 (CW)	No 12 of 1995	Aus	146
Criminal Code Act Compilation Act 1913 (WA)	No 28 of 1913	Aus	146
Criminal Code Amendment Act 1922 (QL)	13 Geo V No 2	Aus	145
Criminal Code of Alabama 1975		US	137
Criminal Code of Arizona		US	137
Criminal Code of Canada	c C-46	Can	100
Criminal Code of Colorado		US	137
Criminal Code of Illinois		US	137
Criminal Code of Maine		US	140
Criminal Code of New Hampshire		US	137
Criminal Code of Utah		US	137
Criminal Justice (Community Service) (Amendment) Act 2011	No 24 of 2011	Irl	36
Criminal Justice (Community Service) Act 1983	No 23 of 1983	Irl	36
Criminal Justice (Drug Trafficking) Act 1996	No 29 of 1996	Irl	159
Criminal Justice (Miscellaneous Provisions) Act 1997	No 4 of 1997	Irl	109
Criminal Justice (Northern Ireland) Order 2008	No 1216 of 2008 (NI 1)	NI	131
Criminal Justice (Scotland) Act 2003	2003 asp 7	Scot	135
Criminal Justice (Temporary Release of Prisoners) Act 2003	No 34 of 2003	Irl	110
Criminal Justice (Terrorist Offences) Act 2005	No 2 of 2005	Irl	224
Criminal Justice (Theft and Fraud Offences) Act 2001	No 50 of 2001	Irl	43
Criminal Justice Act 1951	No 2 of 1951	Irl	108
Criminal Justice Act 1960	No 27 of 1960	Irl	109
Criminal Justice Act 1964	No 5 of 1964	Irl	106
Criminal Justice Act 1984	No 22 of 1984	Irl	263
Criminal Justice Act 1990	No. 16 of 1990	Irl	40
Criminal Justice Act 1991	c 53	UK	231
Criminal Justice Act 1999	No 10 of 1999	Irl	58
Criminal Justice Act 2003	c 44	UK	90
Criminal Justice Act 2006	No 26 of 2006	Irl	74
Criminal Justice Act 2007	No 29 of 2007	Irl	74
Criminal Justice and Immigration Act 2008	c 4	UK	229
Criminal Justice and Licensing (Scotland) Act 2010	asp 13 of 2010	Scot	242
Criminal Law (Sentencing) Act 1988 (SA)		Aus	94
Criminal Law Act 1976	No 32 of 1976	Irl	263
Criminal Law Act 1997	No 14 of 1997	Irl	273
Criminal Law Consolidation Act 1935 (SA)		Aus	146
Criminal Procedure (Scotland) Act 1995	c 46	Scot	135
Criminal Records Act 1985	c C-47	Can	144
Criminal Reform Amendment Act (No 2) 2006 (NT)	No 34 of 2006	Aus	146
Death Penalty Abolition Act 1973 (CW)	No 100 of 1973	Aus	145
Defence Act 1954	No 18 of 1954	Irl	106
Domestic and Family Violence Act (NT)		Aus	255
Drug Trafficking Act 1994	c 37	UK	229
Drugs Act 2005	c 17	UK	230
Euro Changeover (Amounts) Act 2001	No 16 of 2001	Irl	156
European Convention on Human Rights Act 2003	No 20 of 2003	Irl	115
Fines Act 2010	No 8 of 2010	Irl	36
Firearms (Amendment) (Northern Ireland) Order 2005	No 1966 of 2005 (NI 16)	NI	226
Firearms (Northern Ireland) Order 1981	No 3267 of 1992	NI	227
Firearms (Northern Ireland) Order 2004	No 702 of 2004 (NI 3)	NI	226
Firearms Act 1925	No 17 of 1925	Irl	206
Firearms Act 1964	No 1 of 1964	Irl	205
Firearms Act 1968	c 27	UK	234
Firearms and Offensive Weapons Act 1990	No 12 of 1990	Irl	206
General Laws of Massachusetts		US	140
General Statutes of North Carolina		US	137
Habitual Felony Offender Act (Alabama)		US	244
Health and Safety etc at Work Act 1974	c 37	UK	53
Human Rights Act 1998	c 42	Eng	131
Human Rights Commission Act 2000	No 9 of 2000	Irl	269
Judiciary Act 1903 (CW)	No 6 of 1903	Aus	97
Letters Patent Constituting the Office of Governor-General of New Zealand	No 225 of 1983	NZ	149
Life Sentences (Northern Ireland) Order 2001	No 2564 of 2001 (NI 2)	NI	131
Migration Act 1958 (CW)		Aus	256
Miscellaneous Acts (Death Penalty Abolition) Amendment Act 1985 (NSW)	No 59 of 1985	Aus	145
Misuse of Drugs Act (NT)		Aus	255
Misuse of Drugs Act 1971	c 38	1971	226
Misuse of Drugs Act 1977	No 12 of 1977	Irl	58
Misuse of Drugs Act 1984	No 18 of 1984	Irl	156
Murder (Abolition of the Death Penalty) Act 1965	c 71	UK	132
Northern Ireland (Emergency Provisions) Act 1973	c 53	UK	131
Northern Ireland Act 1998	c 48	UK	132
Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010	No 976 of 2010	NI	132
Offences Against the Person Act 1861	c 100	Eng	105
Offences Against the State (Amendment) Act 1972	No 26 of 1972	Irl	224
Offences Against the State (Amendment) Act 1985	No 3 of 1985	Irl	224
Offences Against the State (Amendment) Act 1998	No 39 of 1998	Irl	224
Offences Against the State (Forfeiture) Act 1940	No 27 of 1940	Irl	224
Offences Against the State (Forfeiture) Act 1941	No 21 of 1941	Irl	224
Offences Against the State (Forfeiture) Act 1942	No 16 of 1942	Irl	224
Offences Against the State Act 1939	No 13 of 1939	Irl	39
Parole Act 2002	2002 No 10	NZ	148
Penal Code of Connecticut		US	137
Penal Code of Hawaii		US	140
Penal Code of Kentucky		US	137
Penal Code of Oklahoma		US	137
Penal Code of Texas		US	137
Penalties and Sentences Act 1992 (QL)		Aus	255
Persistent Offender Accountability Act 1994	c 1	US	291
Piracy Act 1837	7 Will 4 & 1 Vict c 88	Irl	105
Powers of the Criminal Courts (Sentencing) Act 2000	c 6	Eng	72
Prisoners and Criminal Proceedings (Scotland) Act 1993	c 9	UK	135
Prisons (Ireland) Act 1907	7 Edw 7 c 19	Irl	109
Prisons Act 2007	No 10 of 2007	Irl	109
Probation of Offenders Act 1907		Irl	3
Proceeds of Crime Act 1996	No 30 of 1996	Irl	160
Proceeds of Crime Act 1996	No 30 of 1996	Irl	208
Revised Code of Ohio		US	137
Revised Code of Washington		US	137
Revised Statutes of Florida		US	137
Revised Statutes of Idaho		US	137
Revised Statutes of Kentucky		US	137
Revised Statutes of Missouri		US	137
Revised Statutes of Nebraska		US	137
Revised Statutes of Nevada		US	137
Revised Statutes of New Hampshire		US	137
Revised Statutes of Oregon		US	137
Road Traffic Act 1961	No 24 of 1961	Irl	212
Safety, Health and Welfare at Work Act 1989	No 7 of 1989	Irl	52
Safety, Health and Welfare at Work Act 2005	No 10 of 2005	Irl	52
Scotland Act 1998	c 46	UK	136
Sentencing (Amendment) Act 2007	No 27 of 2007	NZ	98
Sentencing Act (NT)		Aus	93
Sentencing Act (NT)		Aus	254
Sentencing Act 1991 (V)	No 49 of 1991	Aus	95
Sentencing Act 1995 (WA)	No 76 of 1995	Aus	96
Sentencing Act 1997 (T)	No 59 of 1997	Aus	94
Sentencing Act 2002	No 9 of 2002	NZ	98
Sentencing and Parole Reform Act 2010	No 33 of 2010	NZ	147
Statutes Amendment (Capital Punishment Abolition) Act 1976 (SA)	No 115 of 1976	Aus	145
Statutes of Alaska		US	140
Statutes of Kansas		US	137
Transfer of Sentenced Persons Act 1995	No 16 of 1995	Irl	2
Treason Act 1939	No 10 of 1939	Irl	105
Twenty-First Amendment of the Constitution Act 2001		Irl	33
Unified Code of Corrections of Illinois		US	137
Violent Crime Reduction Act 2006	c 38	UK	226
Youth Criminal Justice Act 2002	c 1	Can	101

TABLE OF CASES

			Pg No.
Cox v Ireland	[1992] 2 IR 503	Irl	41
Deaton v Attorney General	[1963] IR 170	Irl	117
Dunne v Judge Coughlan	High Court 25 April 2005	Irl	46
English v Emery Reimbold & Strick Ltd	[2002] 1 WLR 2409	Eng	68
Garcia Ruiz v Spain	21 January 1999	ECHR	69
Heaney v Ireland	[1994] 3 IR 593	Irl	40
Helle v Finland	(1998) 26 EHRR 159	ECHR	69
Higgins v France	(1999) 27 EHRR 703	ECHR	69
Hussain v United Kingdom	(1996) 22 EHRR 1	ECHR	126
In the Matter of Article 26 of the Constitution and in the matter of the Employment Equality Bill 1996	[1997] 2 IR 321	Irl	41
Kafkaris v Cyprus	(2009) 49 EHRR 35	ECHR	120
Kinahan v Minister for Justice, Equality and Law Reform	[2001] 4 IR 454	Irl	114
McAlister v Minister for Justice, Equality and Law Reform	[2003] 4 IR 35	Irl	67
Minister for Posts and Telegraphs v Campbell	[1966] IR 69	Irl	172
Mulligan v Governor of Portlaoise Prison	[2010] IEHC 269	Irl	35
Murray v Ireland	[1985] IR 532	Irl	35
O'Mahony v District Judge Ballagh and DPP	[2002] 2 IR 410	Irl	66
O'Neill v Governor of Castlerea Prison	[2004] 1 IR 298	Irl	67
People (Attorney General) v Poyning	[1972] IR 402	Irl	11
People (Attorney General) v O'Callaghan	[1966] IR 501	Irl	31
People (Attorney General) v O'Driscoll	(1972) 1 FREWEN 351	Irl	43
People (DPP) v Harty	Court of Criminal Appeal 19 February 2008	Irl	43
People (DPP) v Alexiou	[2003] 3 IR 513	Irl	187
People (DPP) v Anderson	Court of Criminal Appeal 18 May 2010	Irl	185
People (DPP) v Barry	Court of Criminal Appeal 23 June 2008	Irl	219
People (DPP) v Benjamin	Court of Criminal Appeal 14 January 2001	Irl	185
People (DPP) v Black	[2010] IECCA 91	Irl	53
People (DPP) v Botha	[2004] 2 IR 375	Irl	181
People (DPP) v Brodigan	Court of Criminal Appeal 13 October 2008	Irl	185
People (DPP) v Carmody	[1988] ILRM 370	Irl	32
People (DPP) v Charles	Circuit Criminal Court 13 July 2004	Irl	167
People (DPP) v Clail	Court of Criminal Appeal 19 February 2009	Irl	218
People (DPP) v Coles	Court of Criminal Appeal 7 December 2009	Irl	185
People (DPP) v Connolly	[2010] IESC 6	Irl	175
People (DPP) v Connolly	[2011] IESC 6	Irl	176
People (DPP) v Cooney	[2004] IECCA 19	Irl	66
People (DPP) v Costelloe	Court of Criminal Appeal 2 April 2009	Irl	182
People (DPP) v Crowe	[2010] 1 IR 129	Irl	45
People (DPP) v Curtin	Court of Criminal Appeal 21 June 2010	Irl	218
People (DPP) v Davis	Court of Criminal Appeal 19 February 2008	Irl	189
People (DPP) v Delaney	Court of Criminal Appeal 21 June 2010	Irl	186
People (DPP) v Dermody	[2007] 2 IR 622	Irl	187
People (DPP) v Dillon	Court of Criminal Appeal 17 December 2008	Irl	46
People (DPP) v Donovan	Court of Criminal Appeal 28 June 2010	Irl	220
People (DPP) v Ducque	[2005] IECCA 92	Irl	181
People (DPP) v Duffy	Court of Criminal Appeal 21 December 2001	Irl	182
People (DPP) v Dunne	Court of Criminal Appeal 17 October 2002	Irl	207
People (DPP) v Dwyer	Court of Criminal Appeal 9 February 2009	Irl	219
People (DPP) v Farrell	[2010] IECCA 116	Irl	179
People (DPP) v Finn	[2001] 2 IR 25	Irl	206
People (DPP) v Finnamore	[2008] IECCA 99	Irl	176
People (DPP) v Finnamore	[2008] IECCA 99	Irl	178
People (DPP) v Fitzgerald	Court of Criminal Appeal 21 June 2010	Irl	219
People (DPP) v Foley	[1995] 1 IR 267	Irl	172
People (DPP) v Foster	Court of Criminal Appeal 15 May 2002	Irl	201
People (DPP) v Gallagher	[2006] IECCA 110	Irl	172
People (DPP) v Galligan	Court of Criminal Appeal 23 July 2003	Irl	183
People (DPP) v Gilligan (No 2)	[2004] 3 IR 87	Irl	195
People (DPP) v Gilloughly	Court of Criminal Appeal 7 March 2005	Irl	181
People (DPP) v GK	[2008] IECCA 110	Irl	33
People (DPP) v Godspeed	Court of Criminal Appeal 13 July 2009	Irl	185
People (DPP) v Goulding	[2010] IECCA 85	Irl	173
People (DPP) v H	[2007] IEHC 335	Irl	43
People (DPP) v Halligan	Court of Criminal Appeal 15 February 2010	Irl	45
People (DPP) v Hanley	Court of Criminal Appeal 15 October 2010	Irl	174
People (DPP) v Heaphy	Court of Criminal Appeal 18 May 2010	Irl	206
People (DPP) v Heelan	Court of Criminal Appeal 14 April 2008	Irl	220
People (DPP) v Heffernan	Court of Criminal Appeal 10 October 2002	Irl	207
People (DPP) v Henry	Court of Criminal Appeal 15 May 2002	Irl	184
People (DPP) v Hogarty	Court of Criminal Appeal 21 December 2001	Irl	181
People (DPP) v Howard and McGrath	Court of Criminal Appeal 29 July 2005	Irl	187
People (DPP) v Jackson	Court of Criminal Appeal, 26 April 1993	Irl	33
People (DPP) v Keane	[2008] 3 IR 177	Irl	43
People (DPP) v Kelly	[2003] 1 ILRM 19	Irl	43
People (DPP) v Kelly	Court of Criminal Appeal 28 June 2010	Irl	219
People (DPP) v Kelly	Court of Criminal Appeal 9 November 2009	Irl	220
People (DPP) v Kelly	Court of Criminal Appeal 24 November 2008	Irl	221
People (DPP) v Keogh	Court of Criminal Appeal 23 November 2009	Irl	186
People (DPP) v Kinahan	Court of Criminal Appeal 14 January 2008	Irl	186
People (DPP) v Kirwan	Court of Criminal Appeal 17 May 2010	Irl	193
People (DPP) v Lernihan	Court of Criminal Appeal 18 April 2007	Irl	186
People (DPP) v Long	[2006] IECCA 49	Irl	195
People (DPP) v Long	Court of Criminal Appeal 31 October 2008	Irl	195
People (DPP) v Loving	[2006] 3 IR 355	Irl	45
People (DPP) v M	[1994] 3 IR 306	Irl	16
People (DPP) v Maguire	Court of Criminal Appeal 19 February 2008	Irl	45
People (DPP) v McCann	Court of Criminal Appeal 13 October 2008	Irl	221
People (DPP) v McDonnell	Court of Criminal Appeal 3 March 2009	Irl	204
People (DPP) v McGinty	[2007] 1 IR 633	Irl	204
People (DPP) v McGrane	Court of Criminal Appeal 8 February 2010	Irl	182
People (DPP) v MS	[2000] 2 IR 592	Irl	269
People (DPP) v Mullen	Court of Criminal Appeal 17 December 2002	Irl	156
People (DPP) v Murphy	Court of Criminal Appeal 18 May 2010	Irl	183
People (DPP) v Murray	[1977] 1 IR 360	Irl	134
People (DPP) v Nelson	Court of Criminal Appeal 31 July 2008	Irl	182
People (DPP) v O'C	Court of Criminal Appeal 15 November 2009	Irl	43
People (DPP) v O'Dwyer	[2005] 3 IR 134	Irl	43
People (DPP) v Pakur Pakurian	Court of Criminal Appeal 10 May 2010	Irl	48
People (DPP) v Peyton	Court of Criminal Appeal 14 January 2002	Irl	197
People (DPP) v Power	[2007] 2 IR 509	Irl	167
People (DPP) v Power	Court of Criminal Appeal 22 May 2006	Irl	167
People (DPP) v Princs	[2007] IECCA 142	Irl	46
People (DPP) v Purcell	Court of Criminal Appeal 21 June 2010	Irl	190
People (DPP) v Redmond	[2001] 3 IR 390	Irl	55
People (DPP) v Renald	Court of Criminal Appeal 23 November 2001	Irl	181
People (DPP) v Roseberry Construction Ltd and McIntyre	[2003] 4 IR 338	Irl	54
People (DPP) v Rossi and Hellewell	Court of Criminal Appeal 18 November 2002	Irl	184
People (DPP) v Ryan	Court of Criminal Appeal 28 April 2008	Irl	200
People (DPP) v Sheedy	[2000] 2 IR 184	Irl	43
People (DPP) v Shekale	Court of Criminal Appeal 25 February 2008	Irl	179
People (DPP) v Smyth	Court of Criminal Appeal 18 May 2010	Irl	179
People (DPP) v Spratt	Court of Criminal Appeal 10 December 2007	Irl	193
People (DPP) v Sweeney	Court of Criminal Appeal 12 March 2009	Irl	190
People (DPP) v Tiernan	[1988] IR 251	Irl	43
People (DPP) v Ulrich	Court of Criminal Appeal 18 February 2010	Irl	180
People (DPP) v Vardacardis	Court of Criminal Appeal 20 January 2003	Irl	201
People (DPP) v Walsh	Court of Criminal Appeal 17 December 2009	Irl	219
People (DPP) v WC	[1994] 1 ILRM 321	Irl	43
People (DPP) v WD	[2008] 1 IR 308	Irl	47
People (DPP) v Whitehead	Court of Criminal Appeal 20 October 2008	Irl	197
People (DPP) v Woods	Court of Criminal Appeal 10 December 2010	Irl	43
Pudliszewski v District Judge Coughlan and DPP	[2006] IEHC 304	43
R v F Howe & Sons (Engineers) Ltd	[1999] 2 All ER 249	Eng	55
R v Higher Education Funding Council, ex p. Institute of Dental Surgery	[1994] 1 WLR 242	Eng	68
R v Howells	[1999] 1 WLR 307	UK	50
R v King	(1986) 82 Cr App R 120	Eng	61
R v Latimer	[2001] 1 SCR 3	Can	19
R v M (CA)	[1996] 1 SCR 500	Can	15
R v McInerney	[2003] 2 Cr App R (S) 39	Eng	156
R v Oliver	(2003) 1 Cr App R 28	Eng	56
R v Veregrin	[1933] 2 DLR 362	Can	113
Re Royal Prerogative of Mercy upon Deportation Proceedings	[1933] SCR 269	Can	113
Ruiz Torija v Spain	(1995) 19 EHRR 542	ECHR	69
Ryan v Attorney General	[1965] IR 345	Irl	35
Stafford v United Kingdom	(2002) 35 EHRR 32	ECHR	127
State (C) v Frawley	[1976] IR 365	Irl	35
State (Healy) v Donoghue	[1976] IR 325	Irl	111
State (P Woods) v Attorney General	[1969] IR 385	Irl	153
Thynne, Wilson and Gunnell v United Kingdom	(1991) 13 EHRR 666	ECHR	125
V and T v United Kingdom	(2000) 30 EHRR 121	ECHR	127
Van de Hurk v The Netherlands	(1994) 18 EHRR 481	ECHR	69
W v Ireland	[1997] 2 IR 141	Irl	35
Weeks v United Kingdom	(1988) 10 EHRR 293	ECHR	124
Whelan and Another v Minister for Justice, Equality and Law Reform	[2007] IEHC 374, [2010] IESC 34	Irl	33
Wynne v United Kingdom	(1995) 19 EHRR 333	ECHR	124

Introduction

A Background: Request by the Attorney General on Mandatory Sentences

1. This Consultation Paper arises from a request made to the Commission on 12 October 2009 by the then Attorney General, under section 4(2)(c) of the Law Reform Commission Act 1975, in which the Attorney General requested the Commission:

“to examine and conduct research and, if appropriate, recommend reforms in the law of the State, in relation to the circumstances in which it may be appropriate or beneficial to provide in legislation for mandatory sentences for offences.”

2. The key matters arising from this request are, therefore, that the Commission is to examine and research existing legislation in the State concerning “mandatory sentences”, and to consider whether to recommend reforms as to the offences in which it may be “appropriate or beneficial” to provide in legislation for mandatory sentences.

3. The Attorney General’s request is clearly wide-ranging in scope. It requires the Commission, firstly, to determine the scope of the term “mandatory sentences.” In addition, the Commission is requested to consider mandatory sentences in general terms, although the Commission notes that existing legislation that already provides for mandatory sentences in connection with specific offences provides a valuable reference point for the analysis required in response to the request. The Commission’s third task is to assess whether provision in legislation for such sentences is “appropriate and beneficial.” In order to reach conclusions on that aspect of the Attorney General’s request, the Commission has examined the aims of criminal sanctions and relevant sentencing principles in the State. The Consultation Paper therefore begins in Chapter 1 with a discussion of those aims and objectives before progressing to a detailed review of existing legislation on mandatory sentences.

B Scope of the Attorney General’s Request: “Sentences,” “Offences” and General Principles of Sentencing

4. The first matter addressed by the Commission in preparing this Consultation Paper was to determine the scope of the term “sentences” in the Attorney General’s request. In this respect, the Commission notes that this can be given a narrow or a broad interpretation. In its 1996 Report on Sentencing,[1] the Commission defined the term by reference to the judicial role:[2]

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

5. Used in this sense, “sentencing” involves a decision by a court as to what sanction the criminal justice system may impose on a person found guilty of an offence. By contrast, in 2006 O’Malley [3] set out a broader interpretation, noting that each branch of government has an important role in the sentencing process:

“The Legislature, which has sole and exclusive power to make laws for the State,[4] is responsible for the creation and definition of offences, and the enactment of laws to govern various aspects of the sentencing and penal processes. The Judiciary is responsible for the selection of punishment in each case, unless the offence or conviction carries a mandatory sentence... The Executive is responsible for the implementation of sentences. It has significant constitutional and statutory powers to commute or remit any punishment imposed by the courts, and to grant temporary release to prisoners.”[5]

6. The term “sentence” has also been given a narrow or a broad interpretation in terms of the sanctioning outcome or outcomes envisaged. Thus, section 1(1) of the Transfer of Sentenced Persons Act 1995 defines “sentence” narrowly as:

“any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a limited or unlimited period of time on account of the commission of an offence.”

7. The 1995 Act therefore limits “sentence” to mean “sentence of imprisonment.” This may be contrasted with, for example, section 106 of the Criminal Justice Act 2006, which provides:

“Where 2 or more sentences, one of which is a restriction on movement order, are passed on an offender by the District Court and are ordered to run consecutively, the aggregate of the period during which the order in respect of the offender is in force and the period of any term or terms of imprisonment imposed on him or her shall not exceed the maximum period of the aggregate term of imprisonment specified in section 5 of the Criminal Justice Act 1951.”

8. Section 106 of the 2006 Act therefore defines “sentence” to include not just a sentence of imprisonment but also other orders of the court made on conviction, such as a restriction on movement order. This, therefore, envisages that a “sentence” covers both custodial and non-custodial sanctions; indeed, it is notable that section 99 of the Criminal Justice Act 2006 regulates the non-custodial suspended sentence. Other important non-custodial sentences include community service orders and fines. This broader interpretation is also evident in another aspect of the Commission’s 1996 definition of “sentencing” which refers to “a legal sanction to be imposed on a person found guilty of an offence”. An even wider concept of “sentence” would include a probation order made by the District Court under the Probation of Offenders Act 1907 (one of the most commonly-used sanctions in the criminal justice system in Ireland), which can be made without recording a conviction.[6] The Commission notes that this very wide definition of “sentence”, covering both custodial and non-custodial sanctions and including orders made even where a conviction has not been recorded, is consistent with the general literature on sentencing.[7]

9. The Attorney General’s request also refers to “offences” without any apparent limitation. In the context of this Consultation Paper, however, and in particular the request to consider whether mandatory sentences are “appropriate or beneficial,” the Commission considers that the Attorney General did not envisage a consideration of this by reference to all criminal offences. In this regard, the Commission notes that various terms have been used to distinguish between the most significant criminal offences and those which are less serious. Thus, the term “arrestable offence” refers to offences punishable by a term of imprisonment of 5 years or more;[8] indictable offences are those for which the accused is entitled as of right to a trial by jury; and summary offences are those heard in the District Court, without a jury, and for which the maximum term of imprisonment permissible is generally 12 months (and/or a fine).

10. On the issue of the sentences and offences envisaged by the Attorney General’s request, therefore, the Commission has concluded that it is required to assess whether mandatory sentences “may be appropriate or beneficial” in general terms, and should not confine its review of the law to a very small group of specific offences. At the same time, bearing in mind the very wide potential scope of an examination of all “offences” and all “sentences”, the Commission concluded at an early stage of its deliberations that it should restrict the scope of its review to offences at the higher end of the criminal calendar (such as murder), or which by their nature pose major risks to society (such as organised drugs offences or firearms offences), or which involve specific aspects that merit special attention (for example, consecutive offences committed by the same person). This focus would ensure that the Commission could respond to the Attorney General’s request within a reasonable period of time. While the examples given here reflect the types of offences for which mandatory sentences, as described below, are currently prescribed in Ireland, the Commission has not confined its analysis to these examples.

11. Indeed, the need to look beyond existing examples is directly connected to the Commission’s conclusion, already mentioned, that it should examine and review the general principles of sentencing. This involved the Commission reviewing relevant developments in the literature on sentencing since its 1996 Report on Sentencing,[9] in order to provide a framework for analysing a selection of offences, including those for which mandatory sentences are currently provided. This framework of principles would in turn, the Commission considered, allow it to determine whether such mandatory sentencing provisions had been “appropriate or beneficial” and, as a consequence, allow it determine whether such provisions would be “appropriate or beneficial” in other settings.

C Scope of the Attorney General’s Request: “Mandatory Sentences”

12. In addition to focusing on certain offences, the Commission also considered that, in preparing this Consultation Paper, it was necessary to determine the scope of the term “mandatory sentences.” As with the other aspects of the Attorney General’s request already mentioned, the term could be given a narrow or a broad interpretation. It could be limited to “entirely” mandatory sentences, such as the provision in Irish law of a mandatory life sentence for murder. Alternatively, it can encompass provisions that impose significant sentencing constraints in respect of certain offences or certain types of offender behaviour. Thus, it may be taken to include current statutory provisions that stipulate: presumptive minimum sentences, subject to stated and specific exceptions, for certain drugs and firearms offences; consecutive sentences for offences committed while on bail; and mandatory sentences for second or subsequent offences. In some jurisdictions, the term could include those provisions that indicate defined “tariffs” based on binding sentencing guidelines, as had been the case at one time at federal level in the United States.

13. The Commission has concluded that it should not confine its examination to “entirely” mandatory sentences but should review legislative provisions that set down a fixed sentence, or a minimum sentence, following conviction for a particular type of offence. Within that broad definition, a variety of mandatory sentences are already in use in Ireland.

14. The first and clearest example of a mandatory sentence is the mandatory life sentence for murder (and treason).[10] Similarly, in the case of a person convicted for “capital murder” (the form of murder for which the death penalty formerly applied), a minimum sentence of 40 years imprisonment applies, and in the case of an attempt to commit capital murder a minimum sentence of 25 years imprisonment applies.[11]

15. A second type of mandatory sentence is probably more accurately described as a “presumptive” mandatory sentence.[12] This is the type that applies to certain drugs offences [13] and firearms offences [14] and which requires a court to apply a minimum sentence, but which also allows the court, by taking account of exceptional and specific circumstances, to impose as sentence below the presumptive minimum sentence.

16. Another type of presumptive sentence the Commission has considered in the context of the Attorney General’s request is where an individual commits a second or subsequent serious offence in a 7 year period following a first serious offence, and for which the person received a sentence of 5 years or more. Irish law currently provides that, in such a case, a presumptive sentence for the second or subsequent offence is to be three quarters of the maximum sentence provided by law, or 10 years if the maximum is life imprisonment.[15]

17. A third category of mandatory sentence considered by the Commission is one that applies, without exception, in the case of an offender who commits a second or subsequent offence, such as the “presumptive” drugs offence already mentioned.[16] This particularised treatment of recidivist offenders is also evident in the statutory provisions mandating consecutive sentences for offenders who have, for instance, committed an offence while on bail.

18. The Commission now turns to outline the content of the Consultation Paper.

D Outline of the Consultation Paper

19. In Chapter 1, the Commission considers the general aims of criminal sanctions, as well as the principles of sentencing, in order to provide a conceptual framework for the analysis of the different forms of mandatory sentences that are reviewed in detail in Chapters 2 to 4.

20. In this regard, the Commission identifies four main aims of criminal sanctions, namely (a) punishment, (b) deterrence, (c) reform and rehabilitation and (d) reparation. The Commission also identifies three key principles of sentencing, namely (a) the humanitarian principle (which incorporates respect for constitutional and international human rights), (b) the justice principle (including proportionality) and (c) the economic principle.

21. The Commission notes that the justice principle is of particular importance because it incorporates the concept of proportionality, which requires an individualised approach to sentencing, namely, that the sentencing court must have regard to the circumstances of both the offence and the offender. In this context, the Commission fully appreciates (based on the review of the relevant case law in Chapter 1) that the Supreme Court and the Court of Criminal Appeal have developed general guidance, and in some instances specific guidelines, such as the strong presumption of a custodial sentence on conviction for manslaughter and rape. These are clearly intended to provide principled-based clarity around likely sentencing outcomes, and reflect comparable developments in many other jurisdictions. The Commission notes the importance of such guidance and guidelines, bearing in mind that the Oireachtas has provided for a very wide discretion as to the actual sentence to be imposed for the majority of criminal offences, including some of the most serious offences, such as manslaughter and rape, for which the sentence can range from no custodial sentence to a maximum of life imprisonment.

22. The Commission also discusses in Chapter 1 the extensive case law in Ireland which indicates that sentencing courts are also conscious of the need to consider a wide range of aggravating factors, and mitigating factors, as well as the individual circumstances of the offender, which directly affect both the seriousness of the offence and the severity of the sentence to be imposed in an individual case. The Commission notes that this has built on the list of aggravating factors and mitigating factors, and the individual circumstances of the offender, set out in the Commission’s 1996 Report on Sentencing.[17] It is, equally, clear that the courts have also had regard to comparable case law and developments in other jurisdictions since 1996 in connection with the ongoing development of such factors.

23. The Commission also notes, however, in Chapter 1 that in spite of the development and recognition of the general aims of criminal sanctions and principles of sentencing, there remain some deficiencies in the sentencing system in Ireland. The Commission has discussed the recommendations made in 2000, and reiterated in 2011, that sentencing guidance and guidelines should be developed in an even more structured manner by the proposed Judicial Council. The Commission fully supports those recommendations, and notes that such guidance and guidelines could build on the framework provided by the general aims of criminal sanctions, as well as the principles of sentencing, discussed in Chapter 1. They would also have the benefit of the guidance and guidelines available from decisions of the Supreme Court and the Court of Criminal Appeal, including those discussed in this Chapter. Such guidance could also build on the growing importance of the Irish Sentencing Information System (ISIS) which has the potential to provide a significant database of sentencing information for the courts. In this respect, the Commission agrees with the view that ISIS, which has been developed using experience with comparable databases from other jurisdictions (as discussed in Chapter 1), could in time be regarded as a leading model of its type.[18]

24. In Chapter 2, the Commission considers entirely mandatory sentences, of which there are only two examples in Ireland. These are the penalty for murder, under section 2 of the Criminal Justice Act 1990, and the penalty for murder of designated persons, under section 4 of the Criminal Justice Act 1990. The Commission notes that entirely mandatory sentences are applicable only to an offence considered to be at the highest end of the criminal calendar, namely, murder, and to which the death penalty would have formerly applied. The Commission considers that a mandatory life sentence for such a limited group of serious offences is consistent with the aims of criminal sanctions and the sentencing principles discussed in Chapter 1.

25. Having regard, however, to those general aims and principles, and more particularly to the decisions of the European Court of Human Rights concerning the European Convention on Human Rights (discussed in detail in Chapter 2), specific aspects of the current mandatory sentencing regime for murder are open to question on at least two grounds. First, the mandatory life sentence applies to all persons convicted of murder regardless of his or her particular circumstances or the particular circumstances of the case. In this respect, once imposed, it is unclear – bearing in mind the possibility of release by the Minister for Justice (on foot of a recommendation of the Parole Board) – how long a person serving a mandatory life sentence will, in fact, spend in prison. Second, having regard to the decisions of the European Court of Human Rights, it is difficult to see how a decision regarding release that is made by the Executive without any input from the sentencing court, often many years after the decision regarding sentencing has been made, is fully compatible with the European Convention on Human Rights. For these reasons, the Commission has provisionally concluded that the mandatory sentencing regime for murder should be amended to provide that, on the date of sentencing, the court should be empowered to indicate or recommend that a minimum specific term of imprisonment should be served by the defendant, having regard to the particular circumstances of the offence and of the offender.

26. In Chapter 3 the Commission considers “presumptive” mandatory minimum sentences, subject to exceptions in specified circumstances. There are two examples of this type of provision in Irish law. One provides the penalty for certain offences under the Misuse of Drugs Acts and the other provides the penalty for certain offences under the Firearms Acts. The Commission accepts that presumptive sentencing regimes may be suitable in narrowly prescribed circumstances where the offences have a particularly serious impact on society, such as with certain drugs offences and certain firearms offences. Having regard to the general aims and principles set out in Chapter 1, however, the Commission observes that there is a particular need to ensure that these presumptive sentencing regimes are achieving their stated objectives. The Commission notes in Chapter 3 that one objective was to increase the severity of sentencing and that another objective was to deter offenders. While the presumptive sentencing regimes may have succeeded in increasing the severity of sentencing for certain drugs and firearms offences, the Commission concludes that it is arguable, at least in respect of the regime under the Misuse of Drugs Acts, that it has not reduced the level of criminality.

27. The Commission has, therefore, concluded that the presumptive sentencing regime, as it applies in the case of certain drugs and firearms offences, should not be extended to any other offences but should be reviewed because, while it has succeeded in one objective, namely, an increased severity in sentencing for certain drugs and firearms offences, it has not been established that it has achieved another general aim of the criminal justice system, namely reduced levels of criminality. The Commission notes that, instead, the presumptive drugs offences regime (on which the effects in practice are, in particular, clear) has had the following results: a discriminatory system of sentencing where all cases are treated alike regardless of differences in the individual circumstances of the offenders; the adaptation of the illegal drugs industry to the sentencing regime by using expendable couriers to hold and transport drugs; that these relatively low-level offenders, rather than those at the top of the drugs industry, are being apprehended and dealt with under the presumptive regime; a high level of guilty pleas in order to avoid the presumptive minimum sentence; and a consequent bulge in the prison system comprising low-level drugs offenders.

28. In Chapter 4 the Commission considers mandatory sentences for second or subsequent offences. There are three examples of this type of provision in Irish law. These concern convictions for second or subsequent offences under the Criminal Justice Act 2007, the Misuse of Drugs Act 1977 and the Firearms Acts. In addition, the Commission considers similar provisions under the Criminal Justice Act 1984 and the Criminal Law Act 1976, which mandate consecutive sentencing for recidivist offenders. The Commission considers that there are significant reasons to lead to the conclusion that there should be no extension of the existing statutory framework concerning the imposition of mandatory sentences (and, where relevant, presumptive mandatory sentences) for second or subsequent offences. Indeed, these reasons are comparable to those already discussed by the Commission in connection with the presumptive regime for drugs and firearms offences. Nonetheless, the Commission also considers that, as a general proposition, a statutory framework that takes account in sentencing of repeat offending is consistent with the general aims of the criminal justice system and principles of sentencing set out in Chapter 1.

29. Chapter 5 contains a summary of the provisional recommendations made in the Consultation Paper.

30. This Consultation Paper is intended to form the basis for discussion and therefore all the recommendations are provisional in nature. The Commission will make its final recommendations on the subject of mandatory sentences following further consideration of the issues and consultation. Submissions on the provisional recommendations included in this Consultation Paper are welcome. To enable the Commission to proceed with the preparation of the Report, which will contain the Commission’s final recommendations in this area, those who wish to do so are requested to make their submissions in writing to the Commission or by email to info@lawreform.ie by 30 April 2012.

CHAPTER 1 CONCEPTUAL FRAMEWORK FOR criminal sanctions and Sentencing

A Introduction

1.01 The Commission’s review of mandatory sentences in response to the Attorney General’s request requires an examination of the conceptual framework for criminal sanctions in general. Thus, in this chapter, the Commission considers the aims of criminal sanctions and the principles which regulate how these aims may be pursued. In this regard, it is useful to begin with an examination of the leading Irish case on sentencing, the 1972 decision of the Court of Criminal Appeal in The People (Attorney General) v Poyning[19].

1.02 In Poyning the defendant was arraigned in the Circuit Court on an indictment of which the first count charged him with having committed an armed robbery, contrary to section 23(1)(a) of the Larceny Act 1916, and the fifth count charged him with having taken a motor car without authority, on the same occasion, contrary to section 112 of the Road Traffic Act 1961. He pleaded guilty to both counts and he was sentenced to four years’ imprisonment on the first count and 6 months’ imprisonment on the fifth count. He was also disqualified from holding a driving licence for 10 years. Two other men were also charged with having committed armed robbery with the defendant and their trial was transferred to the Central Criminal Court where each of them pleaded guilty and was sentenced to 6 years’ imprisonment. However, in the case of both of those defendants the term of imprisonment was suspended upon condition that the defendants entered into a bond to keep the peace for five years and each of them was released. In those circumstances the defendant appealed against the sentences imposed on him.

1.03 At the hearing of the appeal counsel for the defendant argued that the result was “a gross inequality of treatment for his client”. Giving its judgment the Court of Criminal Appeal stated:

“The law does not in these cases fix the sentence for any particular crime, but it fixes a maximum sentence and leaves it to the court of trial to decide what is, within the maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime but in regard to each criminal the court of trial has the right and the duty to decide whether to be lenient or severe. It is for these reasons and with these purposes in view that, before passing sentence, the court of trial hears evidence of the antecedents and character of every convicted person. It follows that 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 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.”^[20] (emphasis added)

1.04 The Court also added:

“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 in treatment is justified. The Court, in considering the principles which should inform a judge’s mind when imposing sentence and having regard to the differences in the characters and antecedents of the convicted person, will seek to discover whether the discrimination was based on those differences.”^[21]

1.05 In effect, therefore, Poyning establishes the principle that sentencing must be individualised in so far as a criminal sanction must be proportionate to the particular circumstances of (a) the crime and (b) the convicted person. Thus where, as in this case, each defendant has committed the same crime, the criminal sanction for each may be different because the individual circumstances of each defendant (“background, antecedents and character”) are different. In Poyning, the Court also referred, in passing, to a number of aims of the sentencing process, including “a chance of reform”, “the public interest” and “the deterring effect”.

1.06 The Commission observes that while Poyning provides a useful insight into the conceptual framework for criminal sanctions, it does not, however, provide a complete picture. There are many other matters which should be considered as forming part of the conceptual framework, both in terms of the aims of criminal sanctions and the principles which delimit the means by which these aims may be pursued. Each will be considered in turn.

B Aims of Criminal Sanctions

1.07 Just as the debate regarding mandatory sanctions cannot be examined without regard being had to the conceptual framework for criminal sanctions, the aims of criminal sanctions cannot be examined without regard being had to the broader aims of the criminal justice system. At a theoretical level, the criminal justice system replaces private retaliation with public adjudication so that criminal sanctions may be imposed by reference to objective criteria rather than the desires of individual victims.[22] At a practical level, the criminal justice system seeks to reduce prohibited or unwanted conduct, namely, crime.[23] These broader aims provide the backdrop against which the Commission examines the more specific aims of criminal sanctions.

1.08 The Commission notes that there are divergent views as to why a criminal sanction should pursue any aim at all. Walker and Padfield assert that it is because societies which value individuals’ freedom regard the infliction of something to which a person objects as morally wrong unless it can be morally justified.[24] Cavadino and Dignan, on the other hand, assert that it is because deliberately inflicted punishment, which is invariably harmful, painful or unpleasant, is prima facie immoral and thus requires special justification.[25] There is also the constitutional and international human rights dimension under which any interference with a person’s human rights should be limited in so far as it must be defined by law, pursue a legitimate aim and be necessary in a democratic society. The Commission observes that the reason why a criminal sanction should pursue one or more aims may derive from a combination of these reasons.

1.09 As was observed in the Commission’s 1996 Report on Sentencing, the aims of sentencing may be divided into two broad categories: the moral category and the utilitarian category.[26] The moral category, with which retributivism is traditionally associated, covers those aims which concentrate on past activity and argue that justice requires retribution to be exacted for blameworthy conduct. By contrast, the utilitarian category, with which rehabilitation, deterrence and incapacitation are traditionally associated, covers those aims which concentrate on future beneficial consequences of the imposition of sanctions and promote themselves in terms of social utility including crime prevention and control. In addition, the Commission notes that reform, rehabilitation and reparation may be distinguished from punishment and deterrence in so far as reform, rehabilitation and reparation derive from the religious view of redemption which provides that a person who breaks the law must be punished but also saved. These categories are, broadly speaking, aligned with the broader aims of the criminal justice system, namely, the prevention of unofficial retaliation and the reduction of crime.

1.10 Bearing these factors in mind and having regard to the Department of Justice and Equality’s 2010 Discussion Document on Criminal Sanctions,^[27] the Commission has identified a number of aims of criminal sanctions which will form the basis for its analysis of mandatory sentences in Chapters 2, 3 and 4. These include punishment, deterrence, reform and rehabilitation, and reparation.[28] Reference will also be made to incapacitation which is not, strictly speaking, considered to be a purpose of Irish sentencing law.

(1) Punishment

1.11 In its 2010 Discussion Document on Criminal Sanctions[29] the Department of Justice and Equality listed “punishment” as an aim of criminal sanctions and defined it as “to inflict some kind of loss on the offender and give formal public expression to the unacceptability of the behaviour in the community”.[30] Thus “punishment” is understood as the infliction of loss and the public expression of disapproval. By using the conjunction “and”, the Department indicates that two separate ideas are at issue. In this regard, the Commission notes that the term “loss” is indicative of retributivist theories while “public expression” must refer to denunciation. Retribution and denunciation will now be considered in turn.

(a) Retribution

1.12 The original meaning of retribution was to “pay back” a debt or tax.[31] Later it came to mean rewarding a good act with a benefit and a bad one with harm.[32] Within the conceptual framework of criminal sanctions the retributive justification for a penalty is linked to what a person has done rather than what he will do, as in the case of deterrence. The “re” in retribution points to the past and it must be reflected in what is being done now. Thus there must be some sort of equivalence between the gravity of the harm and the penalty imposed.^[33] However, a retributive theory of punishment does not necessarily indicate with any degree of precision how much punishment should be imposed for any particular offence.[34] It is mainly concerned with why punishment should be imposed - because it is deserved.

1.13 In this regard, however, retribution should be distinguished from vengeance. O’Malley refers to the judgment of Lamer CJ in the Canadian Supreme Court decision of R v M (CA):[35]

“Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm upon oneself by that person. Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment and nothing more.”[36]

1.14 Furthermore, in the Supreme Court decision in People (DPP) v M[37] Denham J observed:

“Sentencing is neither an exercise in vengeance, or retaliation by victims on a defendant. However, the general impact on victims is a factor to be considered by the Court in sentencing... The nature of the crime and the personal circumstances of the appellant are the kernel issues to be considered and applied in accordance with the principles of sentencing, for this is an action between the State and the appellant and not an action between the appellant and the victims.”[38]

1.15 The majority of the Commission made a similar observation in its 1996 Report on Sentencing,[39] which was to the effect that retribution may, in fact, prevent victims from taking the law into their own hands by providing them with a “safety-valve”.[40] This accords with the theory that a criminal justice system should prevent unofficial retaliation and reduce unwanted or prohibited conduct. It also links in with the idea that punishment should have an expressive or denunciatory dimension.

1.16 It should be noted, however, that there are several versions of retributivism.[41] In its most basic form, retributivism asserts that the penal system should be designed to ensure that offenders atone by suffering for their offences.[42] Compromising retributivism asserts that the penal system should be designed to exact atonement in so far as this would not impose excessive unofficial retaliation or inhumane suffering, and in so far as it would not increase the incidence of the offences.[43] Limiting retributivism asserts that criminal sanctions should not be designed with atonement in mind but their severity should be limited by retributive considerations.[44] In other words, the unpleasantness of a criminal sanction should not exceed the limit that is appropriate to the culpability of the offence. Thus the length of a period of imprisonment should be such as to maximise the prospects of an offender’s reform, or protect society against the offender if his or her prospects of reform are small, so long as it is not too heavy a price to pay for the offence.[45] A fourth version, which surrenders the idea that penal measures should be designed with atonement in mind and the idea that there should be a retributively appropriate limit to their severity, asserts that society has no right to apply an unpleasant measure to someone against his or her will unless he or she has intentionally done something prohibited.[46]

1.17 It is the third version of retribution that is closest to the modern theory of “just deserts”, which asserts that punishment should be proportionate, rather than equal, to the crime.[47] It has been observed, however, that one should be realistic about the extent to which just deserts may successfully limit punishment.[48] In this regard, it has been asserted that in the absence of sentencing guidelines or formal standards, it is difficult to determine when a sentence is actually proportionate to the particular crime or the circumstances of the particular offender.[49]

1.18 A further weakness of the retributive theory is that it justifies the imposition of criminal sanctions on the basis of two presuppositions.[50] The first presupposition is that the criminal is free in the criminal act and has a choice, and that he or she can thus be held responsible. The second presupposition is that the crime disturbs a social order which is just in relevant respects and that the imposition of a criminal sanction restores the balance of rights disrupted by the crime. It has been noted, however, that there are many situations in which one or both of these conditions is not met - either the criminal cannot be held responsible or the order or relations in society is not just.[51] In this regard, it has been recognised that social disadvantage is at the root of much offending [52] and that there is thus a “dilemma of justice in an unjust world”.[53]

1.19 The Commission observes that retribution is an important aspect of the debate regarding mandatory sentencing provisions. In its 1993 Consultation Paper on Sentencing^[54] the Commission considered “just deserts” within the particular context of mandatory sentencing.^[55] It observed that support for mandatory minimum sentences had been “fuelled by distrust of judges” whose sentencing practice appeared to give more weight to mitigating factors than just deserts.^[56] The Commission observed that this was a particularly galling prospect for rape victims who had undergone the impersonal ordeal of a rape trial in order to ensure that rapists were seen to get their “just deserts”, before stating:

“[t]hese concerns underline the importance of securing the primacy of the ‘just deserts’ approach by statute, with due regard for mitigating factors, at the heart of a new sentencing scheme and of supporting this approach by giving the prosecution the right of appeal against inadequate sentences.”^[57]

The Commission concluded that the mandatory sentence was a blunt instrument which could not be tolerated in any sentencing scheme with the slightest sensitivity to a just deserts approach.^[58] It should be noted, however, that while this was the view of the Commission in 1993, it does not necessarily follow that the Commission today would hold the same view on the primacy of retribution within the conceptual framework for criminal sanctions.

(b) Denunciation

1.20 To explain the term “denunciation”, O’Malley [59] cites the Canadian Supreme Court decision in R v M (CA):[60]

“The objective of denunciation mandates that a sentence should communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined in our substantive criminal law.”[61]

Thus, by virtue of the principle of denunciation, the imposition of criminal sanctions is understood to be a medium through which society may collectively express its intolerance of certain types of behaviour.

1.21 There is debate, however, as to whether denunciation is a means to an end or an end in itself.[62] As a means to an end, it is asserted that denunciation deters offenders and potential offenders from committing the same or similar offences. As an end, it is asserted that denunciation provides members of society with an expressive safety valve so that they will not feel the need to take the law into their own hands. While one must be realistic as to the extent to which denunciation might achieve either of these results,[63] the Commission observes that these aspects of the theory accord with the idea that a criminal justice system should prevent unofficial retaliation and reduce unwanted or prohibited conduct.

1.22 A weakness of the theory of denunciation is that it does not necessarily engender proportionality considerations.[64] Thus a relatively severe criminal sanction might conceivably be used to express society’s abhorrence of a relatively minor offence. Denunciation and proportionality are not, however, entirely incompatible, at least to the extent that the Oireachtas, in stipulating maximum penalties, is entitled to have regard to the need for denunciation. Similarly, the courts, when imposing sentences having regard to that maximum, are effectively implementing this denunciation policy. That said, criminal sanctions that are excessive in light of the gravity of the offence and the circumstances of the offender should not be imposed solely for the purpose of denouncing the conduct constituting the offence.

1.23 The Commission observes that denunciation is an important aspect of the debate regarding mandatory sentencing provisions. The offences for which mandatory provisions have been enacted tend to be those offences which have a particularly deleterious impact on society, for example murder, drug trafficking, firearms offences and repeat offences. Confronted by such offences, individual members of society often feel victimised and powerless. It is thus understandable that individuals should wish to collectively express their condemnation of such offences.

(2) Deterrence

1.24 In its 2010 Discussion Document on Criminal Sanctions[65] the Department of Justice and Law Reform listed “deterrence” as an aim of criminal sanctions and defined it as “to impose a penalty to either deter the individual from committing further crimes or to deter others from imitating criminal behaviour”. In other words, deterrence may be specific or general in nature. A penalty motivated by a policy of specific deterrence is concerned with the particular offender and aims to impress upon him or her the punishment he or she will suffer if he or she re-offends.[66] By contrast, a penalty motivated by a policy of general deterrence aims to demonstrate to potential offenders and society at large that painful consequences will result from any offending.[67] In this regard, in particular, the aim of deterrence accords with the broader aims of the criminal justice system, namely, the prevention of unofficial retaliation and the reduction of crime.

1.25 McAuley and McCutcheon assert that punishment and deterrence are inherently linked.[68] Deterrence is not one of several competing aims any one of which, depending on prevailing policy considerations, might be given preference. Rather, punishment is by nature deterrent such that what is done to offenders in the name of punishment must be deterrent if it is to be considered punishment at all. The authors assert that this conclusion withstands even the claim that the high rate of recidivism proves that deterrent penalties are not, in fact, effective. They argue that the effectiveness of deterrent penalties should be measured in terms of their impact on those at whom it is directed, the population as a whole, rather than on those who repeatedly break the law.[69] They cite Kenny in support of this argument:

“Those who commit even a first crime have thereby shown themselves to be less deterrable than the rest of the population: they are therefore a biased sample to choose for study. The only empirical way to study the deterrent effect of punishment would be to compare the effects of two laws in parallel jurisdictions on the same type of subject matter, one of which had a sanction attached and the other did not. Naturally, it is difficult to find legislatures foolish enough to provoke circumstances in which such statistics can be collected… [Similarly] sceptics about deterrence have often concentrated their attention on particular crimes such as murder and particular punishments such as the death penalty. Murder appears to be an uncharacteristic crime in being less affected than other offences by variations in penal practice. Naturally, there are no statistics for jurisdictions where murder goes unpunished; hence the murder statistics can at most tell us about the effectiveness of different penalties, not about the effectiveness of punishment as such”.^[70]

1.26 A question arises as to which aspect of a criminal sanction is more likely to deter: the certainty of punishment or the severity of punishment. In its 1993 Consultation Paper on Sentencing[71] the Commission indicated that the certainty of punishment was more likely to have a deterrent effect than the severity of punishment.[72] The Commission notes, however, that there are a number of other factors which may affect the extent to which a criminal sanction deters.[73] These include the nature of the crime;[74] the target group of the particular criminal sanction;[75] the extent to which the offending behaviour attracts moral condemnation;[76] the extent to which the public has knowledge of the criminal sanction; the swiftness of punishment;[77] and perceptions as to the risk of incurring the criminal sanction.[78] Gabor and Crutcher observe that it is thus not possible to make “simplistic, sweeping generalizations affirming the presence or absence of a deterrent effect”.[79]

1.27 Like the aim of punishment, however, it has been observed that deterrence does not necessarily engender proportionality considerations.[80] Thus a severe criminal sanction might conceivably be imposed for a relatively minor offence in order to deter. It has also been noted that deterrence, to the extent that it relates to general deterrence, may succumb to the criticism that it treats offenders instrumentally rather than as autonomous beings entitled to respect for their individual rights.[81]

1.28 The Commission observes that deterrence is an important aspect of the debate regarding mandatory sentencing provisions. Deterrence is often advanced as a justification for the enactment of mandatory sentencing provisions. It is unclear, however, to what extent, if any, mandatory sentences actually deter. Some writers assert that mandatory sentences are ineffective as deterrents. Mandatory death sentences, for instance, have never been fully effective in preventing murder.^[82] Other writers note, however, that crimes like murder are exceptional in so far as they often committed in “the heat of the moment when the perpetrators are in no mood to contemplate the legal consequences”.^[83] In its 1993 Consultation Paper on Sentencing^[84] the Commission stated that it found no evidence to suggest that mandatory minimum sentences acted as a deterrent.^[85] Tonry cites research which, he asserts, establishes that mandatory sentences have either no demonstrable deterrent effects or short-term effects that are quickly extinguished.^[86] Furthermore, he observes that there has been little impact on the crime rates of the states in the United States in which mandatory sentences have been introduced.^[87]

(3) Reform and Rehabilitation

In its 2010 Discussion Document on Criminal Sanctions[88] the Department of Justice and Equality listed “rehabilitation” as an aim of criminal sanctions and defined it as “designed to include measures which might contribute to the person desisting from future offences and to assist in their reintegration into society”. Rehabilitation thus asserts that an offender detained in prison can be reformed and re-introduced into society. In this regard, the aim of reform and rehabilitation accords with the aim of the criminal justice system that crime be reduced.

1.29 While support for this concept has waxed and waned, the judicial mood regarding the effectiveness of rehabilitation in the 1990s was summarised in the judgment of Egan J. in People (DPP) v M:^[89]

“[A]n essential ingredient for consideration in the sentencing of a person upon conviction, in any case in which it is reasonably possible, is the chance of rehabilitating such person so as to re-enter into society after a period of imprisonment.”^[90]

As will be discussed at paragraph 1.129, this judgment also supports the view that the possibility of rehabilitation is a factor which should be considered by a sentencing court when determining the severity of a sentence to be imposed.

1.30 Rehabilitation has been described as “an idea and an ideal; it is a theory and it is a practice”.^[91] At one level, the macro level, there is a clash of ideologies between punishment and reform. In the United States of America and in England and Wales that argument has been settled comprehensively in favour of punitive responses to crime – in other words, in favour of the punishment of the offender as opposed to the reform of the offender.^[92] At the other level, the micro level, there have been disagreements within the rehabilitation camp itself as to how best to achieve the ideal – increasingly the arguments have centred on questions of evidence that rehabilitation actually works.^[93] In its 1996 Consultation Paper on Sentencing,[94] for instance, the Commission noted that there was serious doubt as to whether or not rehabilitation worked.[95]

1.31 In the 2009 Report of the Sentencing Advisory Panel (England and Wales) on public attitudes to the principles of sentencing, a public survey rated rehabilitation fourth on a scale of importance of sentencing objectives, behind public protection, preventing crime, and punishing offenders ^[96] - though 73% of respondents rated rehabilitation of high importance.^[97] The Advisory Panel observed that, while the level of public support for different sentencing purposes changes according to the nature and seriousness of the offence, support for rehabilitation remained high even for serious offences.^[98] The report concluded that, while public protection emerged as the sentencing purpose to which the highest proportion of people attached primacy, no particular sentencing objective could be singled out as attracting significantly higher levels of support than others. The findings demonstrated the need – from the perspective of the public at least – to have multiple sentencing objectives so that these may be tailored to the specific circumstances of individual cases.^[99]

1.32 It has been asserted that there is now substantial evidence that rehabilitation programmes, such as “prison-based therapeutic community treatment of drug-involved offenders” and “in-prison therapeutic communities with follow-up community treatment”, work with at least some offenders in some situations.^[100] These programmes are intensive, behaviour-based programmes that target an offenders’ drug use, a behaviour that is clearly associated with criminal activities. Programmes which, apparently, did not work included correctional programmes such as those which increase control and surveillance in the community, for example intensive, supervised probation or parole; home confinement; community residential programs; and urine testing. Collectively these sanctions are described as “alternative punishments” or “intermediate sanctions”.[101]

1.33 Some commentators have been less enthusiastic about the rehabilitative ideal, saying that “it is generally accepted that rehabilitation does not work”^[102]and even to the extent that it could be shown to work it cannot be “rationally defended as a legitimate aim of punishment.”^[103] In this regard, it has been argued that the principle of rehabilitation, to the extent that it holds that punishment should be tailored to the needs of reforming offenders, cannot be justified.[104] The history of the criminal law illustrates that punishment - the object of which is to prevent people from becoming criminals - is essentially a transaction between the State and citizens generally.[105] Thus the rehabilitative theory, which regards punishment as a transaction between society and those who have already become criminal, is inconsistent with this theory.[106]

1.34 In any event, in their much quoted article, Feeley and Simon argue that the “old penology” with its emphasis on the rehabilitation of individual offenders is being replaced with the “new penology”, otherwise described as actuarial justice, embracing forms of risk assessment aimed at the control of aggregate populations and including the expansion of the prison sector and the growing network of sanctions.^[107]

1.35 Reform and rehabilitation are rarely, if ever, advanced as justifications for mandatory sentencing provisions. On the contrary, they are often submitted as “exceptional and specific circumstances” justifying a sentence lower than the presumptive sentence prescribed by the Misuse of Drugs Act 1977 and the Firearms Acts. Having said that, it should be considered whether rehabilitation should play any role in reaching conclusions on mandatory sentencing. On the one hand the view may be taken that a mandatory sentence structure could be ordered in such a way as to take account of the benefits of rehabilitation. On the other, it may be considered that the advantages of rehabilitation are not such as could distinguish mandatory sentences from sentences of imprisonment which are not mandatory in nature.

(4) Reparation

1.36 In its 2010 Discussion Document on Criminal Sanctions[108] the Department of Justice and Equality lists “reparation” as an aim of criminal sanctions and defines it by reference to “penalties [which] involve direct or indirect compensation for the harm caused to victims by crime”. Reparation thus asserts that people who have offended should do something to “repair” the wrong they have done and, in so doing, acknowledge the wrongness of their actions.[109] This can take the form of compensating the victim of the offence or doing something else to assist the victim. If there is no individual or identifiable victim or, indeed, the victim is unwilling to accept it, reparation can be made to the community as a whole by performing community service or paying a fine into public funds. The concept of reparation is associated with the wide notion of “restorative justice”, which seeks to restore and repair relations between offenders, victims and the community as a whole. In this regard, the aim of reparation accords with the broader aim of the criminal justice system that unofficial retaliation be prevented.

1.37 It has been observed that a number of benefits may flow from reparation.[110] Reparation - in so far as it aims to repair relations - may have a lot to contribute to policies aimed at the reintegration of offenders.[111] In addition, it has been asserted that if punishment is to be inflicted at all it is desirable that it should directly benefit the victim or society rather than merely hurt or restrict the offender.[112] Other commentators observe, however, that the concept is not free of difficulties. Where a sentencer discriminates between an offender who can afford to make reparation and an offender who cannot, particularly where the alternative is imprisonment, his or her policy may be regarded as inequitable.[113]

1.38 In England, victims of personal violence, who fulfil certain eligibility criteria, are compensated by the Criminal Injuries Compensation Authority.[114] Otherwise, the sentencer is supposed to consider the victim’s case for compensation and, if the case is clear, order the offender to pay.[115] While this has proven to be a valuable corrective measure on some occasions, it has served only to create or increase the offender’s grievance against the victim or the system on other occasions.[116] Furthermore, the situation often arises where an offender is either unable to pay the full compensation due or only able to pay it in small instalments. The victim in both situations receives less than he or she deserves.[117]

1.39 While there is no Irish equivalent to the Criminal Injuries Assessment Authority, the concept of reparation is not alien to the Irish justice system. The Irish courts have the power to make community service orders and impose fines. The Commission acknowledges the role that reparation may play in the context of reintegration but cautions against the creation of an inequitable system where offenders with the financial means may escape imprisonment while offenders without the means may not.

1.40 Reparation is rarely, if ever, asserted as a justification for mandatory sentencing provisions. This may be due to the fact that criminal sanctions which pursue the purpose of reparation are usually an alternative to imprisonment. Thus reparation may not be of direct relevance to sentencing provisions which mandate prison sentences.

(5) Incapacitation

1.41 In its 2010 Discussion Document on Criminal Sanctions[118] the Department of Justice and Equality defines “incapacitation” as “to restrain the offender so as to limit their opportunities to commit further crime”. Incapacitation may be a relevant consideration regarding both non-custodial and custodial sentences. Thus a traffic offence which merits disqualification from driving is as likely to hamper the future commission of traffic offences as a period of detention is likely to hamper the future commission of, for instance, burglaries. It is noted, however, that while some sentences serve incapacitative purposes more often than not any incapacitative effect is incidental rather than directed.

1.42 The Commission observes that incapacitation may be advanced as a general aim of sentencing but that it is usually aimed at particular groups such as dangerous offenders, career criminals or other persistent offenders.[119] In this regard, custodial sentences, such as life imprisonment or lengthy terms of imprisonment, are often advocated as the best means of depriving offenders of the opportunities to engage in crime for the duration of their incarceration.[120] Such custodial sentences are likely to have a greater impact on the rights of offenders and are, therefore, more controversial than non-custodial sentences serving incapacitative purposes. For this reason, the Commission proposes to focus mainly on the purpose of incapacitation in the context of custodial sentences.

1.43 There are a number of objections to the concept of incapacitation. First, it has been asserted that incapacitation runs counter to the principle of proportionality.[121] The principle of proportionality determines that a sentence should be based on the gravity of the offence and the personal circumstances of the offender rather than any prediction as to the risk of the offender re-offending if released.[122] Second, it has been observed that predictions of future behaviour are notoriously difficult to make.[123] Thus the principle of incapacitation - in so far as it relies on such predictions - may lead to unjust results. Third, it has been argued that the incapacitative effects of imprisonment are, at best, modest.[124] In this regard, it has been noted that most criminal careers are relatively short so that by the time offenders are incarcerated they may be about to renounce crime or reduce their offending anyway.

1.44 The Commission notes that there is also the constitutional objection that a person should not be deprived of his or her liberty on the basis of anticipated rather than proven offending.[125] In this regard, O’Malley asserts that the principle established in People (Attorney General) v O'Callaghan[126] - that a person should not be deprived of liberty on account of an apprehension that he or she will commit a further offence if released on bail - is based on the broader principles of the presumption of innocence and the right to personal liberty. Regarding the presumption of innocence, Ó Dálaigh C.J. stated:

“The reasoning underlying this submission is, in my opinion, a denial of the whole basis of our system of law. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty and seeks to punish him in respect of offences neither completed nor attempted.”[127]

Regarding the right to liberty, Walsh J stated:

“[T]he likelihood of commission of further offences while on bail, is a matter which is in my view quite inadmissible. This is a form of preventative justice which has no place in our legal system and is quite alien to the true purposes of bail...

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 or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.”[128]

1.45 While the O’Callaghan principle has been reversed by constitutional amendment,[129] in so far as it relates to bail, it has been asserted that it may remain intact in relation to sentencing.[130] In support of this proposition, O’Malley refers to the decision of the Court of Criminal Appeal in People (DPP) v Carmody.[131] In Carmody, the applicants were habitual criminals, the first applicant having convictions beginning in 1968 and the second applicant having convictions dating back to 1961. They had served numerous terms of imprisonment imposed by the District Court, primarily for periods of up to 12 months. In the instant case, they were charged with burglary and pleaded guilty to the charges in the Circuit Court. The trial judge, Murphy J, 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 they are preying on innocent people and my primary duty is to protect those people.”[132] [Emphasis added].

The applicants applied for leave to appeal against sentence.

1.46 The Court of Criminal Appeal, per McCarthy J, observed that the only justification for the radical departure from the previous measures of imprisonment was an “understandable attempt to procure reform by prevention”. In the absence of appropriate statutory provisions, however, he considered that this was an unacceptable basis for the particular sentence and substituted a sentence of three years’ imprisonment in respect of each of the applicants.[133] It is argued, therefore, that McCarthy J did not reject the possibility of preventative sentencing outright and that it might be permissible where appropriate statutory provisions were in place.

1.47 As noted above, however, incapacitation may run counter to the principle of proportionality and interfere with the right to personal liberty and the presumption of innocence. If O’Malley is correct in his argument, the Commission observes that legislation pursuing an incapacitative purpose might only be justified in circumstances which were - in the words of Walsh J in People (DPP) v O’Callaghan - “extraordinary”. Such circumstances might include the preservation of public peace and order; the public safety; or the preservation of the State in a time of national emergency.

1.48 While the Commission distinguished between incapacitation in the context of bail and incapacitation in the context of sentencing in its 1993 Consultation Paper on Sentencing,[134] it took a different view to O’Malley in its 1995 Report on Bail.[135] It observed that the judgment in Carmody was brief and did not clarify whether a statute could, in fact, render preventative sentencing valid or whether any such legislative provision would run into constitutional difficulty. It indicated that the more likely option was that the legislative provision would run into constitutional difficulty. It then referred to the case of People (DPP) v Jackson,[136] in which the trial judge had imposed life sentences in respect of two rapes, saying that he did so to protect women against the accused until such time as in the judgment of the authorities the accused was fit to be released. On appeal to the Court of Criminal Appeal, Hederman J stated that preventative detention was not known to the Irish judicial system and reduced the sentences to 15 years and 18 years respectively.

1.49 The view that preventative detention is not known to the Irish judicial system has been supported by a number of recent decisions. In People (DPP) v GK,[137] for instance, the Court of Criminal Appeal indicated that incapacitation might be justified to a limited extent by the need to deter offenders and protect society. In this regard, however, incapacitation should be “consistent with the proportionality principle and must not be conflated with a form of general preventive incarceration which is not part of our jurisprudence”. More recently, in Whelan and Another v Minister for Justice, Equality and Law Reform,[138] the Supreme Court concluded that a life sentence was a sentence of a wholly punitive nature and did not incorporate any element of preventative detention.

1.50 The Commission thus observes that the authorities lean against preventative detention in Ireland. This observation is of particular relevance to mandatory sentencing provisions which tend to target the most dangerous and persistent offenders. A common refrain in support of mandatory sentencing provisions has been the need to take and keep certain criminals off the streets. While such an argument may carry political weight, it would appear, in light of the foregoing analysis, to risk constitutional challenge.

C Principles of Criminal Sanctions

1.51 There are many means by which the criminal justice system seeks to achieve its aims of displacing unofficial retaliation and reducing crime, including by education, social inclusion and policing. This Consultation Paper is not concerned with these aspects of the criminal justice system but rather with that aspect which relates to the imposition of criminal sanctions, in other words, sentencing. The Commission identifies a number of principles which constrain sentencing, namely, the humanitarian principle, the justice principle and the economic principle.[139] These principles safeguard citizens against excessive behaviour by the State and shape the way in which the criminal justice system operates, specifically, the manner in which the aims of criminal sanctions are pursued. Along with the aims of criminal sanctions, the principles of criminal sanctions inform the Commission’s analysis of mandatory sentences in Chapters 2, 3 and 4.

(1) Humanitarian Principle

1.52 The humanitarian principle provides that the criminal justice system should be such as to cause the minimum of suffering (whether to offenders or others) by its attempts to achieve its aims.[140] The humanitarian principle, in its strongest form, prohibits the use of certain criminal sanctions, and, in its milder form, constrains the use of other sanctions. Each form will be considered in turn.

(a) Prohibition of Certain Criminal Sanctions

1.53 In its strongest form the humanitarian principle asserts that there are some criminal sanctions are so inhuman that they should not to be imposed even if they represent the minimum of suffering needed to reduce the incidence of a given type of offence.[141] As perceptions evolve over time, the humanitarian principle requires a “current evaluation as to what constitutes unacceptably inhumane punishment”.[142] The result is that many types of criminal sanction - such as the death penalty, corporal punishment and gross humiliation - which would have been tolerated in former times, are now prohibited. By contrast, criminal sanctions - such as fines, community service orders and imprisonment - continue to be acceptable.

1.54 Accordingly, Article 15.5.2 of the Irish Constitution now provides that “[t]he Oireachtas shall not enact any law providing for the imposition of the death penalty”,[143] while Article 28.3.3 provides that this prohibition may not be derogated from even in time of war or national emergency.[144] The inspiration for these provisions was Article 1 of the Sixth Protocol to the European Convention on Human Rights which provides for the abolition and prohibition of the death penalty. Article 2 of the Thirteenth Protocol prohibits any derogations from this provision while Article 3 prohibits any reservations.

1.55 Article 40.3.1 of the Irish Constitution contains the State’s guarantee to respect, defend and vindicate the “personal rights” of the citizen, including the right to bodily integrity.[145] In State (C) v Frawley,[146] the High Court recognised that freedom from torture was a corollary of the right to bodily integrity. Finlay P thus stated:

“If the unspecified personal rights guaranteed by Article 40 follow in part or in whole from the Christian and democratic nature of the State, it is surely beyond argument that they include freedom from torture, and from inhuman or degrading treatment and punishment.”[147]

This is very similar to Article 3 of the European Convention on Human Rights which provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”.[148]

(b) Constraint on Use of Other Criminal Sanctions

1.56 In its milder form the humanitarian principle permits any measure that can be shown to be an effective deterrent or corrective, but insists that their severity should be kept to the necessary minimum.[149] This is otherwise known as the principle of parsimony. Ashworth indicates that the principle of parsimony provides that all punishment is pain and should, therefore, be avoided or minimised where possible.[150] By contrast, O’Flaherty states that the principle of parsimony provides that punishment should not impinge upon the personal rights of the offender beyond the amount necessary to exact retribution for the offence.[151] This explanation evokes Ireland’s obligations under the European Convention on Human Rights, which permits interference with specified human rights where the interference has been prescribed by law, pursues a legitimate aim and is necessary in a democratic society. The Commission observes that from these explanations a common thread may be discerned: punishment should only be imposed where it is necessary and it is the least invasive, sufficient option.

1.57 The principle of parsimony is commonly discussed in relation to custodial sanctions. Since custodial sanctions are the most severe and expensive criminal sanction available in Ireland, the theory is that they should be reserved for cases involving the most serious offences (“custody threshold”[152]), where no other sanction would be appropriate in the circumstances (“last resort”[153]).[154]

1.58 While the principle of parsimony applies to sentencing in general, the Commission notes its particular relevance to mandatory sentencing. Mandatory sentencing provisions have the potential to impinge on the rights of the accused to a greater extent than discretionary sentencing provisions. Thus their use should be limited to situations in which they are, strictly speaking, necessary.

1.59 The so-called “custody threshold”[155] and the “last resort”[156] principle will now be considered in turn.

(i) Custody Threshold

1.60 While the concept of the “custody threshold” has received some attention in England and Wales,[157] it has received little in Ireland. At a very general level, it would appear to relate to the seriousness of the particular offence.

1.61 Nevertheless, it has been asserted that the term “custody threshold” is unhelpful in so far as it gives a false sense of security by implying clarity where none exists.[158] There is no definite line between those offences which should attract a custodial sanction and those which should attract a non-custodial sanction. Indeed many offences straddle the so-called custody threshold such that they might equally, depending on the circumstances of the case, attract a custodial or a non-custodial sanction.[159] There is little guidance, if any, as to how sentencers should deal with such “cusp” offences.

1.62 In addition, the custody threshold, in so far as it exists, is not static but varies between sentencers and over time.[160] Sentencers may have different perspectives, which evolve over time, on a number of matters including: the extent to which an offence is sufficiently serious to cross the custody threshold; the weight to be attributed to various aggravating or mitigating factors; the significance of other factors such as previous convictions; and the appropriateness of various custodial and non-custodial sanctions.[161]

1.63 Furthermore, the custody threshold may move. The custody threshold may move upwards - thus making it more difficult to imprison an offender - where a lack of prison spaces is coupled with the availability of a range of appropriate non-custodial alternatives. By contrast, the threshold may move downwards - thus making it easier to imprison an offender - where the availability of prison spaces is coupled with a lack of appropriate non-custodial alternatives.[162]

(ii) Last Resort

1.64 That custody should be a sanction of last resort seems to reflect current penal philosophy.[163] In this regard, it may be noted that section 3 of the Criminal Justice (Community Service) Act 1983, as amended,[164] provides that where a sentencing court is of the opinion that the appropriate sentence would be one of imprisonment for a period of 12 months or less, it must consider making a community service order instead. In addition, section 2 of the Courts (No 2) Act 1986, as amended,[165] provides that a fine defaulter may only be imprisoned where he or she has not complied with a community service order.

1.65 The “last resort” principle has not, however, been defined in Ireland.[166] At a very general level, however, it would appear to relate to the sparing use of custody as a sanction for offences which meet the custody threshold. However, while some offences are so serious that custody is the only resort, there is a vast array of less serious offences for which a non-custodial sanction might be an appropriate option, in the first instance at least.

1.66 In addition, as with the custody threshold, the extent to which a custodial sanction may be considered the last resort may vary between sentencers and over time. Sentencers may have different views, evolving over time, regarding various matters including the seriousness of the offence; the significance of previous convictions; and the appropriateness of various non-custodial and custodial sanctions. Furthermore, the extent to which a custodial sanction may be considered the last resort may vary depending on the availability of non-custodial alternatives.

(2) Justice Principle

1.67 The justice principle relates to constraints on the manner in which criminal sanctions may be imposed.[167] Legality, proportionality, consistency and transparency are subsets of this principle. Each will now be considered in turn.

(a) Legality Principle

1.68 The legality principle requires that sentencing decisions be made in accordance with the law, declared in advance.[168] A prerequisite to this is that sentencing law, no less than criminal law, should be clear, predictable and certain. The reason for this is that individuals should be on notice not only of the fact that they will be subject to some criminal sanction if they transgress the law,[169] but also of the nature and degree of that criminal sanction. (As noted at paragraph 1.26, the level of knowledge that individuals have regarding the nature and degree of a criminal sanction may also influence the extent to which that criminal sanction may be said to have a deterrent effect). The Commission observes, however, that sentencing law, in its current state, cannot be described as clear, predictable or certain.

(b) Proportionality

1.69 Ashworth asserts that proportionality is one of the main contributions of the “just desert” theory.[170] In this regard, he argues that proportionality may be understood in two senses - ordinal proportionality and cardinal proportionality.[171] Ordinal proportionality concerns the relative seriousness of offences among themselves, while cardinal proportionality relates the ordinal ranking of offences to a scale of punishments.[172]

1.70 In Whelan and Another v Minister for Justice, Equality and Law Reform[173] the High Court (Irvine J), distinguished between constitutional proportionality and proportionality in the context of sentencing. On appeal, this distinction was upheld by the Supreme Court.[174] Referring to the judgment of Costello J in Heaney v Ireland,[175] Murray CJ observed that the constitutional doctrine of proportionality:

“...is a public law doctrine with specified criteria, according to which decisions or acts of the State, and in particular legislation, which encroach on the exercise of constitutional rights which citizens are otherwise entitled freely to enjoy, are scrutinised with regard to their compatibility with the Constitution or the law.”

By contrast, “proportionality” in the context of sentencing is a term which is descriptive of the manner in which judicial discretion should, as a matter of principle, be exercised within particular proceedings.

(i) Constitutional Proportionality

1.71 Thus constitutional proportionality is applicable to acts of the Oireachtas. In the High Court decision Heaney v Ireland, Costello J pronounced the test for constitutional proportionality as follows:

“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-

(a) Be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

(b) Impair the right as little as possible, and

1.72 The Supreme Court adopted a similar test in In re the Employment Equality Bill 1996:[177]

“In effect a form of proportionality test must be applied to the proposed section. (a) Is it rationally designed to meet the objective of the legislation? (b) Does it intrude into constitutional rights as little as is reasonably possible? (c) Is there a proportionality between the section and the right to trial in due course of law and the objective of the legislation?”[178]

1.73 Heaney and In re the Employment Equality Bill 1996 were preceded by the Supreme Court decision in Cox v Ireland[179], which has been identified as an important landmark in modern judicial thinking on mandatory sentences.[180] The plaintiff challenged section 34 of the Offences Against the State Act 1939, which provided that any person convicted by the Special Criminal Court of a scheduled offence would forfeit any office or employment remunerated from public funds and be disqualified from holding any such office or employment for a period of 7 years from the date of conviction. The plaintiff, a teacher at a community school, was convicted by the Special Criminal Court of a scheduled offence. As a result, he lost his post, pension and pay-related social insurance rights, and became ineligible to work in a similar post for a period of 7 years.

1.74 Both the High Court and the Supreme Court found section 34 to be unconstitutional. The High Court (Barr J) held that the penalties imposed by section 34 were patently unfair and capricious in nature and that they amounted to an unreasonable and unjustified interference with the plaintiff’s personal rights. The Supreme Court observed that the State was entitled to impose onerous and far-reaching penalties for offences threatening the peace and security of the State but that it must, as far as practicable, protect the constitutional rights of the citizen. It found that the State had failed in this regard as the provisions of section 34 were “impermissibly wide and indiscriminate”. The mandatory penalties contained in section 34 applied to all scheduled offences which included less serious offences and offences of the utmost gravity. Furthermore, there was no way to escape the mandatory penalties even if a person could show that his or her intention or motive in committing the offence bore no relation to considerations of the peace and security of the State.

1.75 More recently, in Whelan and Another v Minister for Justice, Equality and Law Reform[181] the Supreme Court applied the proportionality test to section 2 of the Criminal Justice Act 1990, which imposes a mandatory life sentence for murder . Confirming that the Oireachtas was empowered to enact legislation setting mandatory penalties, Murray CJ observed that such legislation might be unconstitutional if “there was no rational relationship between the penalty and the requirements of justice with regard to the punishment of the offence specified”.

The decision in Cox may be contrasted with the decision in Whelan and Another. In Cox, the Supreme Court found that the mandatory provision concerned was impermissibly wide and indiscriminate in so far as it applied to all scheduled offences without distinction as to their gravity. In Whelan and Another, however, the Supreme Court rejected the appellants’ argument that the mandatory provision concerned was unconstitutional in so far as it prevented the judge from exercising his or her discretion to treat differently different types of murder case. The unique nature of murder was found to justify treating all cases of murder, irrespective of the degree of moral blameworthiness, the same.

1.76 As mandatory sentencing provisions have the potential to infringe on the rights of the accused to a greater extent than discretionary sentencing provisions, the Commission believes that the doctrine of constitutional proportionality should be stringently applied to all mandatory sentencing provisions with the possible exception of that provision relating to murder. The doctrine of constitutional proportionality thus requires that, first, the mandatory sentencing provision should be rationally connected to the objective it seeks to achieve and should not be arbitrary, unfair or based on irrational considerations. Second, the mandatory provision should impair the rights of the accused as little as possible. Third, there should be proportionality between the mandatory provision and the right to trial in due course of law and the objective of the legislation.

(ii) Sentencing Proportionality

1.77 Proportionality in the context of sentencing is a different species entirely. In this sense, proportionality requires that a sentence be proportionate to the gravity of the offence and - as is generally accepted - the circumstances of the offender.[182] The Irish courts have reaffirmed this aspect of proportionality on numerous occasions.

1.78 In People (Attorney General) v O'Driscoll,[183] for instance, Walsh J stated:

“It is… the duty of the Courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard to the particular crime but in regard to the particular criminal.”[184]

1.79 Similarly, in People (DPP) v Tiernan[185] the Supreme Court was asked to consider a point of law of exceptional public importance,[186] namely, the guidelines applicable to sentences for the crime of rape. While the Supreme Court refrained from formulating any such guidelines, Finlay CJ observed that “in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him.”[187]

1.80 Likewise, in People (DPP) v M[188] the Supreme Court considered the severity of sentences imposed for a number of counts of buggery, indecent assault and sexual assault. During the course of its consideration, Denham J indicated that sentences should be proportionate in two respects:

“Firstly, they should be proportionate to the crime. Thus, a grave offence is reflected by a severe sentence...

However, sentences must also be proportionate to the personal circumstances of the appellant. The essence of the discretionary nature of sentencing is that the personal situation of the appellant must be taken into consideration by the court.”[189]

1.81 There are numerous examples of this principle being applied by the Irish courts.[190]

1.82 For the purpose of formulating proportionate sentences, the courts have adopted a two-tiered approach by which they, first, locate where on the range of applicable penalties a particular case should lie, and, then, consider the factors which aggravate and mitigate the sentence.[191]

1.83 Thus, in the Supreme Court decision in People (DPP) v M[192] Egan J stated:

“It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum sentence applicable. One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an appropriate reduction made.”[193]

Given that Egan J was considering the following factors - (i) the appellant’s guilty plea, (ii) the likelihood of him reoffending, (iii) the appellant’s age and (iv) the possibility of rehabilitation - it is clear that “mitigating circumstances”, in this regard, is a reference to circumstances which would mitigate a sentence rather than the seriousness of an offence.[194]

1.84 The Commission notes, however, that it may be slightly misleading to describe Egan J’s approach to formulating a proportionate sentence as a “two-tiered” approach when, in fact, it involves three inter-related steps:[195]

(i) Identifying the range of applicable penalties;

(ii) Locating the particular case on that range; and

(iii) Applying any factors which mitigate or aggravate the sentence.

Each of these steps will be considered in turn.

(I) Identifying the Range of Applicable Penalties:

1.85 To determine the range of penalties applicable to the particular offence, the courts will consider whether the Oireachtas has provided any guidance by means of, for instance, a statutory maximum or minimum sentence.[196] Thus, for example, section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001 provides that robbery is subject to a maximum penalty of life imprisonment. As a result, a person convicted of robbery may expect to receive a sentence ranging from 0 years to life imprisonment, depending on the circumstances of the case and the offender. The fact that robbery is subject to a maximum sentence of life imprisonment also indicates how serious robbery should be considered, as does the direction that an accused charged with robbery should be tried on indictment.[197] It is thus fair to assume that robbery, which is “liable on conviction on indictment to imprisonment for life”,[198] is a serious offence.

1.86 For some serious offences, excluding those to which mandatory and mandatory minimum sentences apply, the courts have established points of departure regarding the sentence to be imposed. Thus, in the Supreme Court decision in People (DPP) v Tiernan[199] Finlay CJ made the following remark regarding the sentence for rape:

“Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him, it is not easy to imagine the circumstances which would justify departure from a substantial immediate custodial sentence for rape and I can only express the view that they would probably be wholly exceptional.”[200] [Emphasis added]

Thus a person convicted of rape should ordinarily expect to receive a substantial custodial sentence save where it is shown that there are “wholly exceptional” circumstances.

1.87 Similarly, in the Court of Criminal Appeal decision in People (DPP) v Princs[201] regarding the sentence for manslaughter the Court observed:

“[T]he offence of manslaughter, particularly voluntary manslaughter where an unlawful act of violence is involved, should normally involve a substantial term of imprisonment because a person has been killed. Only where there are special circumstances and context will a moderate sentence or in wholly exceptional circumstances, a non-custodial sentence, be warranted. Those circumstances are more likely to arise in cases [of] involuntary manslaughter...” [Emphasis added]

Thus a person convicted of manslaughter should ordinarily expect to receive a substantial custodial sentence save where “special circumstances” would justify a moderate sentence or “wholly exceptional circumstances” would justify a non-custodial sentence.

1.88 In general, however, the courts should not, however, constrain their discretion in sentencing by following a fixed policy where none has been prescribed by law. In People (DPP) v WC[202] the Central Criminal Court indicated that:

“It is not open to a judge in a criminal case when imposing sentence, whether for a particular type of offence, or in respect of a particular class of offender, to fetter the exercise of his judicial discretion through the operation of a fixed policy, or to otherwise pre-determine the issue.”[203]

1.89 Thus in People (DPP) v Kelly,[204] where the trial judge had indicated that on the basis of a policy of deterrence he would impose a sentence of 20 years in cases involving death and serious injury caused by the use of knives, the Court of Criminal Appeal found that he had erred in principle.[205]

1.90 In some cases, the courts have gone further by setting out the ranges of penalties applicable to various combinations of facts. In People (DPP) v WD,[206] for instance, the Central Criminal Court considered cases of rape over a three-year period in which lenient, ordinary, severe and condign punishments had been imposed.[207]

1.91 In the category of lenient punishments, the Court considered cases in which a suspended sentence had been imposed.[208] It noted that a suspended sentence could only be contemplated where the circumstances of the case were “so completely exceptional as to allow the court to approach sentencing for an offence of rape in a way that deviates so completely from the norm established by law.”[209]

1.92 In the category of ordinary punishments, the Court considered cases in which a sentence range of three to 8 years had been applied.[210] It noted that a sentence at the upper end of the scale, a sentence of 8 years or more, for which the courts took into account aggravating factors, could be imposed even on a plea of guilty. An offender could expect a sentence at the upper end of the scale where there had been “a worse than usual effect on the victim, where particular violence has been used or where there are relevant previous convictions, such as convictions for violence of some kind.”[211] An offender could expect a sentence of five years where he or she had pled “guilty to rape in circumstances which involve no additional gratuitous humiliation or violence beyond those ordinarily involved in the offence,”[212] whereas he or she could expect a sentence of 6 or 7 years where there was no early admission, remorse or early guilty plea.[213]

1.93 In the category of severe punishments, the Court considered cases in which a sentence range of 9 to 14 years had been applied.[214] The Court observed that five of the cases involved individual offences of a single count of rape; 9 involved a single attack that generated more than one conviction; and four involved multiple counts.[215] It noted that previous convictions for a sexual offence were an aggravating factor which would normally result in the imposition of a severe sentence.[216] A sentence of 10 or 11 years was unusual, even after a plea of not guilty, unless there were circumstances of unusual violence or premeditation.[217] A sentence range of 9 to 14 years was more likely where the degree to which the offender chose to violate and humiliate the victim warranted it.[218]

1.94 In the category of condign punishments, the Court considered cases in which a sentence range of 15 years to life imprisonment had been imposed.[219] The Court observed that 9 involved a single incident that lasted for a considerable number of hours; two involved gang rape; and 11 involved multiple incidents or multiple victims or both.[220] It noted that factors such as the nature of the victim, being very young or very old, the effect of the attack and the especial nature of the violence or degradation were characteristic of sentences within this most serious category.[221] A life sentence had been imposed where there had been a need to protect the community, where very serious, vicious and degrading sexual crimes had been committed against a victim over a period of years.[222] The abuse of trust [223] and the pursuit of a campaign of rape, for instance, against prostitutes [224] were also seen as aggravating factors.

1.95 Similarly, in People (DPP) v H[225] the Court of Criminal Appeal considered the more significant cases in which lenient, ordinary and serious sentences had been imposed for sexual offences which had been committed between 10 and 40 years before prosecution.

1.96 In People (DPP) v Pakur Pakurian[226] the Court of Criminal Appeal considered the range of punishments that might apply to robbery:

“...[I]n a very well planned commercial robbery one might be looking at eighteen years for the most culpable people, or twelve years for those less culpable, and one might also find that there are cases where because of the particular circumstances such as a mugging which was caused by heroin addiction which has been cured or where the person has entered rehabilitation, or matters of those nature, that the sentence might be significantly less than the seven years sentence, even perhaps a suspended sentence. But in between one finds a range of sentences and the Court is sure there are even ones of more than eighteen years, but a range of sentences which are appropriate.”[227]

Thus, depending on the presence of various factors, a person convicted of robbery might expect to receive a sentence in one of the ranges outlined above up to the statutory maximum sentence of life imprisonment.[228]

1.97 Bearing in mind the humanitarian principle, in particular, the custody threshold and the last resort principle, and the other aspects of the legality principle, the Commission is of the view that it is appropriate that certain offences at the high end of the scale of gravity should attract an immediate, substantial custodial sentence, save in exceptional circumstances.

(II) Locating the Particular Case on the Range of Applicable Penalties:

1.98 Having identified the range of applicable penalties, the courts must then locate the particular case on that range. In order to do this the courts must first determine the seriousness or gravity of the particular case. In People (DPP) v GK[229] the Court of Criminal Appeal attempted to identify the factors that must be considered in order to assess the gravity of a particular case:

“Having regard to the jurisprudence of this Court and of the Supreme Court the matters which determine the gravity of a particular offence are the culpability of the offender, the harm caused and the behaviour of the offender in relation to the particular offence.”[230] [Emphasis added]

It is interesting to note that these three indicia - namely, (i) culpability of the offender, (ii) harm caused and (iii) behaviour of the offender - had previously been highlighted by O’Malley, who cited the 2004 Guideline of the Sentencing Guidelines Council of England and Wales on Seriousness and the decision of the English Court of Appeal in R v Howells[231] in his research.[232] It is also interesting to note the extent to which these indicia draw attention to the individual circumstances of the case and the offender.

1.99 Regarding culpability, O’Malley asserts that it is useful to have regard to the nature of the mental element or mens rea which the offender is found, or appears, to have had when committing the offence.[233] He thus observes:

“Intention to cause harm clearly represents the highest level of culpability and the more harm intended, the greater the blameworthiness. Recklessness, in the sense of a conscious disregard of an unjustifiable risk, comes next, and again the greater and more dangerous the risk, the greater the culpability. Negligence would rank as the lowest form of culpability, which is not to say that it should be met with impunity if it has produced serious harm.”[234]

Thus on a scale of culpability, intention ranks highest, negligence ranks lowest and recklessness ranks somewhere in between.

1.100 In People (DPP) v O’Dwyer,[235] for example, a case concerning careless driving, the Court of Criminal Appeal made the following observation regarding culpability:

“The concept of careless driving covers a wide spectrum of culpability ranging from the less serious to the more serious. It covers a mere momentary inattention, a more obvious carelessness, a more positive carelessness, bad cases of very careless driving falling below the standard of the reasonably competent driver and cases of repeat offending. However, since even a mere momentary inattention in the driving of a mechanically propelled vehicle can give rise to a wholly unexpected death, the court has always to define the degree of carelessness and therefore culpability of the driving.”[236]

Thus for any given offence the sentencing court must look at the particular circumstances of the case (and the offender) to determine the level of culpability.

1.101 In the same case, the Court considered whether the fact that a death had occurred as a result of the careless driving could be considered an aggravating factor. In this regard, it distinguished between cases in which death had been an unfortunate consequence and cases in which there had been a high risk of death:

“[T]here is a world of difference between a mere momentary inattention in the driving of a mechanical (sic) propelled vehicle, which unexpectedly and tragically causes a loss of a life, and grossly careless driving, which, though still short of dangerous driving, hardly surprisingly results in a fatal collision. A rigid adherence in sentencing to an approach which excludes any reference to the death in itself as an aggravating factor, despite the many and various differences in the degrees of careless driving, would not be proportionate.

While the fact of death occurring may be a separate factor in itself, it should not be so in every case where there is a death. The occasions on which it becomes a factor must depend upon the finding of the court on the primary issue of the degree of carelessness and therefore of the culpability of driving.”[237]

In the particular circumstances of the case, where the primary issue of carelessness revolved around the fact that the applicant had driven with bald tyres, the Court found that it would be disproportionate to regard the death as an aggravating factor in itself.

1.102 Regarding harm, O’Malley asserts that the greater the harm caused the more serious the offence is likely to be considered.[238] Arguably, as illustrated by People (DPP) v O’Dwyer[239], the level of harm risked should also be a relevant factor.[240] O’Malley observes that difficulties may arise where it appears that the offence had more serious consequences than the offender intended, but that consequences that were reasonably foreseeable and that actually occurred should be taken into account when assessing harm.[241]

1.103 Thus in People (DPP) v WD[242] the Central Criminal Court referred to the effect of the rape on the victim, which was “somewhat worse than is usual”, in concluding that a sentence at the upper end of the normal range would be appropriate:[243]

“[T]he victim impact statement indicates that the victim had difficulty sleeping at first and suffered panic attacks. Her concentration went as to her studies and she began to panic about all matters. She lost interest in study and almost dropped out and left her part time job. She suffered a big character change from being outgoing into being closed with family and friends. Now she is uncomfortable in the presence of men and wary while out particularly at night and looking over her shoulder.”[244]

1.104 In People (DPP) v GK[245] the Court of Criminal Appeal referred to the “serious harm” done to the victim in concluding that the particular aggravated sexual assault lay in “the mid to upper range of seriousness on the scale of gravity of such assaults”:

“Though the victim did not receive any psychological or psychiatric treatment, it is clear from the Victim Impact Statement that the effect of this sexual assault on her was very grave. She was unable to work for four weeks. The cost of treatment to her damaged teeth is €2,900. Her enjoyment of life has been permanently impaired in that her sense of security in society has been lost and she has become overcautious in moving about during daylight hours and is afraid to go out at night unaccompanied. This is a very great imposition in the case of a single lady of twenty five years of age.”

1.105 Regarding offender behaviour, O’Malley indicates that an offence will be considered more serious where there are aggravating factors arising from the offender’s behaviour when committing the offence.[246] These include the use of a weapon (and the more dangerous the weapon, the more serious the factor),[247] the deliberate procurement of a weapon to commit the offence,[248] the targeting of vulnerable victims,[249] intrusion into a victim’s home,[250] premeditation and planning,[251] participation in a criminal gang,[252] abuse of trust or power,[253] infliction of deliberate and gratuitous violence or degradation over and above that needed to commit the offence,[254] commission of the offence for profit or other personal gain, or evidence of hostility towards the victim on racial, religious or other grounds.

1.106 Thus, for example, in People (DPP) v Tiernan,[255] a case concerning the sentence for rape, the Supreme Court identified the following aggravating factors:

“(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 assisting her in defending herself.

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

(7) The appellant had four previous convictions, being:-

(a) for assault occasioning actual bodily harm,

(b) for aggravated burglary associated with a wounding,

(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.”[256]

In light of these factors, the Supreme Court concluded that this was a particularly serious case of rape.

1.107 This approach was applied by the Court of Criminal Appeal in People (DPP) v Roseberry Construction Ltd and McIntyre,^[257] in which the first defendant was a building company and the second defendant was its managing director. The defendants pleaded guilty to charges under the Safety, Health and Welfare at Work Act 1989[258] related to the death of two persons on the building site for which the company had overall responsibility as main contractor. The defendant company was fined €254,000 (£200,000) for failure to have a safety statement under section 12 of the 1989 Act (now section 20 of the 2005 Act) and the managing director was fined €50,800 (£40,000) for managerial neglect under section 48(19) of the 1989 Act (now section 80 of the 2005 Act).

1.108 The company appealed against the severity of the fines imposed on it, but the Court of Criminal Appeal dismissed the appeal. The Court applied the general sentencing principle set out in People (DPP) v Redmond^[259] that a fine is neither lenient, nor harsh, in itself but only in terms of the circumstances of the person who must pay it. In this case, the Court noted that the somewhat unusual approach had been taken of stating that the company could pay the fine – it was not going to drive it out of business or anything of that sort, although without giving any indication of the level of business which the company conducted. The information which the Court had was the same as the trial judge, namely that it was a medium to large company and that at the time of the fatality it was conducting the building of 90 houses at the building site. The Court concluded that the company “was a substantial, relatively complex and profitable enterprise.”

1.109 The Court of Criminal Appeal then went on to consider the detailed principles it should apply. It approved of the list of aggravating and mitigating factors set out by the English Court of Appeal in R v F Howe & Son (Engineers) Ltd^[260] to be taken into account in the level of fines to be imposed in prosecutions under the equivalent British Health and Safety at Work Act 1974 .

1.110 The aggravating factors included:

· death resulting from a breach of the Act or Regulations,

· failure to heed warnings and

· risks run specifically to save money.^[261]

1.111 The mitigating factors included:

· prompt admission of responsibility and a timely plea of guilty,

· steps to remedy the deficiencies and

· a good safety record.^[262]

1.112 The Court in Roseberry also quoted the following comment of the English Court of Appeal in the Howe case:^[263]

“Next it is often a matter of chance that death or serious injury results from even a serious breach. Generally where death is the consequence of a criminal act it is regarded as an aggravating feature of the offence, the penalty should reflect public disquiet at the unnecessary loss of life.”[264]

1.113 The Court in the Roseberry case commented that what had occurred at the building site “undoubtedly was an unnecessary loss of life.” The Court also rejected the suggestion that the company could in any substantial way mitigate its liability by saying, in effect “Well the sub-contractor and not myself and not my company, was directly in charge of digging the trench where the fatality occurred.” On this aspect, the Court concluded that it was “perfectly plain… that control of the site had been retained by Roseberry Construction Ltd.” The Court added that its failure to have a Safety Statement and the other failures significantly contributed to what occurred; that if the Safety Statement had been prepared, the risk would have been formally considered and no doubt something done about it. The Court added:

“It was the failure of any party to take the simple remedial measures that gave rise to the substantial legal and moral guilt which must be regarded as attaching in the circumstances of this case.”^[265]

1.114 On this basis, the Court concluded that there had been no error in the fine which had been imposed in the Circuit Criminal Court and that, since the defendant was a successful company, the penalty was not excessive in the circumstances. A significant feature of the decision in the Roseberry case was the reference to the specific aggravating and mitigating factors identified in the English Howe case.

1.115 Similarly, in People (DPP) v Loving[266] a child pornography case, the Court of Criminal Appeal referred approvingly to the categorisation of child pornography made by the English Court of Appeal in R v Oliver,[267] where the court suggested the following graduated levels of seriousness in respect of images of child pornography:[268]

1. Images depicting erotic posing with no sexual activity;

2. Sexual activity between children solo or masturbation as a child;

3. Non-penetrative sexual activity between adults and children;

4. Penetrative sexual activity between children and adults;

5. Sadism or bestiality.

1.116 The Court in Loving also cited with approval the following comments of Rose LJ in the Oliver case, where he had suggested the following elements as being relevant to the offender's proximity to and responsibility for, the original abuse:[269]

“Any element of commercial gain will place an offence at a high level of seriousness. In our judgment, swapping of images can properly be regarded as a commercial activity, albeit without financial gain, because it fuels demand for such material. Wide-scale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to the potential use of the images by active paedophiles and by reference to the shame and degradation to the original victims.

Merely locating an image on the internet will generally be less serious than down-loading it. Down-loading will generally be less serious than taking an original film or photograph of indecent posing or activity ...”[270]

These examples indicate the influence of developments in other jurisdictions concerning sentencing principles and the appropriate grading of sentences within an offence.

1.117 In its 1996 Report on Sentencing,^[271] the Commission identified a number of factors which would aggravate the seriousness of an offence:

“Aggravating factors

(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;

(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

(b) increase the culpability of the offender for the offence.”^[272]

1.118 The Commission also identified a number of factors which would mitigate the seriousness of an offence:

“Mitigating factors

(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:

(a) reduce the harm caused or risked by the offender, or

(b) reduce the culpability of the offender for the offence.”^[273]

1.119 The Commission is of the view that it would be useful to set out the factors which aggravate and mitigate the seriousness of an offence in statutory form.

(III) Applying any Factors which Aggravate or Mitigate the Severity of a Sentence:

1.120 The factors which aggravate or mitigate the severity of a sentence, as opposed to the seriousness of an offence, are those factors which are likely to affect an otherwise proportionate sentence. In its 1996 Report on Sentencing,^[274] the Commission explained, and underlined the importance of, the distinction:

“The most important distinction drawn is that between factors which mitigate offence seriousness and factors which mitigate sentence.

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.

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.’

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 and the sentence may well give rise to controversy.”^[275]

1.121 The Commission identified four factors which would ordinarily mitigate the severity of a sentence:

“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.”^[276]

To this list could be added factors such as “previous good character” and “the possibility of rehabilitation”.

1.122 The Oireachtas has provided limited guidance regarding the effect of a guilty plea and cooperation with law enforcement authorities. Section 29 of the Criminal Justice Act 1999 provides that the courts may take a guilty plea into account when sentencing. In this regard, the courts should consider (a) the stage at which the person indicated an intention to plead guilty, and (b) the circumstances in which this indication was given. Notwithstanding a guilty plea, however, the courts may, in exceptional circumstances, impose the maximum sentence prescribed by law. In Chapter 3 the Commission will consider in greater detail the provisions of the Misuse of Drugs Act 1977 and the Firearms Acts which provide that the courts may have regard to (i) whether the person pleaded guilty and (ii) whether the person materially assisted in the investigation of the offence in determining whether to impose a presumptive minimum sentence.

1.123 The courts have provided more detailed guidance regarding the factors which mitigate the severity of a sentence. In People (DPP) v Tiernan,[277] for instance, the Supreme Court indicated that the stage at which a plea of guilty was entered was a relevant consideration:

“[I]n the case of rape an admission of guilt made at an early stage in the investigation of the crime which is followed by a subsequent 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.”[278]

1.124 In R v King[279] Lord Lane CJ indicated that the extent to which cooperation with law enforcement authorities may mitigate the severity of a sentence will depend on a number of factors:

“The quality and quantity of the material disclosed by the informer is one of the things to be considered, as well as the accuracy and the willingness or otherwise of the informer to give evidence against them in due course if required by the court. Another aspect to consider is the degree to which he has put himself and his family at risk by reason of the information he has given; in other words the risk of reprisal. No doubt there will be other matters as well. The reason behind this practice is expediency.”[280]

1.125 The extent to which an attempt to remedy the harmful consequences of an offence may mitigate the severity of a sentence will also depend on the circumstances of the case.[281] In People (DPP) v Princs,[282] a case concerning the sentence for manslaughter, it was argued in mitigation of the sentence that the respondent had attempted to save the deceased by stemming the flow of blood with towels or bandages. The Court of Criminal Appeal indicated that this merited limited credit as the respondent “never called for outside medical assistance even though he told the Gardaí that the deceased was alive after the stabbing for ten or fifteen minutes.”

1.126 In the same case, the Court of Criminal Appeal indicated that the trial judge had been right to taken into account the fact that imprisonment would be particularly difficult for the offender, who was a foreign national.[283] Similarly, in People (DPP) v H,[284] a case concerning the sentence for sexual offences which had been committed 30 years before, the Court of Criminal appeal indicated:

“The age and health of the offender should be looked at. If the offender is so elderly, or so unwell, then prison will be a special burden to bear, the sentence should reflect how a particular term may punish him as much [as] a longer term for a younger offender in reasonable health.”

1.127 In People (DPP) v GK[285] the Court of Criminal Appeal distinguished between the effect of “previous good character” and the effect of previous convictions:

“This court is satisfied that while previous good character is relevant to the character and circumstances of the accused which may be mitigating factors in terms of sentence previous convictions are relevant not in relation to mitigation of sentence but in aggravation of offence.”

1.128 In People (DPP) v Kelly,[286] a case concerning the sentence for manslaughter, the Court of Criminal Appeal indicated that it would have to “give considerable weight to the absence of previous convictions.”[287]

1.129 Regarding the possibility of rehabilitation, the Supreme Court in People (DPP) v M[288] stated:

“As was stated in the judgments of the Court of Criminal Appeal... an essential ingredient for consideration in the sentencing of a person upon conviction, in any case in which it is reasonably possible is the chance of rehabilitating such person so as to re-enter society after a period of imprisonment...”[289]

Having regard to the accused’s age, the stage at which he would re-enter society, the age he would be at that time and the period of life remaining to him, the Court thus concluded that an overall sentence of 18 years should be reduced to 12 years.

(c) Consistency

1.130 The principle of consistency has traditionally been explained in terms of like cases being treated alike and different cases being treated differently.[290] The corollary of this is that inconsistency can be explained in terms of like cases being treated differently and different cases being treated alike. It should be noted, however, that when we refer to consistency we are referring to consistency of approach rather than consistency of outcomes.[291] In the Halliday Report, it was observed that consistency could be recognised in terms of like cases resulting in like outcomes but:

“The variety of circumstances in criminal cases... makes this an incomplete definition, and one which can result in undesirable priority being given to apparently uniform outcomes, regardless of the circumstances. A better approach is to seek consistent application of explicit principles and standards, recognising that these may result in justifiably disparate outcomes.”[292] [Emphasis added]

1.131 In its 2004 Consultation Paper on Prosecution Appeals from Unduly Lenient Sentences in the District Court,[293] the Commission took a similar approach by distinguishing between sentencing disparity and sentencing inconsistency:

“While sentencing disparity may be justified, given the nature of the offence and the individual circumstances of the offender, sentencing inconsistency is not acceptable, such as where individual judges may differ widely in dealing with similar offenders for similar offences.”[294]

1.132 The need for a consistent approach becomes all the more obvious when one considers the numerous factors which may influence sentencers.[295] Ashworth asserts that these factors fall into four broad categories. The first category relates to the views that sentencers may have regarding the facts of the case. The second category relates to the views that sentencers may have regarding the principles of sentencing. In this category, Ashworth includes views regarding the gravity of offences; the aims, effectiveness and relative severity of the available types of sentence; the general principles of sentencing; and, the relative weight of aggravating and mitigating factors. The third category relates to views regarding crime and punishment. In this category, Ashworth includes views regarding the aims of sentencing; the causes of crime; and, the function of courts passing sentence. The final category relates to the demographic features of sentencers. In this category, Ashworth lists age, social class, occupation, urban or rural background, race, gender, religion and political allegiance. These factors may influence sentencers to varying degrees. While sentencers are expected to have developed a high level of resistance to outside influences the Commission observes that no-one can be entirely immune.

1.133 Furthermore, sentencing is not an exact science so the principle of consistency cannot be applied in absolute terms and some degree of variation is inevitable.[296] Indeed, it has been argued that this is a small price to pay for a justice system which guarantees individualised punishment.[297] However, this argument should not be taken too far as a system which tolerates gross inconsistency is manifestly unfair and risks losing public confidence.[298] In such circumstances, the Oireachtas may feel compelled to respond by circumscribing judicial discretion through the imposition of mandatory sentences or rigid sentencing guidelines.[299] In this regard, it has been observed that the challenge posed by the principle of consistency is “to eliminate undue disparity without replacing it with excessive uniformity.”[300]

(d) Openness/Transparency

1.134 Arguably, the principle of openness/transparency is a constitutional principle.[301] It requires that sentencing be fair and be seen to be fair.[302] Sentencing should be transparent in the context of particular sentencing decisions and in the context of sentencing practice. Thus, it is observed in the Halliday Report that reasons should be given for sentencing decisions, in a language that will be understood by everyone involved, and retained in a form which enables them to be retrieved for later reference.[303] Furthermore, information regarding sentencing theory and practice should be made available to the public and any public misconceptions should be addressed directly with the aim of increasing public knowledge.[304] The Commission observes that this enables members of the public to make informed contributions to debates on the issue of sentencing. This, in turn, may filter through to the sentencing-decisions being made by the Oireachtas and the Executive.

1.135 O’Malley asserts that the principle of openness/transparency requires sentencing decisions to be announced in open court and supported by announced reasons.[305] The provision of reasons serves both a normative and an instrumental goal.[306] From a normative perspective, it is argued that a person affected by a decision has a moral right to know the reasons for it. From an instrumental perspective, an obligation to give reasons serves several purposes. First, it encourages sentencers to critically assess their decisions to ensure that they have considered all the relevant factors and given the appropriate weight to those factors. Second, it assists with the development of the law by ensuring that the factors and principles relevant to a particular decision have been recorded. Third, it enables sentenced persons to assess whether there are valid grounds for appeal or review and judges to determine whether a particular decision is compatible with the governing rules and principles.

1.136 While it is desirable that reasons be given for sentencing-decisions, the case law suggests that there is no duty to do so under Irish law.[307] In O'Mahony v District Judge Ballagh and DPP,[308] the District Court judge, Ballagh J, had convicted and sentenced the applicant without ruling on his submissions for a non-suit. The applicant sought to judicially review the decision but the High Court refused to grant an order of certiorari against the conviction. The applicant appealed to the Supreme Court and Murphy J, with whom Hardiman and Geoghegan JJ concurred, stated:

“I would be very far from suggesting that judges of the District Court should compose extensive judgments to meet some academic standard of excellence. In practice it would be undesirable - and perhaps impossible - to reserve decisions even for a brief period. On the other hand it does seem... that every trial judge hearing a case at first instance must give a ruling in such a fashion as to indicate which of the arguments he is accepting and which he is rejecting and, as far as is practicable in the time available, his reasons for so doing... [T]here is no suggestion that Judge Ballagh conducted the case otherwise than with dignity and propriety. It does seem to me, however, that in failing to rule on the arguments made in support of the application for a non-suit he fell ‘into an unconstitutionality’...”[309]

1.137 In People (DPP) v Cooney[310] the applicant, who had been convicted of manslaughter and sentenced to 14 years’ imprisonment by the Central Criminal Court, sought leave to appeal the severity of the sentence. Leave was sought on the grounds that Carney J had erred in principle by failing to provide cogent reasons for his sentencing-decision and to consider any of the matters raised on behalf of the applicant in his plea of mitigation. Regarding the provision of reasons, the Court of Criminal Appeal stated:

“It cannot be said that as the law stands at present a sentencing judge is under an obligation to give reasons for the particular sentence which he imposes. It is, however, in our opinion fair to say that it is a desirable practice.”

1.138 In O'Neill v Governor of Castlerea Prison[311] the applicants applied to judicially review the decision of the Minister for Justice, Equality and Law Reform to exclude them from consideration for release under the Good Friday Agreement. The High Court rejected their application and they appealed to the Supreme Court. One of their arguments was that the Minister, in responding to the application for judicial review, had failed to make full disclosure of the documents on which he had relied to exclude the applicants from the category of “qualified prisoners”. Keane CJ, with whom Denham, Murray, McGuinness and McCracken JJ concurred, stated:

“The authorities both in this court and the High Court accordingly support the proposition that, while it cannot be said that reasons must be given in the case of every administrative decision, such a duty may arise in circumstances where, unless such reasons are provided, the legitimate interests of a person may be affected. The authorities demonstrate that a failure to give reasons may invalidate the decision in cases where the decision maker is not exercising a quasi-judicial function, but is at the least required to observe fair procedures...”[312]

1.139 In McAlister v Minister for Justice, Equality and Law Reform,[313] the applicant, who was serving a prison sentence, requested and was refused compassionate temporary release in order to visit his sick mother. The applicant sought an order quashing the decision of the Minister for Justice refusing temporary release and a declaration that he was entitled to reasons as to why his application had been refused. The High Court, per Finnegan P, observed:

“It has long been recognised that it is desirable that a quasi-judicial or administrative decision be capable of judicial review or appeal should be accompanied by reasons. That is not to say that a discursive judgment is required.”[314]

1.140 In a similar vein, O’Malley observes that it would not be practical to require sentencing courts to provide reasons for every sentence.[315] He notes, however, that the possibility of requiring sentencing courts to provide reasons for “certain sentences, say prison sentences of less than six months which might be replaced with community-based penalties” is worth discussing.[316]

1.141 This accords, in general, with the approach taken by the English courts. In R v Higher Education Funding Council, ex p. Institute of Dental Surgery,[317] Sedley J considered whether an administrative body was obliged to furnish reasons for the rating it had awarded the Institute of Dental Surgery for the purpose of funding. He concluded that there was no general duty to give reasons for a decision but that there were classes of case for which such a duty existed.[318] One such class was where the subject matter was an interest so highly regarded by the law - for example, personal liberty - that fairness required reasons to be given as of right.

1.142 O’Malley observes that this case was decided before the European Convention on Human Rights became part of English law and that a more relevant English precedent would be English v Emery Reimbold & Strick Ltd,[319] which was decided after incorporation. Lord Phillips of Worth Matravers MR observed that while there was a general recognition at common law that it was desirable for judges to give reasons for their decisions it was not universally accepted as a mandatory requirement.[320] He noted, however, that justice would not be done if it were not apparent to the parties why one had won and the other had lost.[321] As to the extent of reasons which should be given, he stated:

“[I]f the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision.”[322]

1.143 The European Court of Human Rights has taken a similar approach regarding its interpretation of Article 6 (right to a fair trial) of the European Convention on Human Rights:

“The Court reiterates that, according to its established case law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of circumstances of the case. Although Article 6(1) obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons of the lower court’s decision.”[323]

1.144 The Commission concludes that while reasons might be desirable for certain sentences, it would not be practical to require sentencing courts to provide reasons for all sentences. To that extent, a requirement to provide reasons would enhance the value of the Irish Sentencing Information System; facilitate the conduct of future analytical research; contribute to the production of high-quality, consistent sentencing decisions; encourage informed public debate; and attract public confidence in the Irish sentencing system.

1.145 The Commission provisionally recommends that the justice principle, comprising legality, proportionality, consistency, transparency/openness is a key principle of criminal sanctions and sentencing.

(3) Economic Principle

1.146 The economic principle relates to constraints on the financial resources available to the criminal justice system.[324] As a result of financial constraints it is not possible, for instance, to allocate a member of the Garda Síochána to each citizen. Thus, the criminal justice system - and, indeed, the sentencing system - must consider which measures, within those financial constraints, are likely to be the most effective in terms of achieving the aims of criminal justice system/criminal sanctions. This is the principle of effectiveness.

1.147 There are three limbs to the principle of effectiveness. First, a process should be objective-led - the objectives being clear and achievable. Second, the process should be monitored in order to determine whether the process is meeting the particular objectives. Third, the assumptions underlying the objectives should be clear.

1.148 In the context of sentencing, the first limb of the principle requires that sentencing be objective-led. In this regard, the Commission recalls the general aims of criminal sanctions, namely, punishment, deterrence, reform and rehabilitation, and reparation. As to whether these objectives are as clear and achievable as the principle of effectiveness requires is a matter for debate. There are a number of issues in this regard. The Commission notes, in the first place, that the general purposes of sentencing quite often appear to be aspirational rather than obtainable. Second, it is unclear whether they are of equal importance or whether one purpose should supersede the others.[325] Third, the role of each branch of government in determining the purpose to be pursued in a given case is unclear. It has been argued, for instance, that the power to select from among the various purposes is a power to determine policy and should, therefore, be reserved to the Executive and/or Oireachtas rather than the judiciary. [326]

1.149 The second limb of the principle of effectiveness requires that sentencing be monitored to assess its performance in meeting the stated objectives. To facilitate such an assessment, the Commission notes that it would be necessary to identify the purpose or purposes being pursued by each sentencing option - custodial or non-custodial - and to agree on a system of benchmarks against which the performance of each option could be reviewed. The Commission acknowledges the work done to establish the Irish Sentencing Information System and observes that this collection may prove to be a useful resource for any future assessment. The Commission is not aware of any assessments having been conducted to date.

1.150 The third limb of the principle of effectiveness requires that the assumptions underlying the particular objective be clear. These are the important events, conditions or decisions outside the sentence that must prevail for the objective to be achieved. Thus, for example, if the purpose of rehabilitation is pursued, there must be facilities in place to support rehabilitation; or, if a provision is enacted to deal with a particular situation, that situation must prevail if the provision is to be justified; or, if a provision is enacted as part of a programme to deal with a particular type of offending, the other aspects of the programme must be in operation as well.

1.151 The Commission observes that an effective sentencing system attracts public confidence. The Irish sentencing system is objective-led but more research is required to assess how the system is meeting these objectives. Such research should consider whether the objectives pursued by sentencing are clear and achievable and whether the assumptions underlying the objectives prevail. While the principle of effectiveness is important to the sentencing system in general, the Commission notes that it is of particular relevance to mandatory sentencing. As noted above, mandatory sentencing provisions have the potential to impinge on the rights of the accused to a greater extent than discretionary sentencing provisions. Thus it is crucial that their use should be limited to situations in which it can be shown that they effectively pursue defined objectives which are based on clear and prevailing assumptions.

(4) Discussion

1.152 It is thus clear that criminal sanctions and sentencing are framed by a number of factors including the overarching aims of the criminal justice system; the aims of criminal sanctions; and the principles which safeguard citizens against excessive behaviour by the State.

1.153 Bearing these factors in mind one can expect a structured sentencing system in which: (1) the most severe sanctions, including lengthy prison sentences, are reserved for the most serious crimes; (2) less severe sanctions, including medium range prison sentences, are reserved for less serious crimes; and (3) the least severe sanctions including fines, probation orders and community service orders are reserved for the least serious crimes.

1.154 There are, however, a number of significant deficiencies in the Irish sentencing system - not least of which is the fundamental lack of consensus regarding the aims and principles which frame the sentencing process, their relative significance and how they should be implemented.

D Deficiencies in the Irish Sentencing System

(1) Lack of Consensus

1.155 There is a fundamental lack of consensus regarding: (a) which aims and principles should frame the sentencing process; (b) their relative significance; and (c) the manner in which they should be implemented. The current approach, the “cafeteria approach”,[327] leaves the determination of these matters to individual sentencing courts. As the outcome of such a determination can vary from court to court, there are inevitable implications for the humanitarian principle, the justice principle and the economic principle. These will be considered in greater detail below.

1.156 Thus in People (DPP) v GK,[328] for example, the Court of Criminal Appeal, per Finnegan J, indicated:

“This Court has to consider what is the appropriate sentence for this particular crime because it was committed by this particular offender... In discharging this function, the Court examines the matter from three aspects in the following order of priority, rehabilitation of the offender, punishment and incapacitation from offending and, individual and general deterrence.”

Thus, in order of priority, rehabilitation comes first, punishment and incapacitation come second, and deterrence comes third.

1.157 By contrast, in People (DPP) v WD,[329] the Court of Criminal Appeal, per Charleton J, indicated:

“The function of a court in imposing sentence is manifold. It involves punishing the offender, protecting society and offering the possibility of rehabilitation through the humane disposal within the penal system of a violent perpetrator.”[330]

While the court does not specify any order of priority, it might be inferred from the order in which the aims are mentioned that punishment comes first, the protection of society comes second and rehabilitation comes third.

1.158 In addition, it has been asserted that it is one thing to agree that sentencing courts should have discretion to tailor sentences to the individual circumstances of particular cases but quite another to suggest that sentencing courts should be free to choose a sentencing aim in particular cases.[331] The freedom to select from among the various sentencing aims, it is argued, is a freedom to determine policy, not a freedom to respond to unusual circumstances.[332] In this regard, it may be noted that the determination of policy is a role generally reserved to the Oireachtas.

1.159 The Commission observes that this issue might be addressed by agreeing to certain aims and principles being set out in statute.[333] As illustrated in Section F, this is the approach that has been adopted by a number of common law countries. In the Irish context, there are, at least, three ways in which this approach might work.[334] First, the statute might set out the aims and principles but leave it to the courts to determine the particular aim to be pursued in individual cases.[335] The problem with this approach is that while the Oireachtas determines policy at a very general level, sentencing courts are still permitted to determine policy in individual cases. Second, the statute might declare one aim as taking priority over all other aims.[336] The problem with this approach is that it might be too rigid in light of the wide range of offences and offenders which appear before the sentencing courts. Third, the statute might declare a primary aim but provide that in certain types of case one or other aim might be given priority.[337] This approach seems to succeed where the others have failed in so far as it seeks to ensure that sentencing policy is determined by the Oireachtas while avoiding the rigidity that could interfere with the role of sentencing courts in individual cases.

(2) Potential Breach of the Humanitarian Principle

1.160 As noted at paragraph 1.53, the humanitarian principle, in its strongest form, prohibits the use of criminal sanctions which are considered to be inhumane by current standards. Bearing in mind constitutional and human rights safeguards, the Commission observes that there is a low risk of the Irish sentencing system running afoul of this aspect of the principle.

1.161 There is, however, a greater risk of the Irish sentencing system running afoul of the humanitarian principle in its milder form, namely, where it constrains the use of permitted criminal sanctions. In respect of the most severe criminal sanctions, namely, custodial sanctions, it has been asserted that the “most fundamental deficiency in the present system is the absence of anything remotely approximating to a consensus on who should be sent to prison and why they should be sent there.”[338] A major contributory factor is the use of concepts such as the “custody threshold” and the “last resort” principle, which are, at best, ill-defined and difficult to interpret.

1.162 The Commission observes that this issue might be addressed by statutory definitions of the custody threshold and the last resort principle.[339] This might usefully be accompanied by a statutory declaration of the range of non-custodial and custodial sanctions available in Ireland.

1.163 In England and Wales, section 79(2) of the Powers of the Criminal Courts (Sentencing) Act 2000, which defines the custody threshold, provides that a court must not pass a custodial sentence unless it is of the opinion that the offence, or a combination of the offence and one or more offences, is so serious that only a custodial sentence can be justified for it.

1.164 The American Bar Association Criminal Justice Standards go further by combining a definition of the custody threshold and the last resort principle:

“(a) A sentencing court should prefer sanctions not involving total confinement in the absence of affirmative reasons to the contrary. A court may select a sanction of total confinement in a particular case if the court determines that:

(i) the offender caused or threatened serious bodily harm in the commission of the offence,

(ii) other types of sanctions imposed upon the offender for prior offences were ineffective to induce the offender to avoid serious criminal conduct,

(iii) the offender was convicted of an offence for which the sanction of total confinement is necessary so as not to depreciate unduly the seriousness of the offence and thereby foster disrespect for the law, or

(iv) confinement for a very brief period is necessary to impress upon the offender that the conduct underlying the offence of conviction is unlawful and could have resulted in a longer term of total confinement;

(b) A sentencing court should not select a sanction of total confinement because of community hostility to the offender or because of the offender’s apparent need for rehabilitation.”[340]

(3) Potential Breach of the Justice Principle

(a) Legality Principle

1.165 As noted at paragraph 1.68, the legality principle requires that sentencing law be declared in advance and be clear, predictable and certain. The Commission observes that Irish sentencing law does not always meet these requirements.

1.166 Arguably, the situation is worst in relation to the aims and principles of criminal sanctions. At a very basic level, there is a lack of consensus regarding: (a) which aims and principles should frame the sentencing process; (b) their relative significance; and (c) the manner in which they should be implemented.[341] It is thus left to individual sentencing courts to use their discretion to determine each of these matters in individual cases.[342] In the absence of any form of guidance, however, the results of these determinations can vary from court to court, and case to case. This, in turn, gives rise to a lack of (public) understanding regarding: (a) the aims and principles which frame the sentencing process; (b) their relative significance; and (c) the manner in which they are implemented.

1.167 The situation is not much better in relation to statutory sentencing provisions. True, the legality principle, at times, may require no more than compliance with a statutory provision which prescribes a mandatory sentence or, where applicable, the jurisdictional limits of a sentencing court.[343] In the majority of cases, however, the task may not be as clear-cut. Statutes do not provide the basis for many aspects of sentencing law. Where statutory sentencing provisions exist, they are dispersed among a wide variety of statutes, making them difficult to locate. In addition, statutory sentencing provisions tend to be sparse on detail - setting out the basic aspects of a particular sentence without elaborating on the specifics, such as aggravating and mitigating factors. Statutory sentencing provisions are developed in virtual isolation of each other and tend to be crime-specific. This causes statutory sentencing law to be unclear, at best, and incoherent or inconsistent, at worst.

1.168 The situation regarding sentencing case law is equally problematic. In the absence of a comprehensive set of principles and aims or body of law, sentencing policy varies from court to court, and case to case. Indeed, it is not always clear from the sentencing decision - where it has been reported - what policy approach has been adopted by the court or the extent to which aggravating or mitigating factors have been taken into account. While the Irish Sentencing Information System is an important development, it cannot be described as a comprehensive collection of sentencing decisions. Sentencing courts, for the most part, operate independently of each other and are not obliged to consider each other’s sentencing decisions. Thus, individual sentencing courts tend to develop their own approaches to sentencing decisions.[344] As a result, sentencing case law can be unclear, incoherent and inconsistent.

1.169 As will be illustrated throughout this Consultation Paper, the Commission observes that many of these problems arise in respect of the relatively confined area of mandatory sentencing. It is not clear which principles and aims of criminal sanctions are relevant in cases where a mandatory sentencing provision applies. Mandatory sentencing provisions are crime-specific and dispersed among a variety of statutes. As a result, there is a lack of coherency and consistency in mandatory sentencing.[345] In addition, given the low level of judicial interpretation of some mandatory sentencing provisions, they can be difficult to interpret.

1.170 There is thus something to be said for the suggestion that a sentencing act be introduced to satisfy the legality requirement.[346] The purpose of this act would be to set out in one legal instrument the law related to sentencing. This would involve a consolidation and, no doubt, some clarification of existing sentencing law.

(b) Proportionality Principle

1.171 As noted at paragraph 1.70, the proportionality principle comprises constitutional proportionality and sentencing proportionality.

1.172 Regarding constitutional proportionality, the Commission has observed that the Oireachtas’s power to enact statutory sentencing provisions is subject to the test of constitutional proportionality. As statutory sentencing provisions tend to be developed in isolation of each other, there is a risk that a statutorily prescribed sentence might appear proportionate to a particular offence but be disproportionate when assessed against the sentences prescribed for other offences. Thus, for instance, it has been asserted that it does not make sense to prescribe a presumptive sentence of five years for certain firearms offences when a presumptive sentence of 10 years has been prescribed for certain drugs offences.[347]

1.173 Regarding sentencing proportionality, the Commission has observed that this requires sentencing courts to impose a sentence that is proportionate to the gravity of the offence and the circumstances of the offender. There is little guidance or, at most, conflicting guidance, as to how the courts are supposed to determine the gravity of the offence or the relevant circumstances of the offender. As noted in paragraph 1.82, the two-tiered approach to sentencing has been advocated by the Supreme Court. This requires, at one level, the assessment of factors relating to the seriousness of the offence and, at another level, the assessment of factors relating to the severity of the sentence. In spite of this, however, it has been the tendency of the courts to list the aggravating and mitigating factors without any overt distinction as to whether they relate to seriousness or severity.

1.174 For instance, in People (DPP) v Princs,[348] a case concerning the sentence for manslaughter, the Court of Criminal Appeal upheld the trial judge’s list of mitigating factors, namely:

· “[The respondent] co-operated with the Gardaí in the investigation and admitted to them his part in the offence.

· He indicated at an early stage his willingness to plead guilty to the crime of manslaughter which in fact was the crime on which the Jury found him guilty.

· He showed immediate genuine remorse for the crime. He tried to save the deceased by the application of bandages which in any event could not be successful as immediate skilled medical attention would have been required.

· The Respondent was a person of good character with no previous convictions in this country or his home country.

· The offence was not ‘in any sense a premeditated act, but it was something which erupted spontaneously against a background of drink on both sides’.

· The extra burden which imprisonment in a foreign environment imposes on a foreign national including the increased sense of isolation which such persons may suffer due to limited English language skills and the fact that the Respondent has no family in this country who can give him some support by visiting him in prison.”

Arguably, most of these factors are relevant to the severity of sentence whereas “premeditation” is a matter more appropriately considered in relation to the seriousness of the offence.

1.175 Similarly, in People (DPP) v H[349] a case concerning the sentence for sexual offences which had been committed 30 years before, the Court of Criminal Appeal indicated:

“The ordinary principles of mitigation and aggravation should be applied to the circumstances of the case. For instance, if there was a plea of guilt or if there were circumstances in the offender’s own background which might explain the depraved behaviour, then such circumstances might mitigate the penalty. If the offences were systematic; involved an abuse of trust; or involved predatory behaviour over a period of years; or multiple victims, then the tariff must reflect this.”

Arguably, a guilty plea and the offender’s background are matters relevant to the severity of sentence whereas the extent to which the offence is systematic, involves an abuse of trust etc is a matter relevant to the seriousness of the offence.

1.176 As noted at paragraph 1.120, the Commission observed in its 1996 Report on Sentencing^[350] that a failure to observe the distinction between factors relating to the seriousness of an offence and factors relating to the severity of a sentence could lead to disproportionate sentencing.^[351]

1.177 In England and Wales, the former Sentencing Guidelines Council issued a sentencing guideline entitled Overarching Principles: Seriousness.[352] The guideline refers to culpability and harm as the determinant factors of seriousness and lists the most important and most commonly occurring aggravating and mitigating factors. Sentencing guidelines in respect of particular offences provide more detailed guidance regarding the aggravating and mitigating factors which are likely to arise in respect of those offences.

1.178 The Commission observes that the development of a statutory sentencing framework would necessitate the collation and, at times, consolidation of sentencing law. This process would facilitate the development of a coherent sentencing policy which would guard against the enactment of incoherent or disproportionate sentencing provisions. And, the result of this process - a clear and coherent statement of the law - would guard against the imposition of disproportionate criminal sanctions. Such a statutory framework might usually set out and distinguish factors which relate to the seriousness of an offence and the factors which relate to the severity of a sentence. Sentencing guidelines might provide more detailed guidance regarding the process by which a proportionate sentence is to be determined.

(c) Consistency Principle

1.179 The Commission observes that sentencing in Ireland is perceived to be highly inconsistent, in particular, with regard to the implementation of mandatory sentencing.[353] O’Malley attributes inconsistency to the “regional organisation of the lower courts, the dearth of formal contact between them and the undoubted duty of all judges to act independently”.[354] Maguire, on the other hand, identifies the individualised sentencing system, the multiplicity of sentencing aims, and judicial variability as being the root causes.[355] A couple of recent studies support the assertion that there is inconsistency in sentencing.[356]

(i) 2007 Study

1.180 In a 2007 study,[357] a number of District Court judges were interviewed and asked to respond to several sentencing vignettes.[358] The purpose of the study was to explore (i) judicial views on sentencing and consistency in sentencing; (ii) the degree of consistency in sentencing between individual judges; and (iii) the reasons for inconsistency, if any, in sentencing practices of individual judges.

1.181 The study made several findings regarding judicial views on sentencing. The judges’ descriptions of sentencing appeared to correspond with the “instinctive synthesis” approach to sentencing.[359] While most judges indicated that there was no tariff or “going rate”,[360] some indicated that judges developed their own views of things or their own particular approaches to certain types of cases and penalties.[361] Some judges rejected the idea that consistency in sentencing was possible in an individualised system.[362] It would appear, however, that “consistency” in this context referred to consistency of outcomes rather than consistency of approach.

1.182 The study also made several findings regarding the degree of consistency in sentencing between individual judges. Overall there were high levels of inconsistency when the sentencing outcomes of the different District Court judges were compared.[363] The degree of inconsistency in sentencing outcomes varied according to the seriousness of the offence.[364] The sentencing outcomes were most consistent for the most serious case whereas they were least consistent for the least serious case. Inconsistency was most pronounced in relation to the type of penalty judges would impose, and was particularly apparent in relation to the choice between different non-custodial sanctions.[365] The less serious the case the more likely the judges were to agree that it warranted a non-custodial sanction, and the more likely they were to disagree about which non-custodial sanction to impose. The more serious the case the more likely the judges were to impose a custodial sanction and the more likely they were to agree about the type of custodial sanction. Even when judges agreed about the type of penalty to impose in a particular case, they disagreed, in some cases quite significantly, about the quantum of penalty to impose.

1.183 At the same time, several general patterns in sentencing were identified.[366] In relation to the assault vignette, for instance, one group comprised those who would impose some form of financial penalty; a second group comprised those who would either impose a financial penalty or a more severe penalty such as community service, prison or a suspended sentence; and a third group comprised those who would impose either a community service order, prison sentence or suspended sentence. A general pattern also emerged in respect of sentencing heroin-addicted offenders.[367] Most judges indicated that they would offer the offender an opportunity to get drug treatment in order to avoid a prison sentence. In general, if the offender was successful and complied with all the requirements the court had imposed, the judges indicated that he or she should face a non-custodial penalty. However if the offender was unwilling to engage in drug treatment, the majority of judges indicated that they would impose a prison sentence.[368] In addition, a uniform rationale emerged in respect of the imprisonment of persistent offenders.[369] Many judges indicated that they would impose an immediate prison sentence principally because the offender had had previous chances and had refused to change.

1.184 The study concluded that inconsistencies in the sentencing outcomes could be traced back to several discrete factors, all of which related to inconsistency in approach. These included differences in how judges interpreted the facts of the case, especially the seriousness of the offence; differences in the weight they attached to certain factors, in particular aggravating and mitigating factors; differences in judicial views regarding the appropriateness of different penalties for certain offenders and offences; and differences in the sentencing objectives prioritised.[370] Maguire thus asserts that reducing inconsistency in Ireland will require “addressing the incoherency of current sentencing policy and law, as well as trying to mitigate the worst effects of judicial variability”.[371]

(ii) 2003 Study

1.185 In 2003, the Irish Penal Reform Trust undertook a study into sentencing patterns in the Dublin District Court.[372] The study was carried out over an 8-week period by two IPRT researchers who observed proceedings in the Dublin District Court. The purpose of the study was to (i) identify how judges use the sentencing options open to them and the patterns, if any, in their choices; and (ii) determine how often reasons are given for sentences. The study found that judges rarely made explicit connections between custodial sanctions and rationales for imprisonment. When they did speak of rationales, however, they demonstrated no coherent policy. Thus there was little consistency in approach. Researchers also witnessed very different outcomes for cases with very similar factual matrices. For the same minor offence, the penalty ranged from a simple reprimand to a fine to a recorded conviction that restricted employment opportunities and might expose an impecunious offender to the risk of imprisonment. Thus there was little consistency in outcomes.

1.186 By setting out the principles and aims, and providing guidance as to how they should be implemented, the Commission observes that a statutory sentencing framework would reduce the current level of inconsistency in sentencing. Sentencing guidelines might provide more detailed guidance regarding the procedure to be followed by sentencing courts.

(d) Openness/Transparency Principle

1.187 The Commission observes that sentencing law could be more open/transparent. The aims and principles which frame the sentencing process are not set out in a comprehensive manner. In addition, statutory sentencing provisions tend to be developed in virtual isolation of each other and dispersed among a wide variety of statutes. Furthermore, sentencing courts are not required, nor should they be, to provide reasons for every decision. As a result, it can be difficult for members of the public, including the offender, to identify the factors which have informed particular sentencing decisions.

1.188 The Commission observes that a statutory sentencing framework, comprising a comprehensive statute and a judicial council empowered to develop sentencing guidelines, would alleviate this problem by making available reliable and accessible information on sentencing in the public domain. This would give the public greater clarity regarding - and, arguably, greater confidence in - the Irish sentencing system. It would also encourage members of the public to engage in and assess public debates on sentencing by reference to reliable information rather than rhetoric.[373] In particular, it would assist the public to weigh up the costs and benefits of various proposals, including their fiscal and resource implications. This would, in turn, help to distil those situations in which sentencing reform, in the form of more mandatory or more punitive criminal sanctions, is really necessary from those situations in which it is not.

(4) Potential Breach of the Economic Principle

1.189 Bearing in mind the economic constraints on the choice of criminal sanctions, the Commission observes that more could be done to ensure that the criminal sanctions being imposed are effective. The aims of criminal sanctions could be clearer, in terms of being set out in a comprehensive manner, and it is debatable as to whether they are, in all circumstances, achievable. Furthermore, there has been little, if any, analysis as to whether the criminal sanctions being employed are achieving these aims or, indeed, the discrete aim of the particular piece of legislation.

(5) Discussion

1.190 The fact that there are a number of significant deficiencies in the Irish sentencing system seems to suggest that there is a need for more structure in sentencing. Before dealing with how that structure might be achieved, it is useful to begin with an examination of the current position in Ireland on structured sentencing and guidelines.

E The Current Position in Ireland on Structured Sentencing and Sentencing Guidelines

1.191 It has been noted that Ireland, by contrast with most common law jurisdictions, has a largely unstructured sentencing system [374] in which the courts exercise a relatively broad sentencing discretion.[375] Sentencing discretion is, of course, constrained by the sentencing aims and principles discussed in this chapter, but in practice sentencing judges have a wide measure of discretion in individual cases. In this section, the Commission considers the extent to which appellate review might contribute to a structured approach. The Commission also discusses the extent to which the courts in Ireland have developed some elements of a structured approach, including the use of general guidance or guidelines. Finally, the Commission considers the development, under the auspices of the Courts Service, of the Irish Sentencing Information System (ISIS).

(1) Judicial Structure

(a) Appellate Review

1.192 In its 1993 Consultation Paper on Sentencing,[376] the Commission observed that 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”.[377] In particular, the principle of co-ordinate jurisdiction means that judges of the same court are, by and large, free to disregard each other’s sentencing decisions. As a result, it is in the appellate courts where sentencing policy is primarily shaped. The obvious advantage of this approach is that appellate courts are uniquely situated to offer effective guidance on many key aspects of sentencing.[378] The Commission observes, however, that there are a number of significant disadvantages of relying on appellate review to provide sentencing guidance.

1.193 First, the appellate courts lack a sufficient volume of sentencing appeals from which to develop considered and principled sentencing guidance.[379] Having said that, the volume of cases being appealed today is larger than the volume of cases being appealed at the time the Commission’s Consultation Paper and Report were published. By contrast to the situation which prevailed in 1993 and 1996, the defence and the prosecution may now appeal against a sentencing decision. However, the fact that appeals are confined to situations in which there has been an “error of principle”[380] means that there are relatively few opportunities for appellate courts to develop sentencing guidance.

1.194 Second, even when the opportunity does arise to develop sentencing guidance, appellate courts are limited to a case-by-case consideration.[381] Thus sentencing guidance develops in fragments over a protracted period of time.[382] Guidance will more than likely be limited to the particular circumstances of the case. Furthermore there may be more guidance in relation to indictable offences and imprisonment than in relation to more commonly-prosecuted offences, in particular those which are disposed of summarily.[383] In addition, while this may lead to greater cohesion in sentencing for particular offences it provides little room to generate cohesion in overall sentencing patterns.[384]

1.195 Third, appellate courts operate in an information vacuum.[385] They lack the full range of perspectives, experience and expertise.[386] By and large, they will be dependent on the information submitted by counsel and any other presentence reports. As these will inevitably relate to the circumstances of the particular offence and the particular offender, they do not, in general, provide the basis for wider analysis of sentencing and its impact.[387] In any case, courts are subject to time constraints such that even if it was provided with adequate resources it would not have the time to consider them all.[388] It is also debatable as to whether the courts would be a proper forum for conducting such research.[389]

1.196 Fourth, the dissemination of appellate decisions is somewhat unstructured. As the Commission observed in its 1993 Consultation Paper:

“[T]here 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... The systematic reporting of sentencing judgments would be of some assistance in the development of sentencing policy...”[390]

(b) Judicial Guidelines

1.197 It is clear that the courts in Ireland have been reluctant to set out rigid sentencing guidelines that would completely constrain sentencing discretion or which would establish a sentencing “tariff” in specific cases. It is equally clear that the courts have developed some indicative guidelines for specific offences.

1.198 In People (DPP) v Tiernan[391] the Supreme Court was asked to consider the “guidelines which the courts should apply in relation to sentences for the crime of rape”.[392] The Supreme Court decided that, having regard to its appellate jurisdiction, the Court should deal only with issues arising in individual cases and should not set down a standard or tariff of penalties of general application. In this regard, Finlay CJ observed:

“Having regard to the absence of any statistics or information before this Court in this appeal concerning any general pattern of sentences imposed for the crime of rape within this jurisdiction, general observations would not be appropriate. Furthermore, having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.”[393]

It is not clear from this whether the Supreme Court was more influenced by the lack of statistical data or its perception that to establish a tariff would be incompatible with an individualised system of sentencing.

1.199 In any case, it would appear that the Supreme Court had greater reservations in relation to guidelines in the form of sentencing tariffs than guidelines in the form of sentencing principles. Thus, despite its reluctance to establish a sentencing tariff, the Supreme Court articulated a number of general principles in relation to sentencing for rape,[394] the most basic one being that save in exceptional circumstances rape should always attract “a substantial immediate custodial sentence”.[395]

1.200 The decision in Tiernan clearly indicates an antipathy to any sentencing tariff that would remove sentencing discretion in an individual case. At the same time the Court indicated that, given the clear labelling by the Oireachtas of the seriousness of the offence of rape as carrying a maximum sentence of life imprisonment, it also indicated that a substantial immediate custodial sentence was appropriate except in exceptional circumstances. This is somewhat different to the approach taken by the Oireachtas to drugs and firearms offences where a specified minimum sentence of 10 or five years is prescribed, but it is notable that in Tiernan, the Misuse of Drugs Act 1977 and the Firearms Acts there are references to a presumption of custodial sentences, subject to exceptional circumstances. This might be seen as an attempt to preserve judicial discretion in individual cases.

1.201 As noted at paragraphs 1.89-1.129, a number of decisions since the Tiernan case suggest that the courts are prepared to provide further guidance, in particular by reference to aggravating and mitigating factors

(2) The Irish Sentencing Information System (ISIS)

1.202 The Irish Sentencing Information System (ISIS) is a relatively new development in Ireland which, in time, may contribute significantly to a more structured sentencing system. The ISIS, which is broadly similar to systems in New South Wales and Scotland,^[396] is a searchable database of the sentencing decisions of the Dublin and Cork Circuit Criminal Courts.[397] It is intended that the extent to which, and the way in which, a judge uses the ISIS is a matter entirely within the judge’s discretion.[398] It has been noted, however, that the ISIS in its ultimate form might assist judges to form preliminary views as to appropriate sentences, deal with unusual features of cases; and locate offences on the spectrum of sentences.^[399]

1.203 The Commission notes that, at present, ISIS is a relatively limited information tool in a number of respects. The database refers to a selection of sentencing decisions from the Circuit Criminal Court in Dublin and, to a lesser extent, Cork. In addition, the database does not provide any formal analysis of the sentencing decisions. Furthermore, the database’s potential is hampered by the principle of co-ordinate jurisdiction, which provides that judges of the same court are, by and large, free to disregard each other’s sentencing decisions.

1.204 Bearing in mind that ISIS is based on comparable sentencing databases developed in New South Wales and Scotland, the Commission acknowledges that this, together with the developments in case law already noted, indicates that the sentencing system in Ireland has already been influenced by developments in other countries.

(3) Discussion

1.205 It is clear from this that the appeal courts, the courts and the Irish Sentencing Information System each have a role in enhancing the structure of the Irish sentencing system. It is equally clear, however, that they alone cannot achieve the structure necessary to deal with the deficiencies in the system. There is thus a need for an additional mechanism to supplement the existing level of structure while ensuring that vital aspects of the current system, namely, judicial independence and discretion, are preserved. As to the form that this mechanism should take, the Commission considers a number of recent reports which deal with the issue of sentencing.

(a) Report of the Thornton Hall Project Review Group 2011

1.206 The Thornton Hall Project Review Group was set up to examine the need for prison accommodation and the development at Thornton Hall of a new prison. In its 2011 Report,[400] the Review Group made a number of recommendations which are relevant to this Consultation Paper. It found that prison conditions could not be improved without an “all encompassing strategic review of penal policy” including, but not limited to, “sentencing policies”.[401] It also found that there was a lack of statistical information on sentencing practice in the courts and suggested that it would be desirable to extend the collection of sentencing information through the ISIS or a similarly structured system.[402] It also raised the possibility of “judicially framed guidelines” forming part of the programme for the proposed Judicial Council [403] and expressed its hope to create a penal system that was both “principled and sustainable”.[404]

(b) Report of the Working Group on the Jurisdiction of the Courts 2003

1.207 The Working Group on the Jurisdiction of the Courts[405] did not examine the issue of sentencing in sufficient depth to make concrete recommendations. It did, however, find that there was a need for some system of objective guidance for sentencing judges and discussed the option of creating a statutory body charged with providing statutory guidelines.[406]

(c) Report of the Committee on Judicial Conduct and Ethics (The Keane Report) 2000

1.208 Following a recommendation of the Working Group on a Courts Commission, considered at paragraph 1.209, the Committee on Judicial Conduct and Ethics (The Keane Committee) was established by the Chief Justice in 1999 to, among other matters:

“[A]dvise on... the establishment of a judicial body which would contribute to high standards of judicial conduct, establish a system for the handling of complaints of judicial conduct, and other activities such as are taken by similar bodies elsewhere...”[407]

1.209 In its 2000 Report [408] the Keane Committee recommended the establishment of a Judicial Council which would have “functions similar in some respects to those of the judicial commission established in New South Wales.”[409] Among its responsibilities, the Report recommended that the Judicial Council, through a Judicial Studies Committee, should:

“...undertake responsibility for the establishment of a sentencing information system similar to that already in existence in New South Wales. This takes the form of a computerised data base containing legally and statistically relevant information on sentencing... This might in turn form part of a judicial information system which would not be restricted to sentencing and would seek to meet the research requirements of all the courts.”[410]

(d) Report of the Working Group on a Courts Commission 1998

1.210 The establishment of the Keane Committee had been inspired by the 1998 Report of the Working Group on a Courts Commission[411] which had recommended the establishment of a Committee:

“(d) to advise on and prepare the way, if determined appropriate, for the establishment of a judicial body which would contribute to high standards of judicial conduct and establish a system for the handling of complaints of judicial conduct...”[412]

1.211 The 1998 Report had, in turn, been preceded by the Commission’s 1996 Report on Sentencing.[413]

(e) Commission’s 1996 Report on Sentencing

1.212 In its 1996 Report on Sentencing,^[414] the Commission unanimously recommended that statutory sentencing guidelines should not be introduced in Ireland.[415] By a majority the Commission recommended that non-statutory guidelines be introduced to link the severity of the sentence to the seriousness of the offending behaviour.[416] Dissenting from this recommendation, the minority considered that while there was room for further identification and refinement of the criteria by which judicial discretion should be exercised, the task should continue to be the responsibility of the judiciary itself.[417]

(f) Discussion

1.213 The tenor of the recommendations contained in the more recent reports and, indeed, the minority view of the Commission’s 1996 Report on Sentencing,^[418] is that a Judicial Council should be established with responsibility for developing sentencing guidelines. In furtherance of these recommendations, in 2010, the General Scheme of the Judicial Council Bill was published [419] and, in 2011, an interim Judicial Council was established.[420] The Commission supports these developments and observes that the Judicial Council would be an appropriate body to develop and publish suitable guidance or guidelines on sentencing that are consistent with the sentencing principles already discussed.

F Comparative Analysis

(1) England and Wales

1.214 Part 12 of the Criminal Justice Act 2003 deals with sentencing. It starts by setting out the purposes of sentencing which include the punishment of offenders; the reduction of crime (including by deterrence); the reform and rehabilitation of offenders; the protection of the public; and the making of reparation by offenders to persons affected by their offences.[421]

1.215 It proceeds to provide guidance regarding the determination of the seriousness of an offence.[422] In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.[423] In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.[424] In considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor.[425]

1.216 It provides guidance as to how guilty pleas should be treated for the purpose of reducing sentences.[426] In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court must take into account (a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and (b) the circumstances in which this indication was given.[427] In the case of an offence the sentence for which falls to be imposed under subsection (2) of section 110 or 111 of the Sentencing Act, nothing in that subsection prevents the court, after taking into account any matter referred to in subsection (1) of this section, from imposing any sentence which is not less than 80 per cent of that specified in that subsection.[428]

1.217 In addition it refers to certain aggravating factors such as racial or religious aggravation [429] and aggravation related to disability or sexual orientation.[430]

1.218 It outlines restrictions on community sentences;[431] restrictions on discretionary custodial sentences;[432] procedural requirements for imposing community sentences and discretionary custodial sentences;[433] fines;[434] community orders;[435] prison sentences of less than 12 months;[436] intermittent custody;[437] custody plus orders;[438] suspended sentences;[439] electronic monitoring;[440] dangerous offenders;[441] effect of remand in custody or on bail;[442] release on licence;[443] consecutive or concurrent terms;[444] effect of life sentence;[445] deferment of sentence;[446] drug treatment;[447] alteration of penalties for offences;[448] minimum sentence for certain firearms offences;[449] offenders transferred to mental hospital;[450] disqualification from working with children.[451]

(2) Australia

(a) New South Wales

1.219 Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes of sentencing, namely, punishment; deterrence; protection of the community; rehabilitation; accountability; denunciation; and recognition of the harm done to the victim of the crime and the community. Part 2 sets out the penalties that may be imposed, namely, custodial sentences, non-custodial alternatives, fines, and restriction orders. In addition to setting out the general sentencing procedures, the Act also sets out the sentencing procedure for imprisonment, intensive correction orders, home detention orders, community service orders, good behaviour orders, restriction orders and intervention programme orders.[452]

(b) Northern Territory

1.220 Part 2 of the Sentencing Act sets out some general principles. Section 5 establishes some sentencing guidelines. These include the purposes of sentencing, namely, punishment, rehabilitation, deterrence, denunciation, and protection of the community;[453] and several matters to which a sentencing court must have regard, including, the maximum and any minimum penalty prescribed for the offence, and the nature and severity of the offence.[454] Section 6 sets out the factors to be considered in determining an offender’s character while section 6A sets out the aggravating factors. Part 3 deals with non-custodial and custodial sentences. Part 4 deals with mental health orders. Part 5 deals with orders in addition to sentence, such as restitution and compensation orders, and restriction orders. Part 6 deals with the procedure for making of sentencing and other orders.

(c) Queensland

1.221 Part 2 of the Penalties and Sentences Act 1992 sets out the governing principles of sentencing. Section 9 establishes sentencing guidelines. These include the purposes of sentencing, namely, punishment, rehabilitation, deterrence, denunciation, and protection of the community;[455] and certain matters to which a sentencing court must have regard, including the principle that imprisonment should be a sentence of last resort, the maximum and minimum penalty prescribed for the offence, and the nature and severity of the offence.[456] Among other matters, Part 2 also sets out the matters to be considered in determining the offender’s character;[457] and provides that a guilty plea [458] and cooperation with law enforcement authorities [459] must be taken into account. Part 3 deals with releases, restitution and compensation. Part 3A deals with non-contact orders and Part 3A deals with banning orders. Part 4 deals with fines. Part 5 deals with intermediate orders such as probation orders and community service orders. Part 6 deals with intensive correction orders. Part 8 deals with orders of suspended imprisonment and Part 9 deals with imprisonment. Part 9A deals with convictions for serious violent offences. Part 10 deals with indefinite sentences.

(d) South Australia

1.222 The Criminal Law (Sentencing) Act 1988 provides some guidance in relation to sentencing. Part 2 sets out the general sentencing provisions. Division 1 of Part 2 sets out the procedural provisions. Division 3 sets out the general sentencing powers of the courts. Division 2A deals with serious repeat adult offenders and recidivist young offenders. Division 3 deals with sentences of indeterminate duration. Division 4 deals with sentencing guidelines. This provides that the Full Court may give a judgment establishing sentencing guidelines.[460] A sentencing court should have regard to relevant sentencing guidelines but is not bound to follow a particular guideline if, in the circumstances of the case, there are good reasons for not doing so. The Full Court may establish or review sentencing guidelines on its own initiative, or on application by the Director of Public Prosecutions, the Attorney General or the Legal Services Commission.[461] Division 5 deals with sentencing standards for offences involving paedophilia. Part 3 deals with imprisonment, including non-parole periods and dangerous offenders. Part 4 deals with fines. Part 5 deals with bonds. Part 6 deals with community service and supervision. Part 7 deals with restitution and compensation. Part 9 deals with enforcement.

(e) Tasmania

1.223 The Sentencing Act 1997 provides some guidance. Section 3 sets out the purposes of the Act. These are to amend and consolidate the State’s sentencing law; promote the protection of the community as a primary consideration in sentencing offenders; promote consistency in sentencing offenders; establish fair procedures for imposing sentences on offenders generally, on offenders in special cases and dealing with offenders who breach the conditions of sentences; help prevent crime and promote respect for law by allowing courts to impose sentences aimed at deterring offenders and other persons from committing offences, the rehabilitation of offenders, and that denounce the conduct of offenders; promote public understanding of sentencing practices and procedures; set out the objectives of sentencing and related orders; and recognise the interests of victims of offences.

1.224 Part 2 deals with general sentencing powers. Part 3 deals with custodial sentences, including parole, dangerous criminals and suspended sentences. Part 3A deals with drug treatment orders. Part 4 deals with community service orders. Part 5 deals with probation orders. Part 6 deals with fines. Part 6A deals with rehabilitation programmes. Part 7 deals with driving disqualification orders. Part 8 deals with adjournments, discharges and dismissals. Part 9 deals with orders in addition to sentence including restitution, compensation and area restriction. Part 10 deals with assessment, continuing care, supervision and restriction orders. Part 11 deals with sentencing procedure.

1.225 In its 2008 Report on Sentencing,[462] the Tasmania Law Reform Institute recommended that the Sentencing Act 1997 include separate sections for the purposes of the Act and the purposes of sentencing.[463] It also recommended that the purposes of sentencing should include punishment; deterrence; rehabilitation; protection of the community; denunciation; restoration of relations.[464] The Institute had recommended the establishment of an independent statutory sentencing advisory council.[465] It further recommended that guideline judgments should not be introduced in the absence of broad judicial and professional support for them from the legal profession.[466]

(f) Victoria

1.226 Part 2 of the Sentencing Act 1991, as amended, sets out the governing principles. Section 5 sets out sentencing guidelines. These include the purposes of sentencing, namely, punishment, deterrence, rehabilitation, denunciation, and protection of the community;[467] and certain matters to which a sentencing court must have regard, including the maximum penalty prescribed for the offence, current sentencing practices, and the nature and gravity of the offence.[468] Section 6 sets out the factors to be considered in determining an offender’s character and section 6AAA provides for a sentence discount for a guilty plea. Part 2A deals with serious offenders. Part 2B deals with continuing criminal enterprise offenders. Part 3 deals with custodial and non-custodial sentences, including community service orders, fines, dismissals, discharges and adjournments, and special conditions for intellectually disabled offenders. Part 4 deals with orders in addition to sentence including restitution, compensation. Part 4A deals with identity crime certificates. Part 5 deals with mentally ill offenders. Part 6 deals with the procedure of making of sentencing and other orders.

(g) Western Australia

1.227 The Sentencing Act 1995 provides some guidance. Part 2 deals with general matters. Section 6 sets out the principles of sentencing. Thus a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the offence, including the vulnerability of the victim; any aggravating factors; and any mitigating factors. This does not prevent the reduction of a sentence because of any mitigating factors or any rule of law as to the totality of sentences. A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. A sentencing court must take into account any relevant guidelines in a guideline judgment. Section 7 sets out aggravating factors and section 8 sets out mitigating factors. Part 3 deals with matters preliminary to sentencing. Part 3A deals with pre-sentence orders. Part 4 deals with the sentencing process. Part 5 deals with sentencing options. Part 6 deals with the release of an offender without sentence. Part 7 deals with conditional release orders. Part 8 deals with fines. Part 9 deals with community-based orders. Part 10 deals with intensive supervision orders. Part 11 deals with suspended imprisonment. Part 12 deals with conditional suspended imprisonment. Part 13 deals with imprisonment, including release. Part 14 deals with indefinite imprisonment. Part 15 deals with other forms of sentence including disqualification orders. Part 16 deals with reparation orders. Part 17 deals with other orders not forming part of a sentence.

(h) Commonwealth of Australia

1.228 There is no Sentencing Act at the federal level. Part IB (sentencing, imprisonment and release of federal offenders) of the Crimes Act 1914 does, however, provide some guidance. Division 2 deals with general sentencing principles. Section 16A deals with the matters to which a sentencing court must have regard. Accordingly, the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. In addition, the court must take into account other matters including the nature and circumstances of the offence, the personal circumstances of the victim, any injury, loss or damage resulting from the offence; the degree to which the person has shown contrition for the offence; any guilty plea; any co-operation with law enforcement agencies; deterrence; punishment; character, antecedents, age, means and physical or mental condition of the person; prospect of rehabilitation. Division 3 deals with sentences of imprisonment. Division 4 deals with the fixing of non-parole periods and the making of recognisance release orders. Division 5 deals with conditional release on parole or licence. Division 8 deals with summary disposition and Division 9 deals with sentencing alternatives for persons suffering from mental illness or intellectual disability.

1.229 The Australian Law Council observed:

“Although these provisions provide some guidance to sentencing courts, State courts exercising federal jurisdiction must also apply their particular State and Territory procedures when determining the sentence to be imposed on a federal offender.[469]

As a result, differences arise in the way federal offenders are dealt with from one jurisdiction to another. In addition, the options available for sentencing federal offenders (ranging from fines and imprisonment to community service orders and home detention) vary across Australia.”[470]

1.230 In its 2006 Report,[471] the Australian Law Reform Commission recommended that the Australian Parliament should enact a separate federal Sentencing Act that incorporated those provisions of the Crimes Act 1914 that deal with the sentencing, administration and release of federal offenders. In addition, provisions currently located in Parts I (Preliminary), IA (General), IB, III (offences relating to the administration of justice) and VIIC (Pardons, quashed convictions and spent convictions) of the Crimes Act and in other federal legislation, that are relevant to the sentencing, administration and release of federal offenders should be consolidated in the new act.[472] In addition, the Commission recommended that the federal sentencing legislation should set out the purposes of sentencing, namely, punishment, deterrence, rehabilitation, protection of the community, denunciation and restoration of relations between the community, the offender and the victim.[473] Furthermore, the Commission recommended that the federal sentencing legislation should set out the principles of sentencing, namely, proportionality, parsimony, totality, consistency and parity, and individualised justice.[474] The Commission also recommended that the federal sentencing legislation should set out sentencing factors such as those likely to aggravate or mitigate a sentence.[475]

(3) New Zealand

1.231 Section 8 of the Sentencing Act 2002, as amended,[476] sets out the purposes and principles of sentencing. The purposes of sentencing are to hold the offender accountable for harm done to the victim and the community; to promote in the offender a sense of responsibility for, and an acknowledgement of, that harm; to provide for the interests of the victim of the offence; to provide reparation for harm done;[477] to denounce the conduct in which the offender was involved; to deter the offender or other persons from committing the same or a similar offence; to protect the community from the offender; and/or to assist in the offender’s rehabilitation and reintegration.[478]

1.232 The principles of sentencing oblige the court to take into account the gravity of the offending in the particular case, including the degree of culpability; to take into account the seriousness of the type of offence in comparison with other types of offences;[479] to impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed;[480] to impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed;[481] to take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders, in respect of similar offenders committing similar offences in similar circumstances; to take into account any information provided to the court concerning the effect of the offending on the victim; to impose the least restrictive outcome that is appropriate in the circumstances; to take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; to take into account the offender’s personal, family, whanau, community and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and to take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur.[482]

1.233 The Act sets out the aggravating and mitigating factors.[483] It also provides that the court must take into account any offer, response or measure to make amends.[484]

1.234 The Act sets out a hierarchy of sentences from the least to the most restrictive.[485] These include discharges or orders to come up for sentence if called on; sentences of a fine and reparation; community-based sentences of community work and supervision; community-based sentences of intensive supervision and community detention; sentences of home detention; and sentences of imprisonment.

1.235 When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.[486] The court must not impose a sentence of imprisonment unless it is satisfied that: a sentence is being imposed for all or any of the purposes of sentencing; those purposes cannot be achieved by a sentence other than imprisonment; and no other sentence would be consistent with the application of the principles of sentencing.[487] Nothing limits the discretion of the court to impose a sentence of imprisonment on an offender if the court is satisfied on reasonable grounds that the offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate.[488]

1.236 When sentencing an offender, a court must impose a sentence that is consistent with any sentencing guidelines that are relevant in the offender’s case, unless the court is satisfied that it would be contrary to the interests of justice to do so.[489] Furthermore, if sentencing guidelines indicate that a sentence of a particular kind, or within a particular range, would normally be appropriate for the offence, a court must give reasons for deciding on a sentence of a different kind or outside that range.[490]

(4) Canada

1.237 The Canadian Criminal Code, aside from prescribing mandatory penalties for certain offences,[491] sets out the purposes and principles of sentencing.[492] Accordingly, the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and/or to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.[493]

1.238 The fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[494] In addition, the courts must take into consideration the following principles: a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [495]

1.239 The Criminal Code also deals with the use of alternative measures;[496] sentencing of organisations;[497] punishment generally;[498] absolute and conditional discharges;[499] probation;[500] fines and forfeiture;[501] restitution;[502] conditional sentences of imprisonment;[503] imprisonment;[504] eligibility for parole;[505] imprisonment for life;[506] and pardons and remissions.[507]

1.240 In addition, the Youth Criminal Justice Act 2002 sets out the purposes and principles relevant to the sentencing of young offenders.[508] Accordingly, the purpose of youth sentencing is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long term protection of the public.[509]

1.241 A youth justice court determines the sentence in accordance with the following principles: the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; all available sanctions other than custody that are reasonable to in the circumstances should be considered for all young persons; and the sentence must be the least restrictive sentence that is capable of achieving the purpose of youth sentences, be one that is most likely to rehabilitate the young person and reintegrate him or her into society, and promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.[510]

1.242 The youth court must also consider the following factors: the degree of participation by the young person in the commission of the offence; the harm done to victims and whether it was intentional or reasonably foreseeable; any reparation made by the young person to the victim in the community; the time spent in detention by the young person as a result of the offence; the previous findings of guilt of the young person; and any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles of youth sentencing.[511]

1.243 A youth justice court must not commit a young person to custody unless: the young person has committed a violent offence; the young person has failed to comply with non-custodial sentences; the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt; or in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purposes and principles of youth sentences.[512] Even if one or more of these circumstances apply, a youth justice court must not impose a custodial sentence unless the court has considered all alternatives to custody that are reasonable in the circumstances and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles of youth sentences.[513] In this regard, the court must consider: the alternatives to custody that are available; the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.[514] If a youth justice court imposes a youth sentence that includes a custodial portion, the court must state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose of youth sentencing.[515]

G Conclusions and the Commission’s General Approach

1.244 In this Chapter, the Commission has considered the general aims of criminal sanctions as well as the principles of sentencing in order to provide a conceptual framework for the analysis of the different forms of mandatory sentences that will be reviewed in detail in Chapters 2 to 4. In this regard, the Commission identified four main aims of criminal sanctions, namely (a) punishment, (b) deterrence, (c) reform and rehabilitation and (d) reparation. The Commission also identified three key principles of sentencing, namely (a) the humanitarian principle (which incorporates respect for constitutional and international human rights), (b) the justice principle (including proportionality) and (c) the economic principle.

1.245 The Commission notes that the justice principle is of particular importance because it incorporates the concept of proportionality, which requires an individualised approach to sentencing, namely, that the sentencing court must have regard to the circumstances of both the offence and the offender. In this context, the Commission fully appreciates (based on the review of the relevant case law in this Chapter) that the Supreme Court and the Court of Criminal Appeal have developed general guidance, and in some instances specific guidelines, such as the strong presumption of a custodial sentence on conviction for manslaughter and rape. These are clearly intended to provide principle-based clarity around likely sentencing outcomes, and reflect comparable developments in many other jurisdictions. The Commission notes the importance of such guidance and guidelines, bearing in mind that the Oireachtas has provided for a very wide discretion as to the actual sentence to be imposed for the majority of criminal offences, including some of the most serious offences, such as manslaughter and rape, for which the sentence can range from no custodial sentence to a maximum of life imprisonment.

1.246 The Commission has also discussed in the Chapter the extensive case law in Ireland which indicates that sentencing courts are also conscious of the need to consider a wide range of aggravating factors, and mitigating factors, as well as the individual circumstances of the offender, which directly affect both the seriousness of the offence and the severity of the sentence to be imposed in an individual case. The Commission notes that this has built on the list of aggravating factors and mitigating factors, and the individual circumstances of the offender, set out in the Commission’s 1996 Report on Sentencing.[516] It is, equally, clear that the courts have also had regard to comparable case law and developments in other jurisdictions since 1996 in connection with the ongoing development of such factors.

1.247 The Commission also notes, however, that in spite of the development and recognition of the general aims of criminal sanctions and principles of sentencing, there remain some deficiencies in the sentencing system in Ireland. The Commission has discussed the recommendations made in 2000, and reiterated in 2011, that sentencing guidance and guidelines should be developed in an even more structured manner by the proposed Judicial Council. The Commission fully supports those recommendations, and notes that such guidance and guidelines could build on the framework provided by the general aims of criminal sanctions, as well as the principles of sentencing, discussed in this Chapter. They would also have the benefit of the guidance and guidelines available from decisions of the Supreme Court and the Court of Criminal Appeal, including those discussed in this Chapter. Such guidance could also build on the growing importance of the Irish Sentencing Information System (ISIS) which, as already discussed, has the potential to provide a significant database of sentencing information for the courts. In this respect, the Commission agrees with the view that ISIS, which has been developed using experience with comparable databases from other jurisdictions (as discussed in this Chapter), could in time be regarded as a leading model of its type.[517]

1.248 In conclusion, therefore, the Commission supports the recommendations made in 2000, and reiterated in 2011, that the proposed Judicial Council be empowered to develop and publish suitable guidance or guidelines on sentencing which would reflect the general aims of criminal sanctions and the principles of sentencing discussed in this Consultation Paper. The Commission has also concluded, and provisionally recommends, that such guidance or guidelines should have regard to: the sentencing guidance and guidelines available from decisions of the Supreme Court and the Court of Criminal Appeal, including those discussed in this Consultation Paper; the aggravating and mitigating factors, and individual offender characteristics, identified in the Commission’s 1996 Report on Sentencing, as developed by the courts since 1996; and information in relevant databases, notably the Irish Sentencing Information System (ISIS).

1.249 The Commission supports the recommendations made in 2000, and reiterated in 2011, that the proposed Judicial Council be empowered to develop and publish suitable guidance or guidelines on sentencing which would reflect the general aims of criminal sanctions and the principles of sentencing discussed in this Consultation Paper. The Commission also provisionally recommends that such guidance or guidelines should have regard to: the sentencing guidance and guidelines available from decisions of the Supreme Court and the Court of Criminal Appeal, including those discussed in this Consultation Paper; the aggravating and mitigating factors, and individual offender characteristics, identified in the Commission’s 1996 Report on Sentencing, as developed by the courts since 1996; and information in relevant databases, notably the Irish Sentencing Information System (ISIS).

1.250 In Chapters 2 to 4, the Commission employs the general aims and principles discussed here, and the approach expressed in the preceding paragraphs, in order to review whether the mandatory sentences discussed in those chapters are, in accordance with the Attorney General’s request, “appropriate or beneficial.”

CHAPTER 2 Entirely Mandatory Sentences

A Introduction

2.01 In this Chapter the Commission considers the first type of mandatory sentence identified in the Introduction, entirely mandatory sentences, of which there are only two examples in Ireland. These are the mandatory life sentence for (a) murder [518] and (b) murder of designated persons such as a member of the Garda Síochána.[519] As the Commission notes, these entirely mandatory sentences are reserved for offences which formerly attracted the death penalty.

B Abolition of the Death Penalty

2.02 While the death penalty had been progressively abolished throughout the first half of the 19^th century,[520] section 2 of the Offences Against the Person Act 1861 retained it as the penalty for murder.[521] Section 2 provided that “Upon every Conviction for Murder the Court shall pronounce the Sentence of Death”. In theory, the provision applied to all persons who had reached the age of 17 years and been convicted of murder. In reality, however, the death penalty was commuted to imprisonment or some other form of detention in many cases.

2.03 From the 1930s onwards, disquiet regarding the existence of the death penalty became evident and pressure to remove it from the statute book grew. It is clear, however, that the Constitution of 1937 envisaged its retention, as it vested the power to commute a sentence in the President, subject to the advice and consent of the Government.[522] In 1951 Sean MacBride tabled a motion in the Dáil, proposing that a Select Committee be appointed to examine the desirability of abolishing the death penalty. In 1956 Professor Stanford proposed in the Seanad that the Government consider abolishing the death penalty or suspending it for a trial period. On both occasions the standard abolitionist arguments were advanced: the inhumanity of execution, the lack of firm evidence as to its deterrent effect and the possibility of error. The last execution in Ireland was of Michael Manning and took place on 20^th April 1954, in Mountjoy Prison. No woman had been executed since 1925.

2.04 The Criminal Justice Act 1964 abolished the death penalty for all crimes except treason, “capital murder”, and certain offences subject to military law.[523] Capital murder consisted of (i) murder of a member of the Garda Síochána acting in the course of his duty; (ii) murder of a prison officer acting in the course of his duty; (iii) murder done in the course or furtherance of an offence under section 6, 7, 8 or 9 of the Offences Against the State Act 1939 or in the course or furtherance of the activities of an unlawful organisation within the meaning of section 18 (other than paragraph (f)) of that Act; and (iv) murder, committed within the State for a political motive, of the head of a foreign State or of a member of the government of, or a diplomatic officer of, a foreign State. In respect of non-capital murder, the Criminal Justice Act 1964 imposed a mandatory sentence of penal servitude for life.

2.05 Section 1 of the Criminal Justice Act 1990 abolished the death penalty for all crimes. In 2001 the Constitution was amended at Article 15.5.2 to impose a constitutional ban on the death penalty.[524] O’Malley observes that the enactment of the 1990 Act “was widely viewed as having brought the debate on sentencing for murder to a satisfactory conclusion”.^[525] However, it was inevitable in some ways that there would be some public disquiet surrounding the fact that the penalty for murder would no longer be equal to the offence in fact or, as will be discussed below, in effect. As Hardiman J noted in People (DPP) v Kelly,[526] a case involving manslaughter:

“In cases where there has been a death and especially a death caused by an intentional as opposed to a negligent act, unhappiness with the sentence is often expressed in the reflection that even the longest sentence will end at some point, probably while the defendant is still quite young, whereas the suffering and deprivation of the deceased person’s family will be permanent. This is very sadly true. But it ignores the fact that under our present sentencing regime, sentences must be proportionate not only to the crime but to the individual offender.”[527] [Emphasis added]