CONSULTATION PAPER
(LRC CP 66 - 2011)
© Copyright
Law Reform Commission
FIRST PUBLISHED
December 2011
ISSN 1391-3140
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 Legislation xiii
Table of Cases xix
A Background: Request by the Attorney General on
Mandatory Sentences
C Scope of the Attorney General’s Request: “Mandatory
Sentences”
D Outline of the Consultation Paper
CHAPTER
1 CONCEPTUAL
FRAMEWORK FOR criminal sanctions and Sentencing
C Principles of Criminal Sanctions
D Deficiencies in the Irish Sentencing System
(2) Potential Breach of the Humanitarian Principle
(3) Potential Breach of the Justice Principle
(4) Potential Breach of the Economic Principle
E The Current Position in Ireland on Structured
Sentencing and Sentencing Guidelines
(2) The Irish Sentencing Information System (ISIS)
G Conclusions and the Commission’s General Approach
CHAPTER
2 Entirely
Mandatory Sentences
B Abolition of the Death Penalty
C Section 2, Criminal Justice Act 1990
(2) Constitutionality of Section 2 of the Criminal
Justice Act 1990
(3) Constitutionality of Temporary Release
(4) Compatibility with the European Convention on Human
Rights
D Section 4, Criminal Justice Act 1990
F Conclusions and Provisional Recommendations
(1) Extension of the mandatory sentence
(2) The mandatory sentence for murder and a specific
minimum term at sentencing stage
CHAPTER
3 MANDATORY
MINIMUM SENTENCES SUBJECT TO EXCEPTIONS
B Offences under the Misuse of Drugs Act 1977
E Conclusions and Provisional Recommendations
(1) Possible extension of presumptive sentencing regimes
(2) Provisional recommendations on drugs and firearms
presumptive sentencing regimes
CHAPTER
4 MANDATORY
SENTENCES FOR SECOND OR SUBSEQUENT OFFENCES
B Increased Penalties for Second or Subsequent
Offences
H Conclusions and Provisional Recommendations
CHAPTER
5 Summary
of PROVISIONAL Recommendations
|
|
Pg No. |
|
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 |
Eng |
68 |
|
Garcia Ruiz v Spain |
21 January 1999 |
ECHR |
69 |
Heaney v Ireland |
[1994] 3 IR 593 |
Irl |
40 |
Helle v Finland |
ECHR |
69 |
|
Higgins v France |
ECHR |
69 |
|
Hussain v United Kingdom |
ECHR |
126 |
|
In the Matter of Article 26 of the Constitution and in the matter of the Employment Equality Bill 1996 |
Irl |
41 |
|
Kafkaris v Cyprus |
ECHR |
120 |
|
Kinahan v Minister for Justice, Equality and Law Reform |
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 |
Irl |
35 |
|
Murray v Ireland |
[1985] IR 532 |
Irl |
35 |
O'Mahony v District Judge Ballagh and DPP |
Irl |
66 |
|
O'Neill v Governor of Castlerea Prison |
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 |
Irl |
175 |
|
People (DPP) v Connolly |
Irl |
176 |
|
People (DPP) v Cooney |
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 |
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 |
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 |
Irl |
179 |
|
People (DPP) v Finn |
Irl |
206 |
|
People (DPP) v Finnamore |
Irl |
176 |
|
People (DPP) v Finnamore |
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 |
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 |
Irl |
33 |
|
People (DPP) v Godspeed |
Court of Criminal Appeal 13 July 2009 |
Irl |
185 |
People (DPP) v Goulding |
Irl |
173 |
|
People (DPP) v H |
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 |
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 |
Irl |
195 |
|
People (DPP) v Long |
Court of Criminal Appeal 31 October 2008 |
Irl |
195 |
People (DPP) v Loving |
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 |
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 |
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 |
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 |
Eng |
55 |
|
R v Higher Education Funding Council, ex p. Institute of Dental Surgery |
[1994] 1 WLR 242 |
Eng |
68 |
R v Howells |
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 |
ECHR |
69 |
|
Ryan v Attorney General |
[1965] IR 345 |
Irl |
35 |
Stafford v United Kingdom |
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 |
ECHR |
125 |
|
V and T v United Kingdom |
ECHR |
127 |
|
Van de Hurk v The Netherlands |
ECHR |
69 |
|
W v Ireland |
Irl |
35 |
|
Weeks v United Kingdom |
ECHR |
124 |
|
Whelan and Another v Minister for Justice, Equality and Law Reform |
Irl |
33 |
|
Wynne v United Kingdom |
(1995) 19 EHRR 333 |
ECHR |
124 |
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.
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.
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.
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.
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.
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.
1.11
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.
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.
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.
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]
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.
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.
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.
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.
1.52
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.
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]
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.
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]
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.
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.
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.
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.
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
(c)
Be such that their
effects on rights are proportional to the objective...”[176]
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.
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.
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.
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,
(c) for gross indecency, and
(d) for burglary.
Of this criminal record, particularly relevant as an aggravating
circumstance to a conviction for rape are the crimes involving violence and the
crime involving indecency.”[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.
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.
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]
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.
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.
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.
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.
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]
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.
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.
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]
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]
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.
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.
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.
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.
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).
1.192
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]
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
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.
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.
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]
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]
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]
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]
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]
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.
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]
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]
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.
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.
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.
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]
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.
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.
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]
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]
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]
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.”
2
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.
2.02
While the death penalty had been progressively abolished throughout the
first half of the 19th 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 20th 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]