General Criteria

Imprisonment

Capital punishment, corporal punishment and imprisonment with hard labour are prohibited.  Imprisonment is the harshest sentence that may be imposed. Below imprisonment, fines constitute the principal sanction.  Some types of offences carry consequential disqualification or forfeitures, which may have serious consequences in the circumstances.

The former distinction between penal servitude and that of imprisonment was abolished in 1997.  In practice, there had been no distinction between imprisonment and penal servitude for many years.  The 1997 reforms deemed statutes providing for the imposition of penal servitude to refer to imprisonment for the same period.

The deprivation of liberty in itself is the only permissible punishment.  The prison regime may not of itself constitute a further punishment.  Violence, poor living conditions and arbitrary treatment are not permitted.  However, it set out a new chapter in relation to prison. It is very difficult in practice to challenge the legality of detention on the basis of overcrowding and similar other factors.

The European Convention for the prevention of Torture and Inhuman and Degrading Treatment binds the state to maintain minimum international standards.  In addition, the European Convention on Human Rights, which contains a prohibition on such treatment, has the force of law and binds the state internally.

Prisoners

Prisoners may be transferred from one institution to the other under the direction of the Minister for Justice.  This may be done in the context of prison operation and administration.  It may not, however, change the substance of the sentence.

The Minister for Justice may make rules in relation to the temporary release of prisoners.  Conditions may be imposed, including that of keeping the peace and being of good behaviour, note communicating or publishing certain matters or engaging in public controversies and being of sober habit.

A person who remains at large after a period of conditional release has expired or who breaches its conditions is unlawfully at large.  This constitutes an offence in itself subject to punishment of up to six months imprisonment.  A Garda may arrest a person without a warrant whom he suspects of being unlawfully at large and bring him to the place where he should be in custody.

There are provisions allowing for temporary permissions for release to be revoked.  Constitutional procedures apply in relation to the revocation of release.

Suspended Sentences

There is no statute or basis for suspended sentences.  However, it is long recognised as part of the inherent powers of the court that it may impose a suspended sentence.  Suspension of the sentence would generally be on the condition that the offender does not commit further offence during the period concerned.

Further conditions may be attached to a suspended sentence.  There may be a requirement that a person stays away from a particular place or person.  He may be obliged to undergo a course of treatment.  In principle, there is very little limit on what might be imposed by way of the condition of a suspended sentence.

Suspended sentences may be imposed for any offences except where it is specifically subject to mandatory sentences, such as a life sentence for murder.  It may be imposed in serious cases where nothing useful is to be gained from sending the convicted person to prison in his personal circumstances such as age,  ill-health or disability.

The courts take the view that a sentence should not be increased merely because it is suspended.  The judge should first decide the sentence and then decide whether it is appropriate to suspend.  Equally, it is said that a suspended sentence is not a substitute for a fine.

Formerly, the courts suspend parts of sentences.  This has been deemed inappropriate by the Supreme Court.  However, a reviewable sentence may be permissible. However, this argued to be contrary to the nature of the judicial power and to interfere with the powers of the State in dealing with the remission of sentences.

Offences arising from separate incidents should generally be subject to consecutive sentences.  Multiple offences arising from one incident or event may be more appropriate for concurrent sentences.

Sentencing Guidelines

There are no officially published guidelines for sentencing in Ireland.  The Guidelines effectively arise from existing case laws.  Studies have been made of sentences and published.

The Judicial Council Act 2019 contemplates the drawing up of sentencing guidelines.

The Court of Appeal and its predecessor, the Court of Criminal Appeal has given guidance in relation to the criteria for sentences.

A person should not generally receive a higher sentence on retrial.  Taking the appeal should not be punished.

Length of Sentence

The matter of the maximum sentence is laid down by law.  The Supreme Court has indicated that a guilty plea should generally merit some reduction from the maximum sentence.  However, a maximum sentence may be appropriate notwithstanding a guilty plea, where there are other significant considerations.  The Criminal Justice Act 1999 has confirmed the maximum sentence may be imposed, even if there is a plea of guilty.

Most prisoners are entitled to one-quarter remission.  Greater remission may be granted at the discretion of the Department of Justice.  However, the courts are not to take account of this remission when deciding on the sentence.

There may be a range of factors that are relevant to the sentence. The particular factors and their respective weighting will depend on the circumstances.

Mitigating Circumstances

The courts have regard to the entirety of the circumstances which may be relevant.  There may be extenuating circumstances,  which while not justifying a crime may go in some way to explain it and reduce the amount of moral blameworthiness involved.

The behaviour of the offender after the crime will be of relevance.  Repentance and remorse will be looked upon favourably.  Although in principle, the position is looked up the date of the crime, later behaviour may aggravate or mitigate the position. They may aggravate or mitigate the actual effect of the offence.

Steps may be taken by way of compensation or other steps might be taken to undo the effect of the offence.  This may be relevant, for example,  in the case of crimes of fraud and theft.  Even in the case of offences of violence, voluntary compensation may be looked upon favourably.

The performance of commendable acts from a social or public point of view may be a mitigating factor.

Remorse is a relevant factor.  The absence of remorse is an aggravating factor.  An expression of remorse, if genuine, may be considered.  Courts are cognisant that non-expression of remorse should not be an aggravating factor on the basis that it may ultimately turn out there has been a miscarriage of justice.

Provocation may reduce murder to manslaughter.  It does not otherwise affect criminal liability.  Provocation may justify a reduced sentence. There have been a number of cases, particularly involving spouses and partners, where a person who has sustained a prolonged series of abuse, has suddenly lost control and resorted to a violent crime.  In several such cases, the courts have taken account of the immediate provocation and/or the background of abuse and applied leniency.

Intoxication is rarely a defence to a crime.  If the act is serious and is caused or fuelled by alcohol, this may be an aggravating factor.  Intoxication may only be a mitigating factor exceptionally. If a person of previous good character commits a crime while heavily intoxicated, particularly a minor offence, regard may be had to the intoxication.

Guilty Plea

A guilty plea would generally attract a lower level of punishment.  It is in the interests of the efficient administration of justice that the State is not put to proof of crimes unnecessarily.  A guilty plea may save the victim the trauma of testifying.  This may be particularly important in the case of sexual offences.

If a judge has given an indication of a likely sentence in the event of a guilty plea, that indicative sentence should be imposed.

In determining what sentence to pass on a person who has pleaded guilty to an offence, other than the offence for which sentence is fixed by law, the court, if it considers appropriate to do so, shall take into account the stage in the proceedings for the offence at which the person indicated an intention to plead guilty and the circumstances in which the indication is given. This does not preclude the court from passing a maximum sentence prescribed by law.

If notwithstanding the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence.

Cooperation with the police and courts will similarly be looked upon favourably.  However,  the courts are cognizant that a person should not be penalised for failure to plead guilty given their constitutional rights.

Personal Circumstances

Efforts to control a particular type of behaviour and reform are mitigating factors.  This may be relevant to a person with an addiction or other tendencies.  Positive steps taken to treat or reduce the addiction or tendency should mitigate, all things being equal.

Age may be a factor in sentencing.  A longer sentence will help represent a higher proportion of an older person’s life.  This may tend towards slight mitigation to reflect the effect of the punishment.

A person’s physical or mental illness may be a factor.  All things being equal, ill-health may mitigate the sentence which might otherwise apply.  An addiction that motivates crime is not generally treated sympathetically.

If circumstances such as illness, disability, age or race aggravate and make the prison experience more difficult, this may be a factor.  The court will look at the totality of the circumstances and prison conditions as well as the position of the accused.

The fact that a conviction has serious consequences including professional disqualification, loss of standing in addition to primary punishment,  it may be grounds for mitigation.

That may be the cases, where the person has suffered a punishment beating.  In particularly severe cases where persons have been left with permanent injuries, the effect of the punishment beating has been taken into account.

Previous Convictions

Previous convictions are highly relevant in sentencing.  The absence of previous convictions and previous good character is very significant and may be the difference between imprisonment and the avoidance or a custodial sentence.  Probation is primarily an option for first-time offenders and might be applied.

In principle, a person should not be punished again with respect to previous convictions.  However previous convictions will constitute a significant loss of mitigation, which might otherwise apply.

The less frequent, less serious and more remote the previous offence, the less the effect it should have on the current sentence.  Sometimes the courts may give one last chance before imposing imprisonment.

Historical Offences

Many prosecutions in recent years have been taken for historical abuse offences, perpetrated many years earlier.  In broad terms, the courts have allowed since prosecution seemed to allow for substantial delay.  The maximum sentence that can be posed is that applying at the date of the offence.

The courts have made some allowance for the fact that they were committed in different chosen times where social standards facilitated their commission.  The Court of Criminal Appeal controversially took the view that the fact that a lighter sentence might have been imposed at the original time of the offence, was relevant.

In the case of serious offences of this nature, the delay may be a factor but not a significant factor.  Where however the offences were committed by a person when very young, a reduction may be allowed where a prosecution takes place many years later.  This may be based on the fact that had he been convicted at the time; he may have received residential institutional/ borstal type training.

In the case of crimes in the distant past, re-offending may be unlikely in some cases.  Account may be taken of inevitable collateral hardships including subjective guilt and the social context.

Victim Impact

The impact on the victim will be very relevant.  This is particularly so in the case of sexual and violent offences. The more severe the impact on the victim the higher the sentence.  The impact on the victim is a key measure of proportionality in such offences.

There are statutory obligations to take this effect into account under the Criminal Justice Act 1993. It makes provision for victim impact statements.

The attitude of the victim should not in principle increase the sentence.  Where victims forgive the offender and, in some cases, seek mitigation on their behalf, some account will be taken.  This is not necessarily a significant factor.

Aggravating Factors

Where a crime is committed while the offender is on bail, the court may be obliged to impose consecutive sentences.  Commission of a crime while on bail is also an aggravating factor in itself, which may justify a higher sentence.

The use of a weapon will be an aggravating factor.  The fact that a crime has been committed in the victim’s home, particularly a crime of violence, is a significantly are aggravating factor.

The fact that a crime has been undertaken by a person in a position of trust who is abusing authority is an aggravating factor.  Dishonesty offences involving breach of trust are much more likely to attract a custodial sentence.

The degree of premeditation and malice is relevant in a crime of violence.  These are obvious aggravating factors.