Sentencing General

General

Once a person has been convicted of a crime or offence, the judge usually has very wide discretion in relation to sentencing.  The relevant legislation will usually state the maximum fine or custodial sentence.

The range of sanctions available will depend on the statute creating the offence and general statutory provisions on sentencing.  In the case of less serious offences, a fine only may be available.  In the case of more serious offences, imprisonment and/or a fine are usually options.

In addition, the court is may be entitled to make an order under the Probation of Offenders Act, compensation orders and community service orders. In some cases, the effect of sentence, such as disqualification in the case of intoxicated driving will have severe practical consequences.  The courts will have regard to these secondary consequences to some extent.

A person should only be sentenced for offences of which he has been convicted or pleaded guilty.  Offences may be taken into consideration under [section 8 Criminal Justice Act 1951].

Summary or Indictment

Offences and crimes prosecuted summarily in the District Court are generally subject to maximum sentences of 12 months or less or fines up to €5,000 euro at most.

Certain offences may be tried in either the District Court or in the Circuit Court with a jury.  The legislation will specify whether the prosecution, the accused or the court is the primary decision-maker or has the right of veto or say whether the offence is tried summarily in the District Court, rather than with a jury in the Circuit Court.

Sometimes the consent of the accused and the DPP is required. The judge will often have to be satisfied that the offence is minor and is fit to be tried summarily. Most commonly the prosecution has the choice which will be determined by the seriousness in the circumstances, of the particular offence alleged.

Legal Provisions

There are general principles that have been developed at common law in relation to sentencing. The Criminal Justice Act 2006 provides a general framework.

In more recent times, statute law has laid down various rules and principles in particular contexts, for example, in relation to consecutive and so-called mandatory sentences.  The Court of Appeal and the Supreme Court have laid down principles of sentencing both generally and in the context of the more serious offences.

Legislation and court judgment have not laid down specific tariffs and recognise that the primary goal of the judge in considering the particular circumstances of the offence and the personal factors relative to the accused.

The judge’s discretion is not unfettered.  The Superior Courts review sentences and if a custodial sentence is appropriate, it should be imposed.

Except where there are mandatory sentences, a sentence of imprisonment may not necessarily be required.  There is usually some element of judge’s discretion to cover individual cases.

The Criminal Justice Act 2006 have provided for mandatory minimum sentences in the case of serious drugs and firearms offences.  In some of these cases, there is some judicial discretion not to apply the mandatory sentence in exceptional circumstances.

Murder is an exception to the general principle of the judge’s discretion in sentencing.  Life imprisonment is mandatory under the Criminal Justice Act 1990, without other possibilities.

Proportionality

The general principle is that the punishment must fit the crime.  The sentence should be proportionate to the seriousness of the offence.   However, it should also take account of the circumstances of the offender.  Proportionality is also relevant in imposing fines and another non-custodial sentence.

The courts indicate that a proportionate sentence should be calculated by first considering the seriousness of the offence on an overall scale.  Mitigation factors relative to the sentence may then be applied to reduce the sentence.  That is to say, mitigation should be applied to the proportionate sentence rather than the maximum sentence.

Fine or Imprisonment

Generally, there is a choice between a fine and/or imprisonment.  Generally, a fine is more lenient than imprisonment.  See our separate chapter on fines.

A custodial sentence may be specified in lieu of a fine. Fines legislation provides for custody in default of payment of a fine. A suspended or deferred sentence is an intermediate possibility.

It is generally considered the prison should be a last resort, reserved for the more serious offences.  However, this principle has not been clearly spelt out by the Irish statutes or caselaw.  It, does, however, accord with common sense and appears to be implicit in the whole hierarchy of punishment. They may be aggravating or mitigating factors.

The Court of Appeal may vary sentences on the grounds of undue leniency.  It will allow the judge who has heard the case a great deal of latitude in terms of his or her discretion on punishment.  However, a sentence appears so out of step with what the circumstances appear to require, it may change the sentence on the basis that an error has been made and inadequate consideration has been given to a particular factor.

Serious Offences; Prison the Norm

There are some very serious offences for which prison would be the norm.  However, the courts recognize that even in the case of such crimes, except some circumstances may exist that justify a departure from this principle.

Offences such as rape, serious assault and drug trafficking will ordinarily require prison sentences other than in highly exceptional circumstances.  However, – in other cases the seriousness of the offence will depend on the entirety of the circumstances.  This will depend on factors such as the gravity of the offence, the impact on the victim, the impact on society, the previous record, character and circumstances of the accused.

Fair Procedure

The imposition of sentence is a public law function that has the most serious consequences for the convicted person.  Therefore, the general principles of fair procedure should apply to the imposition of the sentence.

The judge as a public official must not act arbitrarily nor he may simply give up his discretion, by imposing rigid sentences for certain offences.  The personal and particular circumstances must always be considered and weighed.  The sentence should be fair and proportionate in the circumstances.

A consequence of the fair procedure requirement is that the individual must have the right to put forward submissions after conviction.  Similarly, the prosecution may put forward submissions and evidence.  Previous convictions which are generally not admissible in relation to the matter of guilt or innocence may be considered.

In more serious cases psychological or probation reports will be appropriate and, in some cases, necessary. The sentence may be adjourned for the purpose of obtaining reports. In certain cases, it may be an error on which the Court of Appeal would set aside a sentence if there is a failure to obtain a report.

Guilty Plea

A plea of guilt, particularly at an earlier stage usually merits a discount on the appropriate sentence. The plea of guilt saves costs and promotes the efficient administration of justice.  It may save the victims, from the potential trauma of giving evidence.  It is also a recognition of guilt and acceptance which may indicate remorse.

Account is taken of the stage at which the guilty plea is entered, in deciding the appropriate discount in the sentence.  This principle is specifically embodied in the Criminal Justice Act 1999.  Account is taken to both the stage in the proceedings and the circumstances in which the guilty plea is made.

The legislation declares that the guilty plea does not preclude the court from imposing the maximum sentence if it is satisfied that there are exceptional circumstances which warrant that sentence.  The principal does not apply to a fixed sentence offence such as murder.

The circumstances of the guilty plea are highly relevant to the extent of discount which may be allowed.  Cooperation with police and investigation merits mitigation. If a person is certain to be convicted because of overwhelming evidence, less discount is required than if the case would be more difficult to prove.

However, credit is still merited because the person has saved the State a trial, which the accused is always within his rights to do,  to prove his guilt beyond a reasonable doubt in proceedings.  For this reason, a person should not be punished additionally for having contested a charge.

Disability and Age

The grounds upon which a person may be excused liability on the basis of mental disorder or insanity are relatively limited.  See our separate chapter in that regard.  However, mental or physical disabilities that are insufficient to excuse the accused of the crime, may be relevant in sentencing.  They may reduce the blameworthiness of the accused.

Account may be taken of the impact upon a person of his disability or advanced age.  Sentences should seek to have equivalent impacts, so that where the consequences are more severe for an accused, all things being equal, a lesser sentence may be justified.

A particular difficulty arising in this context is where the person’s disability makes it more likely that they will re-offend.  Proportionality and public safety must be balanced.

A person with physical illness, disability or age may suffer a greater impact on imprisonment.  This may be a factor in mitigation.  The issue has arisen in cases where elderly persons have been convicted of sexual offences, usually committed at a much earlier date.

Custodial sentences shave been commonly imposed for elderly offenders although for much shorter periods than would otherwise be appropriate.  In some cases, the courts have suspended custodial sentences where they would cause exceptional hardship.  The absence of facilities in prisons may be relevant.

Intoxication, duress or provocation play a limited role in excusing persons from criminal liability.  They may be relevant in the context of sentencing.  Intoxication may be both an aggravating factor or mitigating factor, for example, the latter,  where it tends to show the absence of premeditation or planning.

Victim Impact

The impact on the victim is a relevant factor.  The Criminal Justice Act 1993 specifically requires the court to take into account and where necessary, to receive evidence or a submission involving the impact on the victim, whether long term or otherwise.  This is most relevant to sexual offences or threats of violence or violence.

Evidence may be heard from the victim if he or she so requests.  The evidence must not be for the purpose of showing guilt of serious offences other than that for which the person was convicted.

The victim impact statement should be given to the court and the accused in advance.  The accused should have the opportunity to make representations,  to object to the inclusion of matter that is not appropriate to victim impact.

The 1993 Act applies to sexual and violent offences. The 2009 Criminal Procedure Act applies to victims under 14 suffering from a mental disorder, ill or otherwise incapacitated.

Consecutive or Concurrent

The court may order a person who has been convicted of more than one offence to be sentenced concurrently or consecutively.  This is a matter for the discretion of the court.  Concurrent sentences run at the same time whereas a consecutive sentence commences at the termination of the earlier sentence.

Recent legislation has required mandatory consecutive sentences in the case of offences committed while on bail or during a term of imprisonment. Although the sentence may be required to be consecutive, the court may still suspend it.  In the case of the District Court, the maximum length of sentence which it may impose remains two year even where consecutive sentences are imposed.

The courts have generally held it to be appropriate, that concurrent sentences are imposed where the crimes happen in a single transaction or event.  Consecutive sentences are more appropriate and should be imposed in relation to separate actions and events. The principle is far from rigid and there may be arbitrary categorisation of what constitutes a single transaction or distinct event.

The position might be clear where the offences are entirely distinct and, in such cases, consecutive sentences would be appropriate if not necessarily, mandatory.  Where a number of offences arise from a single occasion, consecutive sentences may be more appropriate.

Repeat offences often happen in sexual abuse case are less justifiable in terms of concurrent sentences. The courts may need to consider the overall circumstances in considering the entirety of the sentence.

Where consecutive sentences are imposed which are excessive in total, a reduction may be made, even where the consecutive sentences are imposed by law.

The commencement date for the sentence should be clearly identifiable in each case. This implies that the length of the earlier offence must clearly be stated.

Previous Convictions

A person’s previous good record is generally a mitigating factor. A previous good record is usually interpreted to mean the absence of previous convictions.  A previous good character in terms of behaviour, contribution to family and community is relevant, as is his or her overall circumstances and history.

The gravity of previous offences is relevant.  Certain offences such as road traffic offences may be of little or no consequence or be entirely disregarded.

More distant offences may deserve less weight than more recent offences. However, multiple previous offences are an obvious aggravating factor.

Previous convictions might be argued to be aggravating factors.  However, alternatively and the more commonly adopted approach is that their absence is a mitigating factor. It avoids the principle of double punishment which is a basic constitutional principle.  Previous conviction should be generally regarded as spent.

Remorse and Reoffending

The risk of reoffending is relevant to the imposition of a custodial sentence. The fact of repeated offences may show that there is a risk of reoffending and the consequent threat to society. This of itself is a factor in appraising appropriate punishment.

Remorse may be a relevant consideration.  This may include whether the accused has apologised or offered to pay compensation or whether he has cooperated with the Garda Siochana.  There are different views on the extent to which remorse should be weighed as a factor.  There may be difficulties in identifying genuine remorse.