Sentencing Process

Required Approach

An offender is sentenced only for offences to which he has pleaded guilty or been convicted.  He may request other offences to be taken into consideration.  The judge may take account of the totality of circumstances.

He should state the basis on which the sentence is being imposed, in accordance with the general constitutional and human rights obligations, to give reasons for decisions. Account may not be taken of other offences of which he has been acquitted even if the judge believes he is guilty.

The court should sentence the offender for each specific offence for which he is convicted.  This is so even if each sentence should run concurrently.

There’s no formal system of plea bargaining in Ireland. Such arrangements have developed in the United Kingdom and the United States.  An informal type of plea bargaining may exist in practice.

Hearing Evidence for Sentencing

Courts have the power to defer sentences. This may be to give the person committed the option to take steps that mitigate a particular problem such as drug abuse, aggressive behaviour, et cetera.  The matter largely arises at common law without statutory direction. A sentence may be adjourned to permit the preparation of a pre-sentence report.

The court should hear evidence of matters relevant to the sentence.  It may hear evidence of the character and past behaviour of the convicted person.  Evidence may be given of previous convictions by the prosecution.

The defendant must be given the opportunity to accept or deny the previous convictions read out.  Failure to do so would be a breach of natural justice.  If the previous conviction is disputed, evidence may be given by way of the court order.

Hearsay evidence is allowed at the sentencing phase.  It appears that the standard of proof/evidence in relation to aggravating factors is “beyond reasonable doubt”.

Passing Sentence

Judges are not obliged to give reasons for sentences by statute. Reasons are generally given in broad terms.  It is desirable and arguably essential that reasons are given on Constitutional and human rights grounds.

Under older general principles, that a judge may alter a sentence until the court has risen.  In theory, a judge may alter a sentence during the session, which may extend longer.

Generally, the sentence must be given in open court.  This is regarded as a fundamental element of due process.  If the sentence is altered in the same session, this must summarily be announced openly.

Formerly, a person could not be sentenced for a felony in his absence.  The right of an accused to be filed and present during proceedings is a fundamental constitutional right.  If, however, the judge determines that the accused has consciously absented himself from the trial, then the trial may proceed in his absence.

Other Offences

There are conflicting views of whether the court may consider the fact that the counts charged and on which the accused has been convicted are sample in nature. It may be apparent to the court in some cases that the counts charged are sample counts only.  This may occur where there have been numerous recurrences of a particular offence.

The courts may take other offences into consideration.  Where a person on being convicted admits himself guilty of other offences and asks them to be taken into consideration, the court may, if the DPP consents, take them into consideration.  Where the offence is taken into consideration, it is noted as such, and the person may not be prosecuted for it later unless the conviction is reversed.

Where an offence is taken into consideration,  the court may impose a higher sentence than it would otherwise have applied for the offence for which the person has been convicted.  It may not exceed the maximum sanction for the offence for which the person has been convicted.

Reports and Victim Impact

Where a judge relies on a sentencing report, this must be made available to the defendant and prosecution under general constitutional justice requirements.  The judge should not hear evidence privately in relation to the sentence.  He should not, for example, meet the probation officer or other services privately.

Legislation has allowed for victim impact assessments with certain types of cases.  This applies principally to offences involving personal violence, a threat of personal violence or rape.  The court must take account of the impact of the offence on the victim.  The court may, where necessary, receive submissions and evidence of the impact on the victim.

The victim may make an application that his or her evidence be heard as to the effect of the offence. The victim may give evidence with the assistance of counsel and solicitor or by him or herself.  The purpose is limited to that set out in the legislation.  The prosecution and defendant may cross-examine the victim on his or her evidence.

Victim impact evidence is considered in much the same way as other evidence.  It is to be weighed by the court in relation to its admissibility and weight.

Legal Aid

A person may be granted a legal aid certificate where an offence that is sufficiently grave or other exceptional circumstances exist, and he does not have the means to pay for his own legal representation.  The right to legal aid is constitutional where a person faces a serious charge and is not in a position to provide legal assistance or cannot afford to do so.

An accused should be informed of his right to legal aid if a sentence of imprisonment is a real possibility or likely.  If he waives the right, the judge should ensure that he understands the waiver.

Warrant for Imprisonment

A court warrant is an authority for a person to be detained.  Unless it is immediately executed, the warrants are sent to the Superintendent or Inspector of the Garda Siochana for the area. It may be transmitted to other places where the defendant may be.

A warrant for imprisonment should be executed as soon as possible.  It will generally issue on the spot upon conviction. A warrant will not be invalidated due to a minor, immaterial error. A warrant does not become stale due to delays in executing it.

If the warrant cannot be executed within a reasonable time, it should be returned to the court with a reason for non-execution.  This should be done within a reasonable time and generally no more than six months.  The judge may reissue the warrant after making enquires and examining persons on oath as is required.

The commencement of a prison sentence may be deferred.  It may take effect at the end of a current period of imprisonment.

Appeal

An appeal may be made against the sentence only.  See the separate sections on the right of appeal in criminal trials.  District Court appeals may be reheard by way of a full rehearing in the Circuit Court.

Appeals from the  Circuit Court, the Central Criminal Court and the Special Criminal Court are to the Court of Appeal (formerly the Court of Criminal Appeal).  An application is made for a certificate to the judge that the case is fit for appeal, at the close of trial or within three days.

If this is refused, the defendant may apply for leave to appeal to the Court of Appeal.  This must be done within 21 days. The procedure for issuing and serving the notice of appeal must be followed. The Court of Appeal may extend the time in which to allow notice of appeal.

Atypical Appeals

Since 1993, it has been permissible for prosecution to apply to appeal an unduly lenient sentence.  The provision only applies to convictions on indictments and does not apply to sentences imposed by the District Court.  The application must be made within 28 days of the sentence.

The Court of Appeal may uphold the sentence or vary it. Appeals against the sentence by the prosecution are relatively rare.  The sentence must be unduly lenient and out of line with norms.  There must be a substantial departure from what would be regarded as appropriate.

There is a provision for appeal from the Court of Appeal to the  Supreme Court in very limited circumstances.  There must be a point of law of exceptional public importance.  The Attorney General or DPP must grant a certificate to the effect that this is so.

For a period, there was a direct right of appeal from the  Central Criminal Court to the Supreme Court under the provision in the constitution providing that all High Court orders are appealable to the Supreme Court.  This separate right that arose under the constitution has now been removed.

Judicial Review and Case Stated

A decision of the District Court may be challenged by way of judicial review on the basis of excess of jurisdiction.  See the separate sections in relation to judicial review.  Judicial review may arise based on an excess of jurisdiction in sentencing.

There are provisions for appeal by way of case stated from the District Court to the High Court.  This is a consultative case by which questions of law may be referred by the District Court to the High Court for answers.

Under one procedure, a party dissatisfied with a determination as erroneous in law may apply within n 14 days to the District Judge for a case stated to the High Court for determination.  The decision is in the nature of an appeal.

A separate consultative case procedure can be used while the case is ongoing.  The judge may make the application of his own initiative.

In either case, the judge may refuse an application for a case stated if it does not see a sufficient basis.  The refusal itself may be subject to judicial review.