{"id":1703,"date":"2021-08-04T20:51:43","date_gmt":"2021-08-04T20:51:43","guid":{"rendered":"http:\/\/legalblog.ie\/?p=1703"},"modified":"2021-08-15T08:48:00","modified_gmt":"2021-08-15T08:48:00","slug":"sentencing-process","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/sentencing-process\/","title":{"rendered":"Sentencing  Process"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/sentencing-process\/#Required_Approach\" title=\"Required Approach\">Required Approach<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/sentencing-process\/#Hearing_Evidence_for_Sentencing\" title=\"Hearing Evidence for Sentencing\">Hearing Evidence for Sentencing<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/sentencing-process\/#Passing_Sentence\" title=\"Passing Sentence\">Passing Sentence<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/sentencing-process\/#Other_Offences\" title=\"Other Offences\">Other Offences<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/sentencing-process\/#Reports_and_Victim_Impact\" title=\"Reports and Victim Impact\">Reports and Victim Impact<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/sentencing-process\/#Legal_Aid\" title=\"Legal Aid\">Legal Aid<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/sentencing-process\/#Warrant_for_Imprisonment\" title=\"Warrant for Imprisonment\">Warrant for Imprisonment<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/sentencing-process\/#Appeal\" title=\"Appeal\">Appeal<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/sentencing-process\/#Atypical_Appeals\" title=\"Atypical Appeals\">Atypical Appeals<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/sentencing-process\/#Judicial_Review_and_Case_Stated\" title=\"Judicial Review and Case Stated\">Judicial Review and Case Stated<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Required_Approach\"><\/span>Required Approach<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>An offender is sentenced only for offences to which he has pleaded guilty or been convicted.\u00a0 He may request other offences to be taken into consideration.\u00a0 The judge may take account of the totality of circumstances.<\/p>\n<p>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.<\/p>\n<p>The court should sentence the offender for each specific offence for which he is convicted.\u00a0 This is so even if each sentence should run concurrently.<\/p>\n<p>There\u2019s no formal system of plea bargaining in Ireland. Such arrangements have developed in the United Kingdom and the United States.\u00a0 An informal type of plea bargaining may exist in practice.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Hearing_Evidence_for_Sentencing\"><\/span>Hearing Evidence for Sentencing<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 The matter largely arises at common law without statutory direction. A sentence may be adjourned to permit the preparation of a pre-sentence report.<\/p>\n<p>The court should hear evidence of matters relevant to the sentence.\u00a0 It may hear evidence of the character and past behaviour of the convicted person.\u00a0 Evidence may be given of previous convictions by the prosecution.<\/p>\n<p>The defendant must be given the opportunity to accept or deny the previous convictions read out.\u00a0 Failure to do so would be a breach of natural justice.\u00a0 If the previous conviction is disputed, evidence may be given by way of the court order.<\/p>\n<p>Hearsay evidence is allowed at the sentencing phase.\u00a0 It appears that the standard of proof\/evidence in relation to aggravating factors is \u201cbeyond reasonable doubt\u201d.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Passing_Sentence\"><\/span>Passing Sentence<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Judges are not obliged to give reasons for sentences by statute. Reasons are generally given in broad terms.\u00a0 It is desirable and arguably essential that reasons are given on Constitutional and human rights grounds.<\/p>\n<p>Under older general principles, that a judge may alter a sentence until the court has risen.\u00a0 In theory, a judge may alter a sentence during the session, which may extend longer.<\/p>\n<p>Generally, the sentence must be given in open court.\u00a0 This is regarded as a fundamental element of due process.\u00a0 If the sentence is altered in the same session, this must summarily be announced openly.<\/p>\n<p>Formerly, a person could not be sentenced for a felony in his absence.\u00a0 The right of an accused to be filed and present during proceedings is a fundamental constitutional right.\u00a0 If, however, the judge determines that the accused has consciously absented himself from the trial, then the trial may proceed in his absence.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Other_Offences\"><\/span>Other Offences<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 This may occur where there have been numerous recurrences of a particular offence.<\/p>\n<p>The courts may take other offences into consideration.\u00a0 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.\u00a0 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.<\/p>\n<p>Where an offence is taken into consideration, \u00a0the court may impose a higher sentence than it would otherwise have applied for the offence for which the person has been convicted. \u00a0It may not exceed the maximum sanction for the offence for which the person has been convicted.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Reports_and_Victim_Impact\"><\/span>Reports and Victim Impact<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Where a judge relies on a sentencing report, this must be made available to the defendant and prosecution under general constitutional justice requirements.\u00a0 The judge should not hear evidence privately in relation to the sentence.\u00a0 He should not, for example, meet the probation officer or other services privately.<\/p>\n<p>Legislation has allowed for victim impact assessments with certain types of cases.\u00a0 This applies principally to offences involving personal violence, a threat of personal violence or rape.\u00a0 The court must take account of the impact of the offence on the victim.\u00a0 The court may, where necessary, receive submissions and evidence of the impact on the victim.<\/p>\n<p>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.\u00a0 The purpose is limited to that set out in the legislation.\u00a0 The prosecution and defendant may cross-examine the victim on his or her evidence.<\/p>\n<p>Victim impact evidence is considered in much the same way as other evidence.\u00a0 It is to be weighed by the court in relation to its admissibility and weight.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Legal_Aid\"><\/span>Legal Aid<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 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.<\/p>\n<p>An accused should be informed of his right to legal aid if a sentence of imprisonment is a real possibility or likely.\u00a0 If he waives the right, the judge should ensure that he understands the waiver.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Warrant_for_Imprisonment\"><\/span>Warrant for Imprisonment<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A court warrant is an authority for a person to be detained.\u00a0 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.<\/p>\n<p>A warrant for imprisonment should be executed as soon as possible.\u00a0 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.<\/p>\n<p>If the warrant cannot be executed within a reasonable time, it should be returned to the court with a reason for non-execution.\u00a0 This should be done within a reasonable time and generally no more than six months.\u00a0 The judge may reissue the warrant after making enquires and examining persons on oath as is required.<\/p>\n<p>The commencement of a prison sentence may be deferred.\u00a0 It may take effect at the end of a current period of imprisonment.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Appeal\"><\/span>Appeal<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>An appeal may be made against the sentence only.\u00a0 See the separate sections on the right of appeal in criminal trials.\u00a0 District Court appeals may be reheard by way of a full rehearing in the Circuit Court.<\/p>\n<p>Appeals from the \u00a0Circuit Court, the Central Criminal Court and the Special Criminal Court are to the Court of Appeal (formerly the Court of Criminal Appeal).\u00a0 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.<\/p>\n<p>If this is refused, the defendant may apply for leave to appeal to the Court of Appeal.\u00a0 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Atypical_Appeals\"><\/span>Atypical Appeals<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Since 1993, it has been permissible for prosecution to apply to appeal an unduly lenient sentence.\u00a0 The provision only applies to convictions on indictments and does not apply to sentences imposed by the District Court.\u00a0 The application must be made within 28 days of the sentence.<\/p>\n<p>The Court of Appeal may uphold the sentence or vary it. Appeals against the sentence by the prosecution are relatively rare.\u00a0 The sentence must be unduly lenient and out of line with norms.\u00a0 There must be a substantial departure from what would be regarded as appropriate.<\/p>\n<p>There is a provision for appeal from the Court of Appeal to the \u00a0Supreme Court in very limited circumstances.\u00a0 There must be a point of law of exceptional public importance.\u00a0 The Attorney General or DPP must grant a certificate to the effect that this is so.<\/p>\n<p>For a period, there was a direct right of appeal from the \u00a0Central Criminal Court to the Supreme Court under the provision in the constitution providing that all High Court orders are appealable to the Supreme Court.\u00a0 This separate right that arose under the constitution has now been removed.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Judicial_Review_and_Case_Stated\"><\/span>Judicial Review and Case Stated<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A decision of the District Court may be challenged by way of judicial review on the basis of excess of jurisdiction.\u00a0 See the separate sections in relation to judicial review.\u00a0 Judicial review may arise based on an excess of jurisdiction in sentencing.<\/p>\n<p>There are provisions for appeal by way of case stated from the District Court to the High Court.\u00a0 This is a consultative case by which questions of law may be referred by the District Court to the High Court for answers.<\/p>\n<p>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.\u00a0 The decision is in the nature of an appeal.<\/p>\n<p>A separate consultative case procedure can be used while the case is ongoing.\u00a0 The judge may make the application of his own initiative.<\/p>\n<p>In either case, the judge may refuse an application for a case stated if it does not see a sufficient basis.\u00a0 The refusal itself may be subject to judicial review.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-1703\" data-postid=\"1703\" class=\"themify_builder_content themify_builder_content-1703 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Required Approach An offender is sentenced only for offences to which he has pleaded guilty or been convicted.\u00a0 He may request other offences to be taken into consideration.\u00a0 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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[71],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/1703"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=1703"}],"version-history":[{"count":6,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/1703\/revisions"}],"predecessor-version":[{"id":1933,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/1703\/revisions\/1933"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=1703"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=1703"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=1703"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}