THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

CONSULTATION PAPER

ON

SENTENCING

March 1993

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2

© Copyright The Law Reform Commission 1993

First Published March 1993

Cover: The Courthouse, Washington Street, Cork.

(photo courtesy of “Cork Examiner”)

THE LAW REFORM COMMISSION

The Law Reform Commission was established by section 3 of the Law Reform Commission Act, 1975 on 20th October, 1975. It is an independent body consisting of a President and four other members appointed by the Government.

The Commissioners at present are:

The Hon. Mr. Justice Anthony J. Hederman, Judge of the Supreme Court, President;

John F. Buckley, Esq., B.A., LL.B., Solicitor;

William R. Duncan, Esq., M.A., F.T.C.D., Barrister-at-Law, Associate Professor of Law, University of Dublin;

Ms. Maureen Gaffney, B.A., M.A. (Univ. of Chicago), Senior Lecturer in psychology, University of Dublin;

Simon P. O'Leary, Esq., B.A., Barrister-at-Law.

The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both House of the Oireachtas on 4th January, 1977. The Commission has formulated and submitted to the Taoiseach or the Attorney General forty four Reports containing proposals for the reform of the law. It has also published eleven Working Papers, five Consultation Papers and Annual Reports. Details will be found on pp.415–419.

Alpha Connelly, B.A., LL.M., D.C.L., is Research Counsellor to the Commission.

Ms. Emily Egan, LL.B., B.C.L. (OXON), Ms. Clíona Kimber, LL.B., LL.M., Mr. James Kingston, LL.B., LL.M., Barrister-at-Law, and Ms. Julianne O'Leary, B.A., LL.B., Barrister-at-Law are Research Assistants.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2.

Telephone: 715699.

Fax No: 715316.

INTRODUCTION

As part of its First Programme for examination of different branches of the law, which was laid before both Houses of the Oireachtas on 4th January, 1977, the Commission proposed to examine various aspects of the criminal law and criminal procedure, including in particular the law on the matters proper to be taken into account in sentencing convicted persons.

On the 6th March, 1987, the then Attorney General, Mr John Rogers S.C., requested the Commission to formulate proposals for reform of the law in relation to a number of areas. These included the law relating to certain aspects of the criminal law, and, first and foremost, sentencing policy.

During the course of its research on sentencing, the Commission noted that a clear statement of the matters proper to be taken into account in sentencing convicted persons is closely dependent on the policy governing the sentencing of offenders first being clearly articulated: where the policy is vague or incoherent, any number of matters may without impropriety be taken into account by reference to that policy. The Commission concluded that the primary matter to be dealt with, therefore, was the formulation of a coherent sentencing policy, which, once in place, would indicate what matters ought properly be taken into account in sentencing.

In the present Consultation Paper we begin by setting out in Chapter 1 the existing law and practice of sentencing and touch briefly upon the difficulties encountered in this area. In Chapter 2 we then examine the role of sentencing policy and the effect which incoherent policy has on existing sentencing law and practice. In Chapter 3 we examine the respective roles of the legislature and the courts in sentencing reform, and in Chapter 4 we discuss the role of the existing components of our sentencing policy making some provisional recommendations for reform of sentencing policy which would be more purposive, consistent and

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just. Chapter 5 examines the types of matter proper to be taken into account in sentencing, and Chapter 6 looks at the importance of prior criminal record. Chapter 7 contains a review of sentencing policy in other jurisdictions. Chapter 8 examines continental European responses to sentencing disparity. Chapter 9 discusses in detail means of implementing sentencing policy, drawing on the rich vein of comparative experience. Subsequent chapters are concerned with the statutory context of sentencing (Chapter 10); matters of procedure (Chapters 11, 12, 13 and 14); the co-ordination of penal and sentencing policy (Chapter 15); and sentencing information and studies (Chapter 16). We conclude by setting out our provisional proposals for reform.

On the 30th of September, 1992 when the Commission was on the point of going to print, the Minister for Justice presented the Criminal Justice Bill, 1992. The Commission had to decide at that stage whether to ignore or examine the Bill.

We decided to examine it, even if this delayed publication. Our examination led in particular to a re-appraisal of the Commission's approach to Victim Impact evidence. The Commission was unable to agree on a provisional recommendation so we have simply set out below arguments for and against the introduction of mandatory victim impact statements and have sought views.

In the Whitaker Report on the Penal system, it is concluded that “complexities” are the reality of the criminal justice system but that given the present state of criminal justice statistics, their frequency cannot be measured.

Unfortunately, this situation remains unchanged. Any provisional recommendations in this paper or recommendations ultimately made in our Report will be rendered comparatively ineffective by the absence of proper information. Details of every sentence imposed in every court and of every instance of election for trial venue by judge, prosecution or accused should be recorded and speedily retrievable. It would not be possible to attain this by relying on occasional research.

A distinct national office or agency should be established under the aegis of the Department of Justice, the Gardaí or the DPP, staffed by experts in criminological research to conduct the necessary research and provide statistics. This office, which could be given a statutory basis, would have to secure the trust and confidence of the aforementioned bodies and of the judiciary in order to ensure that the relevant information would readily be made available, if necessary by affording access to files and orders.²

While the President of the Commission, Mr. Justice Hederman, was appointed before this paper went to print, he took no part in its preparation and it would be unfair in the circumstances to associate him with any provisional recommendation made in the Paper. Happily, the Commission will have the benefit of his extensive experience in this area when it comes to make its final Report.

We emphasise that the proposals for reform contained in this Consultation Paper are provisional in their nature. We invite written submissions in relation to any of these proposals and the material contained in this Consultation Paper. Any such submissions received by us will be assessed with great care before we present our final proposals to the Attorney General. We also hope to hold a Seminar which will enable a full discussion of the Consultation Paper to take place.

We would be grateful if submissions on the Consultation Paper were sent to us at the Commission's Offices not later than 1st June, 1993.

CHAPTER 1: OVERVIEW OF IRISH SENTENCING LAW AND PRACTICE

A: GENERAL

1.1

What is sentencing? While there exists a general consensus as to the etymology of the expression “sentence”– from the Latin sententia, meaning literally “feeling” or “opinion”¹– there appears to be very little in the way of coherent Irish statement as to the nature of sentencing. Little assistance is to be gained from the definition of “sentence” which appears in section 21 of the Criminal Appeal Act, 1907:

1.2

As well as being, perhaps, somewhat verbose, this explanation would exclude from the ambit of sentencing many orders made by the District Court under the Probation of Offenders Act, 1907 which do not require conviction before they may be made.² Nowadays, conviction is not always a prerequisite for the imposition of sentence; rather what is always required is a finding of guilt. A number of more helpful formulations appear in recent sentencing reform literature. The British Government, for example, describes “sentence” thus:

1.3

JUSTICE, the British section of the International Commission of Jurists has said:

1.4

Sentencing might thus be described as the act of a criminal court imposing punishment on an individual found guilty of an offence. Other formulations of “sentencing”, however, avoid the concept of punishment. The Victorian Sentencing Committee said:

1.5

The Canadian Law Reform Commission also took this approach, defining “sentencing” as:

1.6

That certainly is not the case in Irish courts; rarely do our courts give “reasoned statements” of the values at stake in sentencing.⁷ The most cogent, perhaps, of this kind of formulation is that of the Canadian Sentencing Commission:

1.7

This description highlights the most important element of sentencing: judicial determination. Sentencing involves a decision by a judge⁹ as to what the criminal justice system should do to a person found guilty of an offence. Occasionally, as we shall see, the District Court may decide simply to “dismiss

the information or charge.”¹⁰

1.8

This type of formulation is also to be preferred at an early stage of discussion because it avoids reference to “punishment”. The notion of punishment implies, as we shall see, a certain ideological approach to the question of sentencing: i.e. retribution. Another approach, that of rehabilitation, prefers to view the imposition of legal sanction not as punishment, but as treatment. Later, we shall examine the merits of these differing views,¹¹ but for the present it may be of some assistance to discussion if we do not commit ourselves to any one ideological approach.

1.9

Also, by avoiding reference to punishment, it is easier to conceive of orders, such as indefinite adjournment and absolute discharge, as forming part of the sentencing process¹²– even though they may not impose such a measure of pain as to properly be described as punishment in the ordinary sense.

1.10

We prefer to describe sentencing, therefore, as the judicial determination of the sanction, if any, to be imposed on a person found guilty of an offence.

B. THE SENTENCING HEARING

1.11

The sentencing hearing may begin once there has been a plea or a finding of guilt. The proceedings may have taken a number of courses prior to this: the defendant may have pleaded not guilty at the trial but subsequently have been found to be guilty by the judge or jury; or may have changed his or her plea to guilty during the course of the trial; or he or she may have pleaded guilty at the outset. The court may then proceed to sentence, or it may adjourn for the compilation of reports and to allow the parties to call witnesses to the court. If the plea or finding of guilt was made in the District Court, the District Judge may have sent the offender forward to the Circuit Court for sentencing in order to avail of that court's wider jurisdiction.

1.12

We now examine the procedures which may be implemented in the course of the sentencing hearing. It should be observed that not all sentencing hearings will follow this pattern, since neither the rules of court, legislation nor judicial precedent set out a course of procedure to be followed at every sentencing hearing. Indeed, in some cases, particularly at District Court level, it is difficult to distinguish the sentencing hearing from the determination of the substantive issue of guilt since the District Judge may decide the sentence to be imposed on the evidence adduced during the course of the trial. Nonetheless, practice has over the years established a pattern of procedure which is generally followed at sentencing hearings in the superior courts.

(i) Outline of the Offence

1.13

It is normally the prosecution which opens the sentencing hearing by presenting the facts of the offence to the court. When an offender pleads guilty to the charge at an early stage of the trial, the court may know little about the circumstances of the offending behaviour. Similarly, if the offender has been sent forward to the Circuit Court by the District Court for sentencing, the Circuit Court Judge will know little about the case. Occasionally, in District Court sentencing hearings, the District Judge may have learnt many of the details during the course of a preliminary examination, particularly if there has been some question as to whether or not the offence was minor in nature and fit to be tried summarily, and, thus, may feel that it is unnecessary to rehear all the circumstances of the offence.

1.14

The prosecution will explain to the court what the case involves by summarising the evidence which has been heard during the trial, or, if the offender has pleaded guilty, the evidence which the prosecution would have presented at the trial – normally starting with the circumstances of the crime and finishing with the offender's apprehension and charge. It is usual for the prosecution to call a Garda witness to give sworn testimony as to these matters.

On a Plea of Guilty

1.15

If the defendant pleads guilty but disputes the prosecution's version of the facts, the defence may either contact the prosecution prior to the hearing to see if they are prepared to modify their version of the facts, or, if the prosecution is not prepared to do so, the defence may address the court on the facts in dispute. There is no clear authority as to how the court should resolve such a conflict, but it seems from English decisions that the court will not order a trial on a verdict of not guilty simply to enable the sentencer determine a question of fact which does not affect the outcome of the trial itself.¹³ There is also some English authority to the effect that the sentencing court may either hear evidence and come to a conclusion on the matter¹⁴ (both sides calling witnesses and cross examining them in the usual way, if appropriate¹⁵), or hear no evidence, but listen instead to the submissions of counsel and come to a conclusion.¹⁶ If the latter course is followed, the benefit of any doubt must be given to the defence.¹⁷

The Standard of Proof

1.16

There is no established rule as to the standard of proof which should be attained by the prosecution and defence at the outline stage. In England,

however, if the sentencing court chooses to hear evidence from both sides, the usual standard of proof in criminal trials is applied (i.e. beyond any reasonable doubt),¹⁸ but this carries only the weight of English precedent and there seems to be no Irish authority on the matter. The usual requirements as to corroboration should also be applied, although this may have the peculiar consequence of the trial judge issuing a corroboration warning to himself.¹⁹

On a Plea of Not Guilty

1.17

Where an offender pleads not guilty, the court will usually have received evidence on all the germane facts during the course of the trial. The judge must make his own decision as to what were the true circumstances of the case. Where the defendant has been found guilty by a jury and the factual basis for the verdict is implicit in that verdict, it seems that the sentencer is bound to accept this and sentence accordingly.²⁰ A dispute as to the facts may still arise, however. For example, if the finding of guilt results from a jury verdict, the basis of the verdict may remain unclear. Similarly, if the sentencing hearing is taking place in the Circuit Court following a finding of guilt in the District Court, the basis of the District Judge's verdict may remain unclear. Again, the task of the sentencing judge is to make his or her own decision on the evidence as to what were the true circumstances of the case,²¹ and, seemingly, giving the offender the benefit of the doubt where any doubt lies.²²

1.18

It is not normal practice for the sentencing judge to question the jury so as to clarify the basis upon which it arrived at its verdict, although some older authority exists for doing so in murder trials where a verdict of guilty of manslaughter is returned without the factual basis of the verdict being made apparent.²³ In R v Solomon and Triumph,²⁴ the extent to which it is permissible or desirable for a sentencer to question a jury about the basis on which it arrived at a particular verdict was considered. Beldam J concluded that it is generally undesirable to ask a jury to explain an otherwise ambiguous verdict,²⁵ since the jury may not have been unanimous on the basis for the particular verdict although in agreement on the general verdict.²⁶ A “sensible precaution”,²⁷ however, where the trial is on a charge of murder, is for the trial judge to follow the procedure used in R v Frankum.²⁸ In that case the jury was directed, (prior to reaching its verdict), that if it found the appellant guilty of manslaughter instead of murder, it would be asked to indicate whether the abnormality arose as a result of inherent causes or as the result of the effects of drugs, or both; if the diminished responsibility arose from the effects of a drug

then imprisonment would probably not be appropriate. The jury returned a verdict of guilty of manslaughter on the grounds of diminished responsibility arising out of inherent causes. The defendant was sentenced to life imprisonment, and on appeal tendered medical evidence which tended to support the claim that it was the effects of a drug which caused the abnormality. The Court of Appeal held, however, that the fresh evidence did not justify the court in reaching a conclusion different to that of the jury.

(ii) The Offender's Antecedents and Character

1.19

The prosecution will then present to the court evidence of the offender's antecedents (criminal record) and character.²⁹. It is normal practice for the prosecution to call a witness, usually a Garda officer, to given sworn evidence of the offender's age, domestic and family circumstances, education, employment, previous convictions, date of arrest, and whether he or she has been on bail.

Antecedents

1.20

Where previous convictions are to be relied upon they must be either:

In respect of each and every alleged conviction, the offender should have been given an opportunity of admitting or denying it before putting the information to the court.³¹ In respect of any conviction disputed by the offender, proper evidence – such as the court order of the previous conviction – would be required to be presented to the court, and the defendant allowed an opportunity to controvert that evidence.³² Hearsay evidence, such as a copy of the Garda criminal history record, would not be sufficient to prove convictions in dispute.³³ In respect of convictions not in dispute, however, a copy of the Garda record will suffice.³⁴

Character

1.21

There is no hard and fast rule as to what constitutes evidence of character at the sentencing stage, but generally included are personal details such as age, family background, education and work record, and other details such as income and personal situation since arrest, including whether or not the offender was on bail or in custody.

1.22

The rules of evidence are relaxed in relation to character evidence, so that hearsay evidence may be relied upon. In The State (Stanbridge) v Mahon³⁵ Gannon J quoted from a judgment of the English Court of Criminal Appeal delivered by Goddard LCJ in R v Marquis:³⁶

1.23

It is generally accepted that the role of the prosecution in sentencing is to provide the court with information – not to seek to influence the court's sentencing decision in any way.³⁷ However, a problem which may occur when evidence of antecedents is being given by prosecution counsel or a Garda officer is that damaging general remarks about the defendant's character, which are not capable of substantiation, are made, having the effect of damning the offender in the eyes of the court. For example, the officer may state that the defendant “associates with known criminals“ or is “known to the police” (i.e. he has often been in trouble with the police) or even that “there is a lot of this type of crime in the locality.“ These types of remarks can be seen as attempts by the prosecution to influence the decisions of the sentencing court.

1.24

English precedent may again prove persuasive here. In R v Van Pelz, evidence was given that the appellant was a prostitute who was “an adventuress ... a very dangerous woman ... completely unscrupulous.” Caldecote CJ held that “a police witness should not be allowed to make allegations which are incapable of proof and which he has reason to think will be denied by the prisoner.”³⁸ The present English rule is that witnesses should confine themselves to the details of the antecedents, and any adverse comments should be contained in the antecedents form.³⁹ Any such adverse evidence should not be given as part of the antecedents “unless it is first hand information about which the officer giving the information can be questioned.”⁴⁰ There is no Irish authority on the matter.

(iii) Reports

1.25

At this stage of the hearing, the court will consider any reports which it has requested or ordered. These will have taken time to prepare, so an adjournment will invariably have been required for this purpose.

(a) The social inquiry (presentence) report

1.26

The social inquiry report is prepared by the Probation and Welfare Service. If the offender is already on probation, it is likely that his supervising officer will prepare the report – if not, the offender will be assigned an officer to interview him and make appropriate inquiries into the offender's domestic situation and social background. As well as outlining the offender's attitudes and responses to the offence, the report evaluates how further crime may be avoided and what services and forms of intervention can be utilised towards this end. Following this analysis, a supervision programme may be proposed (if considered feasible) which will both continuously monitor the behaviour of the offender and involve him or her in a constructive use of time through availing of community resources. Recommendations can then be made to the court concerning what type of supervision would underpin such a programme as well as the terms and conditions of sentence that would be appropriate in the particular case.⁴¹ The Probation officer's recommendations will be based on his or her assessment of the offender's likely reaction to a particular sentence. The court, however, is not bound to accept the officer's recommendations as it will have other factors to take into account, such as the public interest.⁴²

1.27

There is only one situation in which such a report is a prerequisite, that is prior to the making of a community service order.⁴³ However there are certain types of order, such as adjourned supervision,⁴⁴ or orders under s28 of the Misuse of Drugs Act, 1977,⁴⁵ which cannot be made without consultation with the Probation and Welfare Service – in effect requiring a social inquiry report.

1.28

The social inquiry report is accorded some degree of confidentiality in that it is not read aloud in court. However, whereas in England the prosecution is never allowed to see the contents of the report, in Ireland it is not uncommon for the prosecution to be given a copy of the report to peruse.⁴⁶ The defence will, of course, be given a copy to read, and will have opportunity to question the probation officer in court if any matter contained in the report requires clarification, or if a dispute arises.⁴⁷ Of necessity, this requires that the report

be presented to the judge in open court in the presence of the accused.⁴⁸

(b) Medical reports

1.29

If the court is of the opinion that an inquiry ought to be made into the physical or mental condition of the offender then it may adjourn⁴⁹ to enable a medical examination and report to be made.

1.30

It used to be that such reports had to be furnished in respect of all offenders under certain sections of the Misuse of Drugs Act, 1977,⁵⁰ but this is no longer the case.⁵¹ However, the extended sentencing powers⁵² under that Act are only exercisable upon consideration of a medical report and social inquiry report, so a medical report will be required if the court considers that one of these extended penalties is viable option. The reports will be prepared by “a health board, Probation and Welfare officer or other body or person, considered by the court to be appropriate.”⁵³

(c) Reports of prison officers, and community service reports

1.31

If the defendant has served a custodial sentence, a report from that institution will be available to the court. Likewise, if the defendant has served a term of community service, the court may request a report from the Probation and Welfare officer responsible for the supervision of the particular scheme. Such reports will outline how the defendant responded to the particular regime, if he failed to respond, or if any problems arose. Very often these reports will already have been used by the probation officer when preparing a social inquiry report.

(iv) Plea in Mitigation

1.32

The prosecution having outlined the facts of the offending behaviour and the character and circumstances of the accused, and all disputes in relation to the foregoing having been made known to the court, the defence now has a duty to address the court by way of a plea in mitigation. Despite the reference to 'mitigation' in the name of the plea, the defence, in making the plea, is not limited to factors relevant solely to the mitigation decision,⁵⁴ and may raise matters relevant to the decision as to which approach the court should adopt in determining sentence.⁵⁵

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There is no defined or exclusive list of matters which are relevant to the mitigation decision, or to the sentencer's choice of approach for determining sentence (an infinite variety is thought to exist⁵⁶). Thus, the defence will be left to rely on its own ingenuity and experience when deciding what factors to raise during the plea in mitigation. It is far from unlikely that the defence will from time to time overlook a factor which the trial judge would have found persuasive; or, alternatively, that the defence will burden the court with a large range of factors, only some of which in the event will prove to be relevant. It appears, however, that the sentencing judge should permit the defence an opportunity to do so,⁵⁷ listening patiently and not interrupting, even if the defence has earlier put forward a lying defence.⁵⁸

1.34

Boyle and Allen give the following list of factors commonly raised by the defence during the plea in mitigation:⁵⁹

1.35

Where appropriate, the offender may be called to the stand to give evidence, particularly if his or her bearing, personality and desire for reform are likely to impress the court. It is clear that the likelihood of reform is not a factor relevant to mitigation; but it is of crucial importance in determining the correct

approach to adopt when sentencing. In The People (DPP) v Conroy (No 2)⁶⁰ Finlay CJ said of the likelihood of reform:

1.36

The defence may present, if appropriate, character evidence as part of the plea in mitigation, and may call character witnesses such as the local priest, youth club leader, school teacher, or employer (particularly if the employer is willing to keep the offender in his or her employ).

(v) Bringing Other Offences into Consideration

1.37

At this stage, the defence may also wish to have other charges taken into consideration to which the offender has pleaded guilty. The Court may then take them into consideration at its discretion.⁶²

C: THE SENTENCING DECISION

1.38

The sentencing decision is essentially a matter for the judge, not for the jury, and while it is permissible for the jury to offer a rider to its verdict, such as a recommendation that mercy be shown, the judge is in no way bound by it.⁶³

1.39

As to the procedure to be followed at the sentencing hearing, there is little in the way of legislative or judicial ruling on the decisions which must be made by the sentencing judge.⁶⁴ Cryptic guidance is to be found, however, in various judicial pronouncements to the effect that the sentence to be imposed must not only be appropriate to the particular circumstances of each case, but also to the particular offender.⁶⁵

1.40

Of course, it is not possible to say with precision what goes on in the mind of every sentencer when choosing a sentence appropriate to the characteristics of both the particular offender and offence. The judicial reluctance to state reasons for choice of sentence does not help us in our analysis.⁶⁶ However it is possible to identify some of the various decisions which may be made by sentencers in coming to a final conclusion. Thus, during the 1970s in England, Thomas was able to construct a three stage decision model generally followed by the English Court of Appeal and the lower courts in

determining sentence.⁶⁷ Thomas's analysis was accepted by the English courts as being accurate, and in the twenty one years that have followed, has been accepted as an authority on the matter. Our examination of Irish sentencing decisions suggests that Irish sentencers follow a broadly similar pattern in making their decisions. The Irish pattern may be outlined as follows:

(I) Determining the Factual Basis

1.41

The first task of the sentencing judge is to determine the factual basis of the offence upon which to assess the appropriate sentence. A principle of fundamental importance in determining the factual basis upon which to assess the appropriate sentence is expressed in the ancient maxim nulla poena sine lege, i.e. no one is to be punished on a charge for which they have not been tried and found guilty. In The People (Attorney General) v O'Callaghan,⁶⁸ Walsh J gave this the weight of a constitutional prescript:

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Thus, the sentencing judge must sentence only on the facts supporting the offence in hand, and must ignore any other evidence which would tend to

support the commission of other or more severe offences. English case law has recently produced a number of subsidiary principles based on the principle of nulla poena which, because they share the same foundation, may be considered a fortiori declaratory of Irish law. They can be summarised as follows:

(II) Choosing the Appropriate Penalty

1.43

The second task of the sentencing judge is to choose the appropriate penalty based on the facts of the case. It is rare that the sentence for an offence is fixed by law.⁷⁸ The sentencer must, thus, be aware of his or her sentencing options and any legal restrictions which apply to them, such as the statutory maxima which govern the sentence for that particular offence, the limits on the jurisdiction of his or her court, or the separate provisions for young offenders or drug abusers.⁷⁹ But within this framework there is a considerable degree of discretion for sentencers in choosing sentence in individual cases.

1.44

Making this choice is a two stage process. The first stage involves

choosing the correct principle or approach to adopt in the instant case according to the particular characteristics of the offender and offence. This is decided by reference to the traditional “objects” or purposes of sentencing.⁸⁰ The second stage then involves choosing the particular penalty or measure appropriate to the offender by reference to the approach adopted in the first stage.

(a) The Choice of Approach

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The primary decision the sentencer has to make is to choose which approach to adopt in sentencing the particular offender. Traditionally, there have been four approaches to the sentencing of offenders, corresponding to the four traditional “objects” or purposes of sentencing, namely retribution, rehabilitation, deterrence or incapacitation, i.e. the offender should be punished for crime; the offender should be given an opportunity to mend his or her ways; the offender and others should be deterred from committing similar crimes in the future; and the offender should, if necessary, be prevented from repeating his or her crime.⁸¹ Of these four, only the first three have been expressly favoured by the Irish courts. In The State (Stanbridge) v Mahon⁸² Gannon J said:

1.46

Thus the sentencing judge must decide whether to impose a sentence of sufficient severity to punish the offender, or of such severity so as to deter the offender and others from committing similar offences in the future, or, alternatively, to choose an “individualised” measure, i.e. a sentence based not on the severity of the offending behaviour but on the individual needs of the offender; i.e. a sentence likely to reform the offender.

Incoherent policy

1.47

There is no clear legislative or judicial policy which governs how the sentencing judge will decide which approach to adopt. The decision represents what the Victorian Court of Criminal Appeal described as an “instinctive synthesis”⁸³ of all the various aspects of the offending behaviour and the circumstances of the offender.

1.48

This lack of coherent policy has a perplexing consequence for the sentencing judge. The problem is that there are a number of competing objects which are used to determine the sentence which may be imposed, and these approaches frequently conflict. For example, a sentencing judge when faced with

a young addict who is caught peddling drugs to feed his or her habit might rationally decide to impose a lengthy prison sentence to deter, although the sentencer may as easily decide to impose a short sentence in the interests of rehabilitating the offender. Ultimately a choice has to be made to follow one object the expense of another, yet, when faced with conflicting principles, sentencers have no principle to guide them:

1.49

In this jurisdiction, Walsh J gave some general guidance to assist sentencers by favouring rehabilitation as the most positive aim. In The People (AG) v O'Driscoll, he said:

1.50

However, even though it would seem from this that sentencers should generally favour a rehabilitative approach, it is not clear when such an approach would be inappropriate and a different approach more appropriate. Some small amount of guidance may be divined from decided cases, but, since the decision represents an “instinctive synthesis”, sentencers are by no means bound by decided examples, and are free to adopt any approach they wish.

A rehabilitative approach

1.51

In O'Driscoll, a rehabilitative approach was appropriate where the offence was the offenders' first crime of violence. Recently, in The People (DPP) v Conroy (No 2)⁸⁶ a rehabilitative approach was found to be appropriate where the high standard of behaviour on the part of the appellant while on remand in custody could be a ground for supposing that there was a reasonable chance of reform.

1.52

One's bearing in court may be accepted as an important indicator as to the likelihood of reform.⁸⁷ However a rehabilitative approach may not be appropriate where the offender has not availed of an opportunity to reform under a prior sentence, e.g. where he or she has committed a further offence while on probation.⁸⁸

1.53

Also, as Finlay CJ noted in The People (DPP) v Tiernan:

1.54

Rehabilitative considerations commonly lead the sentencer to impose a reduced sentence. However, since a rehabilitative approach involves an attempt by the sentencer to find a sentence which is most likely to induce reform, a rehabilitative sentence may sometimes appear to be more severe than a sentence imposed following some other approach. In J v District Justice Sean Delap⁹⁰ the applicant was applying to the High Court for judicial review of a sentence of detention in a reformatory school for a term in excess of three years in length. The District Justice who tried the case had done so upon summary conviction of the applicant, i.e. for a minor offence; despite the fact that the Supreme Court had previously held that an offence carrying a sentence of three years detention in St Patrick's Institution (which is not a reformatory school) could never be considered minor nor tried summarily.⁹¹ Barr J in the High Court held, however, that since the object of a period of detention in reformatory school was the rehabilitation of the offender, and not the punishment of the offender, the offence was legitimately tried summarily as a minor offence. He said:

A deterrent approach

1.55

For some offences, a deterrent sentence may be more appropriate; in

The People (DPP) v Preston⁹³ it was recognised that it is important in sentencing under the Misuse of Drugs Acts that penalties of a deterrent nature be imposed to display society's revulsion at drug abuse and drug trafficking. Similar considerations apply to offences of possession of controlled substances.⁹⁴ It is clear that public opinion has a large role to play in the decision to impose a deterrent sentence. In The People (AG) v Buckley⁹⁵ Maguire CJ said of the offences of house breaking, larceny and malicious damage:

A retributive approach

1.56

Where the offender shows no likelihood of reform, and a deterrent sentence is not appropriate, the correct approach may be to impose on the offender “a sentence appropriate to his degree of guilt,”⁹⁶ in other words, a sentence which is proportionate to the seriousness of the offending behaviour by reference to the retributive principle of desert– the offender gets the sentence he or she deserves.⁹⁷ In The People (AG) v Giles,⁹⁸ the appellant was sentenced to six years imprisonment for conspiracy to rob. The Supreme Court held that despite the rule of general practice not to award a period of imprisonment greater than the substantive offence would carry if the accused had been convicted of that, a retributive sentence was appropriate, Walsh J saying:

Differing principles

1.57

Having adopted the most suitable approach with regard to the circumstances of the offence and the characteristics of the offender, the sentencer will apply the principles appropriate to that approach to determine the precise penalty or measure which is to be imposed on the offender. As we shall see, only the most general body of such principles exists.¹⁰⁰ However, it is clear that the general principles of each approach differ considerably, depending on the approach taken. For example, the application of retributive principles

requires the sentencer to find the sentence which most accurately reflects the offender's culpability.¹⁰¹ Mitigating circumstances may be taken into consideration in reducing the severity of such a sentence. Also, because the retributive approach relies heavily on the theory of desert, the sentence imposed should not be more severe than that which the offender deserves.¹⁰² On the other hand, rehabilitative principles require the sentencer to find the measure which will most likely induce the offender to reform.¹⁰³ Thus, the gravity of the offending behaviour is irrelevant to such an approach, and the sentence will reflect an assessment of the probable future conduct of the offender and his likely response to various measures.¹⁰⁴ Finally, deterrent sentences reflect neither the gravity of the offending behaviour nor the characteristics of the offender, but rather, they depend on an assessment of the likelihood of the offender and others committing further similar offences.¹⁰⁵

1.58

It follows that a sentence which would be considered inappropriate as an application of the principles of one approach may be considered entirely correct when seen in terms of another approach. This is clearly illustrated in cases concerning co-accused, who although of equal complicity in the offending behaviour, receive significantly different sentences.

1.59

In The People (AG) v Poyning,¹⁰⁶ the appellant was arraigned in the Circuit Court in Cork on a number of counts relating to an armed robbery. He pleaded guilty and was sentenced to four years penal servitude on the first count (armed robbery), 12 months imprisonment on the second (conspiracy) and to six months imprisonment on the fifth (taking a vehicle without authority); the prosecution having entered a nolle prosequi in respect of counts 3 and 4. Two other men, Motherway and Twomey, were also indicted but their trial was transferred to the Central Criminal Court where each pleaded guilty and was sentenced to six years penal servitude suspended upon each prisoner entering into a bond to keep the peace for five years, and each was then released. The appellant appealed to the Court of Criminal Appeal on the grounds that there was a gross inequality of treatment of himself as compared to the other two accused in a case in which the circumstances indicated that he was no more culpable than the other two and his previous record was no worse.

1.60

However, the Court of Criminal Appeal could not justify altering the sentences on those grounds; Walsh J said:

1.61

The fallacy of this neat explanation of differing treatment of offenders is that there is no uniform set of principles or policies which the appellate court may refer to in considering the 'factors which should influence a judge's mind' when imposing sentence, having regard to the character and antecedents of the offender.¹⁰⁸ Almost any approach may be justified by reference to some or other characteristic of the character and antecedents of the offender since there is no uniform consensus on the weight which should be given to one factor or the other. The problems of this incoherence, as we shall see¹⁰⁹ are profound. Justice and equality of treatment require sentencers to adopt a uniform system for choosing the approach to be adopted,¹¹⁰ but such uniformity is sadly lacking in Irish sentencing practice. Thus reform of this area should strive to inject coherence and uniformity into choice of approach in sentencing.

(b) The Choice of Penalty or Measure

1.62

How the sentencer, having decided upon the correct approach to adopt in the particular circumstances, decides upon the appropriate penalty or measure to impose belongs to the realms of mystery. It is trite to say that the sentencer, following a retributive approach, will impose a sentence which punishes the offender; or, if a rehabilitative approach is adopted, that the sentencer will impose a sentence likely to induce reform. There is no formal 'scale' or 'tariff' of sentences from which a sentencer can choose the appropriate penalty or measure, although there is some evidence that sentencers occasionally construct

their own personal informal tariffs or 'rules of thumb'.¹¹¹ What is unclear, therefore, is how the sentencer decides that a particular penalty or measure will achieve chosen objects.

1.63

One practice which is discernible, however, is that of sentencers considering those factors which aggravate or mitigate¹¹² the seriousness of the offending behaviour. In finding a sentence which appropriately corresponds to the seriousness of the offence under consideration, it appears that the sentencer will, not uncommonly, begin by determining the sentence which is appropriate to the ordinary circumstances of that offence in general – e.g. if the offence is one of assault occasioning actual bodily harm, then the court may determine the sentence appropriate to an assault occasioning what it perceives as the ordinary or usual consequences of actual bodily harm committed with full intention to commit such harm. The courts have given on occasion some indication of the relative seriousness of various types of offence.¹¹³ Following this, the sentencer then considers those elements of the particular offence which aggravate or mitigate its seriousness in comparison to the usual offence: such as the extra harmful consequences (aggravating) or the recklessness, as opposed to specific intent, of the offender (mitigating). The sentencer then adjusts the sentence for the ordinary offence to suit the specific circumstances of the instant case.

1.64

A useful illustration of this practice in operation is to be found in the judgment of Finlay CJ in The People (DPP) v Tiernan.¹¹⁴ The appellant was one of three men who forcibly entered a car where the complainant was in the company of her boyfriend. They locked the boyfriend into the boot of the car; took the complainant to a nearby field where two of them raped her; and subjected her to other sexual assaults. The appellant was convicted and sentenced on a charge of rape, for which he received a twenty-one year sentence, and against which he appealed. In the course of his judgment, Finlay CJ followed the practice outlined above. He began by considering the nature of the crime of rape, its consequences, and the appropriate sentence for the commission of the offence without aggravating or mitigating factors: the bodily harm to the victim; the psychological, psychiatric and emotional distress which would ensue; the distortion of the victim's approach to her own sexuality; and the possibility of unwanted pregnancy. He concluded:

1.65

The learned Chief Justice then went on to consider those factors of the appellant's conduct which aggravated or mitigated the seriousness of the instant offence:

He continued:

1.66

The Chief Justice then considered the sentence appropriate to the circumstances of the appellant's case. He concluded:

1.67

What is clear, however, is that there is little in the way of legislative or judicial guidance to assist the sentencer in finding the appropriate sentence. As we shall see, the maximum penalties for most offences are far more severe than would be required in general,¹¹⁹ so they provide little practical guidance to the sentencer as to how serious an offence should be viewed when he is imposing a retributive sentence (i.e. a sentence proportionate to the seriousness of the offence). Yet maximum penalties are the only form of legislative guidance available to sentencers – there exist no statutory provisions which indicate how a suitable rehabilitative or deterrent sentence should be found. It has been observed that:

1.68

This predicament is exacerbated by the paucity of reported judicial decisions and precedents which are available in this area. But even decided examples are of little help. To begin with, the concurrent jurisdiction of sentencers in the same courts means that a sentencer is free to disregard the decisions of his or her colleagues. But furthermore, even decisions of superior courts must be treated with caution, for as Finlay CJ noted in The People (DPP) v Tiernan:

Thus, the sentencer receives little guidance from examples of previous choices made by other sentencers.

1.69

The sentencer, when applying a rehabilitative approach, may receive some assistance from the reports of Probation and Welfare officers, who, from their experience, may be able to suggest a sentence likely to induce reform. However such advice will be of little relevance to a retributive or deterrent approach.

1.70

It is far from clear what principles govern the choice of particular penalty or measure. The decision represents another “instinctive synthesis”¹²² of the offence, the characteristics of the offender, and the past experience of the sentencing judge. Here too, then, reform should strive to introduce coherence and uniformity to the principles which govern the choice of penalty or measure.

(III) The Mitigation Decision

1.71

Mitigation refers to the process of making such allowance for mitigating factors as may be just by reducing the sentence level below the level appropriate to the facts of the particular offence committed by the offender.¹²³ Mitigating factors are matters such as the character and history of the offender, the pressures which led to the commission of the offence and the consequences of conviction and sentence for the offender, rather than variations in the immediate circumstances of the offence, such as the value of the goods stolen, or the relationship between the offender and the victim.¹²⁴

1.72

“Mitigation” in this context is to be distinguished from mitigation in the sense of making allowance for factors which reduce the seriousness of the offending behaviour¹²⁵– the former we shall call mitigation of sentence, the latter mitigation of seriousness– although the end result of both is a reduction in the severity of sentence. Factors which mitigate seriousness are those elements of the offending behaviour which are thought to reduce the seriousness of the particular conduct below the ordinary level of seriousness for that offence – for example, the fact that the offender was less culpable because he was

provoked;¹²⁶ or the fact that the harm caused by the offender was less than the ordinary consequences of that offence.¹²⁷ Factors which mitigate sentence, on the other hand, are those characteristics of the offender which are thought to reduce the severity of the sentence merited by that offender below the level of sentence merited by the particular offending conduct – for example, the fact that the offender has not exhausted all possible credit for previous good character;¹²⁸ or the fact that the offender is a single parent and there is no other person to look after the child other than the offender.¹²⁹ Factors which mitigate seriousness are, thus, not relevant to the determination of a rehabilitative sentence,¹³⁰ which focuses on the likelihood of successful re-integration of the offender into society rather than on the circumstances of the offending conduct; conversely, factors which mitigate sentence are not strictly relevant to the determination of a retributive sentence which focuses on the seriousness of the offending behaviour rather than on the circumstances of the offender.¹³¹ The importance of this distinction will become clear later when we examine the merits of making one approach to sentencing paramount to the exclusion of the others: if, for example, a retributive approach is to be favoured in preference to a rehabilitative one, then there is a danger that some desirable factors which mitigate sentence might be excluded in the process.¹³²

1.73

There is no exclusive list or defined principle determining the factors which are relevant to mitigation. An infinite variety appears to exist.¹³³ Irish decisions do not generally make an express distinction between factors which mitigate seriousness and factors which mitigate sentence. Thus, in The People (DPP) v Maloney¹³⁴ the Court of Criminal Appeal flatly rejected the argument that a plea of guilty by the accused automatically entitled him to a reduction in sentence on the grounds that the plea had been motivated by a hard headed tactical response to being apprehended “red-handed” rather than by a genuine feeling of remorse. Similarly, in The People (DPP) v Johnston,¹³⁵ where the accused had denied complicity until told that a co-accused had implicated him whereupon he admitted guilt immediately, the Court of Criminal Appeal refused

to allow mitigation of sentence, stating that the plea was “a business-like and hard-headed assessment of the situation in which the applicant was” and was lacking in any sense of remorse. Decided examples of mitigating factors include an early admission of guilt in rape cases;¹³⁶ being as helpful to the court as possible in cases of contempt;¹³⁷ and evidence that the appearance of the girl led the offender to believe she was over seventeen years of age in cases of unlawful carnal knowledge of a girl under fifteen years of age.¹³⁸ Also, in The People (DPP) v Maloney the court indicated that “co-operation by an accused or convicted person with the police authorities in finding other persons who are involved in the crime may be a ground, and often is a ground, for imposing a more lenient sentence than would otherwise be appropriate.”¹³⁹

1.74

The practice of allowing a reduction in sentence on the basis that the offender shows a likelihood of successful integration into society must surely be flawed in this country. One imagines that a prisoner after 17 years of imprisonment has not got a much greater chance of re-integration into society than a prisoner who has served 21 yeas. In this context it is important to realise that imprisonment has very few, if any, positive effects,¹⁴⁰ and that any significant sentence of imprisonment is almost certain to defeat the benefits which a reduction in sentence is thought to achieve. One may well ask if it is fair to allow a reduction at all if it rests on little more than a pious aspiration.¹⁴¹

1.75

It is not clear how the sentencer decides the particular amount by which to reduce sentence when mitigating factors exist. Thomas remarks that because mitigating factors rarely occur singly, and the weight of a combination of mitigating factors will usually be greater than the sum of their individual values considered separately, it is not possible to construct a negative tariff of mitigating factors showing that a particular factor will normally justify a reduction of a specified proportion of the notional level of sentence fixed by reference to the facts of the offence.¹⁴² All we can say, therefore, is that certain factors can be identified as mitigating factors likely to lead to some reduction in the overall severity of sentence.

1.76

A recent decision of the Central Criminal Court combined unusual examples of mitigating factors with sentencing specificity. Mr Justice Carney, imposing a sentence of three years penal servitude after a plea of guilty to incest, suspended two years of that sentence “to make (his) disapproval of specific features of the prosecution.” One year was suspended because, in the opinion of the judge, there was no evidential basis for the preferring of rape charges, which had earlier been dropped. The other year was suspended because the judge did not accept the explanation given by the DPP for a six month delay in

initiating charges “(a)fter a complete confession had been obtained and a false allegation of rape had been cleared up”.¹⁴³

The Range of Choice

1.77

The decision as to the appropriate measure or penalty is characterised by a wide degree of discretion on the part of the sentencer in relation to both the nature and extent of the penalty or measure to be imposed.

Options as to the nature of sentence

1.78

Table A sets out the range of options as to the nature of sentence available to sentencers upon conviction.

1.79

The District Court also has a number of sentencing options available to it which may be imposed upon proof of guilt, but without the need for conviction. Table B sets out the options available to the District Court without conviction.

TABLE A: OPTIONS UPON CONVICTION

Type	Varieties	Authority	Jurisdiction
A. Custodial	1. Penal Servitude	Statutory	Higher Courts
	2. Imprisonment with hard labour	Statutory	Higher Courts
	3. Imprisonment simpliciter	Common Law/statute	All144
	4. Detention	Statutory	All145
B. Suspended	1. Bound by recognisances	Judicial	All
	2. Recognisance and conditions	Judicial	All
C. Adjourned Sine Die		No express Authority	All
D. Fine	1. Generally	Common Law/statute	All146
	2. With Imprisonment	Statutory	All147
E. Probation	1. Recognisance	P.O.A. 1907 s1(2)	Higher Courts
	2. Supervised	P.O.A. 1907 s2(1)	Higher Courts
F. Deferred Sentence		No express Authority	All
G. Community Service		Criminal Justice (C.S.) Act, 1983	All148
H. Medical Treatment	1. Recognisance	s28 M.O.D. Act, 1977	All
	2. Custody	s28 M.O.D. Act, 1977	All
I. Disqualification		Statutory	All
J. Compensation		P.O.A. 1907	All
K. Charges considered		s8 Criminal Justice Act, 1951	All
L. Confiscation		Statutory	All
M. Other options for Juveniles	1. Reformatory School	s58 Children Act, 1908	District Court
	2. Whipping149	s4(1) Summary Jurisdiction over Children (Ireland) Act, 1884	District Court

TABLE B: OPTIONS WITHOUT CONVICTION IN DISTRICT COURT

Type	Varieties	Authority
E. Probation	1. Dismissal	P.O.A., 1907
	2. Recognisances	P.O.A., 1907
	3. Recognisances and conditions	P.O.A., 1907
	4. Formal Probation	P.O.A., 1907
K. Compensation		P.O.A., 1907
M. Juveniles	1. Care of Relative	s58, Children Act, 1908
	2. Industrial School	s58, Children Act, 1908
	3. Monetary Payment by Parent/Guardian	s99, Children Act, 1908
	4. Good Behaviour	s99, Children Act, 1908
N. Adjourned Supervision		No express Authority

We shall now examine in more detail the law governing the imposition of these various sentencing options.

(a) Deprivation of Liberty

1.80

Convicted persons may be deprived of their liberty by being sentenced to penal servitude, imprisonment, or, in the case of certain young persons, detention.

Penal Servitude

1.81

Penal servitude was substituted for deportation to convict settlements in the British colonies after the abolition of slavery by section 2 of the Penal Servitude Act, 1857.

1.82

Section 2 of the Prisons (Ireland) Act, 1856, provided for the Minister for Justice to set apart certain places of confinement known as 'convict prisons' for prisoners serving a sentence of penal servitude, but no such order was ever made, so nowadays, for all practical purposes, there is no distinction in the treatment of prisoners sentenced to penal servitude and those sentenced to imprisonment.¹⁵⁰ Penal servitude was abolished in England by the Criminal Justice Act, 1948, and the last Irish statute to prescribe a sentence of penal servitude was the Criminal Justice Act, 1964, s2.¹⁵¹

1.83

Penal servitude may only be imposed under statute, and in most cases

the particular statute will specify the maximum term which may be imposed. If not, the maximum term is to be five years, except for felonies created by statutes in force on 5th August 1891, for which the maximum term is to be seven years.¹⁵²

1.84

A person undergoing penal servitude may not be elected to either House of the Oireachtas.¹⁵³ Since penal servitude was introduced in direct substitution for the sentence of transportation, it cannot as such be imposed in a manner not applicable to transportation.¹⁵⁴ Therefore unlike imprisonment, it cannot be ordered to commence at a date prior to the date on which sentence is pronounced.¹⁵⁵ Bearing in mind that there is no difference in the treatment of offenders undergoing sentences of penal servitude and those serving terms of imprisonment, it is undesirable that these residual disqualifications for persons undergoing penal servitude should be retained. It may be suggested that penal servitude is to be considered a stronger punishment than imprisonment simpliciter, but the indications are that penal servitude is an anachronism and in that case, in the interests of fairness and consistency, penal servitude should be abolished in favour of imprisonment.

Imprisonment

1.85

Imprisonment may be awarded in lieu of penal servitude for a term not exceeding two years, unless any act provides otherwise.¹⁵⁶ Some older statutes provided for imprisonment with hard labour, and it has been held that in such cases, the maximum term is to be two years.¹⁵⁷ Imprisonment with hard labour attracts many of the disqualifications which carried by penal servitude, and since the indications are that it too is a relic of bygone times, it may well be taken off the statute books.

1.86

Since 1964, imprisonment has been favoured over penal servitude and imprisonment with hard labour in statutes creating offences, and such statutes have stated the maximum¹⁵⁸ term which may be prescribed. There was no limit at common law to the term of imprisonment which could be imposed, and that remains the case for all common law offences.¹⁵⁹ However, the maximum sentence of imprisonment which may be imposed in the District Court is twelve months,¹⁶⁰ except in certain circumstances governed by the Criminal Justice Act, 1984, in which a consecutive sentence may extend the aggregate sentence to a maximum of twenty four months. Section 102 of the Children Act, 1908, forbids sentencing persons under 17 years of age to penal servitude or imprisonment.

However an exception to this exists in relation to young persons between the ages of fifteen years and seventeen years who are of “so unruly a character” or “so depraved a character” that they are not fit persons to be detained in special places for the detention of young persons.¹⁶¹ Under s5(1) of the Summary Jurisdiction Over Children (Ireland) Act, 1884 district judges are confined to sentencing young persons (between fifteen and seventeen years of age) convicted of an indictable offence to no more than three months imprisonment (with or without hard labour) following conviction of an indictable offence tried summarily.¹⁶²

1.87

Detention in St Patrick's Institution¹⁶³ may be prescribed against a juvenile offender between the ages of seventeen and twenty one in lieu of imprisonment. A young person between the ages of fifteen and seventeen may only be sent there in exceptional circumstances.¹⁶⁴ A child between the ages of seven and fifteen may not be sentenced to a term in St Patrick's Institution, but may be sent to a reformatory or industrial school.¹⁶⁵ In all of the cases set out above, detention is merely one option from a number of methods of sentencing young offenders, and the choice is at the discretion of the court.¹⁶⁶

Modern attitudes towards imprisonment

1.88

The Whitaker Committee of Inquiry into the Penal System noted that there exists an over-reliance on the use of imprisonment and custodial sanctions despite a general effort by the courts to use their imprisonment powers sparingly.¹⁶⁷ The Committee found that imprisonment accounted for one-fifth of all sentences in the District Court, and about half of all sentences in the superior courts. Also noted was an increase in the average length of prison sentences since the 1970's, which was further facilitated by the increase in the sentencing powers of the District Court by sections 11 and 12 of the Criminal Justice Act, 1984.¹⁶⁸ The Committee predicted that this combination of factors would lead to a “prison crisis” due to a rising prison population and overcrowding. The Annual Report on Prisons and Places of Detention, 1988 bears out these predictions:

1.89

The Whitaker Committee felt that imprisonment should be imposed merely to deprive the prisoner of liberty, not to deprive him of any other rights, i.e. “offenders are sent to prison as punishment, not for punishment”:¹⁷⁰

1.90

However, in reality, it appears that prison conditions and overcrowding make this an ideal beyond reach, and it is not inconceivable that prison conditions due to overcrowding could become so bad as to ground an action under Article 3 of the European Convention on Human Rights (i.e. “inhuman or degrading treatment or punishment”).¹⁷²

1.91

With this in mind Ireland recently ratified the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,¹⁷³ which empowers an international committee of experts “chosen among persons of high moral standing, known for their competence in the field of human rights or having professional experience in the areas covered by the Convention” to visit any place of detention in the State. The Committee will draw up a detailed report on the conditions in the place of detention and transmit this to the Government with recommendations for improvement. If the State refuses to carry out the recommendations the Committee may make a public statement on the matter, with the aim, it seems, of embarrassing the Government into taking positive action.

1.92

Other international obligations include the UN International Covenant on Civil and Political Rights which provides in Article 10 that all persons deprived of their liberty

1.93

The impending accommodation difficulties coupled with the severe loss of liberty in forbidding surroundings,¹⁷⁵ and the enormous cost of imprisonment to the State,¹⁷⁶ all led the Whitaker Committee to conclude that

imprisonment should only be imposed as a last resort:

1.94

To facilitate this move, the Committee recommended the extension and strengthening of existing forms of non-custodial sanctions. Imprisonment would only be imposed after consideration of a full personal report on the offender from the Probation and Welfare Service, supplemented, where appropriate, by a psychological and medical/psychiatric report,¹⁷⁸ so as to be certain that no other penalty was appropriate.

(b) Suspended sentence

1.95

A suspended sentence is imposed by prescribing a custodial sentence and then suspending its operation on condition that the offender enters into a recognisance, with or without sureties, to keep the peace and to be of good behaviour for a specified period. Further conditions may be imposed, at the court's discretion, such as an obligation to pay compensation, or to stay away from a certain person or place.

1.96

Unlike England, there is no statutory authority in Ireland for the suspension of prison sentence.¹⁷⁹ However in The State (McIlhagga) v Governor of Portlaoise Prison, O Dáláigh CJ declared that the suspended sentence had been long recognised as “a valid and proper form of sentence.”¹⁸⁰ In fact, in People (DPP) v Dennigan,¹⁸¹ the Court of Criminal Appeal recognised a power to suspend even the consecutive sentences required by s11, Criminal Justice Act, 1984.

1.97

Sometimes the court may adjourn the matter of sentence for a certain time to allow the offender to show good behaviour, and then pass a derisory sentence. Alternatively, the court may remand the accused in custody prior to sentence in order to give him a “taste of prison.”¹⁸²

1.98

The Whitaker Committee of Inquiry into the Penal System said of suspended sentences:

(c) Adjournment Sine Die

1.99

The practice of adjourning indefinitely has been used by the Circuit Criminal Court to circumvent some of the restraints placed on it by the Probation of Offenders Act, 1907.¹⁸⁴ In effect the case is completed although no formal disposal is indicated in the court records.

(d) Fines

1.100

At common law, the court has discretion to impose fines upon conviction for any misdemeanour and there is no limit on the amount of the fine which may be imposed.¹⁸⁵ In cases of felony the court has no such power except where the crime is manslaughter.¹⁸⁶ Fines are normally provided for by statute, and many statutes provide for a higher amount to be imposed when conviction is on indictment. Statutes providing for the fining of offenders commonly state the maximum amount of the fine, and in most cases a fine or imprisonment or both may be imposed at the discretion of the court. The only guidance in the exercise of this discretion is to be found in the District Court Rules,¹⁸⁷ which state that the means of the offender should be taken into account when determining the size of a fine. Default in the payment of a fine will incur imprisonment or detention, and the District Court Rules, 1948,¹⁸⁸ set out the “exchange rate” between fines and prison sentences as follows:

1.101

The law in relation to fines thus appears to be much in need of reform.

Some of this has been dealt with in the Commission's Report on Indexation of Fines.¹⁸⁹ The Whitaker Committee noted:

(e) Probation

1.102

Probation is governed by the Probation of Offenders Act, 1907. The Act invests in the court the discretion to discharge the offender conditionally upon entering into recognisances, with or without sureties, to be of good behaviour and to appear for sentence if called at any time during a nominated period not exceeding three years in length.¹⁹⁰ In the exercise of this discretion the court is to have regard to “the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed”, and it must appear “inexpedient to inflict any punishment or any other than a nominal punishment” or “expedient to release the offender on probation.”¹⁹¹ The District Court is given discretion to dismiss the information or charge, or to release the offender on probation, and may do so at any time prior to or consequent upon conviction, provided it is satisfied that the charge is proved. Superior courts, on the other hand, do not have discretion to dismiss the information or charge, and may only use the Probation Act once a conviction has been obtained. However, the Circuit Criminal Court has circumvented this statutory limit by adjourning cases indefinitely.¹⁹²

1.103

The court may also order the offender to pay damages for injury or compensation for loss, and to pay the costs of proceedings. The court is given the discretion to attach conditions to the recognisance that the offender be under the supervision of such person as may be named in the order during the period specified in the order and such other conditions for securing such supervision as may be specified in the order. Further conditions may be attached by virtue of s2(2), such as “prohibiting the offender from associating with thieves and other undesirable persons, or from frequenting undesirable places; the abstention from intoxicating liquor, where the offence was drunkenness or an offence committed under the influence of drink; and generally for securing that the offender should lead an honest and industrious life.”

1.104

Failure to observe the conditions of a recognisance will lead to a warrant for arrest being issued against the offender. The Whitaker Committee of Inquiry into the Penal System recommended that failure to observe the conditions of a recognisance, or to find securities, should result in imprisonment in only the most serious cases. The 1907 Probation Act required revision, the Committee said, to reflect current court practices; the present range of non-custodial alternatives; and the recommendations of the Committee.¹⁹³

1.105

The Act provides for the appointment of Probation Officers whose function is to monitor the progress of the offender on probation. The Probation Officer may apply to the court to vary the conditions of release contained in the recognisance and the court may do so if satisfied that the conduct of the offender has been such as to make further supervision unnecessary.¹⁹⁴

1.106

The Court of Criminal Appeal has somewhat limited the discretion of the court in its application of the Probation Act. In The People v Buckley,¹⁹⁵ Maguire CJ disapproved of repeated application of the Act to the same offender for serious offences, saying:

(f) Deferred sentence

1.107

A deferral may occur where a person is sentenced to a custodial term but a warrant of custody is ordered not to issue for a specific length of time. If the defendant is of good behaviour during this period the sentence is deemed to have been administered; if not, the court retains the ability to enforce the penalty.¹⁹⁶

(g) Community service

1.108

The Criminal Justice (Community Service) Act, 1983 gives the court¹⁹⁷ the discretion to make a community service order in respect of any offender over sixteen who has been convicted of an offence for which the appropriate sentence would otherwise be custodial. A community service order ('CSO') requires the offender to perform unpaid work for a specified number of hours between 40 and 240 hours. The court's discretion in this decision is guided by the provisions of

s4(1):

1.109

A Probation and Welfare Officer is responsible for the offender complying with the CSO. An offender who does not turn up for the work specified on the days agreed will then be brought before the courts. The judge may then activate a different form of sentence or fine the offender for not complying with the order.¹⁹⁸

1.110

At present, community service is available only as an alternative to imprisonment for criminal offences, although there is much to be said in favour of extending it as an alternative to imprisonment for non-payment of fines or, indeed, non payment of compensation.¹⁹⁹ The Whitaker Committee noted that there is much to recommend greater use of community service, and recommended that the progress of CSOs be carefully monitored to ensure that (a) the number of hours worked is a realistic alternative sanction, (b) the work arranged is both of benefit to the community and a positive experience for the offender, and (c) they are effective in keeping offenders out of crime for at least the period covered by the order. By doing so, the CSO would be easily accepted by the community and the judiciary as a valid sanction.

(h) Medical Treatment or Therapy

1.111

Section 28(1)(a) and (b) of the Misuse of Drugs Act, 1977 (as amended) allows the court, if having regard to the circumstances of the case the court thinks it appropriate to do so,²⁰⁰ to request “a health board, probation and welfare officer” or other body or person considered by the court to be appropriate to furnish the court with:

Having considered such reports the court may exercise the extended sentencing powers of section 28(2).

1.112

Section 28(2) provides that a court may substitute the following in lieu of other penalties available for the relevant offences:

1.113

The provisions of s28(2)(b) are in any case theoretical; the reality is that no custodial treatment centre yet exists. The nearest things are centres such as Coolmine, which are residential treatment centres attended on a voluntary basis.²⁰¹

1.114

Another form of “treatment” is to be found in Section 26 of the Children Act, 1908 which empowers the court to order that a parent, who is convicted of certain offences under that Act and who is an “habitual drunkard”, be detained in a “retreat”. Again, there is not any centre for custodial treatment, although there are certain organisations which will help voluntary attenders, such as the Stanhope Street Clinic and the Rutland Centre.

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Apart from these inept statutory provisions, the only course of action available to a sentencer who feels that an offender should receive psychiatric treatment is to sentence that person to custody with a recommendation that he be sent to the Central Mental Hospital. The Interdepartmental Committee on Mentally Ill and Maladjusted Persons observed:

(i) Disqualification

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The Road Traffic Acts, 1961 to 1977 give the courts the power to disqualify an offender guilty of an offence under those Acts from holding a driving licence for such period as the court thinks fit. In all cases the disqualification is ancillary to some other form of penalty. In some cases such disqualification is mandatory, but for other offences the disqualification may be imposed at the discretion of the court. For such offences the Acts set out a minimum term of disqualification to guide the court. Section 27 of the 1961 Act empowers the court to disqualify a person from holding a driving licence if the person is convicted of any offence and used a motor vehicle in the course of commission of the offence. Such discretion may only be exercised upon hearing the appropriate evidence as a separate matter, and the disqualification should not be treated as the imposition of an additional punishment for an offence under the Act of 1961.²⁰³

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Other forms of disqualification, such as disqualification from jury service²⁰⁴ or from becoming a director of a company,²⁰⁵ are consequential upon being convicted and receiving some other form of penalty.

(j) Compensation

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An order to pay compensation can only be imposed with statutory authority at present as an ancillary order attached to a Probation Act disposal²⁰⁶, or an order for Community Service.²⁰⁷ The District Court is limited in the exercise of this discretion in that the maximum amount of compensation payable is fixed at £10, unless the specific enactments relating to the particular offence set a higher limit.²⁰⁸ A compensation order may also be made a condition of a suspended sentence, in which case it appears that there is no maximum limit on the amount of compensation payable, save in the District Court where the amount must not be so great as to bring the offence outside the minor offence category.²⁰⁹ The Whitaker Report recommends²¹⁰ that

compensation be given a clear statutory basis in its own right. Such reforms in England have helped to give the penalty an independent standing, by relating the amount of compensation to the degree of injury inflicted.²¹¹

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The Criminal Justice Bill, 1992, recently initiated, includes detailed provisions for the payment of compensation to any person convicted of an offence. Section 6 provides inter alia:

(k) Other offences taken into consideration

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The court may, at its discretion, take other offences into consideration when passing sentence on a charge for which a conviction has been entered, provided the defendant pleads guilty to the other charges. S8 of the Criminal Justice Act, 1951 reads:

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When a sentencer takes another offence into consideration it appears that he or she should pronounce the appropriate sentence for that offence as well as the sentence for the offence charged, and not simply include the sentence in the sentence for the offence charged.²¹²

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In England, where the practice of taking other offences into consideration has no statutory basis, the court cannot, in sentencing the offender, impose a sentence beyond the maximum allowed by law for the offence of which he stands convicted simply because other offences have been taken into consideration.²¹³ In Ireland the provisions of section 8 cannot be applied where the offence of which the offender stands convicted carries a mandatory sentence;²¹⁴ nor can they be relied upon where the court has no jurisdiction to try the offender on the offences admitted to, e.g. where a person convicted of a trifling road-traffic offence in the District Court seeks to invoke the section to have a murder taken into consideration.²¹⁵

(l) Confiscation

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A number of statutes confer on the court the discretion to order the forfeiture of property connected with the commission of an offence.²¹⁶

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The Whitaker Committee saw much in favour of confiscation of the proceeds of crime for offences such as drug trafficking and white collar crime,

where offenders may profit substantially from their criminality and where the victim(s) cannot be identified:

The Commission has examined this topic separately in its Report on Confiscation of the Proceeds of Crime.²¹⁸

(m) Young Offenders

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The courts are given enormous discretion in their choice of method for dealing with young offenders. A full list²¹⁹ of the ways in which a child or young person may be dealt with is given in section 107 of the Children's Act, 1908, which provides:

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Section 107 is a consolidating section – it does not legislate, but merely summarises the methods of dealing with young offenders which already exist elsewhere in the law. Thus in the case of certain methods, the court will be guided in the exercise of its discretion by the law in relation to the particular method, e.g: The Probation of Offenders, Act 1907 in relation to options (a) or (b) supra.²²⁰

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The sentencing of youthful offenders is an area of the law much in need of comprehensive review; much greater, indeed, than that which can be efficiently and fairly conducted within the ambit of this report.²²¹ Such analysis would most likely form part of an examination of the entire juvenile justice system, particularly when reforms in other jurisdictions have fundamentally questioned the need for any criminal stigma to attach to child offenders by introducing family involvement in reprimanding and dealing with such offenders. Suffice it to say that for the purposes of this analysis the methods of disposal of youthful offenders are so broad and varied that the court is vested with enormous discretion in the choice of method, although this discretion is commonly hampered – as was reflected by the recent turn of events which led to the sentencing of fifteen year old girls to imprisonment – by the corresponding lack of suitable alternative places of detention for such offenders.²²²

(n) Adjourned supervision

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This occurs when a defendant is “remanded on establishment of guilt” and is placed under the supervision of a Probation and Welfare Officer. In effect, the offender is requested to co-operate with the Probation and Welfare Service. However the request cannot be enforced either by the court or the Probation Officer, and the practice has no statutory authority.²²³

Options as to the Extent of Sentence

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When determining the extent of sentence, the courts are required to operate within certain parameters, i.e. (a) within the maximum, minimum or mandatory limits and (b) within the limits upon the jurisdiction of the particular court.

(a) Maximum, minimum and mandatory limits

Maximum sentences

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The general rule of practice of the sentencing courts is that maximum sentences are reserved for only the most serious cases.²²⁴ It is very rarely that the maximum penalty is imposed in a case. Most statutes which create an offence will lay down a maximum penalty which may be imposed. At common law there is no limit to the term of imprisonment which may be imposed,²²⁵ however in the case of an offence such as attempt to commit, and normally in the case of conspiracy to commit, the term should not exceed the maximum term of penal servitude or imprisonment which might be imposed for the substantive offence.²²⁶ Also, there appears to be no limit on the size of a fine which the court may impose for a misdemeanour at common law.²²⁷ However a child is not to be fined more than £2, and a parent or guardian of a convicted child cannot be fined more than £10 in respect of the child's offence.²²⁸

Minimum sentences

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Statutory minimum sentences are not a common feature of modern Irish criminal statutes although there have been occasions in the past when the legislature prescribed minimum sentences, usually because it was felt that sentencers might not take a sufficiently serious view of the offences.²²⁹ Generally, such minima were imposed in combination with a maximum, e.g. The Larceny Act, 1861 provided for terms of penal servitude for any term not exceeding seven years and not less than three years. However, it is also possible for the legislature to express sentences as minimum penalties without imposing a maximum. Another possibility is the combination of a life sentence with a minimum in which case it becomes an indeterminate sentence beyond a minimum base. A recent example of such a measure is contained in s4 of the Criminal Justice Act, 1990, which provides:

Mandatory sentences

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For some offences, statute deprives the court of all of its discretion in the determination of the extent of sentence e.g. murder, under the Criminal Justice Act, 1990, carries a mandatory sentence of life imprisonment.²³¹ Mandatory sentences are rare, as Griffin J noted in DPP v Gray:²³²

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Mandatory imprisonment for a term of life is the sentence which is to be imposed for the latter, and there appear to be no other offences in respect of which a mandatory custodial sentence for a lesser term is to be imposed.

Insane Offenders in Cases of Murder, Treason or Felony

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If an offender is found to have been insane at the time of commission of a treason, murder or felony, then the correct verdict is one of “guilty but insane.”²³³ However, it has been long accepted that such a verdict constitutes in law an acquittal despite the wording of the verdict.²³⁴ Thus, none of the sentencing alternatives described supra may be imposed. However the court may not discharge the accused – it is obliged to order detention, both for the offender's good and the good of the public. The order of the court in such cases is, technically speaking, not a sentence, since there has been no finding of guilt. However, we will set it out here for the sake of completeness.

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Where such verdict has been returned the court must make an order within the terms of section 2(2) of the Trial of Lunatics Act, 1883:

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Until recently it had been common for the courts to order the accused to be detained “until further order of this court.”²³⁶ That practice was expressly disapproved of by the Supreme Court in Gallagher²³⁷ where it was held that the decision as to the release of an insane prisoner was a matter for the executive.²³⁸

(b) Limits on Jurisdiction

The District Court

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The District Court has greater limits on its discretion in the determination of the extent of sentence than the superior courts. Generally, the maximum term of imprisonment which may be imposed by the District Court for any one offence is 12 months. However, in certain circumstances, a consecutive sentence extending the aggregate term to two years may be imposed under the provisions of sections 11 and 12 of the Criminal Justice Act, 1984. The maximum fine for indictable offences tried summarily by the District Court is set at £1,000 by section 17 of the Act.

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These restrictions stem from the fact that the District Court is a court of summary jurisdiction, and may only try 'minor offences' fit to be tried summarily. The established test for distinguishing between minor offences and non-minor offences is the severity of punishment authorised to be imposed.²³⁹ Severity is gauged by reference to “the loss of liberty or the intentional penal deprivation of property by means of fines or other direct means of deprivation.”²⁴⁰ Therefore the court is not only limited in the length of custodial sentence or the amount of fine it may impose, but also in the amount it may confiscate.²⁴¹

The Circuit Court

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The Circuit Court, on the other hand, does not have such inherent limits

upon its sentencing jurisdiction, although at present the Circuit court cannot try offences of rape,²⁴² treason, murder, piracy or genocide.²⁴³ Because of this wider jurisdiction, District Courts will commonly send forward to the Circuit Court persons who have pleaded guilty in that court and who the District Judge believes are charged with offences of such seriousness as to warrant more severe sentences than the sentencing restrictions of the District Court allow.²⁴⁴

The High Court

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The High Court, when it exercises its original criminal jurisdiction, is known as the Central Criminal Court,²⁴⁵ and at present has exclusive jurisdiction to try prosecutions for treason and related offences, murder and related offences, piracy, genocide, certain offences under the Offences Against the State Act, 1939, and certain sexual offences under the Criminal Law (Rape) (Amendment) Act, 1990. However, there is no constitutional prohibition against the legislature conferring exclusive jurisdiction to try indictable offences on the Circuit Court or District Court thereby depriving the High Court of authority to try those cases, so long as the High Court retains its supervisory jurisdiction over the lower courts.²⁴⁶

The Special Criminal Court

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The Special Criminal Court was provided for by Part V of the Offences Against the State Act, 1939. It was established in August 1939 and remained in existence until 1962. It was re-established in 1972²⁴⁷ and has remained in existence since then. Its jurisdiction is generally exercised in respect of scheduled offences set out in the 1939 Act, i.e. all offences under the 1939 Act and all offences under the following: Malicious Damage Act, 1861; Explosive Substances Act, 1883; Firearms Acts, 1925–1971; and s7 of the Conspiracy and Protection of Property Act, 1875. The most severe sentence which may be imposed under these Acts is penal servitude for life. The Court also has jurisdiction to try any case which the Director of Public Prosecutions brings before it, certifying that, in his opinion, the ordinary courts are not adequate for trying the accused on the charge.²⁴⁸

Summary

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From this discussion of the range of choice available to sentencers both as to the nature of sentence to be imposed and the extent of sentences imposed, it clearly emerges that there is little in the way of developed principles for the imposition of sentence, in the form of either legislative or judicial

pronouncements. Thomas gives a succinct summation:

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Almost every type of sentence discussed above is, as we have seen, in need of some reform or other, and the legislative details of each give little more than the most general indication of the area of application of the given option. Thus, it is difficult in many cases to say whether a given set of options are simply alternatives to each other, (i.e. interchangeable) or whether each should be confined to a specific area of application.

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The legislature's provision of penal policy in relation to the sentencing process shows itself to have been “haphazard” and to “lack co-ordination.”²⁵⁰ New measures which have been introduced have not been properly grounded in either penal theory or sentencing practice, and so no guidance can be given to the courts on the types of offence and offender for whom the measures might be appropriate.²⁵¹ The great difficulty for the legislature, however, is that there is no uniform consensus on sentencing practice because there is no systematic policy which sentencers follow.

D. REASONS FOR AND PRONOUNCEMENT OF SENTENCE

Reasons

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A court, when passing sentence on an offender is not required to give any reasons for its decision. Occasionally, however, the sentencer will indicate that certain factors of the offending behaviour or of the offender's character or antecedents led the court to choose a particular approach, be it retributive, rehabilitative or deterrent. For example, the sentencer may indicate that the offender's exemplary behaviour while in custody led the court to adopt a rehabilitative approach; or that the crime in question was so prevalent as to merit a deterrent approach.²⁵² Rarely, if ever, however, does the court give its reasons for choosing a particular penalty or measure, beyond stating that it is

“satisfied” that the chosen penalty or measure is appropriate in the circumstances. Some understanding of the judicial reluctance to state reasons may be gained from the words of Mansfield LC (1705–93) who gave this general advice:²⁵³

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Not surprisingly, however, such reluctance to state reasons has a number of unsatisfactory consequences which we will examine at a later stage.²⁵⁴

Pronouncement

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The Court is, however, obliged to ensure that the offender is given an opportunity to be made known of his obligations under the sentence. In The State (Kiernan) v de Burca²⁵⁵ a Circuit Court judge heard an appeal from the District Court. He affirmed the fine and expenses awarded by the District Judge but did not say anything about imprisonment if the fine was not paid. Provision for this was made subsequently by the County Registrar when drafting the order. Maguire CJ, delivering the unanimous opinion of the Supreme Court, said it was “a fundamental rule that pronouncement of sentence following a conviction was an essential part of the administration of justice in the case.” In Molloy v Sheehan²⁵⁶ the Supreme Court, referring to Kiernan's case, restated this “fundamental rule” as “the sentence must be spoken in court.”

E. COMMENCEMENT OF SENTENCE

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Unless the Central Criminal Court otherwise directs, every order made by that court shall take effect from the date on which the order is made.²⁵⁷ Sentences imposed in the Circuit Court shall run from the date specified in the judge's order; if no date is specified the order is bad and may be quashed in judicial review proceedings.

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A sentence of penal servitude may be ordered to take effect from the date on which sentence is pronounced, or at some time in futuro²⁵⁸ following the determination of a term of imprisonment or penal servitude;²⁵⁹ but cannot be ordered to take effect from a date prior to the pronouncement of sentence.²⁶⁰

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Conversely, imprisonment can be ordered to take effect from a date prior to the pronouncement of sentence, and commonly is, to take account of the

period of remand spent in custody pending trial and determination of sentence.

Concurrent and Consecutive Sentences

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The question of whether custodial sentences should be ordered to run concurrently or consecutively can arise in a number of situations. The offender may have been convicted on a number of counts in the same indictment or at the same sittings; he may already be serving a sentence; or there may be a prior suspended sentence or conditional discharge which may have to be considered for activation. The general rule for imposition of concurrent sentences is that all sentences in respect of two or more offences committed in the course of a single transaction should be concurrent rather than consecutive.²⁶¹ For example, in The State (Brien) v Kelly,²⁶² where the accused pleaded guilty to five counts of rape, buggery, unlawful carnal knowledge, indecent assault and assault occasioning actual bodily harm, all of which related to the same person, place and occasion, the Supreme Court upheld the concurrent sentences of three years detention in respect of counts 1 and 2 and two years detention in respect of count 3 which were imposed by the Circuit Court. However, difficulty may often arise in establishing a sufficiently precise definition of whether or not the charges relate to a single transaction, and there appears to be no rule of law or practice which identifies the limits of the single transaction concept.²⁶³

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When the offences arise out of the same transaction the sentencer should pronounce sentence individually for each offence and not merely take them all into consideration in determining the sentence for one. In The People (AG) v Higgins,²⁶⁴ the accused was charged on a number of counts arising out of the same incident but varying in seriousness. The trial judge imposed sentence on him in respect of one count, taking the others into consideration. In delivering the opinion of the Supreme Court, Finlay CJ said obiter:

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Where, however, the offences do not arise out of the same transaction the court has a discretion as to whether the sentences should be consecutive or concurrent. Where the offender is convicted of a subsequent offence whilst serving a sentence of imprisonment or penal servitude, he may be sentenced to a consecutive term of imprisonment or penal servitude to commence on the

expiry of an existing term,²⁶⁵ even though the aggregate may exceed the maximum which may be imposed for either offence. A consecutive sentence is mandatory for offences committed while on bail.²⁶⁶

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On the issue of concurrent and consecutive sentences, the English Court of Appeal has developed a principle known as the Totality Principle. The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive or concurrent in accordance with the “single transaction” rule, to review the aggregate sentence and consider whether it is just and appropriate.²⁶⁷ In R v French,²⁶⁸ Lane LCJ gave the following guidance:

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In England, therefore, where the sentences are made consecutive, the final duty of the sentencer is “to make sure that the totality of the consecutive sentences is not excessive.”²⁶⁹ In the recent case of The People (DPP) v Healy,²⁷⁰ the Irish Court of Criminal Appeal appears to have approved of a similar approach being taken by Irish sentencers where consecutive sentences are concerned. The Court was considering the effect of section 11 of the Criminal Justice Act, 1984 which requires a consecutive sentence to be imposed for all offences committed while on bail. McCarthy J, for the Court, took the opportunity to indicate how section 11 should be approached:

F. APPEALS AGAINST SENTENCE

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An offender who is dissatisfied with the severity of a sentence imposed on him by the sentencing court may have a right of appeal to a superior court against sentence. A right of appeal may only be conferred by the Constitution or by statute²⁷¹ and it may be noted at the outset that the prosecution has no statutory right to appeal a lenient sentence.

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The appellate courts for criminal appeals in Ireland consist of:

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It will be noted that a person convicted and sentenced in the Central Criminal Court has a choice of appealing to either the Court of Criminal Appeal or the Supreme Court; but having appealed to the one he cannot appeal to the other.²⁷³ The High Court may also hear appeals by way of case stated from the District Court once the District Judge has given his decision,²⁷⁴ and the Supreme Court may deal with appeals by way of case stated from the Circuit Court²⁷⁵ on matters pending in that court.

Appeals to the Circuit Court

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The right of appeal to the Circuit Court is conferred on the appellant as of right by statute.²⁷⁶ An appeal in the Circuit Court is a full re-trial (the judge sitting alone without a jury). Thus it has been held that the appeal cannot be against conviction only²⁷⁷ and the court may increase the sentence notwithstanding the fact that the appellant did not appeal against sentence.²⁷⁸ The Circuit Court will re-hear the case, both on the facts and the law, though in an appeal against sentence it will confine itself to the factors relevant to sentencing.²⁷⁹ The prosecution has no such right to appeal against conviction or sentence.²⁸⁰

Appeals to the Court of Criminal Appeal

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A person convicted on indictment has no absolute right of appeal to the Court of Criminal Appeal against conviction or sentence: leave to appeal must first be obtained.²⁸¹ Such leave may be granted by the trial judge, or, if the trial judge refuses, from the Court of Criminal Appeal by way of an application for leave to appeal.²⁸² The grounds on which the accused seeks leave to appeal are generally substantially the same as those of the appeal, so the Court usually treats the preliminary application as the hearing of the appeal. This is particularly the case in appeals against sentence, so that such appeals are seldom the subject of considered judgments and the decisions are delivered extemporaneously. The judgment is pronounced by only one member of the three judge court, and unless the court otherwise directs, no judgment with respect to the determination of any question may be pronounced separately by any other member.²⁸³

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Unlike appeals to the Circuit Court, an appeal to the Court of Criminal Appeal is heard on the basis of the transcript of evidence taken at the trial of the appellant, though the court may request a report from the trial judge as to his opinions, and may requisition the original indictment, depositions, exhibits and record from the trials book. Also, unlike an appeal to the Circuit Court, an appeal to the Court of Criminal Appeal may be against conviction only– in which case the appellant is dominus litis and the court is not entitled to deal with sentence.²⁸⁴ It is only in appeals against sentence only or against conviction and sentence that the court may “remit, reduce or increase or otherwise vary the sentence.”²⁸⁵Ryan and Magee sum up the current situation in regard to appeals against sentence to the Court of Criminal Appeal thus:²⁸⁶

In The People (DPP) v Michael Walsh,²⁹¹ the Court of Criminal Appeal emphasised that there exists a clear division between the function of the court in revising sentence, which is to see if an error has occurred, and the function of the Executive in granting remission. Here, a plea for leniency and mercy for the applicant in all the circumstances that had happened since his imprisonment were matters appropriate to a petition to the Minister for Justice.

Appeals to the Supreme Court

(i) Under article 34.4.3 of the Constitution

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A person convicted and sentenced in the Central Criminal Court may appeal to the Supreme Court by virtue of Article 34.4.3 of the Constitution which provides that the Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court.²⁹²

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The prosecution has a corresponding right of appeal to the Supreme Court, but the Supreme Court has held that in appeals against conviction it will not disturb a verdict properly arrived at and supported by evidence, such as an acquittal duly recorded by a jury on consideration of the evidence.²⁹³

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Whether, in an appeal against sentence by the prosecution, the Supreme Court will disturb a sentence imposed by the Central Criminal Court – thus giving the prosecution an effective right of appeal against leniency of sentence – remains to be determined. However, some indication as to the likely response of the Supreme Court to such an appeal may be divined from the case of The People (DPP) v Quilligan and O'Reilly (No. 2),²⁹⁴ where a Supreme Court majority held that the jurisdiction to hear an appeal did not ipso facto carry with it the jurisdiction to order a re-trial, even though the trial judge had erred in law in directing an acquittal. The majority was persuaded by the fact that if a re-trial was ordered, the defendants could complain that they were not being treated equally with other persons whose acquittals had been appealed by the prosecution under the provisions of s34 of the Criminal Procedure Act, 1967, which allows for the prosecution to make a case stated without prejudice to the verdict. Also persuasive was the fact that the legislature had not conferred any

specific jurisdiction to order a re-trial on the Supreme Court.

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It can be argued, thus, that the Supreme Court could adopt a similar non-interventionist approach to prosecution appeals against sentence. Indeed the whole tenor of the Supreme Court's rulings in Quilligan (No. 2) and in The People (DPP) v O'Shea²⁹⁵ would seem to suggest a dissatisfaction with the entire idea of prosecution appeals other than those which decide a point of law without disturbing the findings of the lower court. However, on a stricter reading of Quilligan (No. 2) it can be argued that, since there is no equivalent of s34 of the Criminal Procedure Act, 1967 in relation to sentence, there would be no reason for other defendants to complain that they were treated unequally, and consequently, the Supreme Court could safely disturb a sentence imposed by a lower court. Also, unlike Quilligan (No. 2) where there could be found no inherent or legislatively conferred jurisdiction to order a re-trial, the Supreme Court has inherent jurisdiction to disturb a sentence imposed by a lower court, and had done so in appeals against sentence by the defence.²⁹⁶ Finally, there would be less likelihood of the danger of double jeopardy, (a danger which the Supreme Court found persuasive in Quilligan (No. 2)), since, a review of sentence does not amount to a breach of the double jeopardy rule.²⁹⁷ This is an area, thus, which would benefit from some judicial or legislative statement.²⁹⁸

(ii) Under s29 of the Courts of Justice Act, 1924

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A sentence imposed by the Court of Criminal Appeal may be appealed to the Supreme Court if the Court of Criminal Appeal, the Attorney General or the DPP certifies that the decision involves a point of law of exceptional public importance.²⁹⁹ An example of such an appeal is the recent case of The People (DPP) v Tieman³⁰⁰ where the point of law of exceptional public importance was certified by the Attorney General to be the guidelines which the court should apply in imposing a sentence for rape. Although such appeals are technically by way of case stated, since the foundation for appeal is a point of law, the Supreme Court is not limited to the point of law certified as being of exceptional public importance, but may also consider other grounds of appeal.³⁰¹

CHAPTER 2: SENTENCING POLICY

2.1

A sentencing policy may operate at any number of levels – however, the most fundamental issues which a sentencing policy should at least address are:

2.2

It is central to a consistent and just sentencing system that a coherent sentencing policy on how the criminal justice system sentences offenders be clearly articulated, since sentencing policy governs the decisions made at two stages in the criminal process. In fact, the question of how offenders are to be sentenced is at the heart of the sentencing process and will receive the greater part of our attention in this paper. As we have seen,¹ sentencing policy shapes the decisions made by the sentencing judge when choosing the approach to adopt in individual cases, which in turn affects both the nature and extent of the sentence imposed. Incoherence in policy governing these matters can lead to inconsistent sentencing decisions being made. Secondly, sentencing policy comes into play when the legislature is formulating penal policy – such as deciding what type and amount of penalties to attach to newly created offences in criminal statutes, or creating new forms of penalty or sentencing alternatives for the courts to implement. The introduction of new measures can be effectively set at nought by the judiciary if it is not done in close co-ordination with sentencing policy; but if that policy is not coherent then they may still fail to meet their objectives if they conflict with the policies of the sentencers who individuate them.

2.3

However, consistency in sentencing is of little value if the sentences

imposed cannot legitimately be justified, and therefore decisions about how we sentence offenders must be made within the context of what we know about why we sentence offenders. No sentencing policy can be complete and useful if it is not formulated within this context.

2.4

In this chapter we identify the need for coherence in sentencing policy by examining the consequences of incoherence. Before we start, let us first clarify the nature of sentencing policy.

2.5

Sentencing policy governs the sentencing decision by providing the sentencer with a framework within which to operate by prompting him or her towards one approach or another depending on the circumstances of the case:² for example, a general policy might require that drug offenders should be given deterrent sentences.³ In short, sentencing policy governs the choice of approach in the sentencing decision by indicating the type of approach to be adopted and providing some indication of the type of principles which should govern the choice of penalty or measure. It is clear, therefore, that in order to have meaning in practice, a general sentencing policy must be supplemented by specific principles governing the choice of penalty or measure which mechanically provide set answers which must be given when certain circumstances exist: for example, a specific principle might be such that sentencers following a retributive approach are required to impose a sentence of 17 years' imprisonment on any offender responsible for a violent rape, but who admits guilt at an early stage in the investigation.⁴ In other words, specific principles govern the choice of a particular penalty or measure by providing a set of consequences which are to follow upon the existence of certain factors being established.⁵

As we shall see, an acceptable set of specific principles governing the imposition of sentence cannot be developed without there first existing a coherent general policy governing sentencing.⁶ It is not within the scope of our remit to come up with a set of specific sentencing principles; rather, the aim of this paper is to propose a coherent general framework from which a set of specific principles may be developed.

2.6

Let us also make the observation at this point that in this jurisdiction neither our sentencing policy nor our specific principles governing the imposition

of sentence are adequately developed; as we have seen, existing sentencing policy does not always assist sentencers in deciding what approach to adopt when sentencing a particular offender, and there are few specific principles upon which a sentencer may rely to find the appropriate penalty or measure having adopted a particular approach.⁷

2.7

Let us now examine the importance of a coherent sentencing policy in a rational sentencing system.

No Policy

2.8

If no sentencing policy existed then there would be no right or wrong answers to the two questions of why and how offenders are sentenced, and the sentencing system would be bereft of any useful sentencing principles. The criminal law would consist merely of criminalising statutes with attached penalty scales and a general mandate for the courts to sentence within the prescribed ranges. The courts could sentence for any reason, in any manner, and upon any basis they saw fit.⁸

Incoherent Policy

2.9

Where two or more considerations may be relied upon to decide 'why' and 'how' offenders are sentenced, and all of these considerations are equal and interchangeable, then an incoherent sentencing policy exists. Since one consideration may lead to a sentence dramatically different to that which another may have led to, like cases may be treated differently, and justifiably so, but there is nothing to determine which consideration is the correct one and which one should prevail. The end result is inconsistency in the way in which the criminal justice system deals with offenders, exhibiting what may be perceived as disparity, and undermining confidence in the criminal justice system.

2.10

Traditionally, in Ireland and many other jurisdictions, sentencing policy has been formulated by reference to the traditional objects of sentencing. The traditionally recognised objects or purposes of sentencing are retribution, rehabilitation, deterrence and incapacitation, although some modern writers make reference to less well recognised objects such as reparation or compensation of the victim.⁹ These expressions are commonly embodied in the penal codes of other jurisdictions.¹⁰ Although sometimes there have been general attempts to prioritise certain objects by the judiciary,¹¹ the objects are generally interchangeable and there is usually no principle which governs how one object should be found to be more suitable than another in a given case, so our sentencing policy is best described as “incoherent.” What follows is an

examination of some of the problems presented by an incoherent sentencing policy.

Problems with Incoherent Sentencing Policy

1. Fair notice

2.11

In a sentencing system such as ours which has an incoherent policy governing the choice of approach by the sentencer, the resulting inconsistent decisions can do violence to notions of Fair Notice– as when a defendant who reasonably expects a trivial sentence receives a lengthy one, giving the defendant, as Finlay CJ described it in Conroy (No. 2), a “substantial sense of grievance at unfair treatment which may be caused by apparently unequal sentences.”¹² What is unfair is that in the absence of a coherent policy, the defendant and his or her counsel will have to rely on their own ingenuity in deciding what factors to bring to the attention of the sentencer which they feel will influence him or her to choose one approach over another. This is not an easy task, since, essentially, the “goalposts” are not defined – if sentencers themselves do not have a policy on which factors should influence their choice of approach, how, then, are defendants to inform sentencers of the factors relevant to their particular case? In Conroy's case,¹³ for example, the Supreme Court found on appeal that the trial judge had overlooked evidence of a high standard of behaviour on the part of the offender while on remand in custody, which, if considered, should have led to the adoption of a rehabilitative approach. Conroy had the good fortune to have this factor recognised on appeal and his sentence reduced accordingly; but one may ask how many other offenders are sentenced without consideration of such factors because they and their counsel do not have “fair notice” of the importance or relevance of these factors?

2. Conflicts with penal policy

2.12

A sentencing judge could wittingly or unwittingly usurp the legislature's penal policy by imposing a trivial sanction for a crime which the legislature has presumed would call for a more severe one – say insider trading. The legislature may have allowed for a high maximum penalty in the hope that severe sentences would be imposed to deter, yet the judge may impose a trivial sentence in order to promote rehabilitation. The problem becomes more acute when the legislature introduces new penal measures (i.e. new types of sentence) which may have the aim of fostering one approach or aim; the courts may misuse them or completely ignore them if they do not correspond with their personal sentencing policies. The legislature and the judiciary could end up acting at crossed purposes.

2.13

Ashworth comments on the effect this problem has had on English penal policy:

He concludes:

2.14

It is clear, therefore, that although sentencing is but one stage in the criminal process, the policies at play there may have profound repercussions on the other stages. If there is not a coherent policy in operation at the sentencing stage then it becomes increasingly unlikely that the other stages will achieve their objectives. This is of importance not simply to the other stages in the criminal justice system but to sentencing itself. If there is not a coherent policy governing sentencing practice then it is increasingly difficult for the legislature to introduce penal measures which will fit neatly into sentencing practice.¹⁶ Certainly, it will be impossible to co-ordinate policy throughout the entire process without at first clarifying the policies of the individual components.

3. Accommodation of abuse

2.15

Incoherent sentencing principles can accommodate abuse since each judge is virtually free to impose any sentence he or she feels appropriate. A sceptic might conclude that the use of the objects to justify a chosen sentence is a convenient means of rationalising results for which the sentencer has another reason –“window dressing” as Robinson describes it.¹⁷ Under this cynical view, the objects offer hidden flexibility to sentencers helped by the lack of a single overriding principle. Although we do not share in this scepticism, we agree that in our incoherent sentencing policy, the absence of a single guiding principle means that the choices made will be, at best, inconsistent.

2.16

Yet, while it is hoped that our sentencers would not knowingly allow a particular personal bias to affect their sentencing decisions, it remains questionable whether there is widespread unconscious bias; it is unlikely that sentencers nowadays allow their choices to be influenced by “demographic” factors such as sex, politics, religion or race,¹⁸ but there is some evidence that the age of the sentencer¹⁹ or the degree of urbanization of the community in which the sentencer lives,²⁰ may lead towards an “invisible” bias in favour of one approach over another. For example, Hogarth found that in Canada urban magistrates tend to favour a retributive approach more than their rural counterparts.²¹ In the absence of a coherent policy, thus, there is greater room for demographic factors to have an influence on the sentencer's choice of approach to sentencing an offender, since there is no standard or accepted policy to point him or her in the direction of any single approach.

4. Failure to achieve any object

2.17

When several conflicting principles are pursued simultaneously, the resulting sentence may frustrate them all.²² The sentence may rely too much on rehabilitation to satisfy retributive factors, yet it may not use deterrent factors enough to have any use as a preventive strategy. When the principles of sentencing are in conflict, as they are, following a little of each may achieve no purpose at all.

5. Public distrust

2.18

When conflicting principles are simultaneously relied upon, the public will almost certainly experience the sentencing system as exhibiting disparity. The public assume the system to be coherent – and probably suppose that sentences will reflect common-sense principles of desert (i.e. that the severity of the sentence will reflect the seriousness of the crime).²³ Thus when similar offenders who have committed similar crimes receive dissimilar sentences the public tends to see this as disparity.²⁴ Part of the public's concern is expressed as dissatisfaction that certain offenders (in particular violent offenders) are not dealt with harshly enough by the system,²⁵ or in calls for a prosecution right to appeal against a lenient sentence.²⁶

2.19

This distrust may owe part of its existence to the manner in which the news media inform the public of sentencing decisions. Generally, the media tend to devote more attention to sentences that are seemingly unusual in some way – unusually lenient or unusually harsh – which leaves the public with less opportunity to form a rounded opinion of sentencing. Ashworth remarks: