Opinion: sentencing is not something taken lightly by judges and involves a complicated process fraught with difficulties
Every few months, a high-profile court case provokes the ire of the public due to the perceived leniency of the sentence. In many cases, public anger is directed at the fact that sentencing appears to be entirely down to the discretion of the individual judge. The public imagines the judge using a magic-ball-type exercise to decide upon punishment. But sentencing is not something taken lightly by judges and it involves a complicated process fraught with difficulties.
Under Irish constitutional law, it is the job of the Oireachtas to decide on the limits of sentences and on the amount of scope to be given to judges. The Oireachtas can decide on mandatory sentences (for example, a life sentence in the case of murder) and a judge has no discretion in such a case.
The Oireachtas can also set minimum and maximum limits for offences and judges have discretion to decide on a punishment within the parameters given in those cases. While there are sometimes calls to bring in more mandatory sentences, the general consensus from jurisdictions which have done so is that this often leads to cases of injustice and that judicial discretion is necessary. Still, it is up to the Oireactas to decide how much discretion to give to judges.
In many cases, public anger is directed at the fact that sentencing appears to be entirely down to the discretion of the individual judge
If the Oireachtas decides to impose an upper limit of, say, five years for a particular offence, a judge must then decide within that range whether to give the maximum or a reduced penalty. However, this involves more than the judge simply deciding on a number between zero and five. There is a complicated and somewhat mechanical process of weighing up what are referred to as aggravating and mitigating factors. Aggravating factors are those which lean towards the upper limit of the offence and mitigating factors can reduce a sentence.
Mitigating factors
The overall consideration for the judge is that the sentence must be in proportion to the seriousness of the offence. He or she will consider potential mitigating factors such as whether there was a guilty plea, thus sparing the victim from the stress of a trial; whether the accused co-operated with Gardaí; whether they expressed regret; whether they are a person of good character; and the personal circumstances of the accused such as age, health, family circumstances etc
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Supreme Court proceedings were filmed and broadcast for the first time in history of the State in October 2017
The impact of the offence on the victim will also be considered, as will potential aggravating factors such as violent behaviour or abuse of a position of trust and if the accused has previous convictions. It is then a delicate balancing act to try and achieve the appropriate sentence on the basis of this information.
The judge has the discretion to impose concurrent or consecutive sentences if the accused is convicted of more than one offence. A concurrent sentence will usually apply where the offences formed part of the same event or course of conduct.
Some worrying trends have also emerged in recent years, such as the use of compensation in criminal cases which reduces the sentence given
A more controversial issue is the power of the judge to suspend all or a part of the sentence imposed, something which was introduced in legislation in 2006. When deciding to impose a suspended sentence, the judge may attach conditions requiring the person to be of good behaviour and to keep the peace, which if breached, will activate the original sentence.
While there have been a number of high-profile cases where the use of suspended sentences has appeared to be inappropriate or excessive, the use of suspended sentences has declined in recent years. The Law Reform Commission is currently undertaking a review of the operation of suspended sentences in Ireland.
Punish, deter and rehabilitate
The role of a judge in sentencing is no easy task. The goal in sentencing is to punish and deter the person from re-offending and also to try to persuade them to rehabilitate themselves. Of course, there will be instances where judges place too much weight on one or more mitigating factors and hand down a sentence which is unduly lenient. In such cases, there is a procedure where the DPP can appeal to a higher court against the leniency of the original sentence in order to ensure fairness, though this operates only in limited circumstances.
Some worrying trends have also emerged in recent years, such as the use of compensation in criminal cases which reduces the sentence given. In a number of violent assault cases a few years ago, sentences of the offenders were mostly suspended due to their offers to pay compensation to their victims. There are huge moral problems with this, in particular, the message being sent that a person could pay to avoid jail, which of course means poorer offenders will pay a heavier price. Another issue which arose more recently was the apparent reliance of judges on sentencing suggestions from the prosecution. In 2014, the DPP had to issue instructions to lawyers to only issue sentencing guidance in limited cases, due to the over-reliance of the courts and the pressure this was putting on prosecutors.
It would go a long way towards demystifying the process for the public
In order to prevent such issues, there have been calls for many years to introduce sentencing guidelines on a formal basis in Ireland. This has happened in the UK where the Sentencing Council has generally been regarded as a great success in giving guidance to judges and information to the public.
While the Court of Appeal did introduce some informal guidelines in 2014 and the process of gathering the data needed for sentencing information began with the Irish Sentencing Information System (ISIS) a number of years ago, progress on this issue has been slow. However, there are plans to include sentencing guidelines as part of the proposed judicial council. There is also a private members Bill proposed by Sinn Fein currently before the Oireachtas which aims to establish a sentencing council and judges themselves have expressed support for such a body. While it would not solve all problems with regard to sentencing in Ireland, it would go a long way towards demystifying the process for the public and would also provide much needed guidance for judges.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
