In 2022, Natasha O'Brien was beaten unconscious in a random street attack. Last week at Limerick Circuit Court, her attacker - 22 year old Cathal Crotty, a soldier from Ardnacrusha, Co Clare - was given a three-year fully suspended sentence after he pleaded guilty to the attack on Ms O'Brien.
The case, and especially the decision by Judge Tom O'Donnell to suspend the sentence, has attracted much attention, especially around the decision-making which goes into sentencing. Tom O'Malley is a Senior Counsel and former Professor of Law at the University of Galway and he joined RTÉ Radio 1's Drivetime to talk about this. (This piece includes excerpts from the conversation which have been edited for length and clarity - you can hear the discussion in full above).
What does a judge take into account when considering a sentence?
"The first and most important consideration is the maximum sentence that applies by statute to the offence in question. For example, in the offence that we're talking about in Limerick, which was assault causing harm, the maximum is five years' imprisonment. That has recently been increased to 10 years, but that new maximum doesn't apply retrospectively.
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From RTÉ Radio 1's Late Debate, how do judges decide on sentences?
"In addition, the basic principle of sentencing in this country is proportionality, which means that the court has to take into account not only the nature of the offence but also the circumstances of the offender. That means that courts effectively adopt a two-stage approach when they're selecting a sentence. First of all, they select what's called a headline sentence, which is the sentence that would be appropriate if only the gravity of the offence itself was taken into account. In other words, the entire circumstance in which the offence was committed."
"Then, they have to make any necessary adjustments to that to reflect the offender's personal circumstances. Now, those adjustments are usually mitigating rather than aggravating so usually there will be a reduction in the headline sentence to reflect factors such as whether the person pleaded guilty, whether they have previous good character, whether they have expressed remorse, whether they have made restitution or compensation, or factors of that nature. That would eventually bring them then to what is the ultimate sentence to be imposed."
How does a judge weigh up all these different factors?
O'Malley says there isn't any kind of of mathematical formula for doing so. "There have been a lot of developments in sentencing in this country over the past decade. The senior courts, namely the Court of Appeal and the Supreme Court, have established guidelines for quite a number of commonly prosecuted offences, such as residential burglary, rape, manslaughter, and a few others.
"These guidelines set out various categories of seriousness - typically three, let's say low, middle and high - and they indicate the kinds of factors that should influence a judge in deciding which category a particular offence should be allocated to. In a case like assault, the more serious the injuries that were inflicted, the higher the category into which that particular offence will be placed so those guidelines are of considerable assistance."
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From RTÉ Radio 1's Morning Ireland, Senior Counsel and member of the Council of the Bar of Ireland Seamus Clarke, explains how and why the Director of Public Prosecutions can refer cases to the Court of Appeal
O'Malley explains that a body called the Sentencing Guidelines and Information Committee exists under the Judicial Council Act 2019 and is charged with setting out more formal guidelines for the sentencing of individual offences, but they haven't started coming upstream yet. "For the moment, we are relying on judicially developed guidelines and they can be a very considerable help to judges in deciding on sentence. But again it must be remembered they are only guidelines, and there could always be exceptional circumstances in any case which would justify a trial judge in departing from those guidelines."
Are fully suspended sentences common?
"It depends really on the nature of the offence. They're quite uncommon for serious offences. Normally for crimes of violence, let's say for drug dealing offences and sex offences, they would be probably the exception rather than the rule. They're not entirely ruled out.
"What would be far more common in those cases would be a part-suspended sentence, whereby the person is given four years imprisonment but the last year or 18 months may be suspended. If you do suspend part of the sentence, it provides a kind of incentive for the person to remain crime free and try to get their life in order."
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From RTÉ Brainstorm, will we see 'robot judges' in Irish courtrooms in the future?
What's the rationale behind a custodial sentence?
"It's primarily punitive, it's punishing the person for the offence in question, it may also serve a deterrent purpose - even though the research on this shows that prison sentences don't deter at all as much as people imagine - but it may have some deterrent impact.
"In an ideal world, it might provide some opportunities for rehabilitation for the offender, if suitable facilities are available within the prison system. One of the things that worth saying at the present time, is that our prison system is operating way beyond capacity. The prison numbers have grown enormously over the past year, so that according to the most recent prison statistics, which are now published on a daily basis, I think it's operating at something like 112% capacity."
