Analysis: It can be challenging for judges in these cases to balance the legal rules of sentencing with delivering justice to victims and society
By Diarmuid Griffin, University of Galway
When we look at the news and see reports on sentencing in criminal cases, it can be difficult to understand why the sentences for those convicted of the same offence seem to vary so much. In cases of rape, for example, there have been instances where a person has received a life sentence while another person, convicted of the same offence, received a suspended sentence.
Although these outcomes may be very rare, such a wide variety of sentences for those convicted of the same offence can cause legitimate concern and lead to allegations of inconsistency in sentencing.
So how do judges arrive at their final decision and is it possible to make sense of sentencing? In order to illustrate how sentencing works, it is useful to use the offence of rape – one of the most criticised when it comes to sentencing – to gain a greater understanding.
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From RTÉ Radio 1's Late Debate Prof Tom O'Malley from the University of Galway on how judges decide on sentences
A sentence for a person convicted of rape can include anything from a community sanction to life imprisonment. A penalty range that encapsulates such a broad spectrum of outcomes allows for very wide discretion in decision-making, at least in theory. In practice, a judge must ensure that their decision complies with the legal rules including the main principle in sentencing – the principle of proportionality.
In order to arrive at a proportionate sentencing outcome, judges should follow a two-step process. The first step requires the judge to assess the gravity of the offence in order to arrive at what is called the 'headline sentence'. This is the sentence based on an assessment of the seriousness of the offence, the culpability of the offender and the harm caused to the victim.
To guide sentencing judges in their assessment of the headline sentence, a Supreme Court judgment in 2019 created sentencing bands for the offence of rape. The effect of these sentencing bands was to create a ladder of seriousness within the penalty range for the offence of rape. The Court stated that an ordinary headline sentence for this offence should be set at seven years. More serious cases should result in a sentence of 10 to 15 years and the most serious cases may attract a sentence of 15 years to life imprisonment.
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From RTÉ Radio 1's Drivetime, Minister for Justice Jim O'Callaghan says he will establish a domestic violence register of people convicted of rape or sexual assault
In making their assessment, a judge will take account of any aggravating factors specific to the case and these aggravating factors will result in a more severe sentence. In my book, Sentencing Serious Sex Offenders, an analysis of cases spanning over 30 years found that many sentencing outcomes of 15 years to life imprisonment involved the use of a weapon or death threats alongside evidence of serious levels of violence towards the victim.
At the other end of the spectrum, there have been cases where a suspended sentence or community sanction have been imposed for those convicted of rape and these outcomes have attracted significant criticism and concern. Today, a sentence of imprisonment is now a virtual certainty in rape cases. In 2023, all rape offences resolved in the Central Criminal Court resulted in a term of imprisonment. The Supreme Court have confirmed that a custodial sentence is effectively ‘inescapable’ in cases of rape.
Once the sentencing judge has deliberated on the gravity of the offence they will often set a numerical value to reflect the headline sentence. In a very serious case for example, it could be 15 years imprisonment. The judge is then required to complete the second step, which is an assessment of the personal circumstances of the defendant and any mitigating factors arising in the case. There are a wide range of mitigating factors and they can include a guilty plea, remorse, absence of previous convictions, disability and age.
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From RTÉ Radio 1's Morning Ireland, Rachel Morrogh from the Dublin Rape Crisis Centre, discusses their Annual Report for 2024 which recorded the highest ever rate of contacts to the centre
Once these factors and their credibility have been assessed, the sentencing judge may make an appropriate reduction to the headline sentence. Taking the 15 year headline sentence, the judge may reduce the sentence by four years on the basis of a guilty plea entered early in the process (saving the victim the difficulty of giving evidence at trial) as well as the defendant’s genuine expressions of remorse. This then means that the final sentence outcome will now be 11 years imprisonment. If there are no mitigating factors at all in the case, the sentence should remain at 15 years.
When sentences vary significantly in factually similar cases, it is important to examine the presence or absence of mitigating factors in each case as a potential explanation for these differing outcomes. Of course, there are also many other complicating factors that can arise. The defendant may have been convicted of multiple offences and all these offences must all be dealt with by the judge at the sentencing hearing.
Some cases may involve multiple victims. There may be evidence before the court from the Probation Service that the defendant presents a risk of reoffending. All these factors will need to be assessed by the judge to determine their impact on the sentence imposed.
In serious sexual offence cases, it can be particularly challenging to balance the application of the legal rules of sentencing with the importance in delivering an adequate and appropriate message of justice to individual victims and society as a whole. When delivering the reasons for their sentencing decision in court, sentencing judges often stated that these cases were the ‘most difficult’ and ‘most horrendous’ of their career as a judge.
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Dr Diarmuid Griffin is a lecturer in criminology at the School of Law at University of Galway. He is the author of Sentencing Serious Sex Offenders: How Judges Decide when Discretion is Wide (Policy Press, 2025)
The views expressed here are those of the author and do not represent or reflect the views of RTÉ. If you have been affected by issues raised in this article, support information is available online
