There is much debate about sentencing in the criminal courts in Ireland and the severity or otherwise of sentences handed down in criminal courts.
To understand better how sentences are arrived at in criminal cases it is important to understand that the goal of a sentence in a criminal case is to deter the criminal from offending again but also to persuade him to turn from a life of crime to an honest life.
A guiding principle in this regard therefore, and one which enjoys constitutional protection, is the principle of proportionality as set down in State (Healy) v Donoghue (1976) which recognized this principle and stated that it had 2 aspects to it:
1. The sentence must be proportionate to the gravity of the offence committed
2. It must also bear in mind the personal circumstances of the offender.
Plea in Mitigation
After conviction, the solicitor or barrister for the convicted person will make a plea in mitigation to try to minimize the sentence to be handed down.
Factors which will be put before the court on behalf of the convicted person will include any factors to do with the offence itself and to do with the personal circumstances of the offender which might portray the convicted person in the most favourable light.
These factors will include
- The age of the defendant, family circumstances
- Any addiction problems
- Any attempts to sort out his problems such as treatment centre visits or courses
- Cooperation with the Gardai
- Attempts to compensate the victim
- A guilty plea and how quickly this was offered
- Absence of violence in the commission of the crime
These mitigating factors should be considered by the Judge AFTER the Judge has thought about the sentence to be imposed after considering the gravity of the crime.
Once the Judge does this he will then reduce the sentence he has arrived at by whatever reduction he deems appropriate after hearing of the mitigating factors proffered by the solicitor/barrister for the defendant.
The Judge will also ask the Gardai about previous convictions and any other relevant factors to do with the crime such as the circumstances of the victim, whether violence was used, whether a position of trust was breached and any else that is relevant.
Previous convictions for the same type of offence will result in a harsher penalty than if the offence before the court was the first time.
Many Judges will also adjourn sentencing until the Court has been provided with any relevant reports about the offender such as probation reports, medical and psychiatric reports etc.
Where the crime has involved violence and/or sexual violence the Criminal Justice act 1993 makes provision for a victim impact report which can be taken into account before arriving at a suitable sentence.
Reports Furnished to Court
A judge may adjourn sentencing in order to obtain a probation and welfare report or other reports such as medical and psychiatric reports.
The purpose of these reports is to provide a full picture of the offender, his background, his/her attitude to crime and the prospects for rehabilitation.
The Criminal Justice Act, 1993 also provides for a victim impact report to be prepared which will be taken into account when sentencing. This report gives the victim the opportunity to give evidence of the impact of the crime on him/her.
This report arises in cases of personal or sexual violence.
Concurrent and Consecutive Sentences
Judges have discretion to impose concurrent or consecutive sentences.
Generally, concurrent sentences will be imposed where the crimes arise from the same incident. This is known as the ‘one transaction rule’.
Section 11 of the Criminal Justice Act, 1984 provides for consecutive sentences where an offence is committed while on bail and the Judge has no discretion in this regard.
If you plead guilty you will almost certainly get a more lenient sentence from the Judge.
However, when you make that guilty plea may well influence how much leniency you receive. Generally, the earlier in the proceedings that you plead guilty, the more leniency you can expect.
Types of Sentence
Section 1(1) of the Probation of Offenders Act, 1907 allows a Judge to apply this section of this act to …
without proceeding to conviction, make an order either-
1) dismissing the information or charge; or
2) discharging the offender conditionally on his entering into a recognisance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as may be specified in the order.
The Act may be applied depending on
- the character, antecedents, age, health or mental condition of the person charged
- the trivial nature of the offence
- the extenuating circumstances under which the offence was committed.
It is worth noting that the Court may apply this before proceeding to conviction. Therefore, you will not have a criminal conviction recorded against you if you are given section 1 (1).
Section 1(1) of the Probation of Offenders Act, 1907 cannot be applied in certain cases, eg drink driving offences under the Road Traffic Acts.
Section 1(2) of the Probation of Offenders act, 1907 can be applied in indictable offences punishable by imprisonment. However the difference between 1(1) and 1(2) is that 1(2) can only be applied where you have been convicted.
The recognisance into which you enter under 1(1) or 1(2) will see you placed under the supervision of a probation officer-this is known as a ‘probation order’.
A bindover order binds a person to the peace or good behaviour or both. The Criminal Law Act, 1997 allows a person to be bound to the peace or good behaviour without a fine for prison sentence being imposed.
COMMUNITY SERVICE ORDERS
The Criminal Justice (Community Service) Act, 1983 allows a court to impose a community service order for anyone over the age of 16 and who has been convicted of an offence for which the appropriate sentence would be a term of imprisonment or detention. The total number of hours may not exceed 240.
The defendant must consent to this order being made; generally, most defendants are happy to do so as the alternative will be worse.
When imposing fines, the Court is supposed to take into account the means of the defendant.
The maximum fine that can be imposed in the District Court is €5,000 since the Fines Act, 2010.
The Criminal Justice Act, 1993 makes provision for a compensation order to be made by a Court. This type of order is to compensate the victim for any loss or injury suffered as a result of the offence.
The means and financial commitment of the offender will be taken into account.
Suspended sentences had no statutory basis until the Criminal Justice Act, 2006.
When a Judge decides to suspend a sentence, he/she will impose a sentence and then suspend its operation upon the defendant entering into a recognisance to keep the peace and be of good behaviour for a specified period.
Parts of sentences can also be suspended and Courts may also impose a sentence and make provision for the sentence to be reviewed after a period of time.
Imprisonment is proved for a wide range of offences so the penalties for a specific offence will need to be looked at. Most offences provide for a fine and/or imprisonment.
OTHER ORDERS AFTER CONVICTION
Other statutes, eg Road Traffic Acts, Criminal Justice Act, 1994 provide for orders such as disqualification, endorsement of licence, confiscation, forfeiture.
Read more about criminal law in Ireland.