More detailed guidance on sentencing is needed

The sentencing of so-called historic child sexual abuse is fraught with difficulty. Following a series of Supreme Court decisions over the past 15 years or so, prosecutions may now be initiated for sexual offences alleged to have occurred many years or even decades before they were formally reported.

The same sentencing principles apply, no matter when the offences were committed, save that sentences must be determined by reference to the maximum sentences that applied at the time of commission.

Proportionality, the fundamental and overarching sentencing principle in Ireland, requires that every sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender.

Both elements of the principle must be given due weight, and personal circumstances are normally assessed as they exist at the time of sentence, rather than at the time of the offence.

When a long period has elapsed between offence and sentence, a sharp distinction must therefore be drawn between the punishment merited by the offence and the sentence appropriate for the offender.

Mr Justice Paul Carney very properly made that distinction last Monday when sentencing Patrick O’Brien, who pleaded guilty to raping his young daughter over a 10-year period from 1973 to 1982. As the judge said, this prolonged and serious abuse, even in response to a guilty plea, would usually merit at least 12 years’ imprisonment.

However, the judge was also constitutionally obliged to consider the offender’s personal circumstances and, most notably in this case, his ill-health. It was for this reason that he suspended three-quarters of the sentence.

The decision to grant bail pending appeal seems to have evoked the most controversy. In one or two previous cases of a similar kind where short prison sentences were imposed on very elderly or seriously-ill offenders, the Court of Criminal Appeal, inspired largely by humanitarian considerations, had suspended the sentences in their entirety. Mr Justice Carney was obviously cognisant of these decisions.

There is no guarantee that the Court of Criminal Appeal will adopt such an approach in this case, and indeed, the Director of Public Prosecutions will be entitled to cross-appeal, arguing that the sentence was unduly lenient.

The appeal court may well uphold Judge Carney’s sentence or even decide that a longer term should be imposed. Should that happen, O’Brien will go to prison and serve whatever time the court directs. In that event, the conditional liberty which has been granted to O’Brien will be no more than a temporary respite from a custodial sentence.

Decisions of this nature always evoke controversy with predictable calls for sentencing guidelines or mandatory sentences. Yet it is important that critics should concentrate, not on an isolated case like this which may well have a different outcome once considered by the Court of Criminal Appeal, but on the general pattern of sentencing.