A quiet revolution occurred this month: sentencing guidelines were introduced
Consistency in sentencing is sensible, provided there is flexibility to cater for exceptional cases
A quiet revolution occurred in the Irish criminal justice system this month, although few noticed it. On Tuesday, March 18th, the Court of Criminal Appeal effectively introduced sentencing guidelines, a development many had recommended over the years.
Ireland had until then firmly resisted formal guidelines, preferring to rely on general principles established by the superior courts and occasionally by legislation.
In 1988, the Supreme Court was invited to indicate tariff sentences for rape but it firmly rejected the invitation, saying that there was insufficient information on existing sentencing practice to permit any reliable conclusions to be drawn on appropriate starting points. More importantly, it held that the discretion of trial judges should not be fettered by pre-determined guidelines or starting points.
Much has changed in the meantime. We have better information on sentencing practice, though much remains to be done in this regard. Attitudes within the legal community have also changed. Judges and lawyers are now far more conscious of the need for consistency in sentencing, provided there is sufficient flexibility to cater for exceptional cases.
This month, the Court of Criminal Appeal delivered three very significant sentencing judgments, dealing with the persistent sexual abuse of children, the offence of causing serious harm (the most serious assault offence under the Non-Fatal Offences Against the Person Act 1997 and carrying a maximum sentence of life imprisonment), and the illegal possession of firearms and ammunition.
In the sexual abuse case, the court upheld the life sentences imposed by Mr Justice Carney in the Central Criminal Court. The opportunity did not therefore arise to offer guidelines for that kind of offence, although the court made valuable observations on when a life sentence may be appropriate, even in response to a guilty plea.
In the remaining cases, however, the Court of Criminal Appeal took a major step forward by indicating appropriate sentence ranges for the offences in question. The judgment in the Ryan case, involving the possession of firearms, ranks as one of the most significant and thoughtful sentencing judgments delivered in this country to date.
Most significantly, perhaps, it expressly acknowledges that senior appeal courts have an important role in offering general sentencing guidance, including the indication of appropriate benchmarks, rather just reviewing sentences on a case-by-case basis.
Having surveyed several earlier decisions, it indicated relevant factors for assessing the seriousness of certain firearms offences and then held that for offences at the lower end of the scale, a sentence of five to seven years would be appropriate, with 7 to 10 years for offences in the middle range and 10 to 14 years for those at the top of the range. (Under current legislation, most of these offences attract a presumptive minimum sentence of five years, a factor which the court had to take into account).
Likewise, for the offence of causing serious harm, the court indicated sentences of 2 to 4 years at the lower end of the scale, 4 to 7½ years for offences in the middle range and 7½ to 12½ for those at the top of the scale, while accepting that some cases might merit anything up to life imprisonment.
The applicant in this case had been sentenced to 15 years’ imprisonment with the last three suspended for a particularly brutal assault.
The court allowed the appeal on certain grounds and adjourned the case for further submissions as to what the appropriate sentence should be. The court accepted that all of these guidelines might later have to be refined in light of further research or developments.
Sentencing guidelines can take many forms from the grid-based systems adopted in some American jurisdictions, and which have often caused as many problems as they solved, to the more narrative, and somewhat more flexible, guidelines introduced in England and Wales over the past 15 years or so.
However, the story of English sentencing guidance dates back further to the 1970s and 1980s when the court of appeal began to indicate tariffs or starting points for particular offences, just as the Irish Court of Criminal Appeal has now begun to do.
From an Irish perspective this incremental approach has much to commend it. There is little point in developing a grand scheme of sentencing guidelines from scratch in the absence of detailed and reliable information on existing practice.
More than most other countries, Ireland has suffered from a serious lack of data and empirical research on the operation of the criminal justice system, and on sentencing in particular.
Thankfully this is now beginning to change owing to the efforts of Isis, the Irish Sentencing Information System, and the welcome increase in the number of young academic researchers working in the field.
A very modest financial subvention could transform the capacity of Isis to gather and analyse information but, unfortunately, like so many other initiatives, it has suffered from the cutbacks that have had to be imposed in recent years.
This new willingness on the part of the Court of Criminal Appeal to offer meaningful sentencing guidance also removes the need for mandatory and mandatory minimum sentences (except perhaps for murder) as recently recommended by the Law Reform Commission.
Mandatory sentences, whatever form they take, are counterproductive in many ways.
They can be downright unjust if they prevent courts from taking account of genuinely exceptional circumstances.
They also tend to be arbitrary in terms of the range of offences to which they apply and, in some cases, the circumstances in which downward departures are permissible.
Right now they apply mainly to drug dealing offences and often result in excessively severe sentences, bearing in mind that few offenders are anywhere near upper echelons of drug distribution networks.
The Court of Criminal Appeal is in a much better position to offer more nuanced sentencing guidance for these offences, taking account of the offender’s level of involvement in the overall enterprise and other relevant circumstances.
Meanwhile great credit is due to Mr Justice Clarke and his colleagues on the Court of Criminal Appeal for three landmark sentencing judgments.
Tom O’Malley BL is a senior lecturer in law at NIU Galway, a Law Reform Commissioner and a member of the ISIS Steering Committee. He writes here in a personal capacity.
Appeal court judgments: ‘Obligation’ on DPP
When the Court of Criminal Appeal (CCA) released three judgements earlier this month, it was, by the standards of the judiciary, a major policy announcement.
In these rulings the court stated for the first time that sentencing guidelines should be given to judges in criminal cases. For several years victims groups have been demanding such a measure .
All three judgements cross-reference each other and make similar points but it is in DPP v Z that they are made most forcefully. The CCA panel, made up of Mr Justice Frank Clarke, Mr Justice Michael Moriarty and Mr Justice Patrick McCarthy, stated that there is no reason why a sentencing judge cannot be told by the DPP how the case before them compares to previous cases in terms of severity.
The judges ruled that there is “now an obligation” on prosecutors to draw judges’ attention to previous sentencing practices and to inform judges where they believe their case falls in the spectrum of seriousness. In other words, prosecutors are now required to inform a judge what punishment they believe an offence warrants. The judge is then free to accept or reject their assessment.
One of the motivations for this move was that the CCA felt it was unfair of the DPP to make appeals criticising a sentence’s leniency when it had failed to state what it believed the punishment should be.
It is significant that in the case of Z, the CCA was not asked to rule on this issue of guidelines but did so anyway. It believed the issue needed to be addressed as soon as possible. In 1988 the Supreme Court viewed sentencing guidelines as impractical due to the lack of reliable sentencing statistics. But the CCA noted that with the establishment of the Irish Sentencing Information System by the Courts Service , such data is more plentiful and easily available to prosecutors.
The Z case itself involved an appeal against a sentence handed down by Mr Justice Paul Carney for the horrific rape and abuse by a man of his four daughters. The case originally involved 271 counts and featured shocking depravity, such as the accused tying one girl to a tree before raping her. The accused was sentenced to life in prison despite entering a guilty plea. The CCA upheld the judge’s sentence and noted that the severity of such cases can outweigh mitigating factors such as an early guilty plea. The ruling will be closely read by lawyers for the man who was jailed earlier this month for the shocking rape of two young children in Athlone. Like Z, he pleaded guilty and was sentenced to life. He has now lodged an appeal against the severity of sentence.
The second judg ment released by the CCA lends support to the requirement of prosecutors to provide sentencing guidelines. It involved an appeal against the severity of a 15-year sentence imposed on a youth who seriously assaulted his victim and “danced” on his head. The CCA analysed a series of previous serious assault sentences to gauge the length of sentences imposed. It found that 15 years was excessive in comparison and allowed the appeal.
The third judg ment involved an appeal against severity of an eight-year term imposed for the possession of a handgun in suspicious circumstances. Here again the court allowed the appeal after analysing a range of previous cases.
Taken together, the three cases show that the court clearly believes such analysis should be a feature of serious criminal cases from now on.