Need for sentencing guidelines grows more apparent

Fri, Oct 19, 2012, 01:00

ANALYSIS:THE SUSPENSION of a sentence for a violent sexual assault, for the second time in three months, highlights the absence of sentencing guidelines in the State.

Such guidelines do exist in the UK, where they are drawn up by the Sentencing Council, which is made up of judges and lay people and headed by Mr Justice Colman Treacy.

However, there is considerable jurisprudence on sentencing, particularly from the Court of Criminal Appeal, which is meant to be followed by other courts in imposing sentence, including the Circuit Criminal Court.

Five years ago Mr Justice Peter Charleton conducted a survey of sentences for rape in Ireland and Britain to draw together some general principles, which have usually been followed since.

While he did not examine sentencing for sexual assault as opposed to rape, he did outline the weight given to such considerations as the use of violence, the lack of any question about consent, the impact of the attack on the victim and the presence or absence of previous convictions.

On Wednesday the Circuit Criminal Court suspended a four-year sentence imposed on Graham Griffith for a violent sexual assault on a teenager who was not known to him, and whom he pinned to the ground during the assault.

Judge Martin Nolan suspended the sentence on condition that Griffith paid the victim compensation of €15,000, and he said if she did not accept it the court would decide where it would go. This follows the suspension of all but six months of a six-year sentence imposed on Anthony Lyons last July for a violent

sexual assault on a woman walking home, on condition he paid her €75,000 in compensation.

This sentence has been appealed on the grounds of undue leniency by the Director of Public Prosecutions. The Court of Criminal Appeal has yet to hear the case and it is likely to consider the place of compensation in sentencing for violent sexual assaults.

Section 6 of the Criminal Justice Act 1993 does provide for the payment of compensation for “any personal injury or loss” that results from an offence, instead of or in addition to dealing with the convicted person in any other way. In doing so the court should hear evidence of the impact on the victim of the offence, and the Act does include sexual offences.

However, the use of this provision for serious offences and where the sentence for the offence is up to 10 years’ imprisonment – 14 if the victim is under 17 – can give rise to the perception that the perpetrator of such an offence can buy his way out of a custodial sentence.

In England and Wales, the Sentencing Council seeks to promote consistency across all criminal offences and to inform the public about the factors that have to be taken into account by judges in imposing sentence. It is made up of eight judges from all levels of the courts and six non-judges with specialist knowledge.

Judges retain their discretion in sentencing, but the guidelines outline all the factors that have to be taken into account, both aggravating and mitigating. They are outlined on a single-page form, which the judges fill in at the time of the hearing and which is forwarded to the Sentencing Council, which analyses the results and uses them to promote consistency.

No such system exists here, but it is likely to be one of the tasks that will confront the Judicial Council when it is established on a statutory basis. This was promised in the programme for government.

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