Character references can be of use where a convicted person awaiting sentence for a first crime appears to have truly acted out of character, according to retired High Court judge Michael White.
However, in more serious cases, where a judge has already decided they are going to send the convicted person to jail, they “don’t carry huge weight”, he said.
White was speaking in the wake of a case where a judge in the Court of Appeal, Judge John Edwards, disclosed that a former TD was among those who had submitted character references for Daniel Ramamoorthy (40) before his sentencing last year at Dublin Circuit Criminal Court for the possession of child sex abuse material and the sexual exploitation of a child.
Taoiseach Micheál Martin and Tánaiste Simon Harris have suggested that the former TD, who has not been identified, should come forward and identify themselves.
READ MORE
Ramamoorthy, previously of Whitebarn Road, Rathfarnham, was jailed for two years and four months for the exploitation offence and 18 months for the possession offence, with both sentences to run concurrently.
The son of an Indian diplomat, he attended Yale University in the US and at one stage worked as an adviser on a programme run by the Department of Enterprise, Trade and Employment.
His appeal over the severity of his sentence was on Tuesday rejected by Edwards, along with judges Patrick McCarthy and Tara Burns.
In the course of the judgment, delivered by Edwards, he noted it was part of the social contract that people abide by the law and live “pro-social lives” and that, therefore, there was no entitlement to “any special reward” for doing so.
The real value of evidence of previous good character and a history of pro-social living, he said, arose when, in the case of a first time offence, they supported a suggestion that the offending was truly out of character. In such instances, he said, a court might afford greater weight to rehabilitation rather than to retribution and deterrence when deciding on sentence.
It was clear, the judge said, not least from the large number of testimonials the sentencing court had received, that Ramamoorthy, a first-time offender, had done much good in his life.
However, he said “the difficulty” was that evidence of previous pro-social living can “carry only modest weight” in mitigation in the absence of acceptance of wrongdoing by the offender, acknowledgment of the suffering caused, and a desire to work towards rehabilitation.
Character references, according to White, are more relevant when a judge, already so inclined, is deciding whether to grant someone a suspended sentence. They would rarely have influence in cases where the judge had decided to send a person to jail, he said.
They would also be more of a factor in the Circuit Criminal Court than in the Central Criminal Court, where the most serious criminal cases are decided, he added.
White, who spent his career on the bench in both courts, said he had “no particular problem” with politicians writing references for people.
“Ireland is a small country, and people can come under pressure. I never denigrated anyone in 25 years as a judge for sending in a reference. A judge can just ignore it or give it whatever degree of consideration he or she thinks appropriate.”
One issue that arises in deciding whether to give any weight to a reference is the extent to which the convicted person is known by the person making the reference.
“If a judge feels that it is from a person who doesn’t really know the accused, or has had no particular dealing with them, you are not going to give it much consideration at all,” he said.
A major change that occurred during his time as a judge was the introduction of a practice whereby character references for people awaiting sentencing were shared with the prosecution, rather than given directly to the judge.
“The reference is given to the DPP’s counsel, I suppose for vetting, or if the guards want to have a look at it, to ensure there is nothing false about it. That was the big change over the course of my career,” White said.
Dara Robinson, a retired criminal law solicitor who worked almost exclusively in defence, said judges were best qualified to say whether character references are effective.
“But we wouldn’t use them unless we thought they were capable of having some impact on a sentencing judge. And we would use them to present a side of the accused person that may not become necessarily known to the judge in the ordinary evidence in the case.”
The Court of Appeal, in the Ramamoorthy case, made a similar point.
“It is important that a court should have the full and rounded picture concerning the individual before them” when deciding on sentence, it said.
