ALMOST at the outset of its report on sentencing, the Law Reform Commission (LRC) asks if there is really point having a sentencing policy State which does not provide adequate accommodation for prisoners and whose Ministers can reduce fines regardless of the court's decisions.

"Judges must assume that the executive will provide the necessary facilities for implementing sentencing decisions. The sentencing policy of the courts should not be influenced by prison capacity.

"When penal policy and sentencing policy are at cross purposes, the situation is intolerable. If the courts and the government are pulling in different directions from case to case, the situation will be extremely demoralising for the courts and the public."

The LRC points out that while the exercise of ministerial discretion is not strictly within its terms of reference, it felt compelled to mention the feelings of grave disquiet among judges about the State's very liberal policy of temporary early release.

The Fianna Fail/Labour government had originally directed that the LRC examine sentencing policy and deport in response to embarrassing publicity over controversial sentences, particularly in rape and sexual assault cases.

The clear impression, at the time was that the Government was concerned about an out of touch, even misogynistic judiciary and wanted the LRC to draw up some kind of guidelines or system for preventing dubious sentencing. There was talk in Government circles of sending judges on courses to learn about sentencing.

At the outset of its report, the LRC appears to be putting the ball back in the executive's court.

The continued ministerial power to rem it fines is also, clearly, an affront to the judiciary. The report advocates a broader approach to sentencing and penal policy that involves not only judges but all units of the criminal justice system over which government has control.

Throughout its report, the LRC is clear that sentencing is a difficult area and says judges do need help. The establishment of a national criminal justice data base and more information for judges is one of its suggestions.

It also quickly establishes that it does not favour the imposition of mandatory or "just deserts" sentencing where anyone convicted of a particular type of crime, no matter what the circumstances, receives a set sentence.

It recommends against the type of sentencing policy in one or two US states which have such policies as "three strikes and you're out" whereupon a felon, on conviction for the third time in a particular kind of offence, is jailed for the rest of his or her natural life.

The "just deserts" set sentences and "third strike" policies are particularly favoured by the public at times of high emotion over crime.

The near hysterical debate in the aftermath of the murder of journalist Veronica Guerin, underlined the danger of introducing strong criminal justice measures, like mandatory sentencing, against a backdrop of public outrage.

It is clearly and strongly against mandatory minimum or maximum sentences, even in cases of murder or rape, at one end of the scale, and drunken and careless driving at the other.

The report points to the view, long held by senior judges, that all murders are not the same and cases deserve to be treated on their own merits in respect of sentencing. Does the stabbing of an abusing spouse merit the same sentence as that of a paedophile who kid naps and murders a child?

The report acknowledges sensitivities over rape cases. The original impetus for the Government directive to review sentencing arose from widespread public disquiet over discrepancies in rape sentences. It states that its position of opposing, minimum or maximum sentences: should not deter a judge from imposing a sentence to fit the crime.

It also agrees with the Irish Association for Victim Support that there should be a simplified system for victim impact assessment, particularly in cases of rape and sexual assault. The report sets out a model for the type of impact assessment report which could be filled in by Investigating gardai for the judge's perusal before sentencing.

The report says district court judges were all opposed to mandatory sentencing, including the mandatory endorsement of a driving licence for careless driving. The question of extending this to mandatory disqualification for a drunken driving offence is also raised.

The report acknowledges the practice and importance of "plea bargaining", where a defendant agrees to plead guilty and, usually, receives more lenient treatment. Remarkably, this process has excluded any input by judges and the LRC says they should be involved in the procedure to indicate the type of sentence he or she might consider in the event of a guilty plea.

This report regularly refers to the 1985 Whitaker Report on penal reform and argues that imprisonment should be a last resort. It argues the case for greater and more effective use of intensive probation and community service.