Manslaughter report sheds light on vexed question of inconsistencies in sentencing

At the Central Criminal Court in May 2009, a teenage boy pleaded not guilty to murder and was convicted of the manslaughter of his father.

The boy’s father was an alcoholic and had been sent to buy food but came home drunk in the early hours with nothing for dinner.

The boy was annoyed. He grabbed his father, punched him outside the house and, when he fell, punched him twice and kicked him. The father was left in the garden with a pillow and duvet for the night and was found dead the next morning.

At sentencing, the trial judge said the case involved such exceptional circumstances that it did not warrant a prison sentence. He pointed to the fact that the defendant had just turned 18, had no previous convictions and no propensity for violence. There was no evidence that he presented a risk to others.

A month later, in June 2009, another manslaughter case came before the same court.

In this case, a man was found guilty of the manslaughter of his prison cellmate. The accused had been transferred to the over-crowded prison without the anti-psychotic medication which had been prescribed for him in the Central Mental Hospital.

He was held in a cell containing three mattresses, which he and the victim shared with five other inmates. The accused stamped on the victim’s head and punched and kicked his head repeatedly. He was given a life sentence, the trial judge noting that this was the best way of protecting the public.

These snapshots – two manslaughter cases, two distinct sets of circumstances, two radically different sentences – underline the sheer range of acts covered by the same offence, which stretches from almost murder to almost accidental death.

They also show judges’ considerable room for discretion when they come to decide on an appropriate punishment – a fact highlighted in the analysis due to be published by the Irish Sentencing Information System this week.

Inconsistency
Sentencing is perennially controversial. Victims' groups complain that sentences imposed for manslaughter are frequently too lenient, while a number of judges have implicitly criticised the Court of Criminal Appeal for preventing them from handing down deterrent sentences.

The new report urges caution in making claims about inconsistency, but “one must have regard”, it notes, to the remarks of Thomas O’Malley, senior lecturer in law at NUI Galway.

“While we may lack the kind of statistical data and empirical analyses that would help to identify the extent of sentencing disparity,” O’Malley writes, “we can conclude with some assurance from reported appeal decisions and media reports of sentences imposed by trial courts that there is a degree of discordance in current sentencing practices.”

O’Malley, a specialist on the topic, has argued that sentencing, in order to comply with the demands of justice, must remain discretionary and that the selection of sentence in a given case must remain a judicial task.

But to comply with other important values, including procedural fairness, equality and the rule of law, judicial sentencing must reform itself in order to produce consistency of approach and to reduce unwarranted disparity.

This week’s analysis by the Courts Service suggests judges are guided by certain principles. For example, sentences tend to be more lenient where the offender is young, where the level of violence is not too severe and where a plea of guilty is offered at an early stage. The problem however is that these principles are unwritten and, to the general public, largely unknown.

Structured approach
Other jurisdictions have begun to take a more structured approach. The US has established a sentencing commission, an independent agency that sets guidelines to be consulted by the judiciary.

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.

This week’s report will help illuminate a process that remains largely opaque. Ultimately, however, the goal is not just a transparent system but one that is seen to be coherent as well.