Should judges be able to impose a minimum term for murder?

Calls to reform a system where sentence review possible after seven years

Left to right: Adrian Bayley who was jailed for life for murdering Jill Meagher in Melbourne; Mark Nash, who murdered two women and was previously convicted for murdering two others; Brian Hennessy who was jailed for three life sentences for murdering Sharon Whelan and her daughters; and Clive Sharp jailed for life after confessing to the murder of Irish vet Catherine Gowing

Left to right: Adrian Bayley who was jailed for life for murdering Jill Meagher in Melbourne; Mark Nash, who murdered two women and was previously convicted for murdering two others; Brian Hennessy who was jailed for three life sentences for murdering Sharon Whelan and her daughters; and Clive Sharp jailed for life after confessing to the murder of Irish vet Catherine Gowing

 

Zoltan Almasi had just come home from work when he heard someone banging on his van outside his Naas home. He took a baseball bat and went to investigate. Minutes later, 20-year-old Joseph Dunne was dead, the result of a single blow to the head from the tip of the bat.

During his trial, Almasi’s lawyers said he was guilty of manslaughter, of unintentionally killing the young man with a single “reckless swipe”. The prosecution argued for murder. It contended a baseball bat is a potentially deadly weapon and Almasi must have known this when he struck Mr Dunne. The jury agreed and convicted the 44-year-old Hungarian courier of murder last March.

Almasi was convicted because the jury believed he acted with intent to kill, the key ingredient for murder. It does not matter if that intent was formed over the course of days or weeks, such as in a gangland assassination, or if it was formed in the split-second before the act. And a key part of proving intent was proving Almasi knew a blow with a baseball bat could be deadly.

Scale of seriousness

With a different jury on a different day he might have got manslaughter. Most observers were surprised by the result, particularly because there have been many manslaughter verdicts in cases where people stabbed their victims to death, while presumably knowing knives are also potentially deadly.

Days later, Almasi was sentenced to life in prison. There was no plea for leniency or appeal for mercy from his barrister Colm O’Briain.

There was no point. Only one sentence was possible.

For most crimes, judges use a scale of seriousness to decide punishment.

You get a longer sentence for mugging an elderly woman than you get for the same crime against a young man. Stealing a car will generally result in a tougher sentence than for stealing a bicycle.

In murder cases, this scale is missing. The legislation views Almasi’s crime as equal to every other murder, even those involving multiple victims.

Murder is unique as the end result in every case is the loss of a life. And no one, not even his defence team, would argue Almasi should not have gone to jail. He chased down his victim, “a kind, gentle, loving and caring lad” according to his brother, and killed him because he was annoyed about his car.

But, given the facts of the case, should he automatically be given the same punishment as someone such as Mark Nash, who murdered two women and was previously convicted for murdering two others?

Once a verdict comes in for murder, a judge’s role is reduced to rubberstamping the only available punishment. And because life doesn’t mean life in Ireland, it falls to the collection of civil servants and political appointees who make up the Parole Board and operate behind closed doors, to decide when Almasi or Nash will re-enter society.

Under the current system, a life sentence prisoner must serve seven years before being considered for release by the Parole Board. After seven years the board will review the prisoner’s file every few years and make a recommendation to the minister for justice.

According to Dr Diarmuid Griffin, a criminologist who specialises in the area, the average life sentence is now 17.5 years. Prisoners are reviewed by the parole board an average of four times before being recommended for release. While the final decision rests with the minister for justice, Dr Griffin found in his research that “in the vast majority of cases the minister will go with the decision of the parole board”.

Furthermore, parole board members were open in telling Dr Griffin that much of the board is appointed based on their political connections rather than their skills and that board members receive no specific training.

Now several groups, including advocates for both victims and offenders, say it’s time for the system to be reformed and for power to return to the courts.

John Whelan has no idea when the man who murdered his sister Sharon and her two daughters in Kilkenny will be released from prison. In 2009 Brian Hennessey (31) was given three life sentences for the murders to run one after the other.

However, an appeal court later ruled life sentences cannot run consecutively and replaced the sentence with a single life term. Nash was given a single life term for his double murder last year for the same reason.

“There’s no clarity on how long someone has to serve for murder,” Mr Whelan said. “You hear on the news that someone has been jailed for life and it sounds very comforting but people don’t realise that means they are eligible for release after as little as seven years. For families that is just not acceptable.”

Mr Whelan, who now chairs the victim support group Advic, said he favours the introduction of a UK-style tariff system. This allows a judge to impose a life sentence while putting in place a minimum tariff that the murderer must serve before being considered for parole.

“Look at the Catherine Gowing case in Wales and the Jill Meagher case in Australia. Their killers got 39 and 40 years respectively before they’re even allowed to go and apply for parole. And these are Australia and Wales we’re talking about, first world countries with civil rights.”

“If you ask any right-minded person, they’re decent sentences that reflect the crimes that occurred and will hopefully act as a deterrent in the future,” Mr Whelan continued. “I don’t see why we’re so afraid of it in Ireland.”

The Irish Penal Reform Trust which advocates for prisoner’s rights also favours reform of the system, although for different reasons.

Transparency of sentencing

“The current system does not allow any distinctions to be made at sentencing on the particular circumstances of the offence and any aggravating or mitigating factors which may have been present,” said executive director Deirdre Malone.

“Currently life sentence prisoners are subject to a release process that lacks formality, transparency and independence.”

The IPRT sees “some merit” in the tariff system but would prefer to see the establishment of a Judicial Council, which would set sentencing guidelines for the courts to follow based on aggravating and mitigating factors and offender characteristics.

“These measures would not only address concerns relating to the consistency, transparency and predictability of sentencing practice but would strengthen public confidence in the system,” Ms Malone said. “Given what is at stake for everyone in the system, it is imperative that the systems of both sentencing and parole be reformed.”

A 2013 report by the Law Reform Commission recommended the mandatory life sentence for murder remain in place but with judges able to set a minimum term. This is effectively the UK system.

The LRC also makes the point that the current regime means that nearly all murder accused plead not guilty, necessitating a costly trial and placing additional stress on the families involved.

There is no incentive to plead guilty and it makes sense for accused to take their chances with a jury no matter how strong the evidence is. Of the 32 murder accused last year only three pleaded guilty, less than ten per cent.

This compares to robbery offences which resulted in a guilty plea 62 per cent of the time. Many lengthy trials could be avoided if murder accused knew they might get a discounted sentence for pleading guilty.

Ireland is an outlier in the way it sentences murders; the only system which bears any resemblance is that in Cyprus. However, debate on the current system is non-existent outside legal and academic circles. No major political party has touched the issue in years. The only exception was in the run-up to the 2016 general election when Renua proposed making all life sentences mean life in prison despite the European Court of Human Rights repeatedly ruling against such a practice.

There are some small signs of change on the way. The Government has broadly agreed to support an opposition bill reforming the Parole Board in making it less political and more transparent. However, there are no plans to empower judges to set minimum tariffs. Minister for Justice and Tánaiste Frances Fitzgerald said she favours the current system but is “keeping it under review”.