This week, an Irish Times analysis of 11,000 sentences handed down for burglary during the past seven years showed vast differences in the severity of punishments, depending on where the crime was committed.
About 65 per cent of burglars convicted in the District Courts, which deal with the least serious offences, ended up receiving a prison term. This is a figure which has held relatively steady since 2010, never varying by more than 6 per cent in either direction.
However, once you drill down into that statistic it becomes apparent that the location of the sentencing court is a major factor in whether an offender is jailed or not.
For example, burglars who are dealt with in Dublin’s District Courts are far more likely to be sent to prison compared with those in most other parts of the country. During the first half of 2017, 74 per cent of the 152 convicted burglars went to jail in Dublin.
But in other areas with large urban populations, the figure can be nearly half that. In Limerick, just 42 per cent went to prison, while in Galway it was 41 per cent.
When smaller District Court areas are examined, the discrepancies are even starker. In Roscommon, all five burglary cases resulted in jail, while in Waterford city, 11 out of 12 were jailed. Compare that to Carlow, where just six of the 18 burglars received a prison term.
Furthermore, these rates have varied greatly over the years within the same districts. For example, in 2011, Limerick had one of the toughest sentencing regimes in the country, with 83 per cent of burglars going to jail. Today, it has one of the softest.
So why do sentences vary so much from district to district? The short answer is, we don’t know.
The longer answer, based on interviews with solicitors from around the country, is it’s probably a combination of factors such as the crime rate in a given area, the non-custodial options available to the court and, crucially, the personality of the sentencing judge.
Types of burglars
Burglary is not the same everywhere. Urban areas such as Dublin have a higher number of houses and businesses, meaning a higher number of targets.
This means Dublin burglars may tend be more prolific and have a longer list of previous convictions, making a jail term more likely. However, this doesn’t explain why Dublin used to have a very low imprisonment rate (46 per cent in 2011) or why other urban areas, such as Limerick, don’t have a higher one.
When sentencing, judges have other options aside from merely deciding whether to imprison an offender or not. One of those options is community service. Under a 2011 Act, judges considering imposing a sentence of 12 months or shorter (which is essentially every sentence in the District Court) must examine whether community service is a viable alternative.
The problem is that community-service programmes can be patchy. Some areas have well-resourced programmes, others none at all. If a judge doesn’t have a good local alternative to prison, the imprisonment rate will be higher there.
The attitude of court presenters is key. Some say 'let's go to town here' while others say 'we've got our conviction, let's keep it as neutral as possible'
One solicitor who works mainly in Leinster recalls a trend of young offenders being sent to prison for relatively minor offences.
“I posed the question, ‘should we not be looking at community service as an alternative?’ But the community service assessments came back saying they didn’t have any placements because of their age,” he said. The defendants ended up with short prison terms.
Then there is the factor of how cases are presented in court. In the District Court, gardaí prosecute most cases on behalf of the Director of Public Prosecutions. This means a single garda, known as a court presenter, acts as the prosecuting solicitor in every case.
The presenter has a wide degree of latitude in how they lay out the case. They can lay out the facts in a strictly neutral fashion or they can emphasise the severity of the break-in and its impact on the victims.
The amount of detail they go into can be influenced by how busy the court list is, the detail contained in the book of evidence and the personality of the garda.
“The attitude of court presenters is key. Some say ‘let’s go to town here’ while others say ‘we’ve got our conviction, let’s keep it as neutral as possible’,” says a defence solicitor operating in Cork.
It’s an open secret that sometimes defence solicitors make informal deals with gardaí along the lines of “plead guilty and we won’t go heavy on you when presenting the facts”. This also affects what information the judge hears and consequently what sentence is imposed.
The biggest factors in determining sentence are the most obvious: the severity of the offence and the circumstances of the offender.
Breaking in to an occupied home is more serious than breaking into a factory warehouse at night when there’s no one there. And the addict who opportunistically climbs in through an open window to steal a TV will have an easier time in court than the professional house-breaker with 15 previous convictions.
Aside from these basic principles, the most important factor in determining whether a burglar will receive a jail term is the attitude and personality of the sentencing judge, according to the solicitors who spoke to The Irish Times.
“Some of them operate a strict ‘not-in-my-back-yard’ policy where if they see the uptick in break-ins they’ll start throwing the book to send a message,” said a midlands defence solicitor.
Others simply believe burglary is by default a jailing offence, meaning prison is assured in all but the most exceptional of circumstances. For some judges, previous offending plays a huge role in their decision, while others prefer to give offenders a second, third or even fourth chance before jailing them.
So, although the variations in imprisonment rates can’t be ascribed to one single factor, it appears likely the proclivities of individual judges play the biggest role.
This is demonstrated by the fact that when the imprisonment rate increases or decreases significantly in an area, it often coincides with the retirement or promotion of that area’s main judge.
According to a Dublin solicitor: “Department of Justice people and criminologists are always trying to find that one answer to explain these types of things. The reality is there is no one answer. But the personality of the judge you find yourself before is probably the biggest part of it.”