In imposing sentences, judges have to consider issues such as the maximum allowed under law, proportionality, the gravity of the offence and the circumstances of the offender, legal experts say.
Emeritus professor of law at the University of Galway and senior counsel Tom O’Malley said sentencing involved a two-stage process.
In relation to assault – the charge at the centre of the case involving soldier Cathal Crotty in Limerick – the maximum sentence was five years, he said. More recently under legislation this had been increased to 10 years but this could not be applied retrospectively.
He said the Constitution also mandated that sentences had to be proportionate. The judge also had to consider the gravity of the offence and the circumstances of the offender.
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Prof O’Malley said in the first stage of the process, the judge would consider “a headline sentence”. He said the judge would assess what the sentence should be if the gravity of the offence was the only issue to be considered.
He said that over the last decade the superior courts had delivered what are known as “guideline judgments” in relation to various offences. These have essentially categorised offences as falling into particular ranges – low, middle or high.
Prof O’Malley said these guideline judgments are to assist the judge in determining the headline sentence.
Based on these issues, he said, the judge would look at the scale of possible sentences, from zero to the maximum, and determine where the offence should be located. He said in the second stage the judge would look at the particular circumstances of the offender. These included whether the person convicted had a previous good record, whether he or she had pleaded guilty and/or had shown remorse.
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He said it was at the second stage the issue of a possible suspended sentence would come into play.
A suspended sentence could only be imposed on a person who had been convicted and could be considered appropriate in some cases “to incentive rehabilitation” or to encourage a person to desist from further criminal activity, he said.
He said it was sometimes referred to a Damocles sword as it remained hanging over the person for a particular period. If the individual reoffended or failed to abide by conditions set down, he or she could be brought back to court and have the original sentence imposed.
Prof O’Malley said in cases where a person was on the borderline or cusp of receiving a custodial sentence, the judge could consider the effect on a person’s career or employment and how a family could be affected if the individual concerned lost their job.
Courts had to have regard for judicially-developed guidelines but could depart from them based on the circumstances of a particular case, he said.
A big change came about with the passing of the 2019 Judicial Council Act, which included provision for the establishment of sentencing guidelines and information committee, he said.
However, this body has not yet issued any guidelines.
He said that a court challenge in relation to guidelines on personal injuries awards found that a part of the 2019 legislation was unconstitutional. Amending legislation may now be needed.
The Director of Public Prosecutions (DPP) was, with increasing frequency, appealing sentences if they were considered to be unduly lenient, Prof O’Malley said. This could be because the DPP viewed the headline sentence to be inappropriate or that too much weight was awarded to mitigatory factors.
In 2022, the last year for which figures are available, there were 37 appeals by the DPP for a sentence to be reviewed by the Court of Criminal Appeal on grounds of undue leniency. The DPP’s appeal was successful in 30 instances.
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