THE ISSUE of sentencing in crimes involving violence or the sexual abuse of a child is always a highly emotive one. The maximum sentence for rape, of an adult or a child, is life imprisonment, but this is rarely imposed, and the Court of Criminal Appeal has said it is only appropriate in exceptional circumstances.
While a life sentence is for "life", in effect it is an indeterminate sentence, as the Minister for Justice decides on when the person will be released on licence, based on the advice of the Parole Board, which reviews the prisoner's progress.
The first review takes place after seven years, and at intervals thereafter.
At the sentencing hearing in this case last Monday Mr Justice White indicated he was considering a "determinate" sentence.
This followed submissions from both counsel for the prosecution and the defence, drawing the judge's attention to a number of principles that had been outlined by the High Court and the Court of Criminal Appeal.
In a sentencing judgment in November 2007 Mr Justice Peter Charleton conducted a detailed examination of all the previous reported and unreported decisions of the High Court, the Supreme Court and the Court of Criminal Appeal in rape cases, as well as some cases from other common law jurisdictions, going back over 20 years, outlining "the parameters of existing law and practice".
His review outlined four levels of severity, starting with cases where the victim urged leniency or where they initially consented and later changed their minds. This should warrant a custodial sentence, but in exceptional circumstances might not. At the next level were cases of a rape committed on an adult where the sentences generally started at five years, rising to eight where two or more men acted together, where there was a break-in or an abduction, or by a person in a position of responsibility towards the victim.
Looking at 22 cases where sentences of between nine and 15 years were imposed, he found that they usually involved a number of counts, previous convictions of a similar nature, or unusual violence or humiliation.
A further 22 cases attracted sentences between 15 years and life, and they concerned circumstances such as gang rapes, multiple incidents, multiple victims, or both.
In January 2009 an appeal against a life sentence for the rape of two boys was brought to the Court of Criminal Appeal.
This court substituted for the life sentence a sentence of 15 years, with 10 years of post-release supervision, and the last two years suspended on condition that the man received counselling.
Giving the judgment of the court, Mr Justice Joseph Finnegan said: "Where an appropriate determinate sentence can be devised, that is preferable to a life sentence. That is not to say that a life sentence may not be appropriate given the exceptional circumstances of a case."
Thus it is now the law that a determinate sentence is preferable to a life sentence, and a life sentence is only appropriate in "exceptional circumstances".
Mr Justice Barry White said that a life sentence would not be inappropriate in this case, but that a determinate sentence was more satisfactory from the point of view of the victim, as well as the convicted person.