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Opinion: Would stricter guidelines for trial judges encourage more consistent sentencing?

The current Anthony Lyons case has highlighted the problem of uniformity regarding criminal sanctions. Is there a way to improve consistency and fairness of sentencing?

Darius Whelan

THE CURRENT CASE concerning Anthony Lyons highlights the role of the Court of Criminal Appeal (CCA) in reviewing sentences imposed by lower courts. It is well known that in criminal cases, if the accused is acquitted, there can be no appeal by the prosecution. This is to some extent related to the idea that an accused should not be subjected to “double jeopardy” – the risk of being tried twice for the same offence.

However, if the accused is found guilty, he or she may appeal against the severity of the sentence, or appeal the conviction itself, for example on the grounds that the trial judge applied the law incorrectly.

Uniformity in sentencing is virtually unattainable

In 1993, the law was changed to allow the Director of Public Prosecutions to apply to the Court of Criminal Appeal for a review of what is referred to as an “unduly lenient” sentence. This is a limited provision, which is intended to be used sparingly.

There is widespread recognition that sentencing is a complex matter, involving such diverse factors that complete uniformity in sentencing is virtually unattainable, which means that courts’ independence in sentencing decisions needs to be respected. But some sentences may appear to be so inconsistent with principles of sentencing that they require review. The DPP bears the onus of proof in such applications, and will only apply for a review where he or she believes that the sentence is seriously out of line with established principles.

The CCA has stated that “nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of the Court”. It is not the role of the CCA to tinker with sentences and make minor variations. The decisions of the CCA in such cases act as useful guidance for future courts dealing with similar cases.

The purpose and application of criminal sanction

Criminal sanctions serve various purposes such as: deterrence, punishment, reform and rehabilitation, reparation and incapacitation. In Ireland, a very wide discretion is vested in the trial court regarding the sentence to be imposed. In most cases, the only guidance in legislation will be a maximum sentence laid down in the relevant legislation.

Sentencing principles developed in case-law include taking account of the nature of the offence, the impact on the victim, whether the offender pleaded guilty, the offender’s previous criminal record and the offender’s personal circumstances. The courts have stated that sentences must be proportionate to the gravity of the offence committed and to the circumstances of the offender.

There may be aggravating or mitigating factors in a particular case. Aggravating factors might include, for example, the use of a weapon, targeting of vulnerable victims, intrusion into a victim’s home, premeditation and planning or abuse of trust or power. Mitigating factors might include whether the offence was committed under circumstances of duress, whether the offender was provoked, whether the offence was committed on impulse or whether the offender was of reduced mental capacity when committing the offence.

Sentencing guidelines: friend or foe?

There are no central guidelines on sentencing in Ireland, apart from statements of principle made in some judgments of the CCA or Supreme Court. In the USA, detailed sentencing guidelines have been developed at federal level, which have been criticised as being overly-rigid. A less rigid system of sentencing guidelines has been set up in England and Wales, and there have been moves recently to improve the situation in Ireland.

More detailed statistical information on sentencing is now provided by the Irish Sentencing Information System (ISIS) and the Law Reform Commission has proposed that a Judicial Council be empowered to develop and publish suitable guidance on sentencing. Interestingly, the Commission also recommended that the presumptive minimum sentencing regime applicable to certain drugs offences be repealed.

The ability of the DPP to apply for a review of unduly lenient sentences is a useful means of improving consistency and fairness of sentencing, but additional reform is needed, along the lines suggested by the Law Reform Commission.

Dr Darius Whelan is a senior lecturer in Law at University College Cork.

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