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Opinion: Should judges hand down concurrent sentences in rape cases?

‘It is essential, for victims of crime and for society in general, that coherent sentencing policy is developed’, writes Ivana Bacik.

Ivana Bacik

Leona O’Callaghan, a child rape victim, spoke out recently about the fact that the man who raped her, Patrick O’Dea (who was already in prison for another rape) was handed a sentence that was to run concurrently.

Leona said she felt like the concurrent sentence meant that one of the rapes was “free”.

Legal expert Ivana Bacik writes:

THE ISSUE OF ‘concurrent sentencing’ – when sentences for different offences are served in parallel, or simultaneously – has recently received public attention, specifically in the context of rape cases.

Many people may wonder why more use is not made of consecutive sentences in criminal practice, especially for violent sexual offences? There is no simple answer to this question.

While there are maximum penalties set down for certain offences, in Ireland, judges have significant discretion in deciding on the appropriate sentence for a crime.

Our sentencing system is different to most other European criminal justice systems in which judges are bound by much stricter rules.

The main principle judges are working with here is that of proportionality – which means that the punishment must always fit the crime. It also means that we have very few mandatory penalties for serious offences – apart from the life sentence that follows automatically on a conviction for murder.

The ‘single transaction’ sentencing principle applies where a group of related offences arise from the same incident, in this case concurrent sentences are often deemed appropriate.

Judges tend to impose consecutive sentences, where offences are not part of the same sequence of events; in other words where for example an accused person is charged with two separate counts of rape, committed against two different individuals on two different dates.

There are some situations, laid down in legislation, where judges must impose a consecutive sentence. For example, a 1984 law provides that if a person commits a crime while out on bail for another offence, the sentences for each of those offences must be made consecutive.

But judges are always subject to an important general rule – where consecutive offences are imposed, the totality of the resulting punishment must not be disproportionate.

This is a sensible rule, because otherwise, a person convicted of five charges of shoplifting, for example – who gets sentenced to five consecutive prison terms – would end up serving the sort of lengthy term in prison that should only be applied to a serious crime of violence.

Indeed, where consecutive sentences are imposed in the District Court, the total prison term should not exceed two years. This rule is applied because only minor crimes are tried in the District Court; more serious offences are sent up to the Circuit or Central Criminal Courts.

Prison as a Deterrent

Debates on crime often tend to focus on sentencing, with a view expressed that the best response is to ‘lock them up and throw away the key’. Prison sentences are often seen as deterrents – there is a view that a person who is imprisoned will be unlikely to reoffend.

However, anyone working within the criminal justice system knows that the best response to crime is not the use of long prison sentences, because most of those sentenced to custody are likely to reoffend. 

Research shows us that prison as a deterrent simply does not work.

This is because there are many causes of crime. We know that factors like drug addiction and deprivation play a significant role in making it more likely that individuals will commit offences.

Thus prevention of crime will not be brought about by changes in the criminal justice system alone, or tougher laws on sentencing.

Much more long-term measures are required to deal with factors like early school-leaving, lack of educational opportunity, drug addiction, lack of social supports and the other risk factors that we know lead ultimately into adult criminal ‘careers’.

These measures require a ‘joined-up’ government approach, with different agencies taking responsibilities for tackling crime through tackling its deep-rooted causes.

Clearly, society must punish those who commit crimes of violence.

There are many offenders, especially violent sex offenders, for whom prison is the only appropriate sanction – both to punish them and to protect society. It is also vitally important that victims’ rights are given more priority within the criminal justice system.

I have campaigned for many years for greater protection for the rights of rape victims and victims of other serious crime.

However, the main thing that victims say they want is to prevent crime from happening in the first place. In the interests of protecting victims, we must, therefore, focus on sentencing procedures that are likely to prevent crime from happening.

I believe that sentencing judges should take account of how best to rehabilitate the offender so that they will not re-offend.

The worst outcome for all of us is where prison becomes a ‘revolving door’, with offenders sent there for short sentences, without access to any rehabilitation, only to re-offend upon release and be sent straight back inside.

In respect of sex offenders, recent reports demonstrate the importance of adopting effective rehabilitation programmes to prevent re-offending and protect potential victims.

It is essential, for victims of crime and for society in general, that a coherent sentencing policy is developed.

Such a policy should ensure that judges exercise their discretion in a more structured way, with more widespread use of community-based sanctions and an emphasis on rehabilitative strategies to prevent re-offending, both within and outside the prison system.

Senator Ivana Bacik is a professor of Criminal Law at Trinity College Dublin.

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Ivana Bacik

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