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Dublin: 7 °C Monday 18 February, 2019

'There's an element of a lottery in the Irish criminal justice system, we need sentencing guidelines'

Sentencing guidelines operate with remarkable clarity and simplicity for England and Wales, why not here?

Rory Fitzgerald Criminal lawyer and journalist

SENTENCING GUIDELINES ARE badly needed in the Irish criminal justice system.

As an Irish solicitor working as a criminal prosecutor in England, I use sentencing guidelines every day. They provide clarity, consistency and fairness to the benefit of all involved in the criminal justice system.

In Ireland, the only time I received sentencing guidelines was when a new district judge met the local solicitors for lunch in a pub.

To help us advise our clients, he gave us an outline of how he would operate: for example, suggesting that a first offence for cannabis possession would typically result in a suspended sentence; a second offence, six months imprisonment, and so on.

I admired this judge’s personal effort to provide clarity and consistency, but the fact was that ten miles down the road a different judge would give completely difference sentences for the same offences.

The Sentencing Guidelines for England and Wales operate with remarkable clarity and simplicity. Online guidelines take practitioners and judges through the sentencing process step by step. Since aggravated burglary is a hot topic in Ireland, let’s have a look at how sentencing for aggravated burglary works in England and Wales.

Steps and guidelines

The first two steps involve assessing the harm done to the victim, and the culpability of the offender.

The definitive guideline first requires that the harm done is considered. Factors indicating higher levels of harm for aggravated burglary include, whether the “victim was present in the property” and “violence used or threatened against victim”. Factors indicating lesser harm, include “no physical or psychological injury or other significant trauma to victim”. Based on such factors, an assessment of whether the harm done is greater, medium or lesser can be made.

The next specific set of factors assesses culpability of the offender. A factor indicating higher culpability for aggravated burglary includes being a member of a gang, or deliberately targeting a particular victim based on their vulnerability, or on their race or sexual orientation. Factors indicating lower culpability include the offender being exploited by others, or having a learning disability or mental disorder. Such factors similarly enable higher or lower culpability to be assessed.

Then, there is a clear table that combines harm and culpability, resulting in the offence category. Category 1 is where there is “greater harm and higher culpability” and category 2 is where there is greater harm and lower culpability or lesser harm and higher culpability. Category 3 is where harm and culpability are both lower.

Reaching a sentence

Once you have assessed the category in this way, the guidelines then give a starting point, and a range in terms of sentencing. The starting point for category 1 aggravated burglary is 10 years’ custody with a range of 9 to 13 years. Category 3 aggravated burglary has a starting point of 3 years’ custody, with a range of 2 to 4 years.

The precise point on the range for the offence is then determined by reference to the specific factors indicating increased, or decreased seriousness. These factors are set out specifically as regards each offence.

For example, the factors indicating increased seriousness for burglary include there being a child at home, the offence being committed at night, and the gratuitous degradation of the victim.

Mitigating factors for burglary include making a voluntary reparation to the victim, having a subordinate role in a gang, or having stolen nothing, or property of low monetary or sentimental value to the victim.

In addition, the statutory aggravating factors, such as previous convictions are taken into account. At this stage a sentence is arrived at by the court.

‘Clear, methodical approach’

Step three then requires the court to take this sentence and consider reducing it for any assistance by the defendant to the prosecution. Step four requires the court to consider a reduction for a guilty plea. Step five refers to the level of dangerousness of the offence, and reminds the court of specific powers to consider a life sentence for aggravated burglary or an extended sentence for public protection, in certain cases.

Step six requires the court to consider the totality of sentencing, where other offences have also been committed. Step seven requires the court to consider making orders to compensate the victim. Step eight requires the court to give reasons for the sentence given. Step nine requires the court to consider giving credit for any time already served on remand.

This clear, methodical approach process produces consistency in sentencing, not least as any departure from the guidelines may result in an appeal. Especially with simpler offences, the prosecution and defence lawyers can quite clearly see where the sentence will end up. As defendants can have a large amount of certainty before they enter a plea, I believe sentencing guidelines make trials less common. Defendants can also – before entering a plea – ask the court to give a hypothetical indication of the likely maximum sentence they would receive if they did enter a plea to a particular offence.

While the sentencing council which creates these guidelines is itself largely composed of judges, criminal law and policing experts, the council consults widely when creating new guidelines. For example, a recent consultation received responses from lawyers, judges, police officers, members of the public and victims of crime.

Sentences vary hugely 

In Ireland meanwhile, sentences can vary hugely. While precedents may provide guidance, they can be contradictory and open to interpretation.

Criminal lawyers will know that particular judges “hate drugs” and will give heavy sentences for such crimes, while others might have their own particular views as to sentencing. Some make liberal use of the “poor box” or suspended sentences, while others won’t hesitate to impose immediate custody.

All these judges will be doing what they sincerely think is fair and appropriate, however in the absence universal sentencing guidelines, there cannot be consistency nationally.

Without guidelines, there is an element of a lottery in the Irish criminal justice system, as depending on where you commit an offence, or which judge is sitting that day, you may end up with a very different outcome.

The Irish judiciary is fair-minded and highly knowledgeable, in my experience. However, even Solomon himself would benefit from sentencing guidelines these days, given the ever-increasing complexity of modern criminal law. As someone who has practiced criminal law in both jurisdictions, in my view the sentencing process in England and Wales represents a vast improvement on the situation in Ireland. I believe that all affected by the criminal justice system would benefit from the introduction of similar guidelines in Ireland.

Rory Fitzgerald is an Irish solicitor and journalist. He previously worked as a criminal defence solicitor in Ireland and is currently working as a criminal prosecutor in England. 


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About the author:

Rory Fitzgerald  / Criminal lawyer and journalist

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