The sentencer decides on the correct approach to adopt, having regard to the particular circumstances of both the offender and the offence. The sentencer then chooses the particular sentence by reference to the approach adopted in ii a above. The sentencer may take mitigating factors into account in reducing sentence below the level chosen in ii b above.
The first task of the sentencing judge is to determine the factual basis of the offence upon which to assess the appropriate sentence. A principle of fundamental importance in determining the factual basis upon which to assess the appropriate sentence is expressed in the ancient maxim nulla poena sine lege , i.
Thus, the sentencing judge must sentence only on the facts supporting the offence in hand, and must ignore any other evidence which would tend to. Thomas, Principles of Sentencing , 2 ed, The requirement of conviction here might be thought to cast some doubt on the constitutionality of sentencing options which may be imposed merely upon proof of guilt but without conviction, such as those available to the District Court under s1 1 of the Probation of Offenders Act, However, if Walsh J's reference to conviction is taken to mean that the offender has been tried and found guilty in due course of law as the Constitution, Article English case law has recently produced a number of subsidiary principles based on the principle of nulla poena which, because they share the same foundation, may be considered a fortiori declaratory of Irish law.
They can be summarised as follows:. The sentencer must not impose sentence on the basis of an opinion that the offender is actually guilty of offences with which he or she has not been charged. In The People DPP v O'Leary 70 the applicant was convicted in the Special Criminal Court on two charges relating to membership of an unlawful organisation and possession of incriminating documents. In the course of sentencing the applicant on the first count, the Special Criminal Court stated:.
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The Court must regard such conduct as being most reprehensible and grievously wrong. In fact, dissemination of such posters amounts to a separate offence, with which the applicant had not been charged. McCarthy J, in reducing sentence from 5 to 4 years imprisonment, said:. The Court therefore erred in principle. Where an offender has been tried and acquitted on some counts but convicted on others, the evidence of the charges of which he or she was acquitted must be disregarded. In R v Ajit Singh 72 the appellant was convicted of unlawful wounding although acquitted of wounding with intent to do grievous bodily harm, despite evidence that he had attacked a workmate, stabbing him several times with a kitchen knife and causing a deep cut to one eye.
The trial judge sentenced him on the basis that he had wounded with intent to do grievous bodily harm.
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The Court of Appeal reduced the sentence saying:. Where an offender pleads guilty to some of the counts, but not to others, he or she must be sentenced only on the charges to which he has pleaded guilty. Unless, of course, he or she is tried and convicted on the other counts. In R v Clutterham 74 the appellant pleaded guilty to assault occasioning actual bodily harm, but not to possession of an offensive weapon.
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His pleas were accepted, but in sentencing him, the trial judge referred to the alleged possession of an offensive weapon. The Court of Appeal reduced the sentence, saying:. Where an offender pleads guilty to a lesser offence not charged he or she must not be sentenced on the charge to which he or she pleaded not guilty. Unless again, of course, he or she has been tried and convicted on that charge.
In R v Rogina 76 the appellant pleaded not guilty to a single count of incest with his daughter, but guilty to indecent assault which did not appear on the indictment. The Court of Appeal reduced the sentence saying that it was important:. The second task of the sentencing judge is to choose the appropriate penalty based on the facts of the case.
It is rare that the sentence for an offence is fixed by law. Mandatory Sentences. The Range of Choice.
The primary decision the sentencer has to make is to choose which approach to adopt in sentencing the particular offender. There is no clear legislative or judicial policy which governs how the sentencing judge will decide which approach to adopt. This lack of coherent policy has a perplexing consequence for the sentencing judge. The problem is that there are a number of competing objects which are used to determine the sentence which may be imposed, and these approaches frequently conflict.
For example, a sentencing judge when faced with. See paras 1. The Choice of Approach and Ch 4 Infra. Ultimately a choice has to be made to follow one object the expense of another, yet, when faced with conflicting principles, sentencers have no principle to guide them:. In this jurisdiction, Walsh J gave some general guidance to assist sentencers by favouring rehabilitation as the most positive aim.
However, even though it would seem from this that sentencers should generally favour a rehabilitative approach, it is not clear when such an approach would be inappropriate and a different approach more appropriate. In O'Driscoll , a rehabilitative approach was appropriate where the offence was the offenders' first crime of violence. Recently, in The People DPP v Conroy No 2 86 a rehabilitative approach was found to be appropriate where the high standard of behaviour on the part of the appellant while on remand in custody could be a ground for supposing that there was a reasonable chance of reform.
One's bearing in court may be accepted as an important indicator as to the likelihood of reform.
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Rehabilitative considerations commonly lead the sentencer to impose a reduced sentence. However, since a rehabilitative approach involves an attempt by the sentencer to find a sentence which is most likely to induce reform, a rehabilitative sentence may sometimes appear to be more severe than a sentence imposed following some other approach. In J v District Justice Sean Delap 90 the applicant was applying to the High Court for judicial review of a sentence of detention in a reformatory school for a term in excess of three years in length.
The District Justice who tried the case had done so upon summary conviction of the applicant, i. He said:. I accept that such detention has in it an element of punishment, but its primary purpose is educational and, most importantly, the period of detention is in the main related to the function of the school as a place of instruction and correction. The duration of a prison sentence on the other hand is primarily related to the gravity of the offence which gave rise to it and the character of the convict. The People DPP v Preston 93 it was recognised that it is important in sentencing under the Misuse of Drugs Acts that penalties of a deterrent nature be imposed to display society's revulsion at drug abuse and drug trafficking.
Similar considerations apply to offences of possession of controlled substances. The Supreme Court held that despite the rule of general practice not to award a period of imprisonment greater than the substantive offence would carry if the accused had been convicted of that, a retributive sentence was appropriate, Walsh J saying:. Having adopted the most suitable approach with regard to the circumstances of the offence and the characteristics of the offender, the sentencer will apply the principles appropriate to that approach to determine the precise penalty or measure which is to be imposed on the offender.
As we shall see, only the most general body of such principles exists. For example, the application of retributive principles. Court of Criminal Appeal, unreported, 23 October , ex tempore. The Choice of Penalty or Measure. Conversely, proportionality arguments of this type have been successfully relied upon in appeals against sentence, and sentences which were found to be too severe in proportion to the seriousness of the particular offence have been reduced; see The People DPP v Johnston 3 Frewen Also, because the retributive approach relies heavily on the theory of desert , the sentence imposed should not be more severe than that which the offender deserves.
It follows that a sentence which would be considered inappropriate as an application of the principles of one approach may be considered entirely correct when seen in terms of another approach. This is clearly illustrated in cases concerning co-accused, who although of equal complicity in the offending behaviour, receive significantly different sentences. He pleaded guilty and was sentenced to four years penal servitude on the first count armed robbery , 12 months imprisonment on the second conspiracy and to six months imprisonment on the fifth taking a vehicle without authority ; the prosecution having entered a nolle prosequi in respect of counts 3 and 4.
Two other men, Motherway and Twomey, were also indicted but their trial was transferred to the Central Criminal Court where each pleaded guilty and was sentenced to six years penal servitude suspended upon each prisoner entering into a bond to keep the peace for five years, and each was then released. The appellant appealed to the Court of Criminal Appeal on the grounds that there was a gross inequality of treatment of himself as compared to the other two accused in a case in which the circumstances indicated that he was no more culpable than the other two and his previous record was no worse.
However, the Court of Criminal Appeal could not justify altering the sentences on those grounds; Walsh J said:. The background, antecedents and character. See para 4. When two prisoners have been jointly indicted and convicted and one of them receives a light sentence, or none at all, it does not follow that a severe sentence on the other must be unjust.
If in any particular case one of such joint accused has received too short a sentence, that is not per se a ground on which this court would necessarily interfere with the longer sentence. Of course, in any particular case the court must examine the disparity in sentences where, if all other things were equal, the sentences should be the same; it must examine whether the differentiation is justified.
The court, in considering the principles which should inform a judge's mind when imposing sentence and having regard to the character and antecedents of the convicted persons, will seek to discover whether the discrimination was based on those differences. The fallacy of this neat explanation of differing treatment of offenders is that there is no uniform set of principles or policies which the appellate court may refer to in considering the 'factors which should influence a judge's mind' when imposing sentence, having regard to the character and antecedents of the offender.
The problems of this incoherence, as we shall see are profound. Justice and equality of treatment require sentencers to adopt a uniform system for choosing the approach to be adopted, but such uniformity is sadly lacking in Irish sentencing practice. Thus reform of this area should strive to inject coherence and uniformity into choice of approach in sentencing.
How the sentencer, having decided upon the correct approach to adopt in the particular circumstances, decides upon the appropriate penalty or measure to impose belongs to the realms of mystery. It is trite to say that the sentencer, following a retributive approach, will impose a sentence which punishes the offender; or, if a rehabilitative approach is adopted, that the sentencer will impose a sentence likely to induce reform.
There is no formal 'scale' or 'tariff' of sentences from which a sentencer can choose the appropriate penalty or measure, although there is some evidence that sentencers occasionally construct. Ibid pp, See para 2.
Problems with Incoherent Sentencing Policy. One practice which is discernible, however, is that of sentencers considering those factors which aggravate or mitigate the seriousness of the offending behaviour. The courts have given on occasion some indication of the relative seriousness of various types of offence. The sentencer then adjusts the sentence for the ordinary offence to suit the specific circumstances of the instant case.
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They locked the boyfriend into the boot of the car; took the complainant to a nearby field where two of them raped her; and subjected her to other sexual assaults. The appellant was convicted and sentenced on a charge of rape, for which he received a twenty-one year sentence, and against which he appealed. In the course of his judgment, Finlay CJ followed the practice outlined above.
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