Report on Mandatory Sentences - Law Reform Commission

(8) Summary
3.43 From this survey, it is clear that Ireland’s common law counterparts have not adopted a unified
response in respect of sentencing for murder. Certain patterns do, however, emerge. In the majority of
common law countries and jurisdictions, the mandatory life sentence for murder has been retained 104
whereas in a significant minority, a presumptive or discretionary life sentence has been adopted
instead. 105 In all common law countries, apart from Ireland, there is a system whereby a person convicted
of murder must serve a minimum term before becoming eligible for early release. In addition, release is
generally granted through a formal parole system. In some countries and jurisdictions, the minimum term
is calculated by the sentencing judge having regard to judicial and/or statutory guidance 106 whereas, in
some others, the minimum term is specified by statute. 107
D
The Mandatory Life Sentence and the Conceptual Framework
3.44 In this Part, the Commission considers the sentencing system for murder, comprising the
mandatory life sentence and early release, against the conceptual framework established in Chapter 1.
Specifically, the Commission considers the system by reference to: (1) the aims of sentencing, and (2)
the principles of justice.
(1) The Mandatory Life Sentence and the Aims of Sentencing
3.45 In Chapter 1, the Commission observed that, in general, criminal sanctions pursue one or more of
a number of aims, namely: deterrence, punishment, reform and rehabilitation, reparation, and
incapacitation. 108 The Commission also observed that deterrence and punishment (and incapacitation)
tend to feature more in cases involving more serious crimes and, consequently, where sanctions are
more severe. These aims feature most heavily in cases involving murder and the mandatory life
sentence. The mandatory life sentence seeks to dissuade by coercive means the perpetrator of the
murder (and the public at large) from committing another murder and to punish him or her severely for the
offence.
3.46 It has been observed, however, that the mandatory life sentence may not adequately meet the
aims of deterrence and punishment. 109 Regarding deterrence, it has been noted that some murders are
committed in the heat of the moment when the perpetrator does not contemplate the legal consequences
of his or her actions. 110 In such circumstances, it is unlikely that the prospect of a mandatory life sentence
will enter into the perpetrator’s mind let alone dissuade him or her from executing his or her intention. As
Ariosto “Connecticut becomes 17 th state to abolish the death penalty” CNN 25 April 2012. Available at:
http://articles.cnn.com/2012-04-25/justice/justice_connecticut-death-penalty-law-repealed_1_capitalpunishment-death-penalty-information-center-death-sentences_s=PM:JUSTICE).
[Last accessed: 22 May
2013]; and “Connecticut abolishes the death penalty” RTE 26 April 2012. Available at:
www.rte.ie/news/2012/0426/318516-connecticut-abolishes-the-death-penalty/ [Last accessed: 22 May 2013].
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108
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Northern Ireland, England and Wales, Scotland, Canada and four Australian jurisdictions (Northern Territory,
Queensland, South Australia and Western Australia).
Five Australian jurisdictions (Commonwealth of Australia, Australian Capital Territory, New South Wales,
Tasmania and Victoria) and New Zealand.
For example, Northern Ireland, England and Wales, and Scotland.
For example, Canada (first degree murder) and Australia (New South Wales, Northern Territory, Queensland,
South Australia, and Western Australia).
In Chapter 1, it was observed that it would be unconstitutional to pursue incapacitation as a sentencing aim
where to do so would involve imprisoning a person for offences that he or she has not yet committed.
As discussed in Chapter 2, this may be down to the unique evolution of the mandatory life sentence, which
was introduced as a replacement for the death penalty for murder.
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 34-35; Walker and Padfield
Sentencing: Theory, Law and Practice (Butterworths, 2 nd ed, 1996) at 97.
116