Report on Mandatory Sentences - Law Reform Commission

discussed in Chapter 1, however, when examining the issue of deterrence, one must consider that many
members of the public may have been inhibited from committing murder by the prospect of a mandatory
life sentence.
3.47 Regarding punishment, it has been noted that murder can be committed in a variety of
circumstances and involve different levels of moral culpability. 111 From a retributive perspective, a person
with a lower level of moral culpability does not deserve the same punishment as a person with a higher
level of moral culpability. (This is discussed in greater detail below at paragraphs 3.49 to 3.57 in the
context of consistency and proportionality.) From a denunciatory perspective, the current mandatory life
sentence permits society to denounce in uniquely strong terms the offence of murder but leaves little
room for society to denounce in more or less strong terms the more or less heinous instances of it. As
discussed below at paragraphs 3.77 to 3.84, it may, however, be possible to reflect these differences in
culpability if the sentencing judge were permitted to recommend the minimum term to be served by an
offender convicted of murder.
(2) The Mandatory Life Sentence and the Principles of Justice
3.48 In Chapter 1, the Commission observed that sentencing must comply with a number of external
constraints that emanate from fundamental principles of justice, namely, the principles of: (a)
consistency, and (b) proportionality. In this section, the Commission considers the mandatory life
sentence for murder by reference to these principles.
(a)
The Principle of Consistency and the Mandatory Life Sentence
3.49 In Chapter 1, the Commission observed that the principle of consistency requires a consistent
application of the aims and principles of sentencing (consistency of approach) rather than uniformity of
sentencing outcomes (consistency of outcomes). To reiterate in brief, consistency of approach requires
that like cases should be treated alike and different cases should be treated differently. The corollary of
this is that inconsistency arises where like cases are treated differently and different cases are treated
alike.
3.50 As discussed in Chapter 2, the mandatory life sentence for murder occupies a relatively unique
position in the historical evolution of mandatory sentences in so far as it was introduced as a replacement
for a more severe sanction, namely, the death penalty. The mandatory life sentence was considered to
be an acceptable alternative to the death penalty as every person convicted of murder would continue
(symbolically at least ) to pay for the offence with his or her life. Thus from the outset, the focus of the
sentence for murder has been on the outcome of the sentencing process rather than the approach to the
sentencing process. As a result, all persons convicted of murder are treated the same regardless of
whether there are any distinguishing factors in their circumstances or the circumstances of their offences.
The Commission observes that this amounts to different cases being treated alike and is not, therefore,
compatible with the principle of consistency. As discussed below at paragraphs 3.77 to 3.84, there may,
however, be scope to distinguish individual cases if the sentencing judge were permitted to recommend
the minimum term to be served by an offender convicted of murder.
3.51 Furthermore, as sentencing operates in conjunction with early release, the Commission observes
that full compliance with the principle of consistency requires that any exacting standard that applies to
sentencing should also apply to early release. Arguably, a more consistent approach is taken in respect
of early release than in respect of sentencing for murder as the Parole Board and the Minister for Justice
consider each case against broadly the same factors, namely, those listed at paragraphs 3.11 and 3.12.
This may, however, be jeopardised where, for instance, the Parole Board and the Minister for Justice are:
(i) dealing with a case in which the sentence has been imposed following the application of an
inconsistent approach, or (ii) influenced by external events. Such external events might include media
attention surrounding the circumstances of a particular case that might militate against release on parole
or intervening changes in sentencing or early release policy. This risk may, however, be minimised if the
Minister for Justice and the Parole Board were to receive guidance from the sentencing judge in the form
of a recommended minimum term to be served by the offender.
111
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 98.
117