Report on Mandatory Sentences - Law Reform Commission

(b)
The Principle of Proportionality and the Mandatory Life Sentence
3.52 In Chapter 1, the Commission noted that the principle of proportionality comprises: (a)
constitutional proportionality, and (b) proportionality in sentencing.
(i)
Constitutional Proportionality and the Mandatory Life Sentence
3.53 As discussed in Chapter 2, the Supreme Court in Whelan and Lynch 112 held that section 2 of the
Criminal Justice Act 1990 was compatible with the principle of constitutional proportionality. In this
regard, it stated that the Oireachtas was entitled to promote respect for human life by concluding that any
murder, even at the lowest end of the scale, was so abhorrent and offensive to society that it merited a
mandatory life sentence.
(ii)
Proportionality in Sentencing and the Mandatory Life Sentence
3.54 In Whelan and Lynch, 113 the Supreme Court made the following remarks regarding proportionality
in sentencing and the mandatory life sentence for murder:
“... [T]he duty to impose the sentence which is proportionate or appropriate to the circumstances
of the case only arises where a judge is exercising a judicial discretion as to the sentence to be
imposed within the parameters laid down by law. It does not arise where a court is lawfully
imposing a fixed penalty generally applicable to a particular offence as described in Deaton v The
Attorney General.”
Thus, where a mandatory sentence is prescribed by statute, the courts are precluded from considering
whether the sentence is proportionate to the particular circumstances of the individual case.
3.55 A consequence of prescribing a mandatory sentence is thus to create a system of sentencing in
which sentencing proportionality plays a limited role. In Chapter 1, the Commission observed that, for
most cases, the courts have adopted a three-tiered approach to formulating proportionate sentences.
This requires the courts to: (i) identify the range of applicable penalties; (ii) locate the particular case on
that range (by reference to culpability, harm and offender behaviour); and (iii) apply any factors which
would mitigate or aggravate the sentence. Even though the outcome of a sentencing hearing for murder
is, in general, more severe than the outcome of sentencing hearings for other offences, the sentencing
process for murder is much less complex. First of all, there is no need to identify a range of applicable
penalties; the only applicable penalty is the mandatory life sentence. Secondly, there is no need to
consider where on any such range a particular murder case is located as all cases of murder, irrespective
of their particular circumstances, attract the mandatory life sentence. Thirdly, there is no need to consider
whether there are any factors which mitigate or aggravate the severity of the sentence. As a result, the
courts do not distinguish between cases at the upper end of the scale and cases at the lower end of the
scale.
3.56 This reference to a “scale” is not to suggest that some murders are not serious. It is undoubtedly
the case that murder of any description is a very serious offence. Indeed, by definition, every murder will
involve a significant degree of culpability, namely, an intention to kill or cause serious injury, and result in
an irreparable level of harm, namely, the death of the victim. 114 Once these requirements are met,
however, there may be other factors which could merit differential treatment. Some cases may exhibit a
relatively lower degree of culpability where, for instance, the murder was committed in the heat of the
moment, whereas other cases may exhibit a relatively higher degree of culpability where, for instance,
there is evidence of planning and premeditation. An offender’s behaviour may be less reprehensible
where, for instance, he or she tried to save the victim, or more reprehensible where, for instance, he or
she tortured the victim over a prolonged period of time before killing him or her. Furthermore, there may
be factors such as a guilty plea or material assistance which in the context of other offences might be
afforded weight but which cannot be taken into account in murder cases. As discussed below at
paragraphs 3.77 to 3.84, there would, however, be scope to reflect the individual circumstances of each
112
113
114
Whelan and Lynch v Minister for Justice, Equality and Law Reform [2010] IESC 34; [2012] 1 IR 1.
Ibid.
Section 4 of the Criminal Justice Act 1964.
118