Report on Mandatory Sentences - Law Reform Commission

from loss of liberty is clearly evident, but there are also reformative, rehabilitative, reparative and
incapacitative attributes involved.
1.09 In pursuing the general preventive aim of the criminal justice system, the sentencing process
must also comply with what can be described as external constraints that emanate from fundamental
principles of justice. 6 Many of these constraints arise from national constitutional requirements and
international or regional human rights standards. Thus, as a member state of the Council of Europe, 7
Ireland accepts that the death penalty is forbidden as a sanction. 8 Similarly, other former sanctions such
as whipping have been abolished on the basis that they would amount to torture or inhuman and
degrading treatment. 9 In addition, Article 15.5 of the Constitution provides that the Oireachtas is
prohibited from declaring acts to be infringements of the law which were not so at the date of their
commission. This reflects the fundamental principle that a person must have done something wrong to
warrant the imposition of a sanction, and that the list of wrongs must have been signalled in advance to
the offender, not after the event. 10 Also of importance in this respect is Article 40.1 of the Constitution,
which provides that all citizens shall, as human persons, be held equal before the law. This equality
principle requires that there should be a consistent approach to sentencing so that like cases are treated
alike, the corollary being that different cases should be treated differently. 11 In the literature on
sentencing, there is also reference to the principle of proportionality, ie. the requirement that “the
punishment must fit the crime and the criminal”.
1.10 The application of many of these features of the criminal justice system and the sentencing
process can be seen in one of the leading Irish cases on sentencing, the 1972 decision of the Court of
Criminal Appeal in The People (Attorney General) v Poyning. 12 In Poyning, the defendant was charged
with a number of offences related to a single incident, including armed robbery and taking a motor car
without authority. He pleaded guilty to both counts and was sentenced to four years’ imprisonment for
armed robbery and six months’ imprisonment for the motor car offence. Along with the defendant, two
other men were charged in respect of the armed robbery. They also pleaded guilty but were sentenced
by a different judge. While that sentencing judge imposed a sentence of six years’ imprisonment on the
other two defendants, the sentence of imprisonment was suspended on condition that the defendants
enter into a bond to keep the peace for five years. As both entered into this bond, they were released. In
those circumstances the defendant appealed against the sentences imposed on him.
1.11 At the hearing of the appeal, counsel for the defendant argued that the result was “a gross
inequality of treatment for his client”. Giving its judgment, the Court of Criminal Appeal stated:
“The law does not in these cases fix the sentence for any particular crime, but it fixes a maximum
sentence and leaves it to the court of trial to decide what is, within the maximum, the appropriate
sentence for each criminal in the particular circumstances of each case. Not only in regard to
each crime but in regard to each criminal the court of trial has the right and the duty to decide
whether to be lenient or severe. It is for these reasons and with these purposes in view that,
before passing sentence, the court of trial hears evidence of the antecedents and character of
every convicted person. It follows that when two persons are convicted together of a crime or of
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McAuley and McCutcheon Criminal Liability (Round Hall, Sweet and Maxwell, 2000) at 105-106. See also:
Walker The Aims of a Penal System (The James Seth Memorial Lecture 1966) (Edinburgh University Press,
1966).
See: Article 1 of the Sixth Protocol and Article 2 of the Thirteenth Protocol to the European Convention on
Human Rights.
See: Article 15.5.2° and Article 28.3.3° of the Constitution, which prohibit the imposition of the death penalty.
See: Article 40.3.1° of the Constitution; and State (C) v Frawley [1976] IR 365. See also: Article 3 of the
European Convention on Human Rights
See also: Article 7 of the European Convention on Human Rights.
See also: Article 14 of the European Convention on Human Rights.
[1972] IR 402.
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