Report on Mandatory Sentences - Law Reform Commission

3. Criminal conduct will, in general, be considered more serious in terms of harm caused where it
has caused death or serious injury and will, in general, be considered less serious where it has
caused property damage or financial loss. In general, physical harm to other humans is ranked
more seriously than property damage or financial loss. Clearly, of course, there are cases where
financial loss arising from, for example, fraud may be on such a large scale that it will be
regarded as having caused more harm than, for example, a once-off assault.
4. Criminal conduct will be considered more serious in terms of culpability where the offender
intended to behave in a particular way, and less serious where he or she was reckless or
negligent.
5. Criminal conduct will be considered more serious in terms of the offender’s behaviour where
he or she has aggravated the situation, for example, by using a weapon, targeting a vulnerable
person, breaching a position of trust or being involved in a group or gang.
6. The absence of these aggravating factors does not necessarily amount to a mitigating factor,
but the sentencing court may take into account, as mitigating factors, other individual offender
behaviour, whether before or after the offence itself, such as whether the case involves a firsttime
offender (as part of their “background, antecedents and character”) or whether the offender
pleads guilty (thus avoiding, for example, a potentially difficult cross-examination for the victim or
the cost to the public of a long trial).
7. In addition to ensuring a proportionate sentence for the offence and the offender, the
sentencing process also involves the general public interest aim of reducing prohibited or
unwanted conduct in society. For the individual offender, the sentencing court will consider (with
the benefit of a probation report) whether interventions such as education, therapy or noncustodial
sanctions such as community service will induce the offender to refrain from committing
prohibited or unwanted conduct in the future. The sentencing court will also take into account
whether the severity or leniency of the sanction imposed will dissuade would-be offenders from
offending in the first place.
1.14 This summary of the sentencing process, as illustrated in the Poyning case, reflects the reality
that, in respect of virtually all criminal offences, the sentencing court has a wide discretion as to the
sentence to be imposed in a specific case. Thus, for most criminal offences, the Oireachtas provides for
a range of sentences, from zero to a maximum, leaving to the sentencing judge the specific sentence to
be imposed. Some examples are:
Manslaughter: maximum sentence: life imprisonment (section 5 of the Offences against the
Person Act 1861)
Rape: maximum sentence: life imprisonment (section 4 of the Criminal Law (Rape)
(Amendment) Act 1990)
Assault causing serious harm: maximum sentence: life imprisonment (section 4 of the Non-
Fatal Offences against the Person Act 1997)
Assault causing harm: maximum sentence: five years’ imprisonment (section 3 of the Non-
Fatal Offences against the Person Act 1997)
Assault: maximum sentence: six months’ imprisonment (section 2 of the Non-Fatal Offences
against the Person Act 1997)
Robbery: maximum sentence: life imprisonment (section 14 of the Criminal Justice (Theft
and Fraud Offences) Act 2001)
Theft: maximum sentence: 10 years’ imprisonment (section 4(6) of the Criminal Justice
(Theft and Fraud Offences) Act 2001)
1.15 In the case of each of these offences, which are clearly among the most serious in the criminal
calendar, the Oireachtas has legislated to set the maximum sentence but it has left it to the trial judge to
decide the actual sentence to be imposed, applying the sentencing principles described above.
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