Report on Mandatory Sentences - Law Reform Commission

standards, recognising that these may result in justifiably disparate outcomes.” 50 [Emphasis
added]
In this regard, it has been observed that the challenge posed by the principle of consistency is “to
eliminate undue disparity without replacing it with excessive uniformity.” 51
1.34 In its 2004 Consultation Paper on Prosecution Appeals from Unduly Lenient Sentences in the
District Court, 52 the Commission took a similar approach by distinguishing between sentencing disparity
and sentencing inconsistency:
“While sentencing disparity may be justified, given the nature of the offence and the individual
circumstances of the offender, sentencing inconsistency is not acceptable, such as where
individual judges may differ widely in dealing with similar offenders for similar offences.” 53
1.35 The need for a consistent approach becomes obvious when one considers the numerous factors
which may influence sentencers. 54 Ashworth asserts that these factors fall into four broad categories.
The first category relates to the views that sentencers may have regarding the facts of the case. The
second category relates to the views that sentencers may have regarding the principles of sentencing. In
this category, Ashworth includes views regarding the gravity of offences; the aims, effectiveness and
relative severity of the available types of sentence; the general principles of sentencing; and the relative
weight of aggravating and mitigating factors. The third category relates to views regarding crime and
punishment. In this category, Ashworth includes views regarding the aims of sentencing; the causes of
crime; and the function of courts passing sentence. The final category relates to the demographic
features of sentencers. In this category, Ashworth lists age, social class, occupation, urban or rural
background, race, gender, religion, and political allegiance. While sentencers are expected to have
developed a high level of resistance to outside influences, the Commission observes that no-one can be
entirely immune.
1.36 It has been observed that sentencing is not an exact science so the principle of consistency
cannot be applied in absolute terms and some degree of variation is inevitable. 55 It has been argued that
this is a small price to pay for a justice system which guarantees individualised punishment. 56 However,
this argument should not be taken too far as a system which tolerates gross inconsistency is manifestly
unfair and risks losing public confidence. 57 Whereas the normal approach of the Oireachtas to ensuring
consistency is to prescribe a maximum sentence only, it might, in such circumstances, feel compelled to
circumscribe judicial discretion further by establishing mandatory sentences or rigid sentencing
guidelines. 58
50
51
52
53
54
55
56
57
58
Making Punishments Work - <strong>Report</strong> of a Review of the Sentencing Framework for England and Wales (Home
Office, 2001) at paragraph 2.21.
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 53.
Law Reform Commission Consultation Paper on Prosecution Appeals from Unduly Lenient Sentences in the
District Court (LRC CP 33-2004).
Ibid at paragraph 6.07. O’Malley observes: “Disparity and inconsistency are closely related concepts and...
little turns on the difference between them. Both are concerned with the problem of discordance. Arguably,
consistency is more concerned with incompatibility of particular decisions with avowed principles or previous
practice, whereas disparity is more concerned with inequality and incongruity between particular decisions.”
See: O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 49.
Ashworth Sentencing and Criminal Justice (Butterworths, 3 rd ed, 2000) at 35-36.
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 52.
Ibid.
Ibid at 52-53.
Ibid at 53.
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