Report on Mandatory Sentences - Law Reform Commission

(i) Identifying the range of applicable penalties;
(ii) Locating the particular case on that range; and
(iii) Applying any factors which mitigate or aggravate the sentence.
Each of these steps will be considered in turn.
(i)
Identifying the Range of Applicable Penalties
1.51 To determine the range of penalties applicable to the particular offence, the courts consider
whether the Oireachtas has provided any guidance by means of, for instance, a statutory maximum or
minimum sentence. 84 Thus, for example, section 14 of the Criminal Justice (Theft and Fraud Offences)
Act 2001 provides that robbery is subject to a maximum penalty of life imprisonment. As a result, a
person convicted of robbery may expect to receive a sentence ranging from zero years to life
imprisonment, depending on the circumstances of the case and the offender. The fact that robbery is
subject to a maximum sentence of life imprisonment also indicates how seriously robbery should be
considered, as does the statutory direction that an accused charged with robbery should be tried on
indictment. 85 It is thus fair to assume that robbery, for which an offender is “liable on conviction on
indictment to imprisonment for life”, 86 is a serious offence.
1.52 For some serious offences, excluding those to which entirely mandatory and mandatory minimum
sentences apply, the courts have established points of departure regarding the sentence to be imposed.
Thus, in the Supreme Court decision in The People (DPP) v Tiernan, 87 Finlay CJ made the following
remark regarding the sentence for rape:
“Whilst in every criminal case a judge must impose a sentence which in his opinion meets the
particular circumstances of the case and of the accused person before him, it is not easy to
imagine the circumstances which would justify departure from a substantial immediate custodial
sentence for rape and I can only express the view that they would probably be wholly
exceptional.” 88 [emphasis added]
Thus a person convicted of rape would ordinarily expect to receive a substantial custodial sentence save
where it is shown that there are “wholly exceptional” circumstances.
1.53 Similarly, in the Court of Criminal Appeal decision in The People (DPP) v Princs 89 regarding the
sentence for manslaughter, the Court observed:
“[T]he offence of manslaughter, particularly voluntary manslaughter where an unlawful act of
violence is involved, should normally involve a substantial term of imprisonment because a
person has been killed. Only where there are special circumstances and context will a moderate
sentence or in wholly exceptional circumstances, a non-custodial sentence, be warranted. Those
circumstances are more likely to arise in cases [of] involuntary manslaughter... .” (emphasis
added)
Thus a person convicted of manslaughter would ordinarily expect to receive a substantial custodial
sentence save where “special circumstances” would justify a moderate sentence or “wholly exceptional
circumstances” would justify a non-custodial sentence.
England and Wales on Seriousness and the decision of the English Court of Appeal in R v Howells [1999] 1
WLR 307.
84
85
86
87
88
89
The People (DPP) v Maguire [2008] IECCA 56; The People (DPP) v O’C [2009] IECCA 116; and The People
(DPP) v Halligan Court of Criminal Appeal 15 February 2010.
The People (DPP) v Loving [2006] IECCA 28.
Section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
The People (DPP) v Tiernan [1988] IR 251.
Ibid at 253.
The People (DPP) v Princs [2007] IECCA 142.
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