Report on Mandatory Sentences - Law Reform Commission

1.58 In general, however, the courts have emphasised that they should not constrain their discretion in
sentencing by following a fixed policy where none has been prescribed by law. In The People (DPP) v
WC, 98 the Central Criminal Court indicated that:
“It is not open to a judge in a criminal case when imposing sentence, whether for a particular type
of offence, or in respect of a particular class of offender, to fetter the exercise of his judicial
discretion through the operation of a fixed policy, or to otherwise pre-determine the issue.” 99
1.59 Thus, in The People (DPP) v Kelly, 100 where the trial judge had indicated that on the basis of a
policy of deterrence he would impose a sentence of 20 years’ imprisonment in cases involving death and
serious injury caused by the use of knives, the Court of Criminal Appeal found that he had erred in
principle. 101
1.60 In some cases, the courts have gone further than establishing points of departure by formulating
the ranges of penalties applicable to various combinations of facts. In The People (DPP) v WD, 102 for
instance, the Central Criminal Court considered cases of rape over a three-year period in which lenient,
ordinary, severe and condign punishments had been imposed. 103
1.61 In the category of lenient punishments, the Court considered cases in which a suspended
sentence had been imposed. 104 It noted that a suspended sentence could only be contemplated where
the circumstances of the case were “so completely exceptional as to allow the court to approach
sentencing for an offence of rape in a way that deviates so completely from the norm established by
law.” 105
1.62 In the category of ordinary punishments, the Court considered cases in which a sentence range
of three to 8 years had been applied. 106 It noted that a sentence at the upper end of the scale, a sentence
of 8 years or more, for which the courts took into account aggravating factors, could be imposed even on
a plea of guilty. An offender could expect a sentence at the upper end of the scale where there had been
“a worse than usual effect on the victim, where particular violence has been used or where there are
relevant previous convictions, such as convictions for violence of some kind.” 107 An offender could expect
a sentence of five years’ imprisonment where he or she had pleaded “guilty to rape in circumstances
which involve no additional gratuitous humiliation or violence beyond those ordinarily involved in the
offence,” 108 whereas he or she could expect a sentence of six or 7 years’ imprisonment where there was
no early admission, remorse or early guilty plea. 109
1.63 In the category of severe punishments, the Court considered cases in which a sentence range of
9 to 14 years’ imprisonment had been applied. 110 The Court observed that five of the cases involved
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The People (DPP) v WC [1994] 1 ILRM 321.
Ibid at 325.
The People (DPP) v Kelly [2005] 1 ILRM 18.
Ibid at 22. See also: The People (DPP) v Dillon Court of Criminal Appeal 17 December 2003; Pudliszewski v
Judge Coughlan [2006] IEHC 304; and Dunne v Judge Coughlan High Court 25 April 2005.
The People (DPP) v WD [2008] 1 IR 308.
Ibid at 330.
Ibid at 319.
Ibid.
Ibid at 324.
Ibid.
Ibid.
Ibid.
Ibid at 327.
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