Report on Mandatory Sentences - Law Reform Commission

Thus, depending on the presence of various factors, a person convicted of robbery might expect to
receive a sentence in one of the ranges outlined above up to the statutory maximum sentence of life
imprisonment. 125
1.67 The Commission notes that these decisions support the view that it is appropriate that certain
offences at the highest end of the scale of gravity should attract an immediate, substantial custodial
sentence, save in exceptional circumstances.
(ii) Locating the Particular Case on the Range of Applicable Penalties: culpability, harm
caused and offender behaviour
1.68 Having identified the range of applicable penalties, the courts must then locate the particular case
on that range. In order to do this, the courts must first determine the seriousness or gravity of the
particular case. In The People (DPP) v GK, 126 the Court of Criminal Appeal attempted to identify the
factors that must be considered in order to assess the gravity of a particular case:
(I)
“Having regard to the jurisprudence of this Court and of the Supreme Court the matters which
determine the gravity of a particular offence are the culpability of the offender, the harm caused
and the behaviour of the offender in relation to the particular offence.” 127 [emphasis added]
Culpability
1.69 Regarding culpability, it is useful to have regard to the nature of the mental element or mens rea
which the offender is found, or appears, to have had when committing the offence: 128
“Intention to cause harm clearly represents the highest level of culpability and the more harm
intended, the greater the blameworthiness. Recklessness, in the sense of a conscious disregard
of an unjustifiable risk, comes next, and again the greater and more dangerous the risk, the
greater the culpability. Negligence would rank as the lowest form of culpability, which is not to
say that it should be met with impunity if it has produced serious harm.” 129
Thus, on a scale of culpability, intention ranks highest, negligence ranks lowest and recklessness ranks
somewhere in between.
1.70 In The People (DPP) v O’Dwyer, 130 for example, which concerned careless driving, the Court of
Criminal Appeal made the following observation regarding culpability:
“The concept of careless driving covers a wide spectrum of culpability ranging from the less
serious to the more serious. It covers a mere momentary inattention, a more obvious
carelessness, a more positive carelessness, bad cases of very careless driving falling below the
standard of the reasonably competent driver and cases of repeat offending. However, since even
a mere momentary inattention in the driving of a mechanically propelled vehicle can give rise to a
125
126
127
128
129
130
Section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
The People (DPP) v GK [2008] IECCA 110.
Ibid. See: the Court of Criminal Appeal decision in The People (DPP) v Keane [2008] 3 IR 177 at 195, which
concerned the sentence for rape, in which Murray CJ indicated that: “[t]he law obliges [the sentencing judge]
to have regard to all the salient features of the circumstances in which the offence was committed, the nature
of the offence and its impact on the victim and society so as to evaluate its gravity. The sentencing judge is
also obliged to have regard to the particular individual who must be sentenced, his or her personal history and
circumstances so that a punishment which is proportionate and just may be imposed.” (emphasis added)
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 194; and O’Malley Sentencing Law
and Practice (Thomson Round Hall, 2 nd ed, 2006) at 92.
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 92.
The People (DPP) v O’Dwyer [2005] 3 IR 134.
23