Report on Mandatory Sentences - Law Reform Commission

matters. She lost interest in study and almost dropped out and left her part time job. She
suffered a big character change from being outgoing into being closed with family and friends.
Now she is uncomfortable in the presence of men and wary while out particularly at night and
looking over her shoulder.” 139
1.74 In The People (DPP) v GK, 140 the Court of Criminal Appeal referred to the “serious harm” done to
the victim in concluding that the particular aggravated sexual assault lay in “the mid to upper range of
seriousness on the scale of gravity of such assaults”:
“Though the victim did not receive any psychological or psychiatric treatment, it is clear from the
Victim Impact Statement that the effect of this sexual assault on her was very grave. She was
unable to work for four weeks. The cost of treatment to her damaged teeth is €2,900. Her
enjoyment of life has been permanently impaired in that her sense of security in society has been
lost and she has become overcautious in moving about during daylight hours and is afraid to go
out at night unaccompanied. This is a very great imposition in the case of a single lady of twenty
five years of age.”
1.75 There are a number of general propositions that may be of assistance in determining the extent
of the harm caused in a particular case. 141 On any hierarchy of protected rights and interests, life and
bodily integrity should rank highest. In addition, personal dignity and autonomy are increasingly
recognised as important interests that merit strong legal protection. Similarly, personal liberty should also
rank highly. 142 While private property ordinarily ranks next after life, liberty and bodily integrity, for
sentencing purposes the important question is not whether the law should protect private property as an
institution, but rather the degree of hardship or harm caused by the offence. In other words, the
seriousness of a property offence should not be assessed solely by reference to the amount taken but
also by reference to the suffering or hardship which the offence caused to the victim. Serious offences
involving the violation of fundamental rights may carry a broad presumption in favour of a custodial
sentence, but no more than that as mitigating factors may justify the imposition of a more lenient
sentence. 143
(III)
Offender Behaviour
1.76 Regarding offender behaviour, an offence will be considered more serious where there are
aggravating factors arising from the offender’s behaviour when committing the offence. 144 These include
the use of a weapon (and the more dangerous the weapon, the more serious the factor); 145 the deliberate
procurement of a weapon to commit the offence; 146 the targeting of vulnerable victims; 147 intrusion into a
victim’s home; 148 premeditation and planning; 149 participation in a criminal gang; 150 abuse of trust or
139
140
141
142
143
144
145
146
147
148
The People (DPP) v WD [2008] 1 IR 308 at 334.
The People (DPP) v GK [2008] IECCA 110.
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 195.
Ibid at 196.
Ibid at 194. See: R v Cox [1993] 1 WLR 188.
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 92. See generally: The
People (DPP) v WD [2008] 1 IR 308.
The People (DPP) v Black [2010] IECCA 91; The People (DPP) v Kelly [2005] 1 ILRM 19; The People (DPP) v
Princs [2007] IECCA 142; The People (DPP) v Maguire [2008] IECCA 56; and The People (DPP) v Dillon
Court of Criminal Appeal 17 December 2003.
The People (DPP) v Black [2010] IECCA 91; The People (DPP) v Kelly [2005] 1 ILRM 19; The People (DPP) v
Princs [2007] IECCA 142; and The People (DPP) v Maguire [2008] IECCA 56.
The People (DPP) v GK [2008] IECCA 110; The People (DPP) v Keane [2008] 3 IR 177; and The People
(DPP) v WD [2008] 1 IR 308.
The People (DPP) v Keane [2008] 3 IR 177.
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