Report on Mandatory Sentences - Law Reform Commission

must relate not only to the person convicted but to the offence at issue. Thus, McKechnie J observed that
in the context of competition law infringements arising from the operation of a price cartel, an absence of
previous convictions would “in general have less weight because of the type of individual likely to be
involved and the type of conduct maintained.” 187 In more specific terms, the Court explained that the
“generally pernicious nature [of these offences], the fact that the perpetrators knew that their conduct was
illegal, and the level of detailed planning and concealment involved in both the network and the activity”
meant that an absence of previous convictions would be “of limited application”. 188
1.98 Regarding the possibility of rehabilitation, the Supreme Court in The People (DPP) v M 189 stated:
“As was stated in the judgments of the Court of Criminal Appeal... an essential ingredient for
consideration in the sentencing of a person upon conviction, in any case in which it is reasonably
possible is the chance of rehabilitating such person so as to re-enter society after a period of
imprisonment...” 190
Having regard to the accused’s age, the stage at which he would re-enter society, the age he would be at
that time and the period of life remaining to him, the Court thus concluded that an overall sentence of 18
years’ imprisonment should be reduced to 12 years’ imprisonment.
(3) Discussion
1.99 It is thus clear that in addition to the aims of sentencing, criminal sanctions and sentencing are
also framed by the justice principles of consistency and proportionality. It is also clear that the courts
have been striving to improve consistency in sentencing by formulating general guidance regarding: (i)
points of departure for certain serious offences such as manslaughter (Princs), rape (Tiernan) and social
welfare fraud (Murray); (ii) sentencing ranges for offences such as rape (WD), sexual offences (H) and
robbery (Pakur Pakurian); (iii) the factors relevant to the determination of the seriousness of an offence
(GK); and (iv) the factors that are likely to aggravate or mitigate the seriousness of an offence and the
severity of a sentence. This is a significant development because, as noted at paragraph 1.32, a
consistent approach to sentencing is necessary to ensure that a sentence that is proportionate to the
circumstances of the particular offence and the particular offender is imposed in all cases.
1.100 On the basis of this analysis, the Commission considers that a principles-based sentencing
system which reflects the importance of consistency and proportionality would lead to sentencing
outcomes in which: (1) the most severe sanctions, including lengthy prison sentences, are reserved for
the most serious crimes; (2) less severe sanctions, including medium range prison sentences, are
reserved for less serious crimes; and (3) the least severe sanctions including fines, probation orders and
community service orders are reserved for the least serious crimes.
1.101 In the next Part of this Chapter, the Commission notes, however, that the current Irish sentencing
system does not always, in practice, lead to the sentencing outcomes that might be expected in light of
the described principles-based approach.
E
Towards a Principles-Based Structured Sentencing System
1.102 In Parts B to D, the Commission summarised the key elements of the sentencing system. In this
Part, the Commission notes that while the Supreme Court and the Court of Criminal Appeal have been
striving to improve the level of consistency and proportionality in sentencing, commentators and surveys
of sentencing practice call into question whether these key elements are, in fact, being realised. The
Commission also notes that significant proposals to develop a more structured sentencing system have
been put forward in order to address this issue, including the development of sentencing guidance or
guidelines under the auspices of a proposed Judicial Council. The Commission discusses to what extent
such proposals would be of benefit in the context of mandatory and presumptive sentences.
187
188
189
190
Ibid at 635.
Ibid at 634.
The People (DPP) v M [1994] 3 IR 306.
Ibid at 314.
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