Report on Mandatory Sentences - Law Reform Commission

(1) The Problem of a Lack of Structure and Inconsistent Approaches
1.103 It has been noted that Ireland, by contrast with most common law jurisdictions, has a largely
unstructured sentencing system 191 in which the courts exercise a relatively broad sentencing discretion. 192
Commentators have also referred to the “regional organisation of the lower courts, the dearth of formal
contact between them and the undoubted duty of all judges to act independently” 193 and to the
individualised sentencing system, the multiplicity of sentencing aims, and judicial variability. 194 While it
has been correctly noted that “[a]vailable data are insufficient to support any reliable conclusion on the
existence or extent of sentencing disparity in Ireland”, 195 two studies appear to support the view that this
lack of structure may lead to inconsistency in the sentencing process.
(i)
2007 Study
1.104 In a 2007 study, 196 a number of District Court judges were interviewed and asked to respond to
several sentencing vignettes. 197 The purpose of the study was to explore: (i) judicial views on sentencing
and consistency in sentencing; (ii) the degree of consistency in sentencing between individual judges;
and (iii) the reasons for inconsistency, if any, in sentencing practices of individual judges.
1.105 The study made several findings regarding judicial views on sentencing. The judges’ descriptions
of sentencing appeared to correspond with the “instinctive synthesis” approach to sentencing. 198 While
most judges indicated that there was no tariff or “going rate”, 199 some indicated that judges developed
their own views of things or their own particular approaches to certain types of cases and penalties. 200
Some judges rejected the idea that consistency in sentencing was possible in an individualised system. 201
It would appear, however, that “consistency” in this context referred to consistency of outcomes rather
than consistency of approach.
1.106 The study also made several findings regarding the degree of consistency in sentencing between
individual judges. Overall, there were high levels of inconsistency when the sentencing outcomes of the
different District Court judges were compared. 202 The degree of inconsistency in sentencing outcomes
varied according to the seriousness of the offence. 203 The sentencing outcomes were most consistent for
the most serious case whereas they were least consistent for the least serious case. Inconsistency was
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O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 53.
Maguire “Consistency in Sentencing” [2010] JSIJ 14.
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 54.
Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 18-28.
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 8 and 9.
Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 31ff.
15 out of a total of 54 District Court Judges participated in the study.
Maguire indicates that this approach involves the judge considering all the relevant factors of the case,
including the circumstances of the offence and the offender, and then coming to a decision about the
appropriate sentence without indicating the precise weight being attributed to individual factors or groups of
factors. Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 34.
Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 34.
Ibid at 35 and 36. Maguire highlights a “fundamental contradiction” in the logic of the judges: “[W]hile they
explicitly recognised that a general tariff would be inconsistent with the need to respond to the uniqueness of
each case they did not seem to recognise that the adoption by them of their individual approaches (developed
incrementally over a period of time) might also be inconsistent with the need to respond to the uniqueness of
each case. ” (at 37).
Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 37.
Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 42.
Ibid.
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