EXPLAINER: How judges decide on a sentence and how appeal system works
Factors judges take into account when sentencing have come into sharp focus following Limerick case
THE FACTORS judges take into account when sentencing a person and how the appeal system works have come into sharp focus following the case of DPP v Cathal Crotty.
Limerick woman Natasha O’Brien, who was beaten unconscious in the random street attack two years ago, has been a vocal voice for change since her attacker Cathal Crotty received a suspended sentence at Limerick Circuit Court last week.
Séamus Clarke, senior counsel and member of the Council of the Bar of Ireland, was invited on RTÉ’s Morning Ireland to give his insight. He was first asked by the presenter Karen Creed to explain the parameters that a judge uses in sentencing somebody.
“The first parameter used by a judge in sentencing someone is the maximum sentence imposed by legislation, and that would vary from offence to offence.
“Then, as a general rule, a judge is required to impose a sentence that is proportionate, both to the crime, and to the individual offender.
“In order to do that, a judge will identify where on the sentencing range a particular case lies - that’s called applying the ‘headline sentence’.
“In doing that, a judge will choose from a range of either low, mid or upper range, up to the maximum sentence in picking the headline sentence, and then the judge will adjust the sentence depending on whether there are any aggravating factors or any mitigation in the case,” explained Mr Clarke.
One of the largest pieces of mitigation in any case will be a plea of guilty, and particularly how early that plea of guilty is entered, he said.
“Recent case law from the Court of Appeal suggests that if somebody comes forward from the district court on a signed plea, that they’re entitled up to one third off the headline sentence. That is the largest mitigation that would be in a case.
“Then, another factor might be cooperation in investigation, lack of previous convictions, youth of the offender, and collateral hardships - in other words, any other, I suppose, deterrents which are suffered by a person,” said Mr Clarke.
The senior counsel was asked if job loss is a factor in mitigation?
“Yes a job factor would be what’s called loosely collateral hardships that might be on a person,” said Mr Clarke.
Regarding the margin of discretion that a judge has in sentencing, are there specific guidelines surrounding that margin that you must stick by, asked the presenter.
“Yes, well there are certain sentencing guidelines in relation to particular types of offences, but, I suppose, it’s a general principle that if somebody is given a sentence where a headline sentence is fixed, well then there would be reduction downwards for mitigation.
“And then, I suppose, a final decision that a judge would have to make is whether or not a sentence should be suspended in part or in full, and, I suppose, the intrinsic seriousness of the offence would dictate whether or not a fully suspended sentence should be applied,” said Mr Clarke.
The conversation turned to what the Director of Public Prosecutions can do if they believe that a sentence is too lenient?
“The Director of Public Prosecutions has the power to apply to the Court of Appeal to have a sentence reviewed if it appears to her that the sentence was unduly lenient.
“In order to do that the director would have to show a substantial departure from what would be the appropriate sentence in all the circumstances - a clear divergence from the norm.
“They would have to apply to the Court of Appeal within 28 days, it can be extended to 56 days if necessary but it’s a fairly quick appeal.
“Once the parties appeal the case, if that is what is done in any case, and once the written submissions are filed by the moving party, well then there would be a case management and typically a case, particularly an undue leniency case, would get on within six to nine months off the papers being lodged.
“And then once the judges hear both parties they will have to assess whether some error in principle had occurred,” said Mr Clarke.
He continued: “An error in principle could be, for example, choosing the wrong headline sentence, not putting enough weight on aggravating factors, or perhaps putting too much weight on mitigating factors, or also perhaps not having cognisance of the fact that the intrinsic seriousness of the case dictates that no fully suspended sentence could be imposed.”
Ms Creed said the DPP’s annual report for 2022 shows that of 38 undue leniency cases brought by the DPP to that Court of Appeal, 31 were successful, and if you look at the figures going back to 2018 “it seems there does seem to be a fairly high success rate in these appeals”.
“I think the director only applies to the Court of Appeal if she’s satisfied that she can make out a strong argument that the trial judge has substantially departed from what would be considered the norm by the director and therefore we do see that, particularly in latter years, the director has a very high success rate, up to about 80% in relation to appeals that she brings for undue leniency,” said Mr Clarke.
The barrister concluded by saying the legislator has increased the maximum penalty for Section 3 assault causing harm cases to ten years for offences after November of last year, but if an offence occurred before November of last year, then the maximum penalty would be five years “because that would be the penalty that applied at the time of the offence”.