A sentence must be proportionate to the gravity of the offence
I DON’T know whether Circuit Court Judge Martin Nolan is a Gilbert and& Sullivan fan or not, but if he is he should be familiar with the mantra “let the punishment fit the crime”, part of the chorus from The Mikado.
Democratic nations regard this as a fundamental principle when it comes to sentencing offenders. Less tunefully put, it means that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Most neutral observers would be forgiven for thinking that this means that an adult violent sex attacker would see the inside of a prison cell, particularly if he has previous convictions for assault.
Most would expect that law- abiding citizens should be protected from such a man. Most would expect that the punishment should reflect a certain amount of revulsion. Most would regard a custodial sentence as the fitting punishment for the crime.
Most would be mistaken.
On Wednesday, Judge Nolan allowed Graham Griffiths, a violent sex attacker, to walk free from Dublin Circuit Criminal Court on condition that he behaved himself and paid €15,000 in compensation to the 17-year old girl he sexually assaulted.
Griffiths, of The Saltings, Annagassan, Co Louth, pleaded guilty to sexually assaulting the girl on Apr 17, 2011.
There was no indication that the teenage victim wanted a cent from the man who ripped her clothes and dragged her to the ground by the hair during the assault.
Given her ordeal, it is quite possible that she will refuse the money. That must have occurred to Judge Nolan and he ruled that in such an event, the money be put in the court poor box, a quaint device that surely has no place in a modern criminal justice system.
While moral outrage or public disgust can never, of itself, be grounds for dictating sentencing policy, it should not be ignored either. In common with other sectors of society, the judiciary do not operate in a vacuum and any judge or group of judges whose habitual conduct shocks reasonable people will have a detrimental effect on the judiciary as a whole.
In August, a market research survey showed that most Irish people think poorly of judges when it comes to sentencing. The survey, conducted by Coyne Research, found that 69% of Irish adults rated our judiciary as poor when it came to sentencing criminals. Men and those aged over 55 were more critical than women and younger people with 74% of males and 75% of older adults rating our judges as poor.
That may not bother the judiciary too much. After all, they are robustly — and rightly — independent of government and guard that independence fiercely which means they will unlikely to be swayed too much by societal sensibilities.
But, on this occasion, public opprobrium against a decision that effectively allows a violent and habitual attacker to buy his way out of jail cannot be ignored.
Ellen O’Malley-Dunlop, chief executive of the Dublin Rape Crisis Centre, said the sentence “sends out a wrong message”. She said it was worrying because, after encouraging victims to come forward, this did not feel like an appropriate punishment.
“It sends out a worrying message that if you are found guilty of a crime of sexual assault, which carries a maximum penalty of five years, but if you have money, you can avoid a custodial sentence,” she said yesterday.
“It is not good enough that somebody is allowed to avoid a custodial sentence because they can pay. This is not a good message for the victims who go seeking justice before the courts.
“In terms of sexual offences, we have been calling for sentencing guidelines for a very long time. Until we get them, unfortunately we will get this type of sentence.”
Judge Nolan’s ruling follows that of another judge who suspended five-and-a-half years of a six-year prison sentence for sexual assault imposed on a well-off businessman on condition that he compensate his victim to the tune of €75,000.
Anthony Lyons was charged with sexual assault. This is described as an “indecent assault” on a male or a female, for which the maximum sentence is 10 years in jail, or 14 years if the victim is aged under 17.
Lyons was not charged with aggravated sexual assault, although Judge Desmond Hogan said he had no doubt that the offence had involved “violence of a seriously frightening nature”.
He did not plead guilty, which would have mitigated his sentence, although he did not contest the facts of the case. He was ordered to pay €75,000, which Judge Hogan took into account when suspending most of the sentence.
Judge Nolan has faced criticism in the past for his sentencing.
Earlier this month, he didn’t jail car dealer Aidan Farrington, who sexually abused his two nieces, because he felt that the shame surrounding the publication of his name was punishment enough.
In December last year, he spared drink driver Ronan Cunningham of Enniskeen, Kingscourt, Co Cavan a jail sentence. Cunningham pleaded guilty at Dublin Circuit Criminal Court to dangerous driving causing the death of Emanuel Mendez, aged 23, on Oct 10, 2010, at Rathcoole, on the N7 Naas dual carriageway.
Cunningham also pleaded guilty to driving while under the influence of alcohol on the same date. Evidence showed he had consumed eight pints of beer and had 150mg of alcohol per 100ml of blood in his system.
Judge Nolan said that what Cunningham did was totally reckless and something no sensible person would do.
He said Cunningham’s behaviour was totally out of character, as he was “a perfectly sensible man” up until that night.
Judge Nolan said Cunningham was certainly “drunk while driving the car” and it was “obviously a possibility” that the amount of drink put him into an “insensible state”.
He had to take the guilty plea into account, along with Cunningham’s co-operation with gardaí, his lack of previous convictions and, centrally, his doubt about whether the guilty man knew what he was doing.
He sentenced Cunningham to five years in prison, which he suspended in full on condition that he was of good behaviour for that period.
He also disqualified him from driving for five years.
The judge was told that Cunningham had paid €25,000 to the family as a token of his remorse.
In July of last year, Judge Nolan imposed a three-year jail term on another drink driver who mounted a footpath, killing a mother of twins and seriously injuring a man.
Francis Lennon, of Marigold Grove, Darndale, Dublin 17, pleaded guilty to dangerous driving causing the death of Anne Fitzsimons at Malahide Rd, Clontarf, on Nov 15, 2009.
Judge Nolan also suspended Lennon from driving for five years but expressed the view that he seemed capable of reform.
The judge said he was taking into account Lennon’s early plea, his co-operation with gardaí, and his expression of remorse. He said he also had to take into account his previous minor convictions.
Judge Nolan said he had great sympathy for Lennon in that he made this misjudgement but that he had no option but to impose a custodial sentence.
Last June, Judge Nolan suspended 16 months of a three-year jail term he imposed on a Polish man who sexually assaulted six women on various Dublin buses.
Piotr Rownicki, aged 34, of Seagrove Close, Finglas, pleaded guilty at Dublin Circuit Criminal Court to seven charges of sexual assault on dates between Jan 2007 and May 3, 2011.
He assaulted one girl twice on two different buses.
Judge Nolan accepted that Rownicki deeply regretted the offences but said “he went a few steps too far, one or two such offences may be forgivable but six is too much”.
It is open to Claire Loftus, Ireland’s DPP, to appeal against leniency of sentence but she must demonstrate a departure from sentencing principles.
In Britain, as in a number of other jurisdictions, a sentencing council gives judges training and guidelines on sentencing.
The Sentencing Council for England and Wales promotes greater consistency in sentencing, whilst maintaining the independence of the judiciary.
Any member of the public in England and Wales can ask for sentencing to be reviewed if they feel it is too low.
This right is confined to serious offences including rape, robbery, child sex crimes, and some drug offences.
* Read more: here
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