Passing judgement on the law

The Court of Criminal Appeal has found as too harsh the 15-year sentence handed down to a man who assaulted a boy in an unprovoked attack. What is an appropriate sentence, asks Dan Buckley

Passing judgement on the law

“I BEAT the head off him. I danced over his head.”

The chilling words of a Limerick man who left a schoolboy with permanent brain damage after beating him unconscious in an unprovoked attack.

The man, who was a teenager in the care of the HSE at the time of the attack, was caught on camera inflicting 65 kicks and stamps to his 16-year-old victim’s head, along with two stamps to his chest and 26 punches. The man then left his victim lying in a pool of blood.

The brutality of the assault and its horrific consequences would prompt many ordinary people to say “throw away the key” in considering what to do with the attacker.

After all, the young victim has been handed what amounts to a life sentence for doing nothing more than sitting on a windowsill at a service station while waiting for his mother to collect him. Likewise, the years — perhaps decades — of pain, heartache, and worry for the boy’s parents and wider family.

Mr Justice Paul Carney came close to the lay person’s view, sentencing the man to 15 years in prison with the last three suspended.

But the Court of Criminal Appeal didn’t agree. In a written judgment delivered on Tuesday, it found the sentence was too harsh and that the trial judge should have taken the attacker’s persistent drug abuse and difficult upbringing into account in mitigation.

In other words, the punishment mustn’t just fit the crime, but also the criminal.

This is not the first time the Court of Criminal Appeal has rebuked Mr Justice Carney over a sentence he has handed down.

In 2008, the court found that he had erred in law for failing to take into account probation and psychiatric reports before he sentenced “Scissor Sister” Linda Mulhall.

In November 2007, the Court of Criminal Appeal, which comprises a Supreme Court judge and two High Court judges, reduced the sentence on a man who kidnapped and raped a Spanish au pair because of “inappropriate” and “indefensible” comments made by Mr Justice Carney during the trial.

Mr Justice Carney has often expressed frustration at what he sees as tampering with his sentences while, in turn, the appeals court has voiced annoyance at his outbursts. In one case, Supreme Court Judge Adrian Hardiman said remarks Mr Justice Carney made about the appeals court during a trial in the absence of the jury were “altogether unfortunate and undignified”.

Yet judicial squabbling aside, what is the appropriate sentence for serious crimes like manslaughter, rape, and assault? Mr Justice Carney is most experienced in that regard, hearing seven out of 10 rape cases and more than half of all murder trials in the State.

Barrister and NUI Galway law lecturer Tom O’Malley says: “Philosophers have argued tenaciously over the moral justification for punishing offenders. Some argue that punishment should be imposed simply because it is deserved, while others insist on a more utilitarian rationale such as rehabilitation or deterrence. Courts and legislatures seldom agonise very much over this theoretical question.”

Neither do victims or their families. There is nothing theoretical about life for the parents of an assault victim who face decades of having to care for their brain-damaged child. To them, it would appear that the innocent are punished far more severely than the guilty.

While every case must be decided on its individual merits, many jurists agree that a greater level of consistency is needed in sentencing.

An insight into the judicial thought process was given in 2010 by Mr Justice Barry White in sentencing Eamonn Lillis for the manslaughter of his wife, Celine Cawley. Sentences for manslaughter can range from life in prison to a suspended sentence, Mr Justice White declared, adding that he had canvassed the views of the defence and prosecution in the case; the latter claiming it was in the mid- to upper-range of seriousness, the former that it was at the bottom end in manslaughter terms.

“I must consider whether either of them is correct,” he said, addressing Lillis. “Having injured your wife at least you had the decency to phone the emergency services and, with their assistance, help to revive her. As far as I can see, that is the only decent act, or acts, that you committed that morning.”

The judge said he took into account the case of Linda Mulhall and that of Wayne O’Donoghue in which the Corkman was jailed for the manslaughter of schoolboy Robert Holohan. Both cases had come before the appeals court after sentencing by Mr Justice Carney, and Mr Justice White said they were at opposite ends of the scale.

While Mulhall appealed against her sentence on the grounds of severity, in the O’Donoghue case, the prosecution appealed against the four-year sentence on leniency grounds. The sentence was upheld and O’Donoghue ended up serving three years. In the event, Mr Justice White sentenced Lillis to six years and 11 months.

Concern over sentencing has not gone unnoticed by the Courts Service, which established the Irish Sentencing Information System as a pilot project to plan for and provide information on sentencing decisions.

Last year ISIS published an analysis of manslaughter sentences from 2007-2012, and acknowledging it is fraught with difficulty for judges: “It is apparent from the present analysis that the approach to the sentencing of manslaughter is a difficult process due to the varying degrees and circumstances to which the offence may extend to=.

“While the Court of Criminal Appeal offers valuable guidance in respect of sentencing principles such as proportionality and the importance of locating the offence at the appropriate point on the scale of offending, the fact remains that the nature of the Irish sentencing system is individualised and discretionary.”

In a number of cases between 2007 and 2012, the appeals court has offered guidance to judges, advising them to take into account not just mitigating and aggravating factors but the family circumstances of the guilty party.

Mitigating circumstances include:

* Co-operation with the gardaí;

* An early plea of guilty;

* Expression of genuine remorse;

* No previous convictions;

* The act was not premeditated;

* The extra burden imprisonment would impose on a foreign national.

In a 2007 manslaughter case, the appeals court noted that where manslaughter involved an unlawful act of violence, then normally this would involve a substantial term of imprisonment. “Only where there are special circumstances and context will a moderate sentence or in wholly exceptional circumstances, a non-custodial sentence, be warranted,” said the judges.

According to the appeals court, a trial judge must first look at the range of penalties, then locate where on the range the particular offence should lie before consulting any mitigating factors.

“The Court of Criminal Appeals noted that under our present sentencing regime, sentences must be proportionate not only to the crime but to the individual offender.”

That level of apparent detachment to the pain suffered by victims and their families belies attempts elsewhere to bring a greater level of certainty to sentencing.

The UK, for example, has recently established the Sentencing Council for England and Wales, which promotes consistency in sentencing and produces guidelines for the judiciary in sentencing, in addition to monitoring their impact on sentencing practice.

Similarly, the US has established a sentencing commission, an independent agency that establishes guidelines to be consulted by the judiciary regarding the appropriate punishment for those convicted of federal offences.

On the ISIS website, Tom O’Malley, author of Sentencing Law and Practice, describes the Sentencing Advisory Council of the state of Victoria in Australia as “the gold standard of sentencing information systems worldwide”, adding that the appeals court in Victoria “issues some excellent sentencing judgments”.

He also refers to a survey carried out in each of Australia’s states and territories that asked a random selection of individuals their view of the purposes of sentencing.

It ranged from:

* Give them the punishment they deserve;

* Teach them a lesson;

* Make an example of them;

* Rehabilitate them;

* Keep them off the streets.

This suggests that, without guidelines, ordinary people would be as chaotic in sentencing as judges.

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