THE release last month of the Law Reform Commission (LRC) report on mandatory sentences has provided an opportunity to reflect in an informed way on the approach taken in our jurisdiction to sentencing in the criminal courts.
In addition, the controversial sentencing judgment delivered by Mr Justice Sheehan in the case of a man convicted of raping his then 14-year-old sister-in-law 27 years ago, highlights the serious difficulties involved in balancing the range of competing rights and interests in the sentencing process.
In particular, the often-unseen tensions between victims and the families of offenders are laid bare providing an extremely challenging sentencing decision.
Significantly, such challenges are a common feature in cases where prison sentences are imposed, yet in the majority of cases in this jurisdiction, they are rarely even acknowledged let alone considered explicitly by the sentencing judge.
Sentencing in Ireland has historically been regarded as being within the sole discretion of the court. Indeed to date, there has been considerable resistance by the judiciary to even the most modest of sentencing guidelines.
However, this long-established position has increasingly come under pressure as a variety of reports over the past decade have recommended the adoption of a more guided approach to sentencing.
The report notes generally that there is no agreement on the aims of our sentencing process and the principles that frame it and an “absence of anything remotely approximating to a consensus on who should be sent to prison and why they should be sent there”.
Unsurprisingly, therefore, the report recommends the development and implementation of appropriate sentencing guidelines.
Generally, when an offender is sentenced, a court can take a variety of matters into consideration. These will include the type of offence committed and any aggravating and mitigating factors. It may also have regard to the accused’s criminal record, the views of the victim, and wider social and policy issues.
However, the extent to which incarceration will impact on the defendant’s family and in particular, their children, receives little attention beyond its possible inclusion as a mitigating factor.
This is despite the fact that Article 3 of the UN Convention on the Rights of the Child 1989 to which Ireland is a party since 1992, requires that if a decision concerning the child’s primary caregiver is being taken by a court, the best interests of the child need to be balanced against any other relevant factors.
In recent years, the impact of a sentence on the children of an offender as a consideration to be included in the sentencing process has been recognised in a number of jurisdictions.
Perhaps the best-known example derives from the landmark decision of the South African constitutional court, S v M (2007).
This case concerned the conviction of a single mother in whose case the court held that the best interests of children should be considered alongside other elements in the sentencing process.
Albie Sachs J noted the need for a “change in mindset” when dealing with cases where children are affected by the sentencing of a parent.
This requires an acknowledgment that when a prison sentence is imposed as punishment for a crime, imprisonment has an impact beyond the offender. This does not mean parents are not sent to prison where such a sentence is appropriate, but rather that the full impact is understood and alternative punishments considered where the rights of children are engaged.
It would appear that the approach of Mr Justice Sheehan in the Counihan case a few weeks ago included elements, which are consistent with the approach adopted in South Africa, given the fact that the judge took into consideration the hardship likely to be suffered by the defendant’s three children.
Evidence of the negative impact of the offender’s imprisonment pending sentence on one of his children with autism was presented indicating the harm that an extended prison sentence would do to the family in the long term. The judge noted that despite the seriousness of the offences and the harm done to the victim, that imprisonment would “impose extreme hardship” on the offender’s family “particularly on his partner and his son”.
The suspended sentence imposed by the court has been greeted unsurprisingly with shock, by victims’ support groups. Their concerns reflect not only the significant harm sexual offences inflict on victims, but also the ongoing failure of the criminal justice system to adequately prosecute such offences. While the final decision in the Counihan case has left many questioning whether or not justice prevailed in that case, the decision- making process engaged in by the judge is one to be commended.
However, while the tension between the victim and the families of the offender adversely affected by a sentencing decision can be difficult to resolve, particularly in a system like ours where there are few alternatives to prison, it should not continue to be ignored as is the current practice.
If, as the LRC recommends, clear sentencing guidance is adopted in our jurisdiction it should, in line with international best practice, include a process whereby the impact of a sentence upon the children and families of offenders are taken into consideration on a systematic basis alongside the interests of the victim.
* Dr Aisling Parkes and Dr Fiona Donson are lecturers in law at UCC
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