Consistency in sentencing

• Author: Niamh Maguire
• Position: LLB (Trinity College Dublin), M.Sc. in Criminology and Criminal Justice (Edinburgh University), B.L., Ph.D. (Trinity College Dublin); Lecturer in Law, Waterford Institute of Technology; Research Associate School of Social Work and Social Policy, Trinity College Dublin
• Pages: 14-54

Judicial Studies Institute Journal [2010:2

14

CONSISTENCY IN SENTENCING

DR. NIAMH MAGUIRE*

INTRODUCTION

Ireland has an individualised system of sentencing in which

judges exercise a relatively broad sentencing discretion. Since the

foundation of the State in 1922 few attempts have been made to

change or challenge the nature of the Irish sentencing system.

This lack of reform, however, does not necessarily reflect

widespread satisfaction with the system as a whole. Indeed, a

recurrent criticism of the Irish sentencing system is that judicial

sentencing practices are widely inconsistent. In the 1990s the Law

Reform Commission carried out a detailed study and evaluation

of the sentencing system in Ireland1. In particular, the

Commission considered the fact that like cases could be treated

differently, and justifiably so, as the worst type of inconsistency

in sentencing and it concluded that “intuitively” the existence of

inconsistency in Irish sentencing practices was a certainty.2 Since

then, the issue of inconsistency in Irish sentencing practices has

also been highlighted in the media on a regular basis. Perhaps the

most notable example is the Prime Time documentary broadcast

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* LLB (Trinity College Dublin), M.Sc. in Criminology and Criminal Justice

(Edinburgh University), B.L., Ph.D. (Trinity College Dublin); Lecturer in Law,

Waterford Institute of Technology; Research Associate School of Social Work

and Social Policy, Trinity College Dublin. Contact: nmaguire@wit.ie

1 Law Reform Commission, Consultation Paper on Sentencing (March 1993);

Law Reform Commission, Report on Sentencing (LRC 53 – 1996).

2 Law Reform Commission, Consultation Paper on Sentencing (March 1993)

p. 69. In the absence of empirical evidence of inconsistency in Irish sentencing

practices, the Law Reform Commission specifically referred to a study carried

out by Palys and Divorski in Canada, in which different judges were asked to

pass sentence in the same cases and to comment on the reasons for their

conclusions. Noting that Palys and Divorski found considerable differences in

the approach of individual judges when sentencing the same case, the Law

Reform Commission concluded that: “We have every reason to believe that in

Ireland, a fortiori, considering the similarities in sentencing structure, similar

inconsistencies would be displayed here. Intuitively, the existence of

inconsistency here is a certainty”.

2010] Consistency in Sentencing 15

in 2004 that described sentencing in the District Court as a

“lottery”.3 Academic research on sentencing in Ireland has also

highlighted the issue of inconsistency in Irish sentencing

practices.4

Despite these criticisms, the wave of sentencing reform that

occurred in the 1980s and 1990s in many jurisdictions worldwide

largely by-passed Ireland. Whilst countries such as Sweden,5

Finland,6 England and Wales,7 USA,8 Canada9 and Australia10

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3 Prime Time, Prime Time Investigates The District Court, RTÉ 1, 13

December 2004.

4 See Walsh and Sexton, An Empirical Study of Community Service Orders in

Ireland (Dublin, Stationery Office, 1999). Their study on the community

service order in Ireland found considerable variations between judges both in

relation to the length of community service orders and the length of the

alternative prison sentences imposed. See also Hamilton, “Sentencing in the

District Court: ‘Here be dragons’” (2005) 15 Irish Criminal Law Journal 9.

Hamilton’s study on sentencing in the Dublin District Courts combined

observation of 365 cases over an eight-week period and qualitative interviews

with court staff and criminal solicitors. The researchers observed

inconsistencies in the sentencing of public order offences and noted that judges

do not appear to share a common rationale in relation to the purposes of

imprisonment. Further, many criminal solicitors admitted that they often

engage in “judge shopping” on behalf of their clients.

5 Jareborg, “The Swedish Sentencing Reform” in Clarkson and Morgan, (eds.),

The Politics of Sentencing Reform (Oxford University Press, 2001) p. 95;

von Hirsch, “Sentencing Reform in Sweden”, in Tonry and Hatlestad (eds.),

Sentencing Reform in Overcrowded Times: A Comparative Perspective

(Oxford University Press, 1997) p. 211.

6 Lappi-Seppälä, “Sentencing and Punishment in Finland: The Decline of the

Repressive Ideal”, in Tonry and Frase (eds.), Sentencing and Sanctions in

Western Countries (Oxford University Press, 2001) p. 92; Tornudd,

“Sentencing and Punishment in Finland”, in Tonry and Hatlestad (eds.),

Sentencing Reform in Overcrowded Times (previous note), p. 189.

7 Ashworth, “The Decline of English Sentencing and Other Stories”, in Tonry

and Frase (eds.), Sentencing and Sanctions in Western Countries, p. 62;

Ashworth, “New Sentencing Laws Take Effect in England”, in Tonry and

Hatlestad (eds.), Sentencing Reform in Overcrowded Times: A Comparative

Perspective (previous note), p. 133; Ashworth, “English Sentencing since the

Criminal Justice Act 1991”, in Tonry and Hatlestad (eds.), Sentencing Reform

in Overcrowded Times: A Comparative Perspective (previous note), p. 146.

8 For example see Frase, “Sentencing Guidelines are ‘Alive and Well’ in the

United States”, in Tonry and Hatlestad, Sentencing Reform in Overcrowded

Times: A Comparative Perspective (above, note 5), p. 12; Reitz, “The

Disassembly and Reassembly of U.S. Sentencing Practices” in Tonry and Frase

Judicial Studies Institute Journal [2010:2

16

saw the establishment of sentencing commissions, councils and

panels, charged with enhancing consistency in sentencing by,

inter alia, the introduction of various forms of sentencing

guidelines, most of the recommendations for reform made by the

Law Reform Commission in 1996 in its Report on Sentencing

aimed at addressing inconsistency in Irish sentencing practices

were largely ignored. Over a decade later, it is likely that the

concerns and criticism expressed about inconsistency in Irish

sentencing practices are equally prescient. However, it may be the

case that the failure to implement reform in Ireland represents an

opportunity rather than a loss. We are now in a position to learn

from the mistakes and benefit from the successes of other

jurisdictions that have attempted to reform sentencing in order to

increase consistency and equity in sentencing outcomes.

However, before we can even attempt to learn from these

experiences, we firstly need to fully understand how and why

inconsistency in sentencing occurs in the Irish sentencing system.

In order to come to a better understanding of why

inconsistency in sentencing occurs in Ireland, this paper presents

new findings from a qualitative research study specifically

designed to examine judicial views on consistency in sentencing,

as well as, the extent of and the reasons for inconsistency in Irish

sentencing practices.11 By way of context, this paper begins with

(eds.), Sentencing and Sanctions in Western Countries (above, note 6), p. 222.

See generally Tonry, Sentencing Matters (1st ed., Oxford University Press,

1996).

9 Daubney and Parry, “An Overview of Bill C-41 (The Sentencing Reform

Act)”, in Roberts and Cole (eds.), Making Sense of Sentencing (University of

Toronto Press, 1999) p. 31.

10 Freiberg, “Three Strikes and You’re Out – It’s Not Cricket: Colonization and

Resistance in Australian Sentencing”, in Tonry and Frase (eds.), Sentencing

and Sanctions in Western Countries (above, note 6), p. 29: Gorta, “Truth in

Sentencing in New South Wales” in Tonry and Hatlestad (eds.), Sentencing

and Reform in Overcrowded Times (above, note 5), p. 152.

11 The findings presented in this paper are based on a piece of exploratory

research on sentencing in Ireland entitled Sentencing in Ireland: An

Exploration of the Views, Rationales, and Sentencing Practices of District and

Circuit Court Judges. This research was carried out under the supervision of

Dr. Eoin O’Sullivan, at the School of Social Work and Social Policy, and was

submitted to Trinity College Dublin for the degree of Doctor of Philosophy in