Justifying The Use Of Previous Convictions As An Aggravating Factor At Sentencing

• Author: Thomas Mahon
• Position: BA, LLB, LLM (candidate) National University of Ireland Galway
• Pages: 85-97

[2012] COLR

85

JUSTIFYING THE USE OF PREVIOUS CONVICTIONS AS AN

AGGRAVATING FACTOR AT SENTENCING

Thomas Mahon*

A INTRODUCTION

One of the most contested questions in the field of criminal sentencing is the question of whether

previous convictions should be taken into account when deciding the quantum of punishment.1

Two decisions of the Court of Criminal Appeal have left the law regarding the use of previous

convictions at sentencing, to say the least, relatively unsettled. In People (DPP) v GK,2 the court

decided to treat previous convictions as an aggravating factor at sentencing. In doing so, the

Court stated that previous convictions could be taken into account as contributing to the

seriousness of the offence. It is submitted that such an approach is desirable. However, it is not

certain whether the Court will continue to regard previous convictions as such; indeed, it seems

unlikely after the decision in P eople (DPP) v PS.3Nevertheless, if the Court should decide to

continue to treat previous convictions as an aggravating factor it is necessary to put forward a

retributivist justification for doing so.

When one talks about the recidivist premium, one immediately thinks of it as a basis for giving

recidivists harsher sentences.4 What is often forgotten is that the recidivist premium, as well as

being in line with most people‟s intuition that repeat offenders deserve harsher sentences, can

also be used as a negative constraint to limit the recidivist‟s punishment.5 The absence of such a

justification could pose difficulties for policymakers and judges in creating legislation and in

reaching decisions. The risk being that our cardinal principle of proportionality6 will be

threatened in that repeat offenders may receive too lenient or too harsh a sentence.

It is important to set out what this article does not propose to achieve. This paper is strictly

concerned with dealing with repeat offenders within a just-deserts perspective and does not look

at the difficult question of whether the state is ever justified in punishing repeat offenders beyond

the level allowed by just-deserts. Dealing with repeat offenders by means of deterrence7 or

incapacitation8 is a very controversial issue. The subject is a sensitive one that is worthy of

separate study and it is for this reason the article is strictly focused on a just-deserts perspective.

* BA, LLB, LLM (candidate) National University of Ireland Galway.

1 J Roberts & A Von Hirsch (eds) Pr evious Convictions at Sentencing: Theoretical a nd Applied Perspectives (Hart

Publishing Oxford 2010) vi.

2 People (DPP ) v GK [2008] IECCA 110.

3 People (DPP ) v PS [2009] IECCA 1.

4 For example: Bagaric „Double Punishment and Punishing Character: The Unfairnes s of Prior Convictions‟ (2000)

19 Criminal Justice Ethics 10.

5 Lee „Recidivism as Omission: A Relational Account‟ (2009) 87 Texas Law Revie w 571, 577.

6 O‟Malley Sentencing Law and Pra ctice (2nd edn Thomson Round Hall Dublin 2006) [5.01].

7 Lungren „Three Cheers for Three Strikes‟ (1996) Nov-Dec Policy Review 34.

8 Dilulio „Instant Replay: Three Strikes Was the Right Call‟ (1996) Summer The American Pr ospect 12.