Sentencing Methodology - Towards Improved Reasoning In Sentencing

AuthorJustice John Edwards
PositionB.C.L., Dip E.L., (NUI), B.L. (Kings Inns), A. Dip C.P.W. (Dub), Dip. Int Comm Arb (C.I Arb), F.C.I.Arb. (Rtd.)
[2019] Irish Judicial Studies Journal Vol 3
This paper addresses the legislative and juridical context within which sentencing in Ireland takes place
and examines how judicial discretion in sentencing in Ireland is in fact guided, while also looking at other
means by which it might be guided. Against this backdrop, and in the context of responding to Dr
Graeme Browne’s paper, it further looks at what the Irish appellate courts have been saying in recent
judgments about methodology and reasoning in sentencing.
Author: John Edwards, B.C.L., Dip E.L., (NUI), B.L. (Kings Inns), A. Dip C.P.W. (Dub), Dip.
Int Comm Arb (C.I Arb), F.C.I.Arb. (Rtd.). The author is a judge of the Court of Appeal since
2014. He was previously a judge of the High Court from 2007 to 2014. He is currently also a PhD
Candidate and Adjunct Professor in the School of Law at the University of Limerick.
The programme at the National Conference of the Judiciary of Ireland in 20181 included
a session on judicial discretion and reasoning in sentencing. Dr Graeme Brown2
presented the main paper in this session entitled simply ‘Discretion in Sentencing’, in
which he described four models of judicial reasoning in sentencing. In response to Dr
Brown’s paper,3 I presented an earlier version of this paper, in which I sought, inter alia,
to highlight what the Court of Appeal, and its predecessor the Court of Criminal Appeal,
has been saying about sentencing methodology.
The legislative and juridical context in which sentencing
takes place.
The paradigm for the process of sentencing that enjoys the widest currency, certainly in
this jurisdiction, is that it represents an appropriate balancing of the concurrent, but
sometimes conflicting, penal objectives of retribution, deterrence (general and/or
specific) and rehabilitation.4 Moreover, at the heart of this balancing exercise, is the
constitutionally mandated requirement that every sentence should be proportionate, both
to the gravity of the crime and to the circumstances of the perpetrator.5
1 Held at Dublin Castle on 16 November 2018 under the auspices of the Committee for Judicial Studies.
2 Dr Graeme Brown LLB (Hons), LLM, M.Sc, M.Jur (Dunelm), PhD (Edin), Dip LP, Cert FMS, NP Solicitor
(Scotland), Assistant Professor in Criminal Law, Durham University, and Honorary Fellow in Law, University of
Edinburgh. Dr Brown had been invited to speak because he had recently published a monograph entitled, Criminal
Sentencing as Practical Wisdom (Graeme Brown, Criminal Sentencing as Practical Wisdom (Hart Publishing 2017)), which had
been favourably reviewed by Dr Margaret Fitzgerald O’Reilly of the University of Limerick in The Irish Jurist, Vol
LVIII, New Series 2017, 193. See Margaret Fitzgerald O’Reilly, ‘Book Review "Graeme Brown, Criminal Sentencing as
Practical Wisdom. Hart Publishing, Portland, Oregon, 2017."’ (2017) 58 The Irish Jurist 193.
3 An expanded version of which appears in this issue of the Irish Judicial Studies Journal alongside my own, now
entitled ‘Four Models of Judicial Reasoning in Sentencing’.
4 People (DPP) v DW [2018] IECA 143; also People (DPP) v GK [2008] IECCA 110, People (DPP) v Kelly [2005] 2 IR 32 1
(CCA) and People (AG) v O’Driscoll (1972) 1 Frewen 351.
5 In State (Healy) v Donoghue [1976] IR 325 (SC) 353, Henchy J opined that cumulatively Article 38. 1, Article 40.3.1o ,
Article 40.3.2 o and Article 40.4.1 o of the Constitution necessarily imply, ‘at the very least, a guarantee that a citizen

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