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Sentencing: Mitigating and Aggravating Factors

In a criminal trial, once there has been a plea or a finding of guilty, the court may proceed to sentencing. Sentencing in Ireland is a judicial function, except circumscribed by legislation within the bounds of the separation of powers. Judicial discretion is the cornerstone of Irish sentencing policy.

It is normally the prosecution which opens the sentencing hearing by presenting the facts of the offence and summarising the evidence. The role of the prosecution in sentencing is ostensibly to provide the court with information, though in practice attempts are often made to influence the court’s sentencing decision.

The prosecution further presents to the court evidence of the offender’s ‘antecedents’, that is: criminal record, and ‘character’. A member of An Garda Siochana may be called in this regard to given evidence of, inter alia, the offender’s age, personal circumstances and previous convictions. Character refers generally to factors such as: family background, education, employment, and other details such as income and personal situation since arrest, including whether or not the offender was on bail or in custody. The rules of evidence are relaxed in relation to character evidence, insofar as hearsay evidence may be adduced.

Once the prosecution has outlined the offender’s antecedents and character, the defence will make a ‘plea in mitigation’. The list of factors potentially relevant to the mitigation decision are, per the decision of Finlay CJ in DPP v Tiernan [1988], practically infinite. In Tiernan, the Supreme Court famously rejected the ides of guideline sentencing judgments.

The offender may be called to give evidence in mitigation, particularly where certain characteristics, including personality and desire for reform, are likely to impress the court. Character witnesses may be called upon, or letters offered from same, including previous or current employers, educational professionals, or a local community leader or priest.

The Sentencing Process

It is notable that there is no obligation on a sentencing court to give any reasons for its decision. In line with the view of sentencing as a process rather than a single event, the Law Reform Commission (‘LRC’) in a 1993 Consultation Paper on Sentencing identified subsequent to the sentencing hearing, a broadly similar pattern followed by sentencers:

(I) Factual Basis: The sentencer determines the correct factual basis upon which to base his sentencing decision.

(II) The Appropriate Sentence:

(a) The sentencer decides on the correct approach to adopt, having regard to the particular circumstances of both the offender and the offence.

(b) The sentencer then chooses the particular sentence by reference to the approach adopted in (ii)(a) above.

(III) Mitigation: The sentencer may take mitigating factors into account in reducing sentence below the level chosen in (ii)(b) above.

In its analysis, the LRC draws a distinction between factors which mitigate the seriousness of the offence, and factors which mitigate the sentence owing to the characteristics of the offender. However, as the result of both is a reduction in the severity of sentence, and as Irish decisions have not drawn such distinction, the practical effect is the same.

The presence or absence of mitigating or aggravating factors does not have an automatic effect on sentencing. Even an early plea of  guilty may have little bearing on the sentence. According to the LRC, simply providing a framework of factors which aggravate or mitigate seriousness cannot make sentencing into a precise balancing exercise: it cannot be simply a matter of arithmetic calculation by adding up all the aggravating factors and subtracting all the mitigating factors and arriving at an appropriate sentence.

Further, mitigating and aggravating factors usually occur in combination, and their weight in combination is likely to be greater than the sum of their individual values. The less specific the offence, the more potential there is for mitigation or aggravation.

Mitigating factors

  • The role of the offender in commission of the offence
  • Youth
  • Lack of prior serious convictions
  • Absence of premeditation
  • Presence of provocation or duress
  • Early plea of guilty
  • Genuine expression of remorse
  • Offering commensurate compensation or recompense
  • Favourable character references
  • Positive presentence reports, eg Probation & Welfare
  • Mental health difficulties
  • Reduced mental capacity
  • Poor physical health
  • Ignorance of law or mistake of fact
  • Assistance in investigation of the offence
  • Non-Irish nationality

Aggravating Factors

  • Victim impact reports
  • Pre-mediation
  • Numerous and serious prior convictions
  • Bringing the matter to full trial
  • Lack of remorse
  • The seriousness of the offence
  • Whether violence was threatened or used
  • Whether serious injury was intended or resulted
  • Gratuitous cruelty
  • Use of a weapon
  • The offence was convicted in the victim’s home
  • The offence was committed while the offender was on bail or temporary release
  • Vulnerability of the victim, including due to age or disability

In Practice

On appeal the decision of the trial judge in DPP v Hughes [2013] was overturned by the by Court of Criminal Appeal. The appellate court ruled that he had failed to take into account the wide range of mitigating elements in the case. In passing sentence the Circuit Court judge had discounted very largely or entirely the large settlements made with the Revenue and their destructive effects on his finances, his life, his capacity to earn and his family.

In DPP v Paul Begley [2013], involving the now infamous eponymous fruit and vegetable importer, the sentence imposed by the trial judge was also overturned by the Court of Criminal Appeal. In substituting a shorter sentence, the appellate court placed reliance on mitigating factors included the immediate and extensive co-operation Mr Begley had given the Revenue Commissioner, and “tangibly demonstrated” expressions of remorse.

In DPP v Brian Rattigan [2012], in sentencing Mr Rattigan to 17 years for drugs offences, Judge Butler said an aggravating factor in the case had been the fact that the Defendant had carried out the crime from his prison cell, which he described as “very serious”. In mitigation, Judge Butler accepted that while the Defendant had pleaded not guilty, he had fought the case on legal (as opposed to factual) matters.

In DPP v Heather Perrin [2012] Judge Mary Ellen Ring sentenced the former District Court judge to two-and-a-half years for deception. Judge Ring took into account a number of factors, including the position of trust she was in, the impact on the victims and on the public. A further aggravating factor was Mrs Perrin’s behaviour in writing letters on behalf of Mr Davis while sitting on the bench. Mitigating was the former judge’s poor health at hearing.

(Thanks to Cosaint)

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