Academic journal article International Journal of Punishment and Sentencing

"... One Dube Fits All?"

Academic journal article International Journal of Punishment and Sentencing

"... One Dube Fits All?"

Article excerpt

The foundation of criminal law is the idea that people should be punished by the State when they are to blame for conduct which brings about certain grievous wrongs. (1) Almost from day one as a law student we are told to define what the law is and how it is applied to the case in question. But in reality this is simply not the case. The law is seen as coherent but there is wide scope of interpretation that occurs by judges when cases go before them. This too is where the vital element of 'judge shopping' comes into play in order to try and get the best outcome for the client in question, another nugget that law students are not told about. The question then arises, does this destabilise the rules of law that students learn in college? This piece will briefly look at sentencing and the wide scope of discretionary powers and interpretation that occurs throughout cases especially during sentencing. Three Irish cases; namely O'Donoghue, Anabel and the Nally case will be briefly discussed to illustrate this wide scope of interpretation by judges.

Charleton, McDermott and Bolger, note that in the past little of the law was written down as the prevailing view was that it was better to trust the wisdom of judges, in interpreting their prior decisions, rather than stating the law in the form of an all embracing code. (2) Peculiarly Ireland has left undefined the most fundamental concepts of criminal liability. (3) Compared to previous decades, the 1990's have seen a comparatively large amount of criminal law legislation. (4) Charleton, McDermott and Bolger correctly note that whilst this harvest of criminal legislation is to be welcomed compared to the famine of previous years, one worrying aspect is the tendency to rush through far-reaching legislation in response to a particular event, (5) for example the proposed Criminal Law Home Defence Bill 2009 and so forth.

Before focusing purely on discretionary matters and cases, sentencing will be briefly examined. The real fun begins at the sentencing stage as the system becomes much more discretionary and less regulated by law. (6) As Lacey noted, without the sentence of the court, the hard edge of delivery of the criminal sanction, none of the paraphernalia of law at the earlier stage would make much more sense. Yet much of the legitimating symbolism of the rule of law is largely cast aside.(7)

Denham J. in DPP v. M noted: (8)

" ... The nature of the crime and the personal circumstances of the appellant are the kernel issues to be considered and applied in accordance with the principles of sentencing."

Interestingly in DPP v. Mark Drinkwater Murray C.J. noted the "social factors" at play when sentencing: (9)

"While the sentencing of offenders is governed by a range of legal principles, some of which have already been referred to by the Court, it may also be influenced by policy considerations such as the prevalence of a particular kind of offence ... In short there may be societal factors to be taken into account when sentencing for a particular offence as well as general principles of law. Needless to say such societal factors are indigenous."

Very little is known about the reality of sentencing practice in Ireland. Systematic variations may occur between different judges on the same circuit, as is evident in the variation for example between O'Leary J. and Patwell J. in Co. Cork. Such apparent inconsistencies have prompted much of the research into sentencing by social scientists such as Mills and McFatter. (l0) Bacik notes that despite the absence of a stated policy to guide judges in sentencing, a range of sentencing options exist such as immediate custodial sentences, suspended custodial sentences, Community Service Orders and so forth, all at the judge's discretion. (11)

Among the principles that must be taken into account in sentencing are: the nature of the crime; the personality and circumstances of the accused (for example, a person who had been himself victimised might expect to be treated more leniently than one who had every advantage); whether the accused pleaded guilty to the crime and, if so, at what stage; whether there were previous convictions; the character of the accused; and the likelihood of reoffending. …

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