Existing Sentencing Guidelines

Over the past fifteen years or so, a number of ‘guideline’ judgments have been delivered by the courts to assist with formulating the appropriate sentence for a given offence type. This article looks at the origin of those guidelines, the offences for which there are guidelines available, and what the individual guidelines provide.

This article draws heavily on content provided by the Judicial Council, in particular the sentencing guidelines summary and the sentencing information for the general public.

The Origin of Guidelines

The courts were initially reluctant to embark on the formulation of guidelines, for two principal reasons:

1. In most cases the parties before the court concentrated their submissions on the case in hand and did not provide the court with any broader arguments or information;
2. A lack of reliable information, statistical or otherwise, in relation to specific offences meant that the court was not in a position to make generalised observations.

These concerns have been addressed now by:

1. Notifying the parties in advance that their case is one in which the court will attempt to provide guidance and inviting the parties to address submissions to the court on aspects of sentencing for the offence or class of offences in question that go beyond issues arising on the facts of the case;
2. An increase in the availability of data at least in respect of some offences, through various initiatives including the work of the Irish Sentencing Information System and of the Judicial Researchers’ Office.

Application of Guidelines

Typically, a guideline judgment will divide the available custodial sentencing options into three indicative bands or ranges (in the case of assault manslaughter there are four), on the basis of the gravity of the offence. Sentencing judges should bear in mind that the sentence ultimately imposed does not necessarily have to be within the range indicated by the assessment of gravity – the purpose of placing the offence within a band is to assist in selecting a headline or pre-mitigation sentence. The judge then goes on to consider all relevant mitigating factors.

It should also be borne in mind that if a sentencing judge seeks guidance by way of the results in comparable cases dealt with by the Court of Criminal Appeal or the Court of Appeal, caution should be used in respect of the outcome of undue leniency reviews. As the judgment in O’Sullivan points out, the sentence ultimately to be served by the offender may for various reasons not reflect the views of the Court of Appeal in relation to the appropriate sentence for the case.

Table of Guidelines

Note: Click on the ‘Offence’ to read more detailed information, click on the ‘Judgment’ to view the relevant judgment.

Offence	Low Range	Mid Range	High Range	Judgment
Assault Manslaughter	0-4	4-10	10-15-Life	Mahon
S.4 Assault	2-4	4-7.5	7.5-12.5	Fitzgibbon
Dangerous Driving causing death or serious harm	0-3.3	3.4-6.6	6.7-10	Flynn
Possession of Firearm	5-7	7-10	10-14	Ryan
Robbery	0-5	6-10	11-15	O’Sullivan
Burglary	0-4	4-9	9-14	Casey
Cannabis Cultivation	0-5	5-10	10-15	Samuilis
Tax & Welfare Fraud	0-3.3	3.4-6.6	6.7-10	Maguire
Rape	0-7	7-15	15-Life	FE
Defilement	1-5	5-10	10-15+	J.McD.
Child Pornography	n/a	n/a	n/a	McGinty

The Guideline Judgments

Assault Manslaughter

The level of responsibility or blame for the unlawful death of another can vary and is set out in four categories:

1. Offences in the lower range of seriousness involve a sentence of up to four years. The lowest sentences within this range are imposed in cases where the accused is at fault, but the aggravating factors found in the higher ranges are absent and culpability is not especially high. Cases of diminished responsibility or extreme provocation may come into this category. Fully suspended sentences have been imposed in exceptional cases.
2. Offences in the mid range of seriousness tend to result in sentences in the range of 4 to 10 years. They include cases where the offence involves an unlawful act which would not normally be expected to result in death, and where the act was not premeditated but there is still a degree of culpability.
3. Offences in the high range of seriousness attract a sentence in the range of 10 to 15 years. These cases tend to involve aggravating factors which may include a history of violence between the accused and the victim, indifference or callousness towards the victim, use of a potentially lethal weapon, and death resulting from an unlawful act carrying a high risk of serious injury of which the accused was aware or ought to have been aware. Previous convictions for assault or other relevant convictions may also be a factor.
4. Offences involving the very highest level of seriousness, in which an unlawful killing is almost indistinguishable from murder in terms of culpability, attract a sentence in the range of 15 to 20 years. Relevant to the level of culpability are matters such as the circumstances in which the victim died, and the conduct of the accused. A life sentence is possible.

Two factors are substantially aggravating:

• the use of violence by men against women;
• the production of a knife in the course of an argument.

See Director of Public Prosecutions -v- Mahon [2019] IESC 24.

Assault causing Serious Harm

Offences in the low range of seriousness attract a headline sentence of 2 to 4 years, before mitigating factors are taken into account.

Offences in the mid range of seriousness attract a sentence of between 4 and 7 and a half years.

Offences in the high range of seriousness attract a sentence of seven and a half to twelve and a half years.

There may be exceptional cases which warrant a higher sentence, including in wholly exceptional cases, life imprisonment.

Principal factors taken into account are:

• the severity or level of viciousness of the assault;
• the level of injury sustained, although it was recognised that there is not always a direct link between the severity of the attack and the degree of injury caused;
• the level of culpability or blame attaching to the accused – an entirely unprovoked attack is treated more seriously than one arising from an incident which may not have been instigated by the accused. Provocation may be taken into account;
• the general circumstances of the assault will be considered, including whether or not it was carried out as part of wider criminality, and whether or not a weapon was used.

See People (D.P.P.) v Fitzgibbon [2014] IECCA 12.

Dangerous Driving causing Death/Serious Harm

Offences in the lower range of seriousness attract a headline sentence of up to 3 years 4 months (40 months), before mitigating factors are taken into account.

Offences in the mid range of seriousness attract a sentence of between 3 years 4 months and 6 years 8 months (80 months).

Offences in the high range of seriousness attract a sentence of between 6 years 8 months and 10 years (120 months).

• Where the aggravating factors of driving while significantly intoxicated and causing either death or serious life changing injuries are present, the headline sentence should be 6 or more years.
• Other aggravating factors include previous relevant convictions, leaving the scene, driving while disqualified, driving whilst uninsured and speeding.

See People (D.P.P.) v Flynn [2020] IECA 294.

Possession of a Firearm in suspicious circumstances

According to legislation, there is a presumption that a minimum sentence of 5 years will be imposed, up to a maximum statutory figure of 14 years.

Offences in the low range of seriousness ought to attract a headline sentence of 5 to 7 years, before mitigating factors are taken into account.

Offences in the mid range of seriousness attract a sentence of 7 to 10 years.

Offences in the high range of seriousness attract a sentence of 10 to 14 years.

The principal factors that are normally required to be taken into account are:

• the nature and quantity of the firearm(s) concerned;
• the extent to which it had been produced or displayed in a way that would give rise to concern it would be used;
• the extent to which possession was linked with general or specific criminal conduct, together with any circumstances concerning the culpability of the accused.

See People (D.P.P.) v Ryan [2014] IECCA 11.

Robbery

Offences in the low range of seriousness attract a headline sentence of 0-5 years. Cases at the lower end of the scale will involve the threat of violence but where force is not used; where the property taken was not of great value; and there was no severe or lasting impact on the victim.

Offences in the mid range of seriousness attract a sentence of 6-10 years.

Offences in the high range of seriousness attract a sentence of 11-15 years. Offences in the high range of seriousness involve the actual or planned taking of a very significant amount of money or valuables. However, the value of the property stolen is not the only factor that places the robbery in the top range. The infliction of serious or life-threatening injuries; the targeting of an elderly or vulnerable victim; confrontation with Gardaí arriving at the scene; or being instrumental in the loss of life are factors that may bring the offence into the highest category of seriousness.

Aggravating factors which will bring the offence into the mid or high range of seriousness are:

• use of a knife or other weapon, especially where any significant level of harm is caused and regardless of the value of any property taken;
• carefully planned robberies, often involving a number of participants willing to use serious violence, will also be at the high end of the middle range;
• carrying out a series of robberies over a short period of time, involving the cumulative infliction of a good deal of injury or damage;
• carrying out robberies in shops or other premises where a number of people are traumatised.

See People (D.P.P.) v O’Sullivan [2020] IECA 331; People (D.P.P.) v Byrne [2018] IECA 120.

Burglary

Offences in the low range of seriousness attract a headline sentence of up to 4 years.

Offences in the mid range of seriousness attract a sentence of 4-9 years.

Offences in the high range of seriousness attract a sentence of 9-14 years. Aggravating factors are:

• planning the burglary;
• targeting of residential dwellings of persons known to be vulnerable;
• confrontation with an occupant (particularly if the confrontation is aggressive and/or violence is used);
• entry into a premises without ascertaining whether or not it is occupied (since the likelihood of confrontation thereby increases);
• taking an item such as a carving knife to use as a weapon;
• ransacking a dwelling;
• any injury caused to the victim (whether physical or psychological);
• taking items of significant monetary value (judged from the perspective of the victim) or of sentimental value;
• relevant previous convictions;
• committing multiple burglary offences.

See People (D.P.P.) v Casey & Casey [2018] IECA 121.

Cannabis Cultivation

Offences in the low range of seriousness attract a headline sentence of 0-5 years.

Offences in the mid range of seriousness attract a sentence of 5-10 years.

Offences in the high range of seriousness attract a sentence of 10-15 years.

The scale and sophistication of a grow house operation; the value of any actual drugs or mature/harvestable plants seized; and the potential value of any immature plants are relevant factors in assessing the gravity of the offence.

Persons who fund and arrange the setting up of the grow house operation and the sale and distribution of the produce, and who get to keep and enjoy the profits earned have a high level of culpability.

Persons who provide logistical and supervisory support for the grow house operation and who usually receive a substantial fee for their efforts, although not sharing in the ultimate profits are in the mid-range of culpability.

Persons who are the operatives or the gardeners of the grow house and who receive very little remuneration, if any, are in the low range of culpability.

See People (D.P.P.) v Samuilis [2018] IECA 316.

Tax & Welfare Fraud

Offences in the low range of seriousness attract a headline sentence of 0-40 months (0-3.3yrs).

Offences in the mid range of seriousness attract a sentence of 41-80 months (3.4-6.6yrs).

Offences in the high range of seriousness attract a sentence of 81-120 months (6.75-10yrs)

Seriously aggravating factors are if the motive for the crime was clearly criminal or where the offence has been carefully planned.

See People (D.P.P.) v Maguire [2018] IECA 310.

Rape

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Defilement

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Child Pornography

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