Abigail Rieley

Writer and Author

Back to the Subject of Sentencing

The subject of sentencing seems to be in the air this week.  I was reading an interesting post from Hazel Larkin this morning within minutes of  reading two letters (here and here) in today’s Irish Independent and it got me thinking.

It’s very easy to get upset about some of the sentences handed down in Irish courts.  When you see rapists routinely sentenced to ten years or less, as in the particularly brutal case from Clare that was sentenced yesterday, it can be hard to see how the punishment fits the crime.  But blaming the judges, as the letters to the Indo did today isn’t the answer.  It’s a far more complicated situation than that and the judges are the least of the problem.

I’ve been covering the courts for more than four years, I’ve written on sentencing here on several occasions but it’s a subject that is just going to run and run.  It can be very hard to fathom how a rapist, whose crime is deemed serious enough for the highest criminal court, the Central, is frequently handed a lower sentence than someone convicted of a drugs crime in the lower Circuit Courts.  This isn’t because Central Criminal Court judges are softer than their Circuit Court counterparts, it’s the way the law is constructed.

There exists in Irish law a presumption of degrees.  For example, if someone is convicted of possession of drugs worth more than €13,000, with the presumption that he has them for sale or supply, he must serve a mandatory minimum sentence of 10 years.  This is all very well.  If you take the drugs of the streets you might end up saving lives – or they could end up with the dubious delights of the Head Shop and you as government are left with another hole to plug.

The minimum sentence is all very well in principal, if you assume that everyone caught with vast quantities of drugs is a nasty predatory drug dealer but those guys very seldom seem to end up in court.  What you see instead are the pawns, the hopeless drug addicts whose debt has climbed too high or the hapless third world dupes who see a better future for their families with the proceeds of acting as a drug mule.  I’ve seen plenty of people who were as much victims of the drugs as the end users but all were sentenced to a mandatory ten year turn.

Then you have the rape cases.  Cases as I’ve said which are tried in the highest criminal court, it’s put up there with murder.  Yet there is no minimum sentence for rape.  A grown man who forces himself on a woman or, in some cases, on a young child, can walk away after three or four years.  Even if that attack goes hand in hand with false imprisonment, violent assault or psychological manipulation and entrapment.  I’ve seen a lot of incest cases where the now adult victim has had to endure years of systematic abuse then relived it on the stand only to see their abuser sentenced for one or two years because he’s now an old man.

It doesn’t seem fair that drugs are deemed worse than sexual crimes. After all there aren’t that many people who take drugs who are forced to take them against their will, who are threatened and terrorised until they snort that cocaine or whatever.  I’m not belittling those ravaged by addiction just making the point that those who are raped are never in a situation where they asked for it and very often are never in a situation where they can walk away.  It’s not something that abstention will wipe away and it’s never, ever sought for a rush.  Fine, drugs wreck lives.  But rape destroys them.  If there’s a minimum of ten years for some drugs offences shouldn’t there be a minimum for sex offences?

I’ve sat through a lot of both kinds of trials and I’m well aware that there are differences in degree, just as there are different kinds of killings but I can’t help but agree with those who say that for Central Criminal Court crimes the minimum sentences do not match the crimes.  There are many reasons why the sentences for rape or manslaughter are the length they are.  Judges have a complex way of arriving at their sentences. There’s the range of imprisonment for the crime in hand, then the mitigating factors that must reduce that term, with the sole exception of murder which earns a mandatory life sentence.

If the judge, who has sat through the entire trial, feels that a stiffer sentence than usual is fitting he must still bear in mind the Court of Criminal Appeal which has frequently overturned the longer sentences. 

Each rape trial is different just as each murder trial and each manslaughter trial is different and it’s right that there is flexibility in sentencing but surely a violent rape should be classed the same as a murder if we’re going to be serious about prison being a deterrent.  There are of course other factors in play as well, including the obligatory one quarter off their sentence that the convicted receive as a matter of course.  It was an nice idea, a carrot rather than a stick to ensure good behaviour but when those being jailed are guilty of some of the most heinous crimes committed in the country surely there should be a mechanism to remove the carrot?

I remember the sentencing of Gerald Barry for rape last year.  Barry had been convicted of the murder of Swiss student Manuela Riedo in March last year but it was only a couple of months later in July when a few of us gathered in Galway to hear Mr Justice Paul Carney sentence him for two ground of rape.  Barry had raped a French student just weeks before he killed Manuela in a hauntingly similar attack.  Judge Carney handed down two life sentences.  He said then that he did not think the time off should come into force for men like Barry.  He’s a judge who’s frequently outspoken.  But the wheels of justice move exceedingly slowly and many of the things he’s spoken out about are still very much in force.

I can also remember a sentencing for a very nasty case of child abuse where the judge had wanted to hand down consecutive sentences, which given the multiple counts, would have added up to more than 100 years.  Sadly there are strict rules governing whether sentences should be consecutive or concurrent (that is whether they run one after the other or at the same time) which means that consecutive sentences are a rarity, no matter how vicious the crime.  It’s these same rules that mean that David Curran will effectively serve one life sentence even though he killed both Pawel Kalite and Marius Szwajkos.

There definitely needs to be reform of the sentencing for certain crimes in Irish courts.  But from what I’ve seen it’s rarely the judges who operate from the coalface who are most at fault, it’s the appeal judges who base their decisions on a transcript or the politicians who pass the laws.  There’s a reason why the crimes that tend to be highlighted on the voters doorsteps or those that make the headlines – gangs and drugs principally – are the ones that get the draconian measures.  It’s time that someone who wasn’t after votes looked at the law and made the changes that could make Irish law as fair as it has the potential to be.  This is by and large a great system, but it’s things like this that make people think it can’t be trusted.

2 Comments

  1. Just a quick one wondering why this isn’t in print !

  2. Really interesting post, Abigail. I think Mandatory Minimum sentences are insutling to our judiciary. We’ve invested a lot in training them and should be able to trust their ability to reach a fair sentence with drugs cases, as we do in most other areas of the law. The circumstances of a case matter consideration, otherwise why bother with a trial at all once guilt has been proved?

    But, mandatory minimums make governments appear tough on crime and no-one ever lost an election by seeming tough on crime. Those who have most vulnerable (the bottom-of-the-rung drug pushers, you mentioned)suffer disproportionately but, you’ll never be popular arguing for the rights of drug pushers.

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