The Gazette 1993

GAZETTE

JUNE 1993

! various judges over a wide geographical

; area and between three different courts,

the variations of approach can often

I take on alarming dimensions.

| Newspapers, in city areas, never report

| sufficient of the facts of the case to

enable the public to make an informed

decision as to whether a sentence was

! right or wrong. Even taking the isolated

factors which are reported it is clear that

there is room for disquiet on sentencing.

There appears to be a lack of uniformity

in approach and factors which would

i appear to weigh heavily with one judge

; are of minimal relevance to others. The

approach of the common law has

s always been geared towards individual

: judicial discretion but it is now obvious

that it no longer suffices where the

victim and the accused have already

access to media reports which can in

some cases show a legitimate cause for

grievance on the tariff imposed in their

particular cases. In England and in New

Zealand it has long been the case that

appellate courts, considering as they do

both prosecution and defence appeals,

will lay down tariffs for various forms

of offence. In

Tieman

the Court of

Criminal Appeal expressly refused to

adopt such a policy in respect of sexual

offences.

As the Commission indicates, it is clear

that what is missing is a network of

fundamental principles underlying the

i exercise of judicial discretion which will

tend to direct the judge's mind, in any

particular case, towards those factors

which society considers of importance

and which, therefore, reduces to a

minimum any element of judicial

discretion. In the scrupulously

researched review of the approach in

other jurisdictions, universal criteria,

enshrined in legislation, are quoted and

examined. Thus factors relevant to

: sentencing may include the degree of

intention, premeditation or planning; the

level of participation in the offence;

whether a weapon was used; whether

the offence was systematically

committed for profit; the extent and

nature of harm to victims; whether the

offender was resourceful or unrepentant;

whether there was provocation or duress

falling short of a complete defence; the

effect on the victim and any jury

recommendation for mercy. Factors can

I also be listed as being irrelevant, such as

the prevalence of the offence, the

| defendant's choice not to give evidence

and his requirement that the State prove

their case against him (by pleading not

guilty). Apart from general sentencing

guidelines particular sentencing

guidelines can be applied in respect of

individual offences. Examples would

include the degree of intoxication in

drunk driving or the sexual experience

of a victim of a sexual offence.

Rejecting the idea of a mandatory

sentence, or minimum sentence, the

Commission instead recommends a

Í sentencing policy based on a "just

deserts" approach and highlighting the

matters to which the court must have

regard, and must disregard, in

sentencing an offender. Legislation

would set out those matters which might

aggravate or mitigate a sentence.

With the abolition of jurors in most

I personal injury cases in 1981

| practitioners felt that the Incorporated

Council for Law Reporting ought to

produce a book of quantum in respect of

i various injuries. This would require

research and the compilation of

statistics and accurate case notes over a

vast range of decided cases. At least, at

that point, access would be possible to

the information that practitioners need.

The Commission are clearly disquieted

by the inability of interested parties to

have access to both relevant sentencing

precedents and, more importantly,

information on the follow through

process with the offender, or a choice of

a range of suitable options, based on

statistical experience, for sentencing.

Thus they recommend an organised

judicial study on sentencing by a body

charged with the development and

supervision of judicial education and

I the compilation and publication of

j sentencing statistics and other

I information and material.

In a list of recommendations,

summarised over eight pages, the

| Commission's overall aim to replace the

inarticulate aims of society with clear

legislative guidelines, and to put in the

place of judicial discretion a guided

policy laid down democratically, is set

out. The Commission seeks further

views on five matters, including

whether judges should participate in

plea negotiations to the extent of

indicating, in advance, the sentence they

intend to impose.

! With a report of this complexity, the

recommendations as wide-ranging and

requiring so much work from our

elected representatives, it may well be

that the attractiveness of their reasoning

will lead to no result. Meanwhile the

rest of us will fail if we do not, at least,

push the politicians' noses to the

grindstone.

Peter Charleton

The Irish Student Law Review

Vol. 3 (1993)

Dublin, The Law Students' Debating

Society of Ireland, 1993, 195pp,

IR£10.00.

Morton J. Horowitz

, an American

; educator, has noted that the law is an

odd profession that presents its greatest

scholarship in student-run publications.

[Newsweek,

September 15, 1975.] Not

I only is

The Irish Student Law Review

student-run publication, but the

contributions are written by students.

Some contributors are undergraduate

students; others are pursuing

; postgraduate studies.

Eoin O'Dell,

now a lecturer in law in

I Trinity College, Dublin, is this year's

editor. The assistant editors are

Cliona

Kimber

who has contributed an article

entitled "Enforcing the Peace:

Multinational Forces in the UN", and

Jim O 'Callaghan.

The editorial team

also consists of two previous editors,

Oisin Quinn,

the editor of volume 1

(1991) and

Anthony Whelan,

last year's

| editor, a lecturer in law in Trinity

College, Dublin, and the editor of

Law

and Liberty in Ireland

(Dublin, 1993),

an imposing collection of papers

published to celebrate the 400th

anniversary of the founding of Trinity

College, Dublin. The composition of the

collective editorial board brings the

words of the anonymous commentator

to mind: "Even as there are laws of

poetry, so there is poetry in the law."

Equally appropriate is the voice of

Oliver Wendell Holmes that "law is the

calling of thinkers." ["The Profession of

the Law,"

Speeches,

1934.]

| Among the articles that will appeal to

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