Sentencing: the case for guidance

Jail is not always an appropriate penalty and judges have been encouraged to treat it as a sanction of last resort. The fact that District Court sentences for burglary vary from place to place and may be influenced by crime rates, previous offences, urban/rural considerations or personal judicial attitudes, is hardly surprising. What is of concern, however, is the absence of sentencing guidelines that would encourage greater consistency.

Judicial independence is a key component of our democratic system. That independence is hedged with duties and responsibilities that are designed to protect the interests of those who come before the courts and the greater welfare of society. The separation of powers between the executive and the judiciary, over decades, has generated friction and a sense of entitlement that inhibited necessary reforms. Efforts by successive governments to agree the basis for a Judicial Council, with a disciplinary mechanism for judges, were opposed by significant elements within the profession.

Controversy surrounding the legislation has centred on the secrecy of disciplinary hearings and the disclosure of judges’ financial interests. But it also provides for sentencing information and judicial support committees, along with research functions.

A Judicial Council Bill that includes these elements finally reached the Seanad before Christmas. It reflects years of work by former chief justice Susan Denham, who advocated the establishment of a disciplinary code and sentencing guidelines and was critical of "inappropriate conduct" by some judges. One persistent problem is the continued use of court "poor boxes" for motoring offences by some judges as an alternative to the imposition of fines and penalty points.

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Such idiosyncratic behaviour on the bench may create an impression that defendants can buy their way out of trouble. In the same way, widely diverging sentences for burglary offences can generate public unease. Judicial independence is to be cherished, but it should be exercised wisely.