THE mandatory life sentence for murder and treason should be abolished, according to a Law Reform Commission report on sentencing, published today.
Minimum sentences for indictable offences should also be abolished, which could include the 40 year sentence for murder of a garda. However, capital murder is to be addressed in a forthcoming consultation paper on homicide.
The legislature should undertake a comprehensive review of the law in relation to sentencing, while imprisonment should be regarded as a "sanction of last resort", the report says.
The commission's report reverses its original recommendation that sentencing policy be drawn up by politicians. In recommending abolition of mandatory and minimum sentences of imprisonment for indict able offences, it acknowledges what Lord Hailsham described as "the hairy heel of populism" influencing its retention in Britain.
The report supports judicial discretion, and leans towards training of the judiciary, but it has drawn up a detailed set of non statutory guidelines on severity of sentences. Though they would not be binding, a judge's failure to follow the guidelines could give grounds for appeal.
The report rules out severity of sentences being equated with deterrence of crime and says the Supreme Court should clarify whether a guilty plea should always result in a reduced sentence.
It raises questions about mandatory endorsement of a licence for careless driving, and automatic disqualification for drinking, and says it would not recommend abolition of mandatory penalties for revenue offences without a thorough review.
It also recommends prohibition on suspension of sentences which are longer than three years and statutory provision for suspended sentences.
The report follows the commission's consultation paper on the issue, published in March 1993, which concluded that a coherent policy was needed in statutory form. Following further consultation through written submissions and a seminar, the commission says its members' minds have "changed individually or collectively on certain matters", and it does not now support introduction of a statutory scheme of sentencing.
The reasoning behind the abolition of the life sentence for murder is that there is no such mandatory sentencing for manslaughter. Also, if a person found guilty of murder is given what is considered to be a light sentence, there is now an avenue for appeal by the Director of Public Prosecutions, under Section 2.1 of the 1993 Criminal Justice Act.
The report says particular attention should be paid to provision of express guidelines on commutation and remission of sentences, and temporary release, when the legislature undertakes a detailed review of law and procedure. This review should aim to improve coordination of penal and sentencing policy.
Non statutory guidelines should be introduced with a view to ensuring:
. the severity of the sentence imposed should be measured in proportion to the seriousness of the offending behaviour.
. this seriousness, in turn, should be measured by the harm caused, or risked, in committing the offence, and the culpability of the offender.
The report has drawn up a list of 12 aggravating and 11 mitigating factors which would influence sentencing, and also narrows down the areas in which previous offences should be taken into account. These guidelines should be reviewed regularly in consultation with the judiciary, it says. Courts should not impose reviewable sentences, the report adds.
It also recommends the creation of a centrally located criminal justice database for the compilation and dissemination of statistics relating to sentencing.
Its other recommendations include:
. ruling out mandatory or minimum sentences for summary offences.
. initiating a review of the set of maximum penalties to reflect modern perspectives on the seriousness of the offence, including the view that custodial sentences should be regarded as "sanctions of a last resort".
. abolition of penal servitude with hard labour, to be replaced by imprisonment.
. implementing the proposals in its earlier report on indexation of fines.
. empowering the prosecution to seek review of District Court sentences.
. passing community service orders where possible.
. targeting the Probation Service for additional resources in the sentencing area.
