Are people with fewer life opportunities more likely to get custodial sentences, asks Carol Coulter, Legal Affairs Correspondent
Stephen Nugent and Dermot Cooper were from comfortable middle-class homes. The assault to which they pleaded guilty earlier this week had echoes of the attack on Brian Murphy outside Annabel's disco more than a year earlier by a number of former Blackrock College students, with the crucial difference that he died from his injuries, while Barry Duggan, though seriously injured, eventually made a reasonably good recovery.
Nugent and Cooper were charged with assault causing serious harm, which carries a sentence of up to life imprisonment. The two accused pleaded not guilty, but changed their plea to the lesser charge of assault causing harm after five days. This carries a maximum sentence of five years.
The Court of Criminal Appeal has ruled that mitigating factors in sentencing include the lack of previous convictions and a guilty plea. The guilty plea came very late in the case, but still had to be taken into account. The pair had no previous convictions. It is unlikely, therefore, that they would have received a higher sentence than three years. What caused comment, however, was the suspension of two years and nine months of this sentence, meaning they will serve only two months in prison for an assault that could have killed the victim.
A survey of a selection of cases involving assault over the past year reveals that it is not unusual for some of the sentence to be suspended.
In November last year a trainee garda had all of a 12-month sentence suspended when convicted of assaulting a man outside a nightclub, resulting in the victim requiring medical and dental treatment costing €10,000. A condition of the suspension of the sentence was the payment of €10,000 to the victim.
A martial arts expert who pleaded guilty to assault causing serious harm was sentenced to seven years in prison last January, of which five years were suspended. The victim had permanent brain damage as a result of the assault. The perpetrator had previous convictions for serious assault and arson.
Three Ballymun men were sentenced to two years in prison for attacking a garda on duty, causing him harm, in April last. However, two of them had one year of that suspended, and the third, who suffered from ill health, was ordered to carry out 240 hours of community service instead.
In another controversial case, which parallels this week's, two Kilkenny county hurlers who beat a man unconscious, fracturing his skull, were sentenced to two years in prison, but all of it was suspended on the basis of their entering a bond to keep the peace for four years. They also paid the victim €10,000. The Director of Public Prosecutions (DPP) may be appealing the leniency of this sentence.
In a number of other cases none of the sentence was suspended. For example, two Tallaght women who assaulted a female garda, pulling out clumps of her hair, had to serve six and nine months in prison respectively. A young Galway man who attacked a group of youths with a baseball bat, resulting in one of them requiring 14 stitches to the head, was also sentenced to nine months, none of which was suspended. None of these people had previous convictions, and all of them served much longer sentences than the hurlers or Nugent and Cooper, though their victims suffered less serious injuries.
If a pattern can be discerned - and this is difficult, as different judges and different decisions are involved, and there are inconsistencies - it is that judges are reluctant to impose lengthy custodial sentences where it is felt that the very fact of conviction already imposes a punishment through stigma, loss of employment or loss of the opportunity to emigrate.
This inevitably impacts disproportionately on those who already have fewer life chances, as judges may feel, perhaps unconsciously, that they have less to lose from a custodial sentence if they are unemployed, unlikely to want to emigrate or visit the US, or if they are from communities where violence is common.
The DPP can appeal against leniency of sentence, and quite often does. The report form that the State solicitor and barrister must fill in at the end of every case includes a question asking whether any issues of undue leniency in sentencing arise. If the lawyers consider issues do arise, this is pursued.
A number of such appeals have gone to the Court of Criminal Appeal, giving this court (containing Supreme and High Court judges) an opportunity to spell out certain principles that should apply in sentencing. This provides some guidance to judges, but not enough.
Generally, they are on their own when it comes to sentencing. There is no systematic training, there are no guidelines detailing the factors that should be taken into account when sentencing, and there is no data-bank of sentences into which they could tap to know what their colleagues are doing.
When there is a public outcry this usually includes a clamour for mandatory sentences for various crimes. However, mandatory sentences, which remove discretion from judges, are not seen by informed observers as the answer to the problem of inconsistency, or the appearance of inconsistency.
Ultimately each case must be decided on its own circumstances. Some people will always be unhappy about certain outcomes. But they could end up much less happy if judicial discretion were to be removed, and replaced by a "one size fits all" sentencing policy.