ANALYSIS:SENTENCING IS one of the most discussed and least understood aspects of the criminal justice system. Claims of leniency in sentencing are rife among both politicians and the public at large. The usual remedy proposed is either mandatory sentences for a range of offences or sentencing guidelines.
The problem with mandatory sentences is that they infringe the principle of judicial discretion, an aspect of judicial independence which is protected by the Constitution. What is the point of having judges at all if they are not allowed to make decisions based on the evidence they hear during the whole of a trial and all the circumstances of a case?
Sentencing guidelines are different, in that other common law jurisdictions have been able to develop sets of guidelines within which judges exercise their discretion, usually developed by the judges themselves. However, the absence of such guidelines here does not mean that judges operate without any guidance.
This comes in the form of principles laid down by judges in case law from the higher courts. These have been drawn together by barrister and legal academic Prof Tom O’Malley in his works on sentencing, referred to by Mr Justice Barry White yesterday.
Among the principles that must be taken into account in sentencing are: the nature of the crime; the personality and circumstances of the accused (for example, a person who had been himself victimised might expect to be treated more leniently than one who had every advantage); whether the accused pleaded guilty to the crime and, if so, at what stage; whether there were previous convictions; the character of the accused; and the likelihood of reoffending.
In addition, the practice has arisen in the Central Criminal Court, spearheaded by Mr Justice Carney, of seeking the views of counsel on the appropriate sentence when the accused has been convicted. The defence also has the right to make submissions on sentencing. These, too, are couched within the framework of existing case law.
Thus Brendan Grehan SC argued on Thursday last that Eamonn Lillis’s crime of manslaughter fell at the lower end of the scale, pointing to his previously unblemished character and calling on two character witnesses.
He also pointed to the extensive media attention his client had endured, which had included his daughter, as an additional burden he had to bear.
Counsel for the Director of Public Prosecutions Mary Ellen Ring SC argued that his crime had been towards the upper end of the scale of the crime of manslaughter (which can arise when a single blow causes the death of the victim, as well as be the result of a sustained attack with a weapon, but with some extenuating circumstance). She also drew attention to his attempted cover-up.
Drawing on judgments of the Court of Criminal Appeal, Mr Justice White paid particular attention to the role of aggravating factors in sentencing, specifically, in this case, Lillis’s lying to the emergency services, the Garda Síochána and the Cawley family, and attempting to implicate an innocent man in his crime.
He quoted appeal court jurisprudence which ruled that a person could not be sentenced for an offence with which he had been neither charged nor convicted, but account should be taken of the surrounding circumstances of the case.
“I consider it appropriate I should have regard to the cover-up and the lies told both in itself and its effects on the Cawley family,” he said. The totality of the offence would have justified a 10-year sentence.
However, after listing Lillis’s previously unblemished record and good character, the publicity attracted by the case and the likelihood that he would remain a focus of media attention after his release from prison, Mr Justice White imposed a sentence of seven years, reduced by the amount he had previously spent in custody.