Sentencing at criminal trials in Ireland

Introduction

Sentencing involves a judge deciding what the criminal justice system should do with a person found guilty of an offence. It is the judge’s function to pass a sentence that is lawful. If a court in Ireland has found you guilty, or you have pleaded guilty, the judge will decide the sentence that is to be imposed on you.

There are minimum and maximum sentences for some offences, and the judge must impose these. For example, for some road traffic offences, the judge must disqualify offenders from driving for a minimum of two years.

There are mandatory sentences for some offences. For example, if a court finds you guilty of murder, the judge is obliged to impose a sentence of life imprisonment.

Under the Probation of Offenders Act 1907, a judge in the District Court may decide not to convict you, even if the facts alleged against you have been proven. This is a form of second chance which the judge can apply at their discretion. The charge may be dismissed or you may be conditionally discharged.

Sentencing of children

The information given in this document relates to offences committed by adults. Children (people aged under 18) can be charged and penalised in the same way but there are other considerations which must be taken into account. The prosecution of children is governed by the Children Act 2001.

In practice, children under the age of 12 are almost never prosecuted. It is policy to avoid prosecuting children under the age of 18 unless the conditions for the Garda Diversion Programme have not been met or the offence is a particularly serious one. The Children Act 2001 provides for a range of alternative penalties for children who have offended.

The Criminal Justice Act 2006 sets the age in relation to criminal responsibility. Children under 12 cannot be charged with most criminal offences, but children who are 10 or 11 can be charged with the offences of murder, manslaughter, rape or aggravated sexual assault. You can read more about criminal responsibility in the document Children and the criminal justice system.

Sentencing

Under the Irish legal system it is always a judge (or a panel of judges in the case of the Special Criminal Court or the Court of Appeal) who imposes the sentence. In jury trials in the Circuit Criminal Court and the Central Criminal Court, the jury’s role is to decide whether you are guilty or not guilty. The jury has no role in sentencing you. This decision is left up to the judge after listening to your legal representative's (your solicitor’s or barrister's) submission.

How does a judge decide on a sentence?

The judge follows a two-step procedure when considering what sentence to impose on you, see below.

  1. They decide what the sentence should be given the seriousness of the offence.
  2. They then reduce that sentence taking into account any mitigating or excusing factors given on your behalf.

The range of sanctions that can be imposed on you depends on the offence. Some offences are punishable with a fine only which means neither imprisonment nor community service can be imposed.

There are a number of important factors that a judge must take into account when sentencing you. Your solicitor or barrister will urge the judge to consider these factors and what weight or importance they should be given.

When deciding which sentence to impose on you, the judge considers:

  • Whether or not you pleaded guilty to the offence
  • The facts of the offence - the circumstances in which the offence occurred
  • Whether there were any aggravating factors in relation to the offence - such as particularly violent or cruel behaviour
  • Your previous criminal record
  • Your character
  • Your age
  • Your family circumstances
  • Whether you are employed
  • Whether you are sorry for what you have done
  • Whether certain types of treatment may help or reform you
  • The impact of the offence on the victim
  • Any other relevant information about you (for example, if you are in bad health)

See "Factors to be considered by a judge in sentencing" for further information.

Types of sentences

There is a wide range of sentences available that judges can impose on someone found guilty of an offence. The options available to a judge vary and depend on the offence. These types of sentences can be classified as:

Custodial sentences

Non-custodial sentences

You can read more about sentencing in the document on types of sentences. Information on sentencing decisions is available on the Irish Sentencing Information System website.

Factors to be considered by a judge in sentencing

A sentencing judge must consider a number of important factors when sentencing you. Your solicitor or barrister will urge the judge to consider these factors on your behalf.

Facts about how the offence was committed

The judge will consider aggravating factors and mitigating factors. Aggravating factors are factors that limit the likelihood the sentence will be reduced and mitigating factors are factors that increase the likelihood the sentence will be reduced. Facts about how the offence was committed can be seen as either mitigating or aggravating factors, depending on the circumstances.

The circumstances in which the offence occurred might include:

  • Provocation (were you provoked into committing the offence?)
  • Duress or emotional stress (were you under emotional pressure?)
  • Mistake
  • Low value of goods stolen or damaged
  • Recovery of stolen property

Note: These circumstances are usually considered mitigating factors.

Factors which can have a negative effect (aggravating factors) can include:

  • Use of a firearm or other weapon
  • Use of violence
  • Invasion of someone’s home
  • Breach of trust
  • Being on bail for another offence at the time
  • High value of goods stolen or damaged
  • No stolen property recovered

Impact of the offence on the victim

The judge will ask that a victim impact report is prepared in most cases of a serious nature. In some cases a judge hears direct evidence from the victim through a victim impact statement (pdf). This has a bearing on the sentence.

The offenders reaction to committing the offence

You can expect a reduced sentence for pleading guilty. In many cases, a guilty plea will save the court time and can be seen as a sign of remorse or sorrow. In sex cases or cases involving violence, a guilty plea will spare the victim the trauma of having to relive the events in court.

While a guilty plea is a mitigating factor, you are still entitled to fight your case without it being seen as an aggravating factor. There is a constitutional right to be tried and nobody is penalised for exercising this constitutional right.

Early admission of guilt

The court sees an early admission of guilt to the Gardaí as a mitigating factor as it saves the Gardaí time and resources.

Co-operation with the Gardaí

Co-operation with the Gardaí also helps you in the sentencing process, especially if it helped the Gardaí in catching other offenders. For example, Section 27 of the Misuse of Drugs Act 1977 (as amended) provides that this is taken into account when deciding whether the minimum 10 year sentence for possession of drugs over a certain value is just and appropriate.

Personal circumstances of the offender

Your personal circumstances is one of the most important factors a judge considers before sentencing and they may request a probation report. In considering your personal circumstances the judge takes the following into account:

  • Drug addiction
  • Age
  • Disability or illness
  • Family circumstances
  • Other penalties as a result of conviction (for example, losing your job)
  • Character (evidence may be given of your previous good character)
  • Previous convictions
Page edited: 10 January 2019