Yep, another thread on this.

Procrastastudy

Before I start there is an after hours thread on this. If you want to express your indignation and outrage with no critical thought please (pretty please) go an do it there.

Recently enough there was a case where a man paid €70,000 in compensation after a sexual assault and much of his sentence was suspend. I personally agreed with the decision, given the surrounding facts. Although I could quite understand why the DPP appealed it.

No we've got a guy, with previous convictions and a rather glib manner if the quotes from the papers are to be believed, taking illegal drugs and sexually assaulting someone and a full suspension of the sentence. What am I missing here? This just seems to be taking it a step beyond? Was that perhaps the intention of the Judge in this case?

To re-iterate please keep it intelligent, its difficult enough for people to comment on this wort of thing without a load of chest thumping.

Predalien

It's an area of law in need of reform, for instance in the first case, the sexual assault involved digital penetration, in my opinion this should be classed as rape, (it is rape in other jurisdictions). I think it's an area where the judiciary is out of touch with regards sentencing, sexual assault is a particularly violent crime. Violent crime is one area I feel deserves custodial sentencing.

OP, can I ask why you feel the judge made the right call in the first case? Taking into account the compensation was not a mitigating factor.

Procrastastudy

Predalien wrote: »

OP, can I ask why you feel the judge made the right call in the first case? Taking into account the compensation was not a mitigating factor.

In all honesty I didn't realise it wasn't a mitigating factor. Although that said I think in application it was; had he not been in a position to pay that compensation would the sentence have still be, mostly, suspended? I don't think it would have been but could very well be wrong.

IMHO a major factor when imprisoning someone has to be; will they do it again? If the answer is no then the incapacitation and rehabilitation aspects become moot. You're left with punishment, retribution and deterrent. Punishment is served by 3 - 6 months in the joy and the associated impacts a criminal record brings to a persons life, retribution is served by compensation and arguably deterrent gets a bum deal.

Obviously a persons background does come into sentencing and I think we'd be naive to preclude that.

Predalien

It sets a dangerous precedent for compensation orders to be made in these cases, especially where the victim does not want or refuses offers of compensation. It also creates inequality in that those who can afford to pay may be dealt with more leniently.

Unfortunately courts are more likely to impose prison for those who show disrespect to the court, when in my opinion seriously violating a person's bodily integrity is a far more serious issue.

Predalien

Predalien wrote: »

It's an area of law in need of reform, for instance in the first case, the sexual assault involved digital penetration, in my opinion this should be classed as rape, (it is rape in other jurisdictions)

It's rape here too

Predalien

Deleted User wrote: »

It's rape here too

No it isn't

Predalien

Predalien wrote: »

No it isn't

Pretry sure It's rape under section 4 of the 1990 act. Perhaps I'm wrong

http://www.irishstatutebook.ie/1990/en/act/pub/0032/sec0004.html

Predalien

Deleted User wrote: »

Pretry sure It's rape under section 4 of the 1990 act. Perhaps I'm wrong

http://www.irishstatutebook.ie/1990/en/act/pub/0032/sec0004.html

That's with an object

chops018

Predalien wrote: »

It's an area of law in need of reform, for instance in the first case, the sexual assault involved digital penetration, in my opinion this should be classed as rape, (it is rape in other jurisdictions). I think it's an area where the judiciary is out of touch with regards sentencing, sexual assault is a particularly violent crime. Violent crime is one area I feel deserves custodial sentencing.

OP, can I ask why you feel the judge made the right call in the first case? Taking into account the compensation was not a mitigating factor.

Actually I always wondered why 'fingering' (excuse the term) is called 'digital' penetration - seems a bit confusing.

And no it doesn't come under s.4 rape as far as I know. What section does it come under actually if anyone knows off hand? I'm too lazy to go searching.

NoQuarter

chops018 wrote: »

Actually I always wondered why 'fingering' (excuse the term) is called 'digital' penetration - seems a bit confusing.

Fingers = digits.

chops018

NoQuarter wrote: »

Fingers = digits.

Yeah just looked it up:

http://en.wikipedia.org/wiki/Digit_(anatomy)

Guess you learn something new everyday.

krd

Predalien wrote: »

That's with an object

Okay....so if I stick my uninvited thumb in someones bottom, I'm fine. But if I say use banana, I'm in really trouble.

That must have been an interesting meeting where they came up with that distinction.

NoQuarter

chops018 wrote: »

Yeah just looked it up:

http://en.wikipedia.org/wiki/Digit_(anatomy)

Guess you learn something new everyday.

You must have missed that day of 2nd class :pac:

Procrastastudy

krd wrote: »

Okay....so if I stick my uninvited thumb in someones bottom, I'm fine. But if I say use banana, I'm in really trouble.

That must have been an interesting meeting where they came up with that distinction.

You would have commuted a sexual assault rather than a rape, hardly fine. Especially given the smelly thumb.

chops018

NoQuarter wrote: »

You must have missed that day of 2nd class :pac:

Haha indeed! It's always the basics that evade me :P

krd

Predalien wrote: »

It sets a dangerous precedent for compensation orders to be made in these cases, especially where the victim does not want or refuses offers of compensation.

A compensation settlement should only be done with the permission of the victim. Where are they modeling this idea from - it sounds like Sharia.

It also creates inequality in that those who can afford to pay may be dealt with more leniently.

We already have that kind of inequality. When Tim Allen was caught in Operation Amethyst - child porn. He was able get off by paying a fine of something like 50 grand. Whereas, the other sorry barstewards caught in the net - but from lower socio-economic groups, did not pass go, did not collect $200, but went straight to jail.

Unfortunately courts are more likely to impose prison for those who show disrespect to the court, when in my opinion seriously violating a person's bodily integrity is a far more serious issue.

They don't like their court being digitally penetrated.

There are actually really funny attitudes as regards sexual assaults that persist.

krd

Procrastastudy wrote: »

You would have commuted a sexual assault rather than a rape, hardly fine. Especially given the smelly thumb.

If I wore a latex glove.......would I still be fine, or would the glove be considered an object?

Procrastastudy

krd wrote: »

If I wore a latex glove.......would I still be fine, or would the glove be considered an object?

Interesting question.

I just thought of a someone with a latex allergy. Now I've got egg-shell arse rule in my head. Thanks krd!

NoQuarter

krd wrote: »

If I wore a latex glove.......would I still be fine, or would the glove be considered an object?

I'd go with you're fine. Fine in the "you're getting charged with sexual assault and can be imprisoned for up to 5 years" fine.

johnnyskeleton

Procrastastudy wrote: »

Before I start there is an after hours thread on this. If you want to express your indignation and outrage with no critical thought please (pretty please) go an do it there.

Recently enough there was a case where a man paid €70,000 in compensation after a sexual assault and much of his sentence was suspend. I personally agreed with the decision, given the surrounding facts. Although I could quite understand why the DPP appealed it.

No we've got a guy, with previous convictions and a rather glib manner if the quotes from the papers are to be believed, taking illegal drugs and sexually assaulting someone and a full suspension of the sentence. What am I missing here? This just seems to be taking it a step beyond? Was that perhaps the intention of the Judge in this case?

To re-iterate please keep it intelligent, its difficult enough for people to comment on this wort of thing without a load of chest thumping.

I would legalise drugs tomorrow, make theft/fraud convicts pay all the money back plus extra and free up our prisons for violent and sexual offenders.

It's not the judges' fault, it is the system, as exemplified by section 15A drugs which will usually result in some sort of imprisonment and even where it results in a long prison sentence the judges are still criticised for not imposing the full 10 year presumptive minimum or more.

Procrastastudy

On the Judge point I was chatting to someone at college today and she raised an interesting point I'm sure most of you are aware of but I'll say it for the sake of anyone that happens across this thread or for someone to correct me if I've picked this up wrong.

The judge in this case does a lot of sentencing, my understanding is its a different judge the sentences to the one that hears the case? Not surprising then there is the odd one that attracts attention and makes him look like he's lost the plot.

Also from the same conversation it seems that some of the things quoted in the newspapers were out of context and there was other mitigating factors re this guy's background. That said I'm very surprised the entire sentence was suspended. Perhaps a function of the Sexual Offenders Act registration requirements?

krd

johnnyskeleton wrote: »

I would legalise drugs tomorrow,

Drugs are illegal :eek:

Since when?

I thought I might notice that. But it seems everyone can get as much drugs as they want, whenever they want. So, are you absolutely sure they're illegal?

You have to be pulling my leg......you're joking, honestly.

wmpdd3

http://www.independent.ie/national-news/tesco-fraudster-who-splurged-on-holidays-is-jailed-3263846.html

When you consider this: same judge, clean record, paid all the money back, prison for 18 months.

Procrastastudy

wmpdd3 wrote: »

http://www.independent.ie/national-news/tesco-fraudster-who-splurged-on-holidays-is-jailed-3263846.html

When you consider this: same judge, clean record, paid all the money back, prison for 18 months.

Arguably someone with all the opportunities in the world, in a good job ripping them off could attract a longer sentence than someone, who was abused as a child, sexually assaults someone.

Ideally the sentence for the first would be a long enough stint in an open prison and the second one would be residential treatment but we simply don't have diverse enough facilities.

Please note I'm not stating the facts of either case just putting forward a what if.

krd

Procrastastudy wrote: »

Arguably someone with all the opportunities in the world, in a good job ripping them off could attract a longer sentence than someone, who was abused as a child, sexually assaults someone.

Ideally the sentence for the first would be a long enough stint in an open prison and the second one would be residential treatment but we simply don't have diverse enough facilities.

Please note I'm not stating the facts of either case just putting forward a what if.

I do not have the facts and figures in front of me. But, I believe, in most cases of sexual abuse within a family, the sentences are suspended and non-custodial.

Those sexual assaults tend to be serious - and prolonged.

In most cases they can't be reported on. The victim at the time of prosecution, needs to be an adult, and they need to waive their right to anonymity.

For sexual abuse, suspended sentences are very common.

Again I don't know......but I have a feeling, if anonymity is waived the sentencing tends to be more exemplary, then if it wasn't.

This stuff is very ugly.....It makes armed robbery, tiger raids, and burglary, look clean and decent.

ResearchWill

Procrastastudy wrote: »

On the Judge point I was chatting to someone at college today and she raised an interesting point I'm sure most of you are aware of but I'll say it for the sake of anyone that happens across this thread or for someone to correct me if I've picked this up wrong.

The judge in this case does a lot of sentencing, my understanding is its a different judge the sentences to the one that hears the case? Not surprising then there is the odd one that attracts attention and makes him look like he's lost the plot.

Also from the same conversation it seems that some of the things quoted in the newspapers were out of context and there was other mitigating factors re this guy's background. That said I'm very surprised the entire sentence was suspended. Perhaps a function of the Sexual Offenders Act registration requirements?

If a case goes to full trial, the trial judge also does the sentencing. In Dublin there is a judge that only does sentencing, but that is in cases of pleas of guilty. That court is on the ground floor of the CCJ, anyone can go in, anyone can sit there and listen to what happens. To any person who thinks this sentence was the wrong call, go to a sentencing court, watch a number of sentencing cases. Then ask yourself was it the right or wrong call based on all the facts.

In relation to compensation, the defence will offer same to the prosecution, who if they think its right say it to the victim. If the victim accepts the idea then it will be offered in open court. The judge will ask what is the victims attitude to the compensation and he will be told. There is no issue of a victim being forced to accept compensation, in fact an offer, made in open court which is rejected would work very badly for the accused.

I have sat through a number of sentences, acted in a few and in the vast majority of cases in my opinion the judge gets it spot on. When you take everything into account. A small article in a Newspaper is unlikely to convey the full facts of what happened in court.

A Primal Nut

ResearchWill wrote: »

In relation to compensation, the defence will offer same to the prosecution, who if they think its right say it to the victim. If the victim accepts the idea then it will be offered in open court. The judge will ask what is the victims attitude to the compensation and he will be told. There is no issue of a victim being forced to accept compensation, in fact an offer, made in open court which is rejected would work very badly for the accused.

This is contradicted by what happened in the Anthony Lyons case, for example:

It (the Rape Crisis Network) said the victim did not ask for compensation, she asked for justice and was not consulted as to the compensation.

http://www.rte.ie/news/2012/0730/lyons-jailed-for-six-months-for-sexual-assault.html

The victim's family said she didn't want the payout, but the judge still made that the sentence. So in that case it didn't work out badly for the accused at all. It's the exact opposite of what you just said should happen (where the judge consults the victim on the compensation offer)

I have sat through a number of sentences, acted in a few and in the vast majority of cases in my opinion the judge gets it spot on. When you take everything into account. A small article in a Newspaper is unlikely to convey the full facts of what happened in court.

Personally I think it's a dangerous precedent for a rich person to be able to buy his way out of a custodial sentence, regardless of any mitigating circumstances. It's as far from justice as could be.

ResearchWill

A Primal Nut wrote: »

This is contradicted by what happened in the Anthony Lyons case, for example:



http://www.rte.ie/news/2012/0730/lyons-jailed-for-six-months-for-sexual-assault.html

The victim's family said she didn't want the payout, but the judge still made that the sentence. So in that case it didn't work out badly for the accused at all. It's the exact opposite of what you just said should happen (where the judge consults the victim on the compensation offer)



Personally I think it's a dangerous precedent for a rich person to be able to buy his way out of a custodial sentence, regardless of any mitigating circumstances. It's as far from justice as could be.

And the Lyons decision is being appealed, the order to pay compensation against the wishes of the victim is wrong, I may be wrong this is the only example of same I am open to correction.

http://www.irishtimes.com/newspaper/frontpage/2012/0815/1224322199402.html

johnnyskeleton

ResearchWill wrote: »

And the Lyons decision is being appealed, the order to pay compensation against the wishes of the victim is wrong, I may be wrong this is the only example of same I am open to correction.

http://www.irishtimes.com/newspaper/frontpage/2012/0815/1224322199402.html

There is provision for the imposition of a compensation order:

http://www.irishstatutebook.ie/1993/en/act/pub/0006/sec0006.html#sec6

It can be imposed in addition to a prison sentence or fine and it is not dependent on the consent or agreement of the injured party. If they do not wish to accept it, they can simply donate it to charity.

In the cited case, I assume that what is being appealed is the lack of an immediate custodial sentence in conjunction with the compensation order.

ResearchWill

johnnyskeleton wrote: »

There is provision for the imposition of a compensation order:

http://www.irishstatutebook.ie/1993/en/act/pub/0006/sec0006.html#sec6

It can be imposed in addition to a prison sentence or fine and it is not dependent on the consent or agreement of the injured party. If they do not wish to accept it, they can simply donate it to charity.

In the cited case, I assume that what is being appealed is the lack of an immediate custodial sentence in conjunction with the compensation order.

While you are correct legally, I still believe that an order to pay compensation against the wishes of the victim, is to be clear and in my opinionmorally wrong. In my opinion to use section 6 to award compensation not sought and then give a low sentence is wrong, I am talking in relation to sexual offences.

From a 2008 CCA case while the case was concerned with a assault it did touch on sexual assault or rape,

"That leaves the final matter concerning the question of compensation. The argument which is made in relation to the question of compensation is that the learned sentencing judge gave undue weight to the fact that a substantial amount of money was being offered by way of compensation. There is no doubt but that the learned sentencing judge was impressed and it might be said very impressed by the fact that a substantial offer of compensation was being tendered and also that that compensation was not just substantial of itself but was substantial having regard to the extent of the income of the accused which it represented. It does not follow from the fact that he was impressed by the amount and impressed by what he represented that he had undue regard for it. In one of the cases presented to the court in the bundle of case law which was handed in very recently perhaps even this afternoon is DPP v McLoughlin [2005] 3 IR 19  that is a decision of the Court of Criminal Appeal. The judgment is a judgment of Kearns, J. It concerned a different type of case which was a rape case in which compensation had been offered to the victim and the court held that the offering of that to the victim was not of itself a special circumstance but it did find that the fact that compensation was offered and accepted "was a factor which the court must take into account when sentencing". While the judge was perhaps very impressed by it and may have given it very considerable weight he was obliged to give it some weight and the court is satisfied that although he did give it considerable weight he did not give it such weight as would set aside or lead to a conclusion that the exercise of the discretion he has was in any way perverse or unjustified or in any other manner exercised so as to set aside the decision on sentencing which was made."

I'm the above case a serious assault led to conviction and the POA, the reasons are set out fully in the judgement, it's an example of how a very low sentence can fairly be given.

It seems to me in the Lyons case that there is a perception that the compensation ordered by the court became part of the punishment, that goes contrary to the jurispredence of the CCJ, which says the compensation offered and accepted is a factor that must be taken into account.

johnnyskeleton

Well I don't agree with:

ResearchWill wrote: »

While you are correct legally, I still believe that an order to pay compensation against the wishes of the victim, is to be clear and in my opinionmorally wrong.

Sometimes the victim of crime will instinctively refuse compensation and then regret it a few months later. Sometimes they will want to publically reject it but privately take it. Also, sometimes they will feel it is an inadequate sum and don't want their acceptance to be seen as accepting its adequacy. Sometimes it is prudent for the order to be made and if after due consideration the victim can then decide what to do. They can always give it to the rape crisis centre who badly need the funds, and it does have a punitive effect on the offendern.

However, I do, agree with the below:

ResearchWill wrote: »

In my opinion to use section 6 to award compensation not sought and then give a low sentence is wrong, I am talking in relation to sexual offences.

Which is why the point being appealled may not be the actual compensation order but the lack of an immediate custodial sentence.

ResearchWill

johnnyskeleton wrote: »

Well I don't agree with:



Sometimes the victim of crime will instinctively refuse compensation and then regret it a few months later. Sometimes they will want to publically reject it but privately take it. Also, sometimes they will feel it is an inadequate sum and don't want their acceptance to be seen as accepting its adequacy. Sometimes it is prudent for the order to be made and if after due consideration the victim can then decide what to do. They can always give it to the rape crisis centre who badly need the funds, and it does have a punitive effect on the offendern.

However, I do, agree with the below:



Which is why the point being appealled may not be the actual compensation order but the lack of an immediate custodial sentence.

I may agree with compensation being ordered by the Court without consent of the Victim, as long as the Defendant is not perceived to get any benifit. The idea according to CCJ is that compensation offered early with a plea (some times after a trial) is a show of sorrow for his actions, the compensation should be offered with no expectation of lower sentence. WHat I see the 1993 Act as doing is to allow the Court to excerise its Civil jurisdiction and make an award for damages, but if it is done there should be no conection with sentence.

johnnyskeleton

ResearchWill wrote: »

I may agree with compensation being ordered by the Court without consent of the Victim, as long as the Defendant is not perceived to get any benifit. The idea according to CCJ is that compensation offered early with a plea (some times after a trial) is a show of sorrow for his actions, the compensation should be offered with no expectation of lower sentence. WHat I see the 1993 Act as doing is to allow the Court to excerise its Civil jurisdiction and make an award for damages, but if it is done there should be no conection with sentence.

It's more a one stop shop for restorative justice, but yours isn't a bad analogy.

There are also similar provisions in the theft and fraud offences act:

http://www.irishstatutebook.ie/2001/en/act/pub/0050/sec0056.html#sec56

However, I wouldn't see them as entirely separate to the issue of sentence because and accused's attitude towards making reparations is important. They could force someone to bring civil proceedings, then enforcement proceedings, then claim poverty, as is their right, but fronting up with the money certainly shows a willingness to make amends.

ResearchWill

johnnyskeleton wrote: »

It's more a one stop shop for restorative justice, but yours isn't a bad analogy.

There are also similar provisions in the theft and fraud offences act:

http://www.irishstatutebook.ie/2001/en/act/pub/0050/sec0056.html#sec56

However, I wouldn't see them as entirely separate to the issue of sentence because and accused's attitude towards making reparations is important. They could force someone to bring civil proceedings, then enforcement proceedings, then claim poverty, as is their right, but fronting up with the money certainly shows a willingness to make amends.

I think we agree, I for one think a guy who does wrong, admits it offers wholesome apollogy and compensation in line with civil compensation should get some benifit for that. On the other hand a guy who denies all, runs trial, and then money is only mentioned by the Court as compensation, should receive no benifit for such compensation, it may be ordered to be paid but he should not get so much as a day less than if it was never paid.

johnnyskeleton

ResearchWill wrote: »

I think we agree, I for one think a guy who does wrong, admits it offers wholesome apollogy and compensation in line with civil compensation should get some benifit for that. On the other hand a guy who denies all, runs trial, and then money is only mentioned by the Court as compensation, should receive no benifit for such compensation, it may be ordered to be paid but he should not get so much as a day less than if it was never paid.

Well depending on how the trial was run. A complete denial followed by compensation is not indicative of remorse, but a trial fought on a narrow or technical issue can be consistent with remorse. I suppose to properly assess what effect compensation will have in reducing a sentence, it is not so much the restorative or compensatory value of the payment over, but the affect that it will have on the person offering it. A millionaire offering 50k is not the same as someone selling their only asset to pay.

I'd also like to take a moment to say that this discussion is purely academic and is not linked to the case mentioned above.

ResearchWill

johnnyskeleton wrote: »

Well depending on how the trial was run. A complete denial followed by compensation is not indicative of remorse, but a trial fought on a narrow or technical issue can be consistent with remorse. I suppose to properly assess what effect compensation will have in reducing a sentence, it is not so much the restorative or compensatory value of the payment over, but the affect that it will have on the person offering it. A millionaire offering 50k is not the same as someone selling their only asset to pay.

I'd also like to take a moment to say that this discussion is purely academic and is not linked to the case mentioned above.

I agree in relation to ability to pay, the excerpt I put up from the CCA deals with that issue, at an earlier part of the judgment, it's an example of a very good sentence.

From that judgement

"There is no doubt but that the learned sentencing judge was impressed and it might be said very impressed by the fact that a substantial offer of compensation was being tendered and also that that compensation was not just substantial of itself but was substantial having regard to the extent of the income of the accused which it represented."

krd

johnnyskeleton wrote: »

Well depending on how the trial was run. A complete denial followed by compensation is not indicative of remorse, but a trial fought on a narrow or technical issue can be consistent with remorse. I suppose to properly assess what effect compensation will have in reducing a sentence,

it is not so much the restorative or compensatory value of the payment over, but the affect that it will have on the person offering it. A millionaire offering 50k is not the same as someone selling their only asset to pay.

I'd also like to take a moment to say that this discussion is purely academic and is not linked to the case mentioned above.

I'm not sure about the whole remorse thing. You can be as remorseful for being caught, as having remorse for what you've done.

The compensation can be significant. I know of someone quite wealthy, and the compensation award, to his daughter, was 50% of all his assets. (he'd been sexually abusing her over a long period). He owned(still owns) two very large farms, and several other businesses. A conservative estimate, would be several million. ............He still got a 6 year sentence. And served about 3. (And while he was in jail, the employees of his hotel/nigthclub - had a very lucrative run )