Consecutive Sentencing

intospace

Can someone clarify in what circumstances a Court is compelled to impose a consecutive sentence, with reference to s.11 cja 1984, as amended by s. 22 cja 2007?

For example: While an accused is on bail for burglary, he/she commits theft and is charged.

He is later sentenced on indictment for the burglary, receiving a 3 year sentence, effective immediately.

At a later date, he is summarily convicted & sentenced to six months imprisonment for theft.

1. Must this sentence commence on the lawful expiration of the first mentioned sentence? It would appear that s. 11 cja does not allow discretion?

2. Can a District Court impose a sentence to run consecutively to an existing Circuit Court/ SCC sentence, and vice versa?

3. I assume remission is now not applicable to the burglary sentence, if the consecutive sentence is due to follow. However, would 50% retrospective remission now apply to the latter sentence?

Many Thanks.

Tom Young

This has been dealt with on the LD before. The search terms might be concurrent and a principle called the totality principle.

Tom

Pages 52 and 53 - Link:http://www.lawreform.ie/_fileupload/consultation%20papers/cpSentencing.htm

Concurrent and Consecutive Sentences

1.151

The question of whether custodial sentences should be ordered to run concurrently or consecutively can arise in a number of situations. The offender may have been convicted on a number of counts in the same indictment or at the same sittings; he may already be serving a sentence; or there may be a prior suspended sentence or conditional discharge which may have to be considered for activation. The general rule for imposition of concurrent sentences is that all sentences in respect of two or more offences committed in the course of a single transaction should be concurrent rather than consecutive. For example, in The State (Brien) v Kelly, where the accused pleaded guilty to five counts of rape, buggery, unlawful carnal knowledge, indecent assault and assault occasioning actual bodily harm, all of which related to the same person, place and occasion, the Supreme Court upheld the concurrent sentences of three years detention in respect of counts 1 and 2 and two years detention in respect of count 3 which were imposed by the Circuit Court. However, difficulty may often arise in establishing a sufficiently precise definition of whether or not the charges relate to a single transaction, and there appears to be no rule of law or practice which identifies the limits of the single transaction concept.

1.152

When the offences arise out of the same transaction the sentencer should pronounce sentence individually for each offence and not merely take them all into consideration in determining the sentence for one. In The People (AG) v Higgins, the accused was charged on a number of counts arising out of the same incident but varying in seriousness. The trial judge imposed sentence on him in respect of one count, taking the others into consideration. In delivering the opinion of the Supreme Court, Finlay CJ said obiter:

“Having regard to the possibility that always exists of a court of appeal setting aside on some technical or other ground the conviction an a particular count, but leaving undisturbed the convictions reached on other counts on the same indictment, even though they arise out of the same incident, this would appear to be an undesirable and unsatisfactory procedure. Appropriate sentence should, in my view, be imposed on all counts in respect of which an accused person is convicted by a jury.”

1.153

Where, however, the offences do not arise out of the same transaction the court has a discretion as to whether the sentences should be consecutive or concurrent. Where the offender is convicted of a subsequent offence whilst serving a sentence of imprisonment or penal servitude, he may be sentenced to a consecutive term of imprisonment or penal servitude to commence on the expiry of an existing term, even though the aggregate may exceed the maximum which may be imposed for either offence. A consecutive sentence is mandatory for offences committed while on bail.

1.154

On the issue of concurrent and consecutive sentences, the English Court of Appeal has developed a principle known as the Totality Principle. The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive or concurrent in accordance with the “single transaction” rule, to review the aggregate sentence and consider whether it is just and appropriate. In R v French, Lane LCJ gave the following guidance:

“We would emphasise that in the end, whether the sentences are made consecutive or concurrent, the sentencing judge should try to ensure that the totality of the sentences is correct in the light of all the circumstances of the case.”

1.155

In England, therefore, where the sentences are made consecutive, the final duty of the sentencer is “to make sure that the totality of the consecutive sentences is not excessive.” In the recent case of The People (DPP) v Healy, the Irish Court of Criminal Appeal appears to have approved of a similar approach being taken by Irish sentencers where consecutive sentences are concerned. The Court was considering the effect of section 11 of the Criminal Justice Act, 1984 which requires a consecutive sentence to be imposed for all offences committed while on bail. McCarthy J, for the Court, took the opportunity to indicate how section 11 should be approached:

“In the application of s 11 of the Criminal Justice Act, 1984, the sentencing court should determine the sentence appropriate to the offence or offences on the indictment to which the section applies, without regard to the fact that it must be a consecutive sentence under the provisions of s11, and direct that such a sentence shall be consecutive on any sentence for a previous offence. That is not to say that, in a proper case, the sentencing court, in the case of grave offences, should not adjust the sentence downwards where not to do so would impose a manifestly unjust punishment on the accused.”


Criminal Law (Ireland) Act, 1828, s20; See also Criminal Justice Act, 1951, s5, as amended, which governs consecutive sentences in the District Court.


Criminal Justice Act, 1984, s11; but the aggregate cannot exceed two years imprisonment or detention where sentence is passed by the District Court. See The People (DPP) v Michael Farrell 3 Frewen 257. However, such a mandatory consecutive sentence may be suspended in exceptional circumstances, per the Court of Criminal Appeal, The People (DPP) v Dennigan 3 Frewen 253. See generally O'Malley, Principles of Sentencing [1991] 2 ICLJ 138, pp161–168.


See Thomas, Principles of Sentencing, p56."