Length of sentences????

racso1975 · 17-03-2015 8:44am #1

http://www.rte.ie/news/2015/0316/687601-roscommon-abuse/

So above is the case of a man who abuses his daughter and gets 6 months............thats shocking!!!!!

I wil add that I have no legal background or experience of the law what so ever but I find the lack of consistency in relation to sentences truly awful and particularly in cases of sexual abuse or rape.

Is there any particular thoughts on this that might be give me better clarity on the matter.

NoQuarter · 17-03-2015 9:36am

Seems potentially light but there were some mitigating factors listed in the article. Anyway, you can never judge on what the reporters write, to pass comment on a sentence you really would have had to sit through the whole case and hear all the evidence. You can't just judge on a headline.

Little CuChulainn · 17-03-2015 10:40am

NoQuarter wrote: »

Seems potentially light but there were some mitigating factors listed in the article. Anyway, you can never judge on what the reporters write, to pass comment on a sentence you really would have had to sit through the whole case and hear all the evidence. You can't just judge on a headline.

Mitigating factors for sexually abusing a five year old? Sorry but that's horse manure. Even if you could fashion some convincing ones, 6 months is outrageous. Time and time again judges are showing that they are completely disconnected from reality and unable to properly pass sentence, especially when it comes to sex crimes. I think it's time to have a serious look at how they are appointed and managed. Perhaps start introducing mandatory minimums for serious crimes.

Pro Hoc Vice · 17-03-2015 10:46am

Little CuChulainn wrote: »

Mitigating factors for sexually abusing a five year old? Sorry but that's horse manure. Even if you could fashion some convincing ones, 6 months is outrageous. Time and time again judges are showing that they are completely disconnected from reality and unable to properly pass sentence, especially when it comes to sex crimes. I think it's time to have a serious look at how they are appointed and managed. Perhaps start introducing mandatory minimums for serious crimes.

You saw I assume that the mother previously got 14 years as did a neighbour. You also noted the rest of the comments. So we know the courts gave the mother 14 years and for very specific reasons gave the father 2 years.

But important bits

"Today, Judge Martin Nolan sentenced the man to two years in prison but suspended all bar six months of that having taken into account the man's plea of guilty, remorse and the fact that he has a severe medical condition."

"Judge Nolan told Caroline Biggs SC, prosecuting, that he didn't think there was a necessity for post release supervision as the man doesn't represent "an on-going threat to society"."

"Defence counsel Paul Greene SC said his client had nothing to do with the more serious abuse orchestrated by the girl's mother.

Counsel said his client was in fear of the mother and "was in a family environment that had become chaotic and dysfunctional.""

Now I ask a question did you sit through the sentence and get the full facts?

Little CuChulainn · 17-03-2015 10:53am

Pro Hoc Vice wrote: »

You saw I assume that the mother previously got 14 years as did a neighbour. You also noted the rest of the comments. So we know the courts gave the mother 14 years and for very specific reasons gave the father 2 years.

But important bits

"Today, Judge Martin Nolan sentenced the man to two years in prison but suspended all bar six months of that having taken into account the man's plea of guilty, remorse and the fact that he has a severe medical condition."

"Judge Nolan told Caroline Biggs SC, prosecuting, that he didn't think there was a necessity for post release supervision as the man doesn't represent "an on-going threat to society"."

"Defence counsel Paul Greene SC said his client had nothing to do with the more serious abuse orchestrated by the girl's mother.

Counsel said his client was in fear of the mother and "was in a family environment that had become chaotic and dysfunctional.""

Now I ask a question did you sit through the sentence and get the full facts?

I did not. Did you?

Even if there is some magical medical condition that exonerates you from responsibility in child molestation, how then can you not be a threat to the community in the future? And even if he was terrified of the mother, it still should not mitigate his actions in this kind of case. There are certain crimes where mitigation should have very little impact. Sexual assault on a child is one of them.

racso1975 · 17-03-2015 11:04am

Pro Hoc Vice wrote: »

You saw I assume that the mother previously got 14 years as did a neighbour. You also noted the rest of the comments. So we know the courts gave the mother 14 years and for very specific reasons gave the father 2 years.

But important bits

"Today, Judge Martin Nolan sentenced the man to two years in prison but suspended all bar six months of that having taken into account the man's plea of guilty, remorse and the fact that he has a severe medical condition."

"Judge Nolan told Caroline Biggs SC, prosecuting, that he didn't think there was a necessity for post release supervision as the man doesn't represent "an on-going threat to society"."

"Defence counsel Paul Greene SC said his client had nothing to do with the more serious abuse orchestrated by the girl's mother.

Counsel said his client was in fear of the mother and "was in a family environment that had become chaotic and dysfunctional.""

Now I ask a question did you sit through the sentence and get the full facts?

The reasons listed were remorse, guilty plea and medical condition. None of which should warrant a six month sentence only for abuse that took place over 2 years.

Also you will note the mother got 4 and half year suspended whereas the neighbour did not.

Again this thread was not just this case but the whole lack of inconsistent sentences

Pro Hoc Vice · 17-03-2015 11:07am

Little CuChulainn wrote: »

I did not. Did you?

Even if there is some magical medical condition that exonerates you from responsibility in child molestation, how then can you not be a threat to the community in the future? And even if he was terrified of the mother, it still should not mitigate his actions in this kind of case. There are certain crimes where mitigation should have very little impact. Sexual assault on a child is one of them.

So you think a Judge who heard the actual facts and made a decision either knows less than you or decided that for the fun he would impose a light sentence for the giggles. After two other people involved got 14 years. You base your assumptions on a newspaper report. I have personally seen hundreds of sentences and to date agree with the vast majority of sentences imposed. Can you say the same.

NoQuarter · 17-03-2015 11:13am

Another armchair critic without a clue. :rolleyes:

Barely worth a response but i'll bite.

Mitigating factors arent "horse manure", they are just that, mitigating factors. So if there is a factor that should mitigate a crime, then so be it. You might ask, well what could mitigate this crime, well I dont know because I didnt hear the full facts.

In light of the mother and neighbour getting 14 years, there was obviously good reason to give a much lesser sentence here. I didnt sit through the evidence so I dont know what that is but neither did you so judging based on a newpaper article is barely shy of idiotic.

Now I admittedly also think that 6 months for the crime described doesn't sound right, but I'm not hyped up enough to think that I know better not having heard the full facts. That's the single most important thing to take from this, we dont know the full facts.

The way we think of sexual abuse or rape is different than the legal test for both crimes and, while obviously I am not condoning this or belittling it, his actions may not have been outrageously bad (that sounds worse than how I mean it but it's hard to explain). I'll use an example: you can "rape" someone, in the eyes of the law by having non-consensual sex. That isn't straighforward and situations may arise where someone thinks they have consent and dont. If they dont, they are rapists and a newspaper article can have a headline saying "Rapist sentenced to 6 months in prison" when really it could have been a 17 year old boy and a 16 year old girl who are boyfriend/girlfriend.

The important point to take, again, is that the full facts are needed to judge.

Also, there was an article posted here recently which examined the sentences of normal people against judges sentences and they were remarkably similar. You might try read that.

Little CuChulainn · 17-03-2015 11:19am

Pro Hoc Vice wrote: »

So you think a Judge who heard the actual facts and made a decision either knows less than you or decided that for the fun he would impose a light sentence for the giggles. After two other people involved got 14 years. You base your assumptions on a newspaper report. I have personally seen hundreds of sentences and to date agree with the vast majority of sentences imposed. Can you say the same.

I too have seen a great many sentences and agree with some and not others. I disagree with any sentence for child abuse or rape that uses nonsense mitigating factors to reduce a sentence to anything less than ten years. I consider a medical condition or fear to be two such nonsense conditions. I don't know what the judges motivation was. What I do know is that he let a serial child abuser out after a few months in jail.

nxbyveromdwjpg · 17-03-2015 11:23am

I don't think anyone wants to go light on sexual offences, here or anywhere, ever, but as the saying goes a little knowledge is a dangerous thing.

Pro Hoc Vice · 17-03-2015 11:29am

Little CuChulainn wrote: »

I too have seen a great many sentences and agree with some and not others. I disagree with any sentence for child abuse or rape that uses nonsense mitigating factors to reduce a sentence to anything less than ten years. I consider a medical condition or fear to be two such nonsense conditions. I don't know what the judges motivation was. What I do know is that he let a serial child abuser out after a few months in jail.

So if you discovered that the sentenced person was terminally ill, with say a year to live, with that change your view. Fear of another accused can be a very valid mitigating factor.

We do not know the level of abuse, nor do we know the medical condition or intellectual state of the accused, nor do we know if a probation report was produced and its conclusions. Without that information its impossible to say if the sentence was correct or not. The imposition of minimum sentences for child abuse is not a good idea in my personal view the person best positioned to impose sentence is the trial judge or appeal court who have all the facts.

racso1975 · 17-03-2015 11:39am

NoQuarter wrote: »

Another armchair critic without a clue. :rolleyes:

Barely worth a response but i'll bite.

Mitigating factors arent "horse manure", they are just that, mitigating factors. So if there is a factor that should mitigate a crime, then so be it. You might ask, well what could mitigate this crime, well I dont know because I didnt hear the full facts.

In light of the mother and neighbour getting 14 years, there was obviously good reason to give a much lesser sentence here. I didnt sit through the evidence so I dont know what that is but neither did you so judging based on a newpaper article is barely shy of idiotic.

Now I admittedly also think that 6 months for the crime described doesn't sound right, but I'm not hyped up enough to think that I know better not having heard the full facts. That's the single most important thing to take from this, we dont know the full facts.

The way we think of sexual abuse or rape is different than the legal test for both crimes and, while obviously I am not condoning this or belittling it, his actions may not have been outrageously bad (that sounds worse than how I mean it but it's hard to explain). I'll use an example: you can "rape" someone, in the eyes of the law by having non-consensual sex. That isn't straighforward and situations may arise where someone thinks they have consent and dont. If they dont, they are rapists and a newspaper article can have a headline saying "Rapist sentenced to 6 months in prison" when really it could have been a 17 year old boy and a 16 year old girl who are boyfriend/girlfriend.

The important point to take, again, is that the full facts are needed to judge.

Also, there was an article posted here recently which examined the sentences of normal people against judges sentences and they were remarkably similar. You might try read that.

Sorry but gives you the right to be so condescending? ?? Are we not allowed question part of your sacred society that sits in judgement

It was clearly stated in my op that I have no legal knowledge yet you felt the need for armchair critic

Little CuChulainn · 17-03-2015 11:39am

NoQuarter wrote: »

Another armchair critic without a clue. :rolleyes:

Barely worth a response but i'll bite.

Mitigating factors arent "horse manure", they are just that, mitigating factors. So if there is a factor that should mitigate a crime, then so be it. You might ask, well what could mitigate this crime, well I dont know because I didnt hear the full facts.

In light of the mother and neighbour getting 14 years, there was obviously good reason to give a much lesser sentence here. I didnt sit through the evidence so I dont know what that is but neither did you so judging based on a newpaper article is barely shy of idiotic.

Now I admittedly also think that 6 months for the crime described doesn't sound right, but I'm not hyped up enough to think that I know better not having heard the full facts. That's the single most important thing to take from this, we dont know the full facts.

The way we think of sexual abuse or rape is different than the legal test for both crimes and, while obviously I am not condoning this or belittling it, his actions may not have been outrageously bad (that sounds worse than how I mean it but it's hard to explain). I'll use an example: you can "rape" someone, in the eyes of the law by having non-consensual sex. That isn't straighforward and situations may arise where someone thinks they have consent and dont. If they dont, they are rapists and a newspaper article can have a headline saying "Rapist sentenced to 6 months in prison" when really it could have been a 17 year old boy and a 16 year old girl who are boyfriend/girlfriend.

The important point to take, again, is that the full facts are needed to judge.

Also, there was an article posted here recently which examined the sentences of normal people against judges sentences and they were remarkably similar. You might try read that.

I'm well versed in the legal definitions of sexual assault and I have plenty of court experience with criminal cases so you and Pro Hoc can stop the condescending attitudes. It just belittles your arguments. My opinion is based on my experience in courts and with victims, not simply from the media.

The cases you refer to (17 and 16 year old) are generally dealt with under specific legislation. In fact, while our laws are not perfect, they have been changed in order to address many of the concerns you raised so a person doesn't need to be convicted of rape for a simple mistake.

Pro Hoc Vice wrote: »

So if you discovered that the sentenced person was terminally ill, with say a year to live, with that change your view. Fear of another accused can be a very valid mitigating factor.

We do not know the level of abuse, nor do we know the medical condition or intellectual state of the accused, nor do we know if a probation report was produced and its conclusions. Without that information its impossible to say if the sentence was correct or not. The imposition of minimum sentences for child abuse is not a good idea in my personal view the person best positioned to impose sentence is the trial judge or appeal court who have all the facts.

Why would a terminal illness mean he should get less time? His crime hasn't changed. It just means he should die in prison. If a person has an intellectual condition or medical condition that brought about the behaviour then they are still a danger. If their condition was serious enough to mitigate responsibility than an insanity plea would surely be more appropriate.

Paz-CCFC · 17-03-2015 11:44am

That article leaves out some of the fundamental facts of the case, eg the legislation under which he was convicted, but I'll try to piece it together as best I can.

From my reading, it seems he was guilty of sexual assault as per s2 of the Criminal Law (Rape) (Amendment) Act 1990. This gives a max sentence of five years. The facts do not seem to suggest intercourse/carnal knowledge or buggery took place, so he was not guilty of s2 of the Criminal Law (Sexual Offences) Act 2006, which gives a max sentence of life.

An early guilty plea is seen as hugely important in sexual offence cases in particular. In DPP v. Tierney [1988] IR 250, Finlay CJ highlighted its importance, as it spares the victim from having to relive the crimes in court and having to face cross-examination. In this case, a man's sentence for complicity in a violent rape was reduced from 21 to 17 years on appeal to the SC, due to his immediate confession upon questioning by the Gardaí. It's therefore clear how important the courts view guilty pleas, as they want to encourage defendants to do so, rather than having a trial which will, at best, be a very traumatic experience for the victim or, at worst, lead to the acquittal of a guilty man if there is insufficient evidence. The Criminal Circuit Court is an inferior court and is bound to follow the precedence set by the highest court in the country.

To what extent the judge considered the other mitigating factors (which likely include more than expressed in the article), as well as aggravating factors, I don't know. It would require a much more in depth account of the case and the court's reasoning. This article (and most publications on cases) unfortunately lacks that.

For a general view on sentencing guidelines, see here for a very informative consultation paper by the Law Reform Commission. It's a bit outdated, being published in 1993, but it still has many relevant and interesting points.

Pro Hoc Vice · 17-03-2015 11:53am

racso1975 wrote: »

Sorry but gives you the right to be so condescending? ?? Are we not allowed question part of your sacred society that sits in judgement

It was clearly stated in my op that I have no legal knowledge yet you felt the need for armchair critic

pot kettle its a forum it requires two views to be some way interesting.

Pro Hoc Vice · 17-03-2015 11:58am

Little CuChulainn wrote: »

I'm well versed in the legal definitions of sexual assault and I have plenty of court experience with criminal cases so you and Pro Hoc can stop the condescending attitudes. It just belittles your arguments. My opinion is based on my experience in courts and with victims, not simply from the media.

The cases you refer to (17 and 16 year old) are generally dealt with under specific legislation. In fact, while our laws are not perfect, they have been changed in order to address many of the concerns you raised so a person doesn't need to be convicted of rape for a simple mistake.

Why would a terminal illness mean he should get less time? His crime hasn't changed. It just means he should die in prison. If a person has an intellectual condition or medical condition that brought about the behaviour then they are still a danger. If their condition was serious enough to mitigate responsibility than an insanity plea would surely be more appropriate.

Terminal illness can be a very important factor in a sentence, as the court must weigh up the extra burden of putting a ill man in prison and extra costs as against the right of society to see a guilty person punished. An intellectual disability may be important as it might show a lack of awareness and again must be weighed. Yes it may well be that a inability to plea issue could have been raised but that is very much a double edged sword. In any event many may have the ability to understand entering a plea but must also be shown some compassion due to their own personal intellect.

racso1975 · 17-03-2015 12:00pm

Read my post.........where did I argue that his view or points after his condescending comments were not valid or wanted. Pretty sure he does not need you defending him

Pro Hoc Vice · 17-03-2015 12:05pm

racso1975 wrote: »

Read my post.........where did I argue that his view or points after his condescending comments were not valid or wanted. Pretty sure he does not need you defending him

You made a number of statements with nothing to back them up, yes you admit no knowledge, when given that knowledge you go all that's condescending. Yes it is but did you ever think your comments are stupid. It was pointed out that in the other posters view they are. If you want to know about sentencing take a trip to your local Circuit Criminal Court and watch and listen to what happens you might be surprised at the amount of times you agree with the Judge.

NoQuarter · 17-03-2015 12:08pm

racso1975 wrote: »

Sorry but gives you the right to be so condescending? ?? Are we not allowed question part of your sacred society that sits in judgement

It was clearly stated in my op that I have no legal knowledge yet you felt the need for armchair critic

My post wasn't aimed at you. I had used quotes within my post which I had assumed made it clear who it was intended for.

Little CuChulainn wrote: »

I'm well versed in the legal definitions of sexual assault and I have plenty of court experience with criminal cases so you and Pro Hoc can stop the condescending attitudes. It just belittles your arguments. My opinion is based on my experience in courts and with victims, not simply from the media.

The cases you refer to (17 and 16 year old) are generally dealt with under specific legislation. In fact, while our laws are not perfect, they have been changed in order to address many of the concerns you raised so a person doesn't need to be convicted of rape for a simple mistake.

Why would a terminal illness mean he should get less time? His crime hasn't changed. It just means he should die in prison. If a person has an intellectual condition or medical condition that brought about the behaviour then they are still a danger. If their condition was serious enough to mitigate responsibility than an insanity plea would surely be more appropriate.

My attitude was in response to your flippant comments of mitigating factors being "horse manure", which is horse manure itself.

I understand the honest belief defence but that is assuming the jury believes that defence, so the point still stands and was merely used as an example anyway to show that the term "sexual assault" as printed in a newspaper headline may conjure up inaccurate images of what actually happened.

You last paragraph just reeks of baseless opinion, now you're expressing opinions on medical areas so this is where I bow out. Why do you think you know better than their defence counsel who didn't use insanity as a defence?

racso1975 · 17-03-2015 12:17pm

Pro Hoc Vice wrote: »

You made a number of statements with nothing to back them up, yes you admit no knowledge, when given that knowledge you go all that's condescending. Yes it is but did you ever think your comments are stupid. It was pointed out that in the other posters view they are. If you want to know about sentencing take a trip to your local Circuit Criminal Court and watch and listen to what happens you might be surprised at the amount of times you agree with the Judge.

Which statements?

Little CuChulainn · 17-03-2015 12:18pm

NoQuarter wrote: »

My attitude was in response to your flippant comments of mitigating factors being "horse manure", which is horse manure itself.

I wasn't referring to all mitigation, I specifically said mitigation in relation to the sexual assault of a five year old. I see no mitigation.

NoQuarter wrote: »

I understand the honest belief defence but that is assuming the jury believes that defence, so the point still stands and was merely used as an example anyway to show that the term "sexual assault" as printed in a newspaper headline may conjure up inaccurate images of what actually happened.

It's not up to the judge to adjust his sentence because he thinks the jury got it wrong.

NoQuarter wrote: »

You last paragraph just reeks of baseless opinion, now you're expressing opinions on medical areas so this is where I bow out. Why do you think you know better than their defence counsel who didn't use insanity as a defence?

I'm saying that if the person has a mental issue which diminishes their responsibility then there are ways to address that. Simply reducing the amount of prison time is not a valid way of addressing it. If a person is found to be competent enough to stand trial and is found guilty then why should their sentence be reduced?

17-03-2015 12:50pm

Little CuChulainn wrote: »

I wasn't referring to all mitigation, I specifically said mitigation in relation to the sexual assault of a five year old. I see no mitigation.

Well you weren't present for sentencing so let's just park that opinion.

It's not up to the judge to adjust his sentence because he thinks the jury got it wrong.

Any nobody is suggesting that he is doing that. If the judge felt that there was no possibility on the facts that the jury could convict then he would have directed them to acquit. That's just how things work.

It is a judge's job to reflect the seriousness and gravity of an offence in sentencing. If a judge simply had to assign a standardised sentence based on the count charged then there would be need to sentencing hearings. In the same way that a judge will impose a more serious sentence for a crime whose facts are out of all proportion to the nominal offence charged (subject to the maximums), a judge will impose a lesser sentence if there is a lower level of culpability.

I'm saying that if the person has a mental issue which diminishes their responsibility then there are ways to address that. Simply reducing the amount of prison time is not a valid way of addressing it. If a person is found to be competent enough to stand trial and is found guilty then why should their sentence be reduced?

What ways? It's not a particularly high threshold to meet in order to be found competent to stand trial. And meeting the insanity test is very difficult and rarely happens. Diminished responsibility, which is more nuanced applies only to murder.

In between there is an entire spectrum of mental ability and disability. And if the accused's place on this spectrum affects his culpability for the offence then this is a perfectly valid factor to be taken into account in sentencing.

We allow many factors to be taken into account at a sentencing stage that are not relevant at a liability stage because they reflect factual culpability and the moral blameworthiness that should attach to an offence. You mentioned fear: at a liability stage it's very difficult to meet the standard for duress such that there would be a defence. However, if the factual factors which were not sufficient to establish duress are nevertheless, highly relevant to the factual matrix and moral culpability of the accused, then they should be taken into account.

They tried taking discretion away from judges in Napoleonic France and Italy. They quickly found that it produced far more injustice than it sought to avoid.

While there are argument to be had for more sentencing guidance, saying, based on a newspaper report, that a decision was definitely wrong and that the judge should have done it differently, when you have not heard even one iota of the evidence that he did, is both arrogant and wrong.

NoQuarter · 17-03-2015 1:54pm

234 wrote: »

While there are argument to be had for more sentencing guidance, saying, based on a newspaper report, that a decision was definitely wrong and that the judge should have done it differently, when you have not heard even one iota of the evidence that he did, is both arrogant and wrong.

Agreed with this

MarkAnthony · 17-03-2015 6:08pm

racso1975 wrote: »

http://www.rte.ie/news/2015/0316/687601-roscommon-abuse/

So above is the case of a man who abuses his daughter and gets 6 months............thats shocking!!!!!

I wil add that I have no legal background or experience of the law what so ever but I find the lack of consistency in relation to sentences truly awful and particularly in cases of sexual abuse or rape.

Is there any particular thoughts on this that might be give me better clarity on the matter.

You can't have consistent sentences without a consistent crime. Sexual crimes are some of the most inconsistent there are. There's a myriad of factors to consider.

The public perception is not helped with cases, by necessity, being held in camera. Now I'm not calling anyone out but unless you're involved, professionally, in cases of sexual abuse you don't know what goes on in the court room.

I do, however, take issue with people insisting Judges are out of touch. (Not directed at you OP) Okay the District Court is the butt of many jokes but you don't end up in the circuit or High Court if you're a complete loon. What do people want exactly, Judges in their 30s? Specific legal careers centred on Judging alone? (Happen in the Civil Law world).

I'm genuinely curious on what people think makes a Judge 'in touch'? It's certainly not the US system which is an almost complete failure.

Little CuChulainn · 17-03-2015 7:56pm

234 wrote: »

Well you weren't present for sentencing so let's just park that opinion.

Why? It's a general opinion based on the type of crime as opposed to this particular crime. Although I should qualify it in that I think a guilty plea should be a mitigating factor as it reduces further trauma on the victim.

234 wrote: »

Any nobody is suggesting that he is doing that. If the judge felt that there was no possibility on the facts that the jury could convict then he would have directed them to acquit. That's just how things work.

That was my point. The poster I replied to seemed to be indicating that people, and I took this to include juries, can mistake what constitutes a sexual assault so the judge must take account of that. My point was that if a judge believed this was the case he should be directing an aquittal as opposed to reducing the sentence to what he thinks appropriate for the actual crime.

234 wrote: »

It is a judge's job to reflect the seriousness and gravity of an offence in sentencing. If a judge simply had to assign a standardised sentence based on the count charged then there would be need to sentencing hearings. In the same way that a judge will impose a more serious sentence for a crime whose facts are out of all proportion to the nominal offence charged (subject to the maximums), a judge will impose a lesser sentence if there is a lower level of culpability.

I didn't say standardised sentences, I said mandatory minimums. There's a fairly large difference.

234 wrote: »

What ways? It's not a particularly high threshold to meet in order to be found competent to stand trial. And meeting the insanity test is very difficult and rarely happens. Diminished responsibility, which is more nuanced applies only to murder.

In between there is an entire spectrum of mental ability and disability. And if the accused's place on this spectrum affects his culpability for the offence then this is a perfectly valid factor to be taken into account in sentencing.

I'll accept that there could be such factors in play but what I've said is that I do not see why a reduction in sentence should follow. If it was a reduced sentence in conjunction with some form of medical treatment then I would see the point but simply reducing a sentence does not address the issue.

234 wrote: »

We allow many factors to be taken into account at a sentencing stage that are not relevant at a liability stage because they reflect factual culpability and the moral blameworthiness that should attach to an offence. You mentioned fear: at a liability stage it's very difficult to meet the standard for duress such that there would be a defence. However, if the factual factors which were not sufficient to establish duress are nevertheless, highly relevant to the factual matrix and moral culpability of the accused, then they should be taken into account.

I agree in most cases but not in cases of sexual assault on a minor. In my own view the crime is so heinous that fear of a third party is not sufficient justification for mitigation.

234 wrote: »

They tried taking discretion away from judges in Napoleonic France and Italy. They quickly found that it produced far more injustice than it sought to avoid.

Again, I'm not talking about taking away discretion, I'm talkin about mandatory minimums. That still leaves a wide range of discretion for sentencing but ensures that judges don't effectively dismiss criminal law provision with ridiculously light sentences.

MarkAnthony wrote: »

You can't have consistent sentences without a consistent crime. Sexual crimes are some of the most inconsistent there are. There's a myriad of factors to consider.

I don't think anyone has suggested otherwise. However, the very nature of them and their effect on the victim should surely merit a certain, I guess you'd call it a guarantee, of a sentence.

MarkAnthony wrote: »

The public perception is not helped with cases, by necessity, being held in camera. Now I'm not calling anyone out but unless you're involved, professionally, in cases of sexual abuse you don't know what goes on in the court room.

Right, and if your experience goes beyond the courtroom I would consider you to have less than the full picture.

MarkAnthony wrote: »

I do, however, take issue with people insisting Judges are out of touch. (Not directed at you OP) Okay the District Court is the butt of many jokes but you don't end up in the circuit or High Court if you're a complete loon. What do people want exactly, Judges in their 30s? Specific legal careers centred on Judging alone? (Happen in the Civil Law world).

I'm genuinely curious on what people think makes a Judge 'in touch'? It's certainly not the US system which is an almost complete failure.

Why is the district court being a joke somehow acceptable? Should the same standard not apply in all courts? To answer your question, when most people say judges are out of touch they mean that they do not properly consider the effects of their decisions on both victims and offenders and n society as a whole. More precisely they do not seem to fully understand the effects of crime on victims and the effects of punishment on the offender. Of course this is highly debatable but it's a view I myself hold based on my experience in criminal courts for the most part and not based on some lack of understanding of the system.

john.han · 17-03-2015 7:59pm

Obviously I am not aware of the full details of the case, but I'm amazed more weight wasn't given to the obvious aggravating factors when determining sentencing.

MarkAnthony · 17-03-2015 8:14pm

Little CuChulainn wrote: »

Right, and if your experience goes beyond the courtroom I would consider you to have less than the full picture.

Eh?

Little CuChulainn wrote: »

Why is the district court being a joke somehow acceptable?

I said it's the butt of jokes, not it is a joke.

Little CuChulainn wrote: »

Should the same standard not apply in all courts?

Frankly that's a patently obvious no. A full trial for every tv licence offender and speeder would bring the system to a complete halt.

Little CuChulainn wrote: »

To answer your question, when most people say judges are out of touch they mean that they do not properly consider the effects of their decisions on both victims and offenders and n society as a whole. More precisely they do not seem to fully understand the effects of crime on victims and the effects of punishment on the offender.

The problem with that point of view is it's not backed up by anything. My experience of talking to several judges would be they understand very well the effect their sentences have. In the District Court Judge Reilly (Inspector of Prisons for a time if he isn't still) had some very progressive views on sentencing.

In the Circuit Court, although I have never seen her sit there, only in the District Court Mary Ellen Ring, a Judge who incidentally was thought to be 'working too hard' frequently handed down decisions based on compassion and, what seemed to me at least, a very deep understanding of situations as a whole.

Mr Justice Clarke - not a more down to earth man could you ever hope to meet, who frequently makes the time to go and lecture even the most challenged of us law students.

Little CuChulainn wrote: »

Of course this is highly debatable but it's a view I myself hold based on my experience in criminal courts for the most part and not based on some lack of understanding of the system.

So what are you basing your view on? Do you have extensive experience in sexual assault cases?

So far it seems to be based on an emotional outrage rather than a logical approach.

Little CuChulainn · 17-03-2015 8:26pm

MarkAnthony wrote: »

The problem with that point of view is it's not backed up by anything. My experience of talking to several judges would be they understand very well the effect their sentences have. In the District Court Judge Reilly (Inspector of Prisons for a time if he isn't still) had some very progressive views on sentencing.

Or perhaps you just have as poor an understanding as they do.

MarkAnthony wrote: »

In the Circuit Court, although I have never seen her sit there, only in the District Court Mary Ellen Ring, a Judge who incidentally was thought to be 'working too hard' frequently handed down decisions based on compassion and, what seemed to me at least, a very deep understanding of situations as a whole.

Mr Justice Clarke - not a more down to earth man could you ever hope to meet, who frequently makes the time to go and lecture even the most challenged of us law students.

I'm not really sure what these examples are meant to prove.

MarkAnthony wrote: »

So what are you basing your view on? Do you have extensive experience in sexual assault cases?

So far it seems to be based on an emotional outrage rather than a logical approach.

I have quite a few years experience with sexual assault cases. Do I pass the test?

MarkAnthony · 17-03-2015 8:33pm

Little CuChulainn wrote: »

Or perhaps you just have as poor an understanding as they do.

I have an extremely poor understanding. I'm hoping that someone will enlighten me. It seems that you are unwilling to do that.

Little CuChulainn wrote: »

I'm not really sure what these examples are meant to prove.

You made an assertion that Judges, and I imputed in general, are out of touch. I made specific references to refute that as a general point. Perhaps you would enlighten us with some specific examples of your own, not based on the populist media?

Little CuChulainn wrote: »

I have quite a few years experience with sexual assault cases. Do I pass the test?

There is no test to pass. However one must bear in mind the inherent bias should you perhaps work for certain organisations, or of you are a victim/related to a victim or perhaps you have been convicted. All of which would bring their own bias. That's not necessarily a bad thing as long as it's acknowledged.

You may of course also be a practicing/retired lawyer but I tend to find they would have less of a biased point of view or at least a more specific point of view, I'm open to correction of course.

Pat Mustard · 17-03-2015 8:43pm

Mod:

Eugene Norman has been asked not to post in this thread again. His post has been deleted. Responses to him have been deleted.

17-03-2015 11:32pm

I'm absolutely certain we covered this like last week.

If a non-lawyer gets their info from a newspaper and doesn't understand criminal process they will disagree with a judge. If they hear the facts the Court heard and have the purpose of the system explained to you even briefly then generally people agree with the sentences imposed by judges.

So, to take the results of hundreds of hours of research and understanding of the topic and formulate it into a one sentence answer that succinctly gets to the point:

"If you read it in a newspaper and you disagree with the sentence, it's probably because you're under-informed"

Grolschevik · 18-03-2015 1:23am

MarkAnthony wrote: »

The public perception is not helped with cases, by necessity, being held in camera.

Since when are they held in camera?

MarkAnthony · 18-03-2015 1:30am

Grolschevik wrote: »

Since when are they held in camera?

Perhaps my overuse of the carriage return was confusing but sexual cases are normally held in camera AFAIK.

Grolschevik · 18-03-2015 1:32am

Family law cases, yes. But criminal sexual cases, no, unless there are particular reasons. AFAIK.

SharkWhale · 18-03-2015 1:55am

. Where the f are the incest laws? The rape and mental torture of a minor in a family home. 14 YEARS ALSO A JOKE. no justice!

Zambia · 18-03-2015 2:12am

I was not in court obviously. Considering a 5 year Maximum for the offence. A sentence of 2 years with 1.5 years suspended does not seem way off the mark. Bearing in mind the fact he is now on the Sex Offender registry, a form of punishment (I assume that has some conditions in Ireland).

May all three of them die roaring.

MarkAnthony · 18-03-2015 2:38am

Grolschevik wrote: »

Family law cases, yes. But criminal sexual cases, no, unless there are particular reasons. AFAIK.

I think we need to check that, I'm open to correction of course but I'm almost certain rape cases and anything involving children is in camera. Perhaps I'm confusing reporting restrictions.

Any clarity would be welcome.

SharkWhale · 18-03-2015 2:45am

How is been on a sex offenders list a punishment? Oh you cant work near or with children? Boohoo. Honestly think child abusers should be exiled. If there is no prevention,where is the f cure. I have a son..wont somebody please think of the children? This man needs to be identified

18-03-2015 10:15am

MarkAnthony wrote: »

I think we need to check that, I'm open to correction of course but I'm almost certain rape cases and anything involving children is in camera. Perhaps I'm confusing reporting restrictions.

Any clarity would be welcome.

You're confusing reporting restrictions that are used in cases where there is a vulnerable complainant or where the identification of the accused would necessarily identify the alleged victim with cases being held in camera.

It's why the option to waive the restriction on anonymity is reserved to the complainant, it has to be their choice, but the media are and rightly should be allowed to view the case as it happens.

Similar restrictions can apply in a range of cases, not just sexual assault or rape, but in practice they are the most common.

FactCheck · 18-03-2015 11:21am

Deleted User wrote: »

It's why the option to waive the restriction on anonymity is reserved to the complainant, it has to be their choice,

Actually (and surprisingly) this isn't quite correct:

Anonymity: The Complainant’s Perspective

The complainant’s privacy is so well “protected” that she cannot legally choose to waive her anonymity. Instead the power of that decision rests with the judge who can give leave to over-ride anonymity . This removal of the complainant’s autonomy in relation to decisions about her identity is particularly objectionable when one considers that rape is not only a crime against a person’s physical person, but also against the person’s dignity and sense of self.

Even more objectionable is the provision in the Criminal Law (Incest) Proceedings Act 1995 under which the anonymity of both the complainant and the perpetrator are preserved, even after conviction.

Therefore, in trials for incest, the complainant has no right to waive her anonymity, but neither has the trial judge any power to give leave to waive anonymity. This effect of this law means that complainants remain invisible and inaudible to the greater community. A case in December 2008 highlighted the injustice caused by these provisions, where a woman who was indecently assaulted by her brother was informed by the High Court that the legislation provided no discretion to trial judges to waive anonymity. The offender was convicted in 1993 of sexually assaulting his sister and received a 12 year suspended sentence from Judge Yvonne Murphy. Mr Justice Hanna said the legislation banning publication of anything to identify either party was activated as soon as a charge of incest was brought, regardless of a conviction or acquittal.

The Irish Rape Crisis Network has called for an amendment along the lines of the UK provisions contained within the Sexual Offences (Amendments) Acts of 1976 & 1992 whereby anonymity may be lifted with the complainant’s written consent.

Note that although the author uses "she" to describe the victim, the situation is of course the same regardless of the victim's gender.

MarkAnthony · 18-03-2015 1:57pm

Deleted User wrote: »

You're confusing reporting restrictions that are used in cases where there is a vulnerable complainant or where the identification of the accused would necessarily identify the alleged victim with cases being held in camera.

It's why the option to waive the restriction on anonymity is reserved to the complainant, it has to be their choice, but the media are and rightly should be allowed to view the case as it happens.

Similar restrictions can apply in a range of cases, not just sexual assault or rape, but in practice they are the most common.

Yes but are these cases held in Camera? I'm certain many are. I was under the impression it was the default position.

Assuming they're not, that's even more reason that people shouldn't be 'informing' themselves from the media and should attend cases before passing judgement themselves on the entire system on purely emotional grounds.

Zambia · 18-03-2015 2:01pm

SharkWhale wrote: »

How is been on a sex offenders list a punishment? Oh you cant work near or with children? Boohoo. Honestly think child abusers should be exiled. If there is no prevention,where is the f cure. I have a son..wont somebody please think of the children? This man needs to be identified

What are the conditions of being on the sex offenders register?

I have seen people here be charged for having a facebook account in breach of their conditions.

18-03-2015 5:36pm

MarkAnthony wrote: »

Yes but are these cases held in Camera? I'm certain many are. I was under the impression it was the default position.

Assuming they're not, that's even more reason that people shouldn't be 'informing' themselves from the media and should attend cases before passing judgement themselves on the entire system on purely emotional grounds.

They're not in camera to the best of my knowledge. Any case I've been involved in that had reporting restrictions was not held in camera.

Uno my Uno. · 18-03-2015 5:41pm

We haven't had one of these threads in weeks and now two come along at once!

I am reminded of the old maxim that legislating on a hard case makes bad law and I think that applies to the idea here of seeking mandatory minimum sentences for crimes of a sexual nature.

Even this short thread gives good examples of what happens when moral panic is directed towards sentencing, calls for exile (to where? we can't just ship our criminals off to some other country for them to deal with!) and minimum sentence of 10 years for any crime of a sexual nature against a minor. does that mean minor and serious offences get the same punishment or do serious offences get double the tariff? where do you draw the line?

Finally I will say that on the face of it 6 Months does seem lenient to me but I don't know the first thing about the case so I'm not really in a position to comment other than in principle. However I do feel it is entirely appropriate to consider whatever mitigating circumstances might be relevant. One poster said earlier that a terminal illness or medical condition doesn't affect the crime and shouldn't affect the sentence but that misunderstands the purpose of prison.

Prison is intended to deprive a convicted person of their liberty. It may also serve the purposes of punishment or rehabilitation but it is not an implement of state sponsored torture or suffering. If a convict is has a severe medical condition the effect of which would be that a prison sentence would inflict undue suffering on that person then it is right that the condition be considered and the sentence suspended or commuted as appropriate.

I am sure people will point to the suffering of the victim but we don't live in a society that demands an eye for an eye, that is the way it is and I think we are better for it.

Paz-CCFC · 18-03-2015 8:21pm

SharkWhale wrote: »

. Where the f are the incest laws? The rape and mental torture of a minor in a family home. 14 YEARS ALSO A JOKE. no justice!

The incest laws do not apply, because no one committed an offence contrary to the Punishment of Incest Act 1908. The offence under that act is carnal knowledge - ie, penetrative sexual intercourse. The father committed sexual assault, which fell short of carnal knowledge, and the mother couldn't commit such an act as per the legislation (it only applies if the accused and victim are of the opposite sex).

MarkAnthony wrote: »

I think we need to check that, I'm open to correction of course but I'm almost certain rape cases and anything involving children is in camera. Perhaps I'm confusing reporting restrictions.

Any clarity would be welcome.

Are you possibly thinking of cases where either the accused or the victim is under the age of 18 at the time? Think of O'K v. H [2006] IEHC 13. Louise O'Keeffe was a minor at the time of the sexual abuse and she was entitled to anonymity, including in the civil case. She waived it when she appealed to the Supreme Court, however, and it was cited as O'Keeffe v. Hiickey [2009] IESC 39. There was also a recent case involving a sexual offence, where both the convicted parties and the accused were minors. It was reported in a national newspaper, which was linked on Boards, but it was later removed.

MarkAnthony · 18-03-2015 8:26pm

I know that many sexual cases are held in camera, there seems to be some confusion on what the default position is. Basically if you go up to the CCJ on any given day there's usually a court or two with proceedings in camera, I was under the impression these were rape cases and in camera as a matter of course.

As a law student some judges will allow you to sit in if you ask, hence again why I thought this was a matter of course, otherwise one could simply attend a different case.

jimmycrackcorm · 19-03-2015 4:07am

Little CuChulainn wrote: »

Mitigating factors for sexually abusing a five year old? Sorry but that's horse manure. Even if you could fashion some convincing ones, 6 months is outrageous. Time and time again judges are showing that they are completely disconnected from reality and unable to properly pass sentence, especially when it comes to sex crimes. I think it's time to have a serious look at how they are appointed and managed. Perhaps start introducing mandatory minimums for serious crimes.

I wonder if the accused had, say for arguments sake, a terminal illness with a prognosis of a year left, would a sentence longer than six months not be considered a life sentence?

conorh91 · 19-03-2015 10:27am

In camera hearings and hearings with restriction orders are usually the most unpleasant places to be, especially where the Victim is present in the case of criminal matters, or equally unpleasant in lunacy and minor matters. I'd rather attend the bedside of a wake tbh. At least there's drink.

MarkAnthony · 19-03-2015 11:51am

conorh91 wrote: »

In camera hearings and hearings with restriction orders are usually the most unpleasant places to be, especially where the Victim is present in the case of criminal matters, or equally unpleasant in lunacy and minor matters. I'd rather attend the bedside of a wake tbh. At least there's drink.

Quite, although I think one has to educate themselves on such matters before passing judgement on the system and unfortunately I'm not aware of any better way. Seemingly accepting that the same Judges manage, most of the time, in other matters to get it right isn't enough.

Length of sentences????

Comments