"LEGISLATIVELY imposed fixed penalties for serious crimes will require the frequent intervention of executive clemency."
Such expert legal criticism of mandatory life sentence for murder helped to concentrate the minds of the Law Reform Commission in drawing up its sentencing report.
"In the light of the Minister for Justice's power and practice of release after eight to 10 years, the mandatory life sentence is illusory," it notes.
Whether or not individual commissioners favour a "just deserts" approach to sentencing, it echoes the Supreme Court view conveyed in The People v Conroy (No 2) judgment of May 1988, that there are degrees of seriousness even in the most serious of crimes, such as murder and manslaughter.
The report has drawn up a list of 12 aggravating and 11 mitigating factors in sentencing, and recommends that all these factors be reproduced in its sentencing guidelines for judges.
In recommending against the introduction of mandatory or minimum sentences for summary offences, it notes there are mandatory penalties for revenue offences which should not be abolished without a thorough review of revenue penalties.
The aggravating factors are identified as whether:
. the offence was planned or premeditated.
. the offender committed the offence as a member of a group organised for crime.
. the offence formed part of a campaign of offences.
. the offender exploited the position of a weak or defenceless victim, or exploited the knowledge that the victim's access to justice might have been impeded.
. the offender exploited a position of confidence or trust, including offences committed by law enforcement officers.
. the offender threatened to use or actually used violence, or used, threatened to use, or carried, a weapon.
. the offender caused, threatened to cause, or risked, the death or serious injury of another person, or used, or threatened to use, excessive cruelty.
. the offender caused, or risked substantial economic loss to the victim.
. the offence was committed for pleasure or excitement.
. the offender played a leading role in the commission of the offence, or induced others to participate.
. the offence was committed on a law enforcement officer.
. any other circumstances which increase the harm caused, or risked, by the offender, or increase the culpability of the offender for the offence.
The 11 mitigating factors identified are whether:
. the offence was committed under circumstances of duress not amounting to a defence to criminal liability.
. the offender was provoked.
. the offence was committed on impulse, or the offender showed no sustained motivation to break the law.
. the offender, through age or ill health or otherwise, was of reduced mental capacity when committing the offence.
. the offence was occasioned as a result of strong temptation.
. the offender was motivated by strong compassion or human sympathy.
. the offender played only a minor role in the commission of the offence.
. no serious injury resulted, or was intended.
. the offender made voluntary at tempts to prevent the effects of the offence.
. there exist excusing circumstances which, although not amounting to a defence to criminal liability, tend to extenuate the offender's culpability, such as ignorance of the law, mistake of fact, or necessity.
. any other circumstances which reduced the harm caused, or risked, by the offender, or reduced the culpability of the offender for the offence.
