The sentencing of so-called historic child sexual abuse is fraught with difficulty. Following a series of Supreme Court decisions over the past 15 years or so, prosecutions may now be initiated for sexual offences alleged to have occurred many years or even decades before they were formally reported.
The same sentencing principles apply, no matter when the offences were committed, save that sentences must be determined by reference to the maximum sentences that applied at the time of commission.
Proportionality, the fundamental and overarching sentencing principle in Ireland, requires that every sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender.
Both elements of the principle must be given due weight, and personal circumstances are normally assessed as they exist at the time of sentence, rather than at the time of the offence.
When a long period has elapsed between offence and sentence, a sharp distinction must therefore be drawn between the punishment merited by the offence and the sentence appropriate for the offender.
Mr Justice Paul Carney very properly made that distinction last Monday when sentencing Patrick O’Brien, who pleaded guilty to raping his young daughter over a 10-year period from 1973 to 1982. As the judge said, this prolonged and serious abuse, even in response to a guilty plea, would usually merit at least 12 years’ imprisonment.
However, the judge was also constitutionally obliged to consider the offender’s personal circumstances and, most notably in this case, his ill-health. It was for this reason that he suspended three-quarters of the sentence.
The decision to grant bail pending appeal seems to have evoked the most controversy. In one or two previous cases of a similar kind where short prison sentences were imposed on very elderly or seriously-ill offenders, the Court of Criminal Appeal, inspired largely by humanitarian considerations, had suspended the sentences in their entirety. Mr Justice Carney was obviously cognisant of these decisions.
There is no guarantee that the Court of Criminal Appeal will adopt such an approach in this case, and indeed, the Director of Public Prosecutions will be entitled to cross-appeal, arguing that the sentence was unduly lenient.
The appeal court may well uphold Judge Carney’s sentence or even decide that a longer term should be imposed. Should that happen, O’Brien will go to prison and serve whatever time the court directs. In that event, the conditional liberty which has been granted to O’Brien will be no more than a temporary respite from a custodial sentence.
Decisions of this nature always evoke controversy with predictable calls for sentencing guidelines or mandatory sentences. Yet it is important that critics should concentrate, not on an isolated case like this which may well have a different outcome once considered by the Court of Criminal Appeal, but on the general pattern of sentencing.
Child sex abusers are routinely sentenced to substantial prison terms. A forthcoming book of mine includes an analysis of more than 100 child sexual abuse cases in which sentences were imposed over the past seven years or so.
Only 5 per cent resulted in fully suspended sentences. Exactly half resulted in immediate prison sentences of seven years or less, while sentences varying from eight years to life were imposed in the remainder. In fact, 20 per cent of the offenders received sentences of 12 years or more, including life. These were the sentences which the offenders were actually required to serve (less one-quarter remission); suspended portions were excluded from the reckoning.
Having said this, we cannot remain complacent about our sentencing system. There would be little enthusiasm for restrictive guidelines of the kind now operating in many American jurisdictions. But there is a growing acceptance of the need for more detailed guidance on sentencing generally, whether from the Court of Criminal Appeal or a sentencing commission. There has been a significant development with the Irish Sentencing Information System (Isis) which was established some years ago under the Courts Service. It is directed by a steering committee chaired by the Chief Justice.
It undertook a major pilot study of sentencing in the Dublin Circuit Court over a two-year period during which some provincial courts were also covered.
The results are available on its website irishsentencing.ie. Unfortunately, the Isis project has been stalled for want of funds, though it is now in a position to resume its work, to some limited extent, as a result of being able to recruit a few research assistants under the Job Bridge scheme.
Ireland devotes fewer resources than most other countries to judicial support systems. Ironically, the Isis system is regarded as an international trailblazer and has attracted great admiration.
We all accept the need to curtail public expenditure. The Isis system was developed on a shoestring budget and with a very modest injection of funds, it could become a world-class system providing statistical data, case histories, briefing documents and research papers on all aspects of sentencing practice for the benefit of judges and the public.
Experience in other countries has repeatedly demonstrated the danger of making abrupt changes to sentencing systems in response to individual cases which, like the O’Brien case, create public anxiety.
Sentencing is a much more complex and intricate exercise than it may appear to the casual observer. Reforms must be gradual and evidence-based. Funding and developing the Isis system is by far the best way forward for Ireland.
* Tom O’Malley is a barrister and senior lecturer in law at NUI Galway. He is a member of both the Law Reform Commission and the steering committee of Isis. He writes here in a personal capacity.