CONCURRENT SENTENCING

Background

1. The punishment of multiple offenders – those who must be sentenced for several offences at the same time - has historically presented Irish courts with one of the most intractable problems in sentencing.
2. The court’s dilemma has been whether to impose concurrent or consecutive sentences, or a combination of the two.
3. The traditional “text book” approach towards sentencing multiple offenders has become known as the “one transaction rule”.  This says that if offences arise from the same incident then they should attract concurrent sentences but if they arise from different incidents they should attract consecutive sentences.
4. His approach is fraught with difficulties both practical and legal. More importantly it simply has the status of principle only – it is a mere guideline not a rule and consecutive sentencing is seldom observed in Irish courts regardless.
5.  In the case of multiple offences where a guilty party has been convicted of an unlawful killing, sentencing for any other crime(s) committed is almost always differed until after the main trial is finished and sentence is passed on the lead offence.
6. Often these other crimes are either subsequently ignored by the criminal justice system, or, if they remain, any new sentence will almost certainly be stated to run concurrently rather than consecutively.

 The Reality

1. There is therefore NO statutory requirement to impose consecutive sentences in any circumstances (defined or otherwise). A Judge has total discretion as to whether to impose either a consecutive or a concurrent sentence.
2. Irish Judges strongly favour concurrent sentencing. The logic is that that if a person is to be given several consecutive sentences then the final figure will be very/too high and this will be “unfair” to the convicted person. To restore “fairness” concurrent sentencing is therefore practiced.
3. Furthermore, precedent rules that each sentence must comply with the principle of “proportionality” (i.e. “proportionate to the overall pattern of offending” plus the court will consider any mitigation) and unduly heavy sentences will not be imposed simply because they are to be made concurrent. It’s win/win for the criminal.
4. A relatively recent Irish case has stated that it “would be exceptional to impose consecutive sentences when the offences closely resembled one another andhappened within a reasonably short timescale, the near invariable practice in such cases being to impose concurrent sentences”.
5. “The Totality Principle”. This requires a judge who (exceptionally) orders consecutive sentencing to ensure that the cumulative sentence does not exceed the “overall culpability” of the offender. This further principle ensures that consecutive sentencing is rarely applied in Irish law.
6. There is therefore a legal presumption in Irish law of concurrency.

   Are concurrent sentences ever fair?

1. AdVIC does not believe so. There are four well established purposes of sentencing and none of them are satisfied if concurrent sentencing is the rule, rather than the exception.
2. (i) Retribution: No sense of retribution is evident when sentences run concurrently. Each crime becomes diluted and merged into one overall crime thus diminishing the crime and most importantly, each victim and their families.
3. (ii) Deterrence: Why commit one crime when you can commit five and get the same sentence? Concurrent sentencing is a criminal’s charter. It has zero deterrence.
4. (iii) Denunciation: No societal denunciation is attached to concurrent as opposed to consecutive sentencing. In reality the crime is applauded and the others disregarded.
5. (iv) Incapacitation: Five murders do not mean five life sentences but one. The murderer is only incapacitated for the duration of one of those offences – the others did not occur as far as the criminal justice system in Ireland is concerned.
6. (v) Rehabilitation: Rehabilitation is a partial aspect of sentencing and not one that AdVIC dismisses. However there can be no rehabilitation without firstly justice being done and seen to be done – concurrency can never be a bedfellow of justice. Justice for all first and then rehabilitation will follow.

   Proposals

• AdVIC proposes a root and branch review/debate of sentencing practices as they relate to concurrent and consecutive sentencing.
• We propose a national conversation on same culminating in a Bill coming before Dail Eireann which will ensure that consecutive sentencing for multiple offenders will operate on a statutory basis. Consecutive sentencing must now be written as a presumption into law.
• AdVIC therefore calls for Judges discretion on concurrent sentencing to be therefore removed with regard to homicides. Only with regard to lesser offences should judicial discretion remain re concurrency and even then, on a limited basis only.
• AdVIC proposes nothing more than fairness for offender, victims and their families alike. Legislative intervention with regard to consecutive sentencing will achieve a recalibration of justice in Ireland for all those affected by heinous crimes and for Irish society as a whole.