IT IS DIFFICULT to know what words can add significantly to the chorus of anger since the appalling death of Detective Garda Adrian Donohue. It had been an unwritten code that gardaí and security personnel generally were off bounds for even the most unhinged – but no more. There was also a time that the thought of a father systematically raping his daughter was too vile an assault to even comprehend, let alone imagine could occur. Yet, thanks to women like Fiona Doyle, we now know this simply not to be the case. Tragically, in Ireland 2013 there is no deed, however heinous, to which the new criminal untermensch will not turn their attention.
Yet we hope that a developed civilization like ours will at least have the wit to then ensure that justice is done for both victim and society when such acts are committed. It should not be unreasonable to assume that any workable criminal justice system must be comprised of three main elements – namely, incarceration (for a sufficient period of time), punishment (which imprisonment provides through loss of freedom), and robust offender rehabilitation (both in jail and post-release). When all of these are properly in place, society has its best chance of ensuring deterrence from crime. In Ireland today we have none – nothing works.
If you don’t believe me, ask Fiona Doyle and her family, or the wife and children of Detective Garda Adrian Donohue, who know that whenever the perpetrators are brought to task for their deed, they will never serve the time that their crime deserves.
Judge Carney may have made something of a pig’s ear of the Patrick O’Brien rape case – and indeed he has said as much himself. Yet the bizarre sentencing tapestry in Ireland is so much more than just a good judge having a bad day. When it comes to sentencing, precedent binds the judiciary’s hands, as does the offender centric and risible notion of “proportionality,” coupled with little or no legislative will.
Put simply, prison sentences cannot and are not handed down of sufficient length to deter criminal activity. And if you’re middle class with a bit of an income, chances are you’ll receive even more favourable treatment at the hands of the system – ask “middle class, middle aged” sex offender Anthony Lyons. It appears €75,000 and you’ve got yourself a mere 16 weeks for the terrifying sexual assault of a young woman.
Indeed, when it comes to sexual offences, courts in Ireland show breathtakingly leniency. In Australia, the average prison term served for those convicted of aggravated sexual assault is more than six years. According to US Department of Justice figures, across the United States you are likely to serve on average a five-and-a-half year jail term for a “high-end” sexual assault. In England and Wales, a minimum of four years is recommended for such an offence under sentencing guidelines.
The legislative answer may be closer than we think . The British Criminal Justice Act 2003 offers a potential model upon which fresh sentencing legislative provision with regard to mandatory sentencing per se could be considered in this jurisdiction.
For adults aged 21 and over there are four starting points depending on the nature of the murder – from 15 years to a whole life order. The murder of a policeman in the course of his or her duty in Britain could potentially attract a minimum sentence of 25 years or above. On recent average statistics, the killer or killers of Detective Garda Donohue may serve 17 years – if charged with murder and if they are unlucky. The manslaughter of an officer in Britain (beside a host of other convictions) would almost certainly attract a very long sentence. Here as we know, it can be measured as easily in months as in years.
Note, these are simply starting points and judicial discretion is still available across the water. However a judge must begin at these tariffs and explain with good reason why they are deviating from them either upwards or downwards – society has at the very least laid down a firm minimum marker over which the killer crosses at his peril.
One of other greatest scandals in our criminal justice system however is the application of concurrent rather than consecutive sentencing for multiple offenders. In Ireland a judge has total discretion as to whether to impose either a consecutive or a concurrent sentence and 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 too high and this will be “unfair” to the convicted person and show a lack “proportionality”. To restore “fairness” concurrent sentencing is therefore practised. It’s win/win for the criminal.
No arm of criminal justice is, of course, ever served by concurrent sentencing. 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. Secondly, 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.
When it comes to our most serious crimes such as sexual offences and homicide, minimum mandatory sentencing is critical if we are to achieve justice for victims, family and the wider community. Society must evidence a minimum level of approbation regardless of individual case circumstances. To continue on our current sentencing path does a grave disservice to society and to the suffering of those such as Fiona Doyle and the memory of Detective Garda Adrian Donohue.
We owe it to them, and ourselves, to now ensure that fresh legislation takes the pressure off our judges and back where it belongs – on the criminals.
John O’Keeffe is a criminologist and special advisor to Advocates for the Victims of Homicide (AdVIC)
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