The recent judgment of the Court of Appeal in Coyle and Howard [2022] IECA 114 addresses some important sentencing issues but it is more noteworthy for one point it omits to address. This relates to taking offences into consideration. Each appellant had pleaded guilty to one count of violent disorder and one count of assault causing harm. Coyle was sentenced to an effective term of 5.5 years’ imprisonment (7.5 years with the last 2 years suspended for violent disorder and a concurrent 4-year term for the assault). The judgment records that the trial judge took into consideration five further counts, “being one count of assault causing serious harm and four counts of assault causing harm.” Presumably, “assault causing serious harm” refers to the offence of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997. Howard was given an effective sentence of 6.5 years (7.5 years with the last 12 months suspended for violent disorder and a 4-year concurrent term for the assault). In his case, the trial judge took into consideration four further counts of assault causing harm. What prompts this present comment is the apparent decision of the trial judge to take into consideration a count of causing serious harm, an offence that carries a maximum of life imprisonment, when sentencing for offences that have lower maximum penalties (10 years in the case of violent disorder and 5 years for assault causing harm).
The offences arose from an incident that occurred in the early hours of 1 August 2016 when a group of four people who were heading from a pub to a takeaway were set upon by another group, including the two appellants. One of the victims, Mr. M, was subjected to a particularly serious assault. He was knocked to the ground and repeatedly kicked on the face and head, even after he lost consciousness. Two other members of the group targeted by the assailants who tried to intervene were also assaulted. In addition, another person, Mr. R, who came on the scene and tried to intervene was punched in the head by one of the assailants and he fell to the ground. There as CCTV footage of Coyle stamping on Mr R’s head and of Howard kicking him in the face, before being pulled away by Coyle. Mr M sustained very serious injuries that necessitated a 10-day stay in hospital. Three other victims, including Mr R, also required medical treatment.
There can be no doubt but that at least one of the assailants committed at least one offence of causing serious harm. The violence inflicted on Mr M, in particular, clearly came within the definition of that offence. There was medical evidence that he suffered “severe head and brain injuries as a result of the assault.” From the text of the judgment, it is not entirely clear what the charges or plea arrangements were. We may assume, however, that Coyle was at least charged with causing serious harm, as it was taken into consideration at his sentencing. It would seem he pleaded guilty only to the violent disorder charge and one charge of assault causing harm, possibly on the understanding that the other charges would be taken into consideration. This, at any rate, is what might be inferred from the judgment which states that he pleaded guilty to the two charges mentioned and that the trial judge, in imposing sentence, took the other five counts into consideration.
The practice of taking offences into consideration has twice been considered by the Court of Appeal in recent times. It was addressed in considerable detail in Casey and Casey [2018] 2 I.R. 337 where the Court held that it was generally preferable not to have recourse to this option when sentencing for serious offences, though it did not rule it out entirely. It gave a number of reasons for so holding. First, as a matter of principle, a discrete sentence should be imposed for each offence of conviction. It noted that in Higgins (Supreme Court, unreported, 22 November 1985), the Supreme Court had stated that a sentence should be imposed for each count on which a person is convicted by a jury (though the same doubtless applies to guilty pleas). As the Supreme Court observed, if the conviction in respect of which sentence is imposed is later overturned, there will be no subsisting sentences for the matters taken into consideration. The other reason, and a very valid one, identified by the Court of Appeal in Casey and Casey, is that taking offences into consideration risks giving the impression that the offender is being given “a free ride” for those offences, however serious they may be.
The same issue arose even more directly in Lennon [2020] IECA 30, which is the subject of a previous post on this blog. This was an undue leniency application. The defendant pleaded guilty to a number of charges, including two of witness intimidation and one of assault causing harm. The trial judge sentenced him to 4.5 years imprisonment for the assault offence and took the other offences into consideration. The problem here was that assault causing harm carries a maximum sentence of 5 years’ imprisonment, whereas witness intimidation carries a maximum sentence of 15 years. The Court of Appeal had no hesitation in finding an error of principle on this account. It varied the sentence to a total of 6 years’ imprisonment, which included concurrent sentences which it identified as appropriate for the witness intimidation offences that had been taken into consideration by the trial judge.
More to the point for present purposes are certain statements made by the Court of Appeal in Lennon. First, it said that a judge who is sentencing for a number of offences should identify the most serious offence and set a headline sentence by reference to that before taking account of mitigation. Then it said that “if it is permissible to take an offence into consideration to which a person has pleaded guilty”, it is not permissible to take a more serious offence into consideration when sentencing for what is clearly in the circumstances a less serious offence. The offence carrying the higher maximum sentence will not invariably be the most serious offence for this purpose. Regard must be had to the conduct involved. As the Court in Lennon said (para. 45):
“There may perhaps be occasions where it is proper to focus on an assault which is accompanied by a threat to kill or seriously injure for the purpose of identifying the appropriate sentence, even though the latter offence carries a greater maximum sentence.”
The Court was presumably referring to a hypothetical situation where a person was charged with assault causing harm (with a maximum sentence of 5 years) and a threat to kill (with a maximum of 10 years) but where the assault constituted the most serious element of the overall conduct.
But, most significantly of all perhaps, the Court said (with reference to the particular facts of Lennon itself):
“We are of the view that if it is permissible take offences into consideration for which a plea of guilty has been entered in the Circuit Court (a matter to be finally decided in another case), it is appropriate to do so in respect of the offences of criminal damage and possession of an article. These offences were part of the intimidation and have been reflected in the sentence for the second offence of witness intimidation.”
Clearly, therefore, the Court was raising a question about the general appropriateness of taking into consideration offences in respect of which there had been a conviction on indictment, whether by plea or otherwise. I suggest that this practice should be discontinued. In Ireland, unlike England and Wales, there has been a statutory basis for taking offences into consideration since 1951. Section 8(1) of the Criminal Justice Act 1951, as amended, provides:
“Where a person, on being convicted of an offence, admits himself guilty of any other offence and asks to have it taken into consideration in awarding punishment, the Court may, if the Director of Public Prosecutions consents, take it into consideration accordingly.”
“The Court” is defined in s. 1 as any court exercising criminal jurisdiction. What seems obvious from the wording of the section is that, under it, a defendant may admit himself guilty only of an offence of which he has not been convicted. This is consistent with what we understand to be the common-law origins of the practice. It was to allow defendants, upon conviction, to confess to other offences they had committed and for which they were now willing to accept punishment in order to clear the slate. That, in turn, protected them from being arrested and prosecuted for those other offences as soon as they had served their sentences for the offences of conviction. Section 8 therefore does not seem to allow for the taking into consideration of offences of which a person has been convicted, by plea or otherwise. Perhaps the courts have an inherent power to take into consideration offences of which a person had been convicted following trial or to which he or she has pleaded guilty. But, even if they do, I suggest that it should not be used in respect of a serious offence – meaning, in effect, any offence prosecuted on indictment.
I would be prepared to accept, purely on grounds of pragmatism rather than principle, that a District Court Judge, when dealing with, say, a person convicted of a whole slew of road traffic offences may find it expedient to take some of them into consideration. However, offences dealt with in the higher criminal trial courts are of a different order. They are almost invariably serious in nature. (An exception might be a minor theft where the accused has exercised the right to jury trial under the Criminal Law (Theft and Fraud Offences) Act 2001, s. 53). As such, they deserve to be censured individually.
At this point it is necessary to say something about censure. In this jurisdiction, we accept that all the traditional justifications for criminal punishment (desert, deterrence, rehabilitation and so forth) have a role to play in our sentencing system. Subject to the limits imposed by the distributive principle of proportionality, any one of these justifications may be allowed to predominate in a given case, having regard to the circumstances of the offence or the offender. But every serious offence should attract some degree of censure in the form of a clear communication from the court to the offender, the victim (where there is one) and society at large that the conduct constituting the offence violated the behavioural norms which we are all expected to obey in order to preserve a peaceful and well-functioning society. That message is most effectively communicated through the imposition of a penalty. Censure is often associated, or even identified, with desert or retribution as a penal purpose. Andrew von Hirsch, a leading desert theorist, explains desert in terms of censure. In one of his later works on the topic he writes:
“The criminal sanction censures: punishment consists in doing something unpleasant to someone, because he has committed a wrong, under circumstances and in a manner that conveys disapprobation of the person for his wrongdoing.”
(von Hirsch, Deserved Criminal Sentences: An Overview (Hart Publishing, 2017, p. 17).
This description of censure’s central role in sentencing does not necessarily exclude the pursuit of utilitarian objectives such as deterrence or rehabilitation (von Hirsch might not agree with me on that point). However, it rightly identifies censure as the essence of any criminal penalty. For the moral and social reasons mentioned earlier, every crime of which a person is duly convicted, or in respect of which they admit themselves guilty, calls for some kind of censure.
However, none of what I am saying here should be interpreted as an argument for harsh sentencing. Quite the opposite in many cases. In saying that every crime (or at least every serious crime) of which a person is convicted calls for censure, I simply mean that a court should subject the offender to some measure that communicates the socially unacceptable nature of the offending conduct and that imposes some burden on him or her. That burden might be a lengthy term of imprisonment or a modest fine. It might even be a probation order which, though rehabilitative in purpose, still restricts the offender’s freedom or autonomy to some degree. But the message is still being conveyed that the defendant has done something to deserve being subjected to the order.
How then might this policy be given effect if the practice of taking serious offences into consideration were discontinued? In most cases, bearing in mind that we are talking about serious offences, the solution will be to impose concurrent prison sentences. The ultimate sentence will therefore be no longer than if some offences were taken into consideration. But it has the principled advantage of ensuring that each offence of conviction is censured by having a defined term of imprisonment attached to it. Moreover, this solution would obviate the problem identified by the Supreme Court in Higgins (above), namely that if the conviction in respect of which a sentence was imposed is overturned, there are no further sentences to be served, even though the offences taken into consideration may have been serious in nature.
Some might object that my ultimate argument here is unconvincing because concurrent sentences entail no additional punishment for the offences in respect of which they are imposed, whereas it is permissible to increase sentence to some degree to reflect offences taken into consideration. To this I would respond that censure is essentially about the communication of disapprobation. The imposition of a discrete sentence for each offence of conviction expresses censure for that offence, even if some of those sentences are never, in effect, served. After all, the same argument can be made about the suspended sentence. A sentence of three years’ imprisonment, suspended on terms for three years, may never be executed. In fact, the hope is that it won’t be and, depending on the circumstances, the conditions of suspension may not impose any appreciable burden on the offender. However, the censure element consists in the court’s public determination that the offender’s conduct merits three years’ imprisonment. This is a clear expression of disapprobation and, as such, involves “doing something unpleasant”, in von Hirsch’s words, to the offender.
Returning, then, to Coyle and Howard, I am not suggesting that the sentences were too lenient, though they certainly couldn’t be regarded as too severe. If Coyle had pleaded guilty to the offences taken into consideration, the same result, or something very similar, could have been reached by imposing concurrent sentences. Of course, the court may have had little option but to proceed as it did if there was a deal to the effect that Coyle would plead guilty to violent disorder and one count of assault causing harm, while allowing the remaining charges to be taken into consideration. If that indeed were the case, then prosecuting authorities need to review the practice of consenting to serious offences being taken into consideration, especially if one of them is more serious than any of those to which there is a guilty plea.
Sentencing, Crime and Justice 