Dr. Aisling Parkes & Dr. Fiona Donson
A shorter version of this article was published in the Irish Examiner, 9th July 2013 http://www.irishexaminer.com/analysis/the-impact-of-imprisonment-beyond-the-offender-236287.html#.UduyxP1SCM8.twitter
The release last month of the Law Reform Commission Report on Mandatory Sentences has provided an opportunity to reflect in an informed way on the approach taken in our jurisdiction to sentencing in the Irish criminal courts. In addition, the controversial sentencing judgment delivered by Mr Justice Sheehan in the case of a man convicted of raping his then 14 year old sister-in-law 27 years ago highlights the serious difficulties involved in balancing the range of competing rights and interests in the sentencing process. In particular, the often unseen tensions between victims and the family of offenders are laid bare providing an extremely challenging sentencing decision. Significantly such challenges are a common feature in cases where prison sentences are imposed, yet in the majority of cases in this jurisdiction they are rarely even acknowledged let alone considered explicitly by the sentencing judge.
Sentencing in Ireland has historically been regarded as being within the sole discretion of the court. Indeed to date, there has been considerable resistance by the judiciary to even the most modest of sentencing guidelines. However, this long established position is now under pressure as a variety of reports over the past decade have recommended the adoption of a more guided approach to sentencing. The Law Reform Commission Report on Mandatory Sentencing published last month notes generally that there is no agreement on the aims and principles framing our sentencing process and an “absence of anything remotely approximating to a consensus on who should be sent to prison and why they should be sent there.” Unsurprisingly, therefore the report recommends the development and implementation of appropriate sentencing guidelines.
Generally, when an offender is sentenced, a court can take a variety of matters into consideration. These will include the type of offence committed and any aggravating and mitigating factors. It may also have regard to the accused’s criminal record, the views of the victim, and wider social and policy issues. However, the extent to which incarceration will impact on the defendant’s family and in particular, their children, receives little attention beyond its possible inclusion as a mitigating factor. This is despite the fact that under Article 3 of the UN Convention on the Rights of the Child 1989, to which Ireland is a party since 1992, require that if a decision concerning the child’s primary caregiver is being taken by a court, the best interests of the child need to be balanced against any other relevant factors.
In recent years, the impact of a sentence on the children of an offender as a consideration to be included in the sentencing process has been recognised in a number of jurisdictions, for example in England and Wales. Perhaps the best-known example derives from the landmark decision of the South African Constitutional Court, S v M (2007). This case concerned the conviction of a single mother in whose case the court held that the best interests of children should be considered alongside other elements in the sentencing process. Albie Sachs J. noted the need for a “change in mindset” when dealing with cases where children are affected by the sentencing of a parent. This requires an acknowledgment that while a prison sentence is imposed as punishment for a crime, imprisonment has an impact beyond the offender. This does not mean parents are not sent to prison where such a sentence is appropriate, but rather that the full impact is understood and alternative punishments considered where the rights of children are engaged.
It would appear that the approach of Mr. Justice Sheehan in the Counihan case a few weeks ago included elements which are consistent with the approach adopted in South Africa, given the fact that the Judge took into consideration the hardship likely to be suffered by the defendant’s three children. Evidence of the negative impact of the offender’s imprisonment pending sentence on one of his autistic children was presented indicating the harm that an extended prison sentence would do to the family in the long term. The judge noted that despite the seriousness of the offences and the harm done to the victim, he ultimately concluded that imprisonment would “impose extreme hardship” on the offenders family “particularly on his partner and his son.”
However, it is clear the High Court considered the impact of the sentence on the offenders children as a mitigating factor, something “belonging to the offender”, whereas the S v M approach requires a balancing of competing interests including the best interests of any children to be affected by the imprisonment of a parent. This approach firstly requires that the court be appraised in each case before it of the potential impact of imprisonment on children and families, often termed a family impact statement. This factor must, however, be balanced – considering the impact of a prison sentence on the family of an offender does not mean that s/he should not be imprisoned where a prison sentence is ultimately the appropriate sanction for the crime committed. What it does mean is that on a systematic basis the sentencing court should (1) ascertain whether a convicted person is a primary caregiver, (2) if a custodial sentence is being considered the court should have regard to the possible impact it would have on the children, (3) if a custodial sentence is appropriate and the convicted person is a primary caregiver, the court must, in the words used in S v M “apply its mind to whether it is necessary to take steps to ensure that the children will be adequately cared for while the caregiver is incarcerated”, and (4) when deciding between a range of possible sentences, the court should be guided by the best interests of the child in deciding which sentence to impose.
The suspended sentence imposed by the court has been greeted, unsurprisingly, with shock by victims support groups. Their concerns reflect not only the significant harm sexual offences inflict on victims but also the on-going failure of the criminal justice system to adequately prosecute such offences. While the final decision in Counihan has left many questioning whether or not justice prevailed in that case, the decision making process engaged in by the Judge is one to be commended. However, the tension between victim and offenders families adversely affected by a sentencing decision can be difficult to resolve, particularly in a system like ours where there are few alternatives to prison, but it should not continue to be ignored as is the current practice. If, as the LRC recommends, clear sentencing guidance is adopted in our jurisdiction it should include a process whereby the impact of a sentence upon the children and families of offenders are taken into consideration on a systematic basis alongside the interests of the victim.