What do Judges take into consideration?
Quite a lot actually.
CRIMINAL LAW IS CONTEXT-specific.
What do I mean?
I mean that if two people walk into the same shop and steal the exact same thing each may receive a different punishment.
One might get a fine, the other jail.
This usually causes people to become outraged and start screaming about "inconsistency" among judges and that "this has to end" etc, etc.
Sometimes they're right but often wrong.
Lets look at our example above.
That is what I mean about the law being "context-specific".
No two cases are the same.
It depends on the context.
Peter and Paul (not saints, obviously) walk into a supermarket, pick up a box of Neuhaus Belgian chocolates (they may be thieves but they've got good taste) conceal the chocolates under their coats and walk out of the shop ("passing all points of payment" in legal parlance).
Peter is nabbed outside the front door by a burly-looking security guard and brought back into the shop. The police are called.
An hour later Paul tries the same manoeuvre but the security guard, fearing a run on the expensive chocolate section (think of a banking collapse, except with chocolate), notices that Paul is hovering aimlessly around the aisle before hurriedly trying to leave the store with the outline of a box amateurishly concealed under his woolly jumper.
In court both plead guilty to theft. Peter gets a fine and to his enormous relief leaves court without a conviction.
Paul gets 3 months in jail.
What has happened?
Peter has never been in any trouble with the law before. He has no previous convictions, is in stable employment and has suffered a breakdown in the days leading up to the event.
These things do happen.
Paul very likely has multiple convictions for theft. He has previously received a one-month prison sentence for theft. His previous one-month sabbatical in prison hasn't had the desired result so this time the judge "increases his tax band" to three months.
That is what I mean about the law being "context-specific". No two cases are the same. It depends on the context.
But this is hardly new. In life no two circumstances are the same either. Only in very rare cases can you successfully argue that two people committed the same act and got vastly different outcomes.
Those armchair referees among you should keep this in mind the next time you're shouting at the television watching a game.
________________________________
NO TWO DEFENDANTS are the same.
That’s why -generally speaking- two people who come to court for the same offence might receive different sentences.
That often leads to complaints of inconsistency in sentencing.
But no two people are the same; so that means Judges can treat them differently.
And should.
For instance, two people are convicted of drink driving in court.
The Judge then asks a question.
It is the same question asked by every Judge everywhere in the country at the point of conviction: has this person any previous convictions?
Has that person ever been convicted of a criminal offence before?
That’s important.
But previous convictions alone don’t necessarily mean that you’ll be treated much worse from those with no convictions.
What’s important here is “relevancy”: are the convictions ‘relevant’ to the charge you’re now facing?
For instance, if I’m convicted of drink driving and the Judge asks whether I have any convictions, a previous conviction for speeding or driving without tax wouldn’t be considered relevant in deciding what sentence to impose.
This is because the speeding or tax offences are completely different offences to drink driving.
So they’re not relevant.
But if I was convicted of speeding or driving without tax, previous convictions for these kinds of offences would be relevant because they show a consistent pattern of offending in this area.
One caveat: if my previous convictions were from 10 or more years ago, even if they are similar offences, they will normally be disregarded for the purposes of sentence.
Because it's so long ago.
Lets talk about drink driving.
If you come to court and are convicted of drink or drug driving, you will be disqualified from driving.
I'm sorry to say that but it's true.
It does not matter whether this is your first offence.
Disqualification is mandatory and must be imposed by the Judge.
The Judge has no choice.
Does your previous good record serve any purpose at all?
Yes, absolutely.
But only in terms of the fine that the court will impose.
Judges also take into account whether you are working, whether you have dependents to support, your level of cooperation (if any) with the Gardai.
If you have previous convictions for drink or drug driving, you can expect a fine of between €700-€1000.
If this is your first offence you can normally expect a fine of between €250-400.
These are approximate figures obviously.
JUDGES HAVE A LOT OF LEEWAY when it comes to imposing penalty for criminal offences.
For instance, if I'm charged and convicted of theft, the Judge can impose the Probation Act (non-conviction) and leave me without a criminal record.
This is because it's my first offence.
But I cannot get the Probation Act when it comes to certain offences.
Like drink or drug driving.
If I'm convicted I will be disqualified.
The law is the law.
This leads a lot of people to conclude that they have no choice other than to plead not guilty and try very hard to win at trial.
I do not disagree.