5.1 A sentencing judge should have regard to any mitigating or aggravating factors which could affect the length and/or nature of the sentence imposed on a convicted person. Mitigating factors would include such matters as the young age of an accused, lack of previous convictions, remorse and family background.
5.2 A number of applications for reviews of sentence on the grounds that they were unduly lenient were brought by the Director in 2005 in which it was contended that the judge placed too much significance on the mitigating factors or not enough on the aggravating factors of an offence.
5.3 In Director of Public Prosecutions v. Michael Maher & Anthony Whelan the robbery and killing of a 17 year old man occurred when a co-accused (Christopher Dunne) inflicted a single stab wound on him. Anthony Whelan received an eight year sentence (with six years suspended) for manslaughter and six years (with four years suspended) for robbery. Michael Maher received a ten year sentence (with seven years suspended) for manslaughter and seven years (with four years suspended) for robbery. The Court of Criminal Appeal concluded that the sentences imposed were not in themselves outside the parameters of sentencing for a case of this nature. However it found that the portion of the sentence that was suspended was excessive.
5.4 The circumstances of each accused were considered by the trial judge and for Anthony Whelan the following mitigating factors were considered: his age, that he did not produce a knife, that he had no previous convictions and his remorse.
5.5 The following mitigating circumstances were identified in the case of Mr. Maher: that he made a full admission of his involvement to the Gardaí, had no prior convictions (other than for minor Public Order Act offences), his age, his family background and that he was remorseful.
5.6 The Court found that the sentencing judge placed far too much weight on these mitigating factors put forward by the applicants' Counsel and that there was no justification for the reduction in the sentences given. New sentences were substituted for both accused with ten years (with four years suspended) for manslaughter and seven years (with one year suspended) for robbery.
5.7 In the case of Director of Public Prosecutions v. Patrick Gately, the accused was convicted of the unauthorised use of a motor car and reckless endangerment in relation to the manner of its driving. The Director contended in applying to review the sentence that the trial judge had failed to give sufficient weight to the aggravating factors of the offence - a serious road traffic accident - that the offence occurred late at night, in a car taken without permission, driving at high speed and colliding with another car leaving two occupants injured. The prosecution contended that no weight was given to the record of convictions of the accused for similar type offences, his limited remorse and insight.
5.8 In this case the Court of Criminal Appeal was satisfied that the trial judge had placed too much weight on the mitigating factors which were heard at the sentencing hearing and had imposed too lenient a sentence of eighteen months (with six months suspended). A new sentence of four years (with twelve months suspended) was imposed.
5.9 The Court found that the sentencing judge should have had regard to the seriousness of the offence itself rather than the personal circumstances of the accused as being the overriding factor in imposing sentence.
5.10 In Director of Public Prosecutions v. Julian Gilloughley (unreported Court of Criminal Appeal, 7 March 2005), the Director lodged an application to review a five year sentence (with two years suspended) on two counts of possession of drugs to the combined value of €15 million contrary to section 15A of the Misuse of Drugs Act, 1977 as amended.
5.11 The Court of Criminal Appeal found that the mitigating factors referred to by the defence, such as an early plea, co-operation with the Gardaí, that the accused had been coerced, had no previous convictions and was a 'lesser player', are all factors that would be present in many cases of this nature and that too much weight was placed on these factors in mitigating the sentence. The Court concluded that an error in principle was made by the learned trial judge in giving too little weight to the statutory minimum sentence of ten years.
5.12 The Court concluded that the sentence was unduly lenient and increased the sentence to seven years. The Court held that the trial judge had had too much regard to the personal circumstances of the accused rather than the offence itself and the amount of drugs found should be an important factor in assessing the seriousness of the crime.
5.13 However, in Director of Public Prosecutions v. NN (ex-tempore judgement, 27 June 2005) the respondent pleaded guilty to the possession of cannabis contrary to section 15A of the Misuse of Drugs Act, 1977 as amended. The 20 kilos of drugs, with a street value of between €70,000 and €80,000, was concealed in picture frames which the accused arranged to have transported from Johannesburg to Dublin where she was arrested. The Court heard that she and her daughter were HIV positive and that she had pleaded guilty at the earliest opportunity. A six year sentence (with two years suspended) was imposed by the sentencing judge.
5.14 On hearing the Director's application to review the sentence for undue leniency, the Court of Criminal Appeal held that the judge took into account all the proper mitigating (illness and plea of guilty) and aggravating factors (value of the drugs and seriousness of the offence) of the case and therefore, did not make an error in principle in his sentencing.