knowledge 12 March 2020 |

Disputes: White Collar Crime – Overview of Sentencing of Individual Offenders

The Irish courts have made it clear that no special approach applies to the sentencing of white collar crime and that general sentencing principles will apply.

Proportionality is the primary principle of sentencing in Ireland. For individuals, this is both a common law principle and a constitutional imperative. A sentence must always be proportionate to the (a) gravity of the offence and (b) the personal circumstances of the offender.

Calculating an appropriate sentence begins with the court assessing the gravity of the offence. This is done by reference to the harm that was caused or risked by the offence coupled with the culpability of the offender. This involves the court looking at the maximum sentence available for the offence and assessing where the offence before it lies on that scale. This will produce a headline sentence.

Once the court has calculated this headline sentence, it will then make any necessary adjustments to reflect the personal circumstances of the offender. This can reveal aggravating or mitigating factors but more often the latter is true, resulting in some reduction in the headline sentence. Mitigating factors include a guilty plea and cooperation with the authorities. These factors can be particularly relevant in the area of white collar crime especially where complex fraud is involved as those trials can be difficult, long and expensive. The courts have expressly recognised that without admissions and pleas the prosecution of white collar crime would be significantly impeded.¹

While  every  step  in  this  sentencing  process  does  not  have  to  be  particularised  in  some  formulistic  or  rigid  way  by  the  trial  judge,  the  basis  for  the  sentence  imposed  should  be  both  apparent  and  consistent  with  the  principles  of  sentencing. Saying this, there is a high degree of judicial discretion in sentencing white collar offenders save to the extent that a maximum sentence may be set out in legislation. While sentencing guidelines have been developed in the case law over the past few years in certain areas of criminal law, there are currently none in the area of white collar crime.

However, that position is likely to change over time. The Judicial Council Act 2019 now provides for a Sentencing Guidelines and Information Committee which will draw up formal sentencing guidelines. These will be submitted to the board of the Judicial Council for adoption following its review and any necessary amendment. A court will be required to follow these guidelines unless it is satisfied that to do so would be contrary to the interests of justice. The reasons for any departure from the guidelines will have to be stated by the court in its decision. This new body will be established on 30 June 2020 and over time it is expected that guidelines will be put in place for most offences including white collar crime.