What is the minimum and maximum sentence?

When someone is given a life sentence, they will be subject to that sentence for the rest of their life.

When a judge passes a life sentence, they must specify the minimum term an offender must spend in prison before becoming eligible to apply for parole (sometimes called the tariff).

There is one exception to this rule, which is when a judge passes a ‘whole life order’. This sentence means that the offender must spend the rest of their life in prison.

A life sentence always lasts for life, whatever the length of the minimum term.

Mandatory life sentences

Parliament has decided that judges must give a life sentence to all offenders found guilty of murder. The judge will set a minimum term an offender must serve before they can be considered for release by the Parole Board.

The minimum term for murder is based on the starting points set out in Schedule 21 of the Sentencing Code. The schedule sets out examples of the different types of cases and the starting point that would usually be applied. For example, where a murder is committed with a knife or other weapon which the offender took to the scene intending to commit an offence, the starting point for the minimum term would be 25 years.

The offender will be released only once they have served the minimum term and if the Parole Board is satisfied that detaining the offender is no longer necessary for the protection of the public. If released, an offender serving a life sentence will remain on licence for the rest of their life. If they are ever thought to be a risk to the public they could be recalled to prison. They do not need to have committed another offence in order to be recalled.

Whole life order

For the most serious cases of murder, an offender may be sentenced to a life sentence with a ‘whole life order.’ This means that their crime was so serious that they will never be released from prison.

As of 30 June 2020 there were 63 whole-life prisoners and an additional three life prisoners being treated in secure hospitals. The list of offenders with a whole-life term includes serial killers Rosemary West, Levi Bellfield and Wayne Couzens. (Statistics taken from the Ministry of Justice’s offender management statistics publications.)

Discretionary life sentences

There are a number of crimes – such as rape or robbery – for which the maximum sentence is life imprisonment. This does not mean that all or most offenders convicted of these offences will get life.

Parliament has made provisions that deal with how offenders who are considered dangerous or who are convicted of a second, very serious offence may be sentenced to imprisonment for life. This is a summary of the main provisions:

1. Life sentence for serious offences

A sentence of imprisonment for life must be imposed, where the following criteria are met (sections 274 or 285 of the Sentencing Code):

• the offender is convicted of an offence listed in Schedule 19 of the Sentencing Code; and
• the offence was committed on or after 4 April 2005; and
• in the court’s opinion the offender poses a significant risk to the public of serious harm by the commission of further specified offences; and
• the court considers that the seriousness of the offence justifies the imposition of imprisonment for life.

 2. Life sentence for second listed offence

The court must impose a sentence of imprisonment for life, where (sections 273 or 283 of the Sentencing Code):

• the offender is convicted of an offence listed in Schedule 15 of the Sentencing Code; and
• the court would impose a sentence of imprisonment of 10 years or more for the offence; and
• the offender has a previous conviction for a listed offence for which he received a life sentence with a minimum term of at least 5 years or a sentence of imprisonment of at least 10 years;

unless it would be unjust to do so in all the circumstances.

In both situations the judge will set a minimum term that the offender must serve in prison. At the end of that term the offender can apply to the Parole Board for release on licence but will be released only if they are no longer considered to be a risk to the public. If released, the offender would be subject to certain conditions and, if the conditions are broken or the offender is considered to be a risk to the public, they will be sent back to prison.

Imprisonment

There are three specific types of imprisonment options available to a judge:

• Mandatory sentences
• Maximum sentences
• Minimum sentences

Mandatory sentences

A mandatory sentence is one which must be imposed regardless of any other circumstances. In Ireland, murder carries a mandatory sentence of life imprisonment. A life sentence lasts for life. However, as is the case in a number of countries, not all of the life sentence in Ireland is generally served in prison custody. Prisoners who have been sentenced to life imprisonment are often granted temporary or early release. This is a feature of prison systems internationally and in Ireland.

The Minister for Justice always considers the advice and recommendations of the Parole Board. From 30 July 2021, the time which must be served by a life-sentence prisoner before being considered for parole by the Board is 12 years. Previously it was 7 years.

Prisoners serving very long sentences (including life sentences), are normally reviewed on a number of occasions over a number of years before any substantial concessions would be recommended by the Board. The length of time spent in custody by offenders serving life sentences can vary substantially. Of the prisoners serving life sentences who have been released, the average sentence served in prison is approximately 18 years. This, however, is only an average; there are prisoners serving life sentences in Ireland who have spent more than thirty years in custody.

Maximum sentences

The law lays down maximum sentences for all crimes. For example, if you are found guilty of violent disorder under Section 15 of the Criminal Justice (Public Order) Act 1994, the maximum sentence you can receive is 10 years imprisonment.

In practice maximum sentences are reserved for only the most serious cases. The maximum sentence is always open to a judge even if you have pleaded guilty to an offence.

Minimum sentences

Generally, sentencing is left to the discretion of the judge. However, there are a number of laws which take this discretion away from the judge and they must impose at least a minimum sentence.

For example, the Criminal Justice Act 2006 sets out a number offences in relation to firearms which carry a minimum sentence if you are convicted on indictment. If it is your first offence, the judge has the discretion to impose a lesser sentence. In these cases the judge will take certain things into account, such as if you plead guilty or assisted the Gardaí. However, if it is your second or subsequent firearms offence, then the minimum sentence applies.

See information on ‘Minimum sentences for firearm offences’ below.

Non-custodial sentences

Suspended sentences

A suspended sentence means the judge imposes a prison sentence but suspends it on certain conditions. This means that you do not go to prison if you keep the conditions. A suspended sentence contains 3 elements:

• The term of imprisonment (for example, 4 years)
• The conditions on which it is suspended (for example, to keep the peace and be of good behaviour or to undergo certain treatment)
• The period for which the sentence is suspended

If you break a condition when the sentence is suspended, you will have to serve the prison term that was originally imposed.

Community service orders

Community service orders (CSOs) are provided for by the Criminal Justice (Community Service) Act 1983 as amended by the Criminal Justice (Community Service) (Amendment) (No. 2) Act 2011. A CSO means that the person must do some work which is beneficial to the community. CSOs are imposed by a judge instead of a prison sentence, where the prison sentence would have been 12 months or less. A CSO can be made if you are over 16.

A number of considerations must be met before a CSO can be made by a judge:

• You must be suitable for community service (the judge orders a probation report to decide whether you are suitable for a CSO)
• Suitable community work must be available for you to do
• You must agree to the CSO

The amount of community service you get depends on the Court, but it cannot exceed 240 hours. You must complete the community service within one year of when the CSO was made.

Fines

Many offences provide for a fine to be imposed. Often, offences will provide for a fine and/or another punishment (usually a prison sentence), while other offences attract only a fine. If a fine exceeds a certain amount (class A fine) the offence may be outside the jurisdiction of the District Court which can only deal with minor offences.

When a fine is imposed, the judge normally specifies when the fine must be paid by. If the fine is not paid within the time period provided by the judge, you can be sent to prison. In the District Court, the imprisonment default periods are:

Under the Fines (Payment and Recovery) Act 2014 judges can give you community service instead of sending you to prison for failing to pay a fine.

Curfews and exclusion orders

Judges sometimes use curfews and/or exclusion orders as a sentencing option. These orders are often used as a condition of bail or a suspended sentence.

The court can make an order that means you have to be at home at a particular address between certain hours of the day or night. Similarly, the judge might ban you from a certain street or premises, for example, a pub or licensed premises.

Restriction on movement orders

Under the Criminal Justice Act 2006 the court can impose restriction on movement orders. These orders restrict your movements as the court considers appropriate. For example, they can forbid you from being in a certain place at a certain time, or can involve a curfew.

A restriction on movement order may be imposed if you are convicted of certain offences (mainly public order and assault offences) and you are sentenced to imprisonment for three months or more. The Act also provides that compliance with such orders may be electronically monitored.

Probation orders

The Probation of Offenders Act 1907 provides the courts with a way of dealing with first-time offenders and offenders who are unlikely to be in trouble again. It lets the courts give these offenders a type of official warning without imposing a sentence on them. A probation order requires you to be of good behaviour. It may also contain certain conditions such as:

• Payment of compensation
• Residing at a particular place
• Supervision
• Any other conditions considered necessary to prevent a repeat of the offence (for example, attending counselling)

It will be recorded that you have benefited from the Probation Act. If you appear before the courts again this may be taken into consideration.

Binding over

Courts have a long-standing power that allows them to bind you over to keep the peace and be of good behaviour. This involves you entering into a recognisance (or monetary bond) for a period of time. If you get into trouble during the time stated in the order, you must pay that sum of money or face imprisonment.

Court poor box

The court poor box is another way judges can deal with less serious offences in the District Court. If you agree, you may be required to pay a sum of money into the court poor box. Usually this is as an alternative to having a conviction recorded against you. Judges only really consider this option if you are a first-time offender who has committed a minor offence, such as, littering or parking offences. This option is only available if you plead guilty or where there are special circumstances explaining your behaviour. There is more information in the document on the Court poor box.

Forfeiture and confiscation

Various laws provide judges with the power to order property, which is connected with the offence you have been convicted of, to be forfeited or confiscated. For example, under Section 10 of the Censorship of Publications Act 1929 prohibited publications may be confiscated.

Compensation

The Criminal Justice Act 1993 means judges can order you to pay compensation. This may be in addition to or instead of any other punishment. The amount of compensation which a court can order is limited to the amount it could award in damages in a civil case.

The court must take your means and your financial commitments into account when making a compensation order. Compensation orders may be enforced. For example, the court can order an attachment of earnings.

Disqualification

Disqualification orders are not a punishment, but rather a finding that a person is unfit to perform the function from which they are disqualified, for example, to drive a car. In some cases disqualification is mandatory, and in others cases disqualification is something the court chooses to impose.

The most common types of disqualifications are for convictions for driving offences. However, under Chapter 4 of the Companies Act 2014, a person, convicted on indictment of a criminal offence related to a company, can be disqualified from holding certain positions related to running a company, such as a director.

Endorsements and penalty points

The Road Traffic Acts provide for a system of endorsements. An endorsement is an entry on a person’s licence record of either a court order of disqualification or of penalty points. There is more information in the document on penalty points.

Sex and drug trafficking offenders

Orders for sex offenders

As well as the general sentencing options available for all offences, a judge can make a number of specific orders when dealing with sexual offences. This is provided for by the Sex Offenders Act 2001.

A judge can make the following orders if you are a convicted sex offender:

Notification order: Obliges you to notify the Gardaí of your name and address.

Certificate: States that you have been convicted of the sexual offence, your sentence and that there is a notification requirement.

Obligation to notify employers: If you are applying for employment which involves unsupervised access to or contact with a child or mentally impaired person, you are ordered to notify the employer or potential employer of your conviction for sex offences.

Sex offender order: If the Court believes it is necessary to protect the public from you, it can make such an order prohibiting you from carrying out certain activities.

Post-release supervision order: If the Court considers it necessary it can impose conditions on you for when you are released from prison. These conditions will be supervised by the Probation Service and the Gardaí.

There is more information in the documents on the Sex Offenders Register and on monitoring of sex offenders.

Orders for drug trafficking offenders

The Criminal Justice Act 2006 introduced a system for convicted drug traffickers similar to those mentioned for sex offenders. The court can make an order which obliges you to notify the Gardaí of your name and address.

The order is only made if the court considers that it is in the interest of the common good and that it is appropriate, given the circumstances of your case. More information is available in the document on the Drug Offenders Register.

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