Background: In 2010, the Health and Safety Authority (“HSA”) successfully completed 27 criminal prosecutions: 10 summary and 17 on indictment. In addition, a further 23 files were sent to the Director of Public Prosecutions for directions. These sentences resulted in total fines of €571,900. In addition, two twelve month (suspended) custodial sentences were handed down. These figures are slightly down on 2009 where a total of 38 prosecutions were concluded with total fines of €708,850. However, overall, the level of fines is on the increase (as is the level of (suspended) custodial sentences imposed).
Many of the principles for the sentencing of corporate offenders have developed out of well established principles applicable to individuals. This differs greatly from days gone by when corporations were thought to be exempt from the criminal law. Devising a suitable penalty was problematic, especially in olden days, when virtually every crime of any gravity carried the death penalty. “Can you hang its common seal?” asked one advocate during the reign of James II.
When compared with other Western countries, Ireland retains a largely unstructured sentencing system. Maximum sentences are prescribed by statute for most offences, for example in the Safety, Health & Welfare at Work Act, 2005. However, there is no guidance on the severity of punishment appropriate for any particular offence. In the 2003 Australian case of R v Nemer1, the court said: “There is no sentence that is exactly right in a given case. In any particular case, the most that can usually be said is that an appropriate sentence will be within a certain range. Any sentence within that range will be appropriate.”
Accordingly, one of the challenges in our sentencing system is overcoming the apparent inconsistencies between the approaches of individual sentencing courts.
Reliance on Appellate Guidance
All common law jurisdictions rely to some extent on appellate guidance as a means of structuring sentencing discretion. A useful summary of the relevant principles relating to sentencing comes from the decision of the Supreme Court in People (DPP) v RMcC2 where Kearns J. stated: “…there is a ‘due process requirement in sentencing’…This requires that any sentencing court should conduct a systematic analysis of the facts of the case, assess the gravity of the offence, the point on the spectrum which the particular offence or offences may lie, the circumstances and character of the offender and the mitigating factors to be taken into account – all with a view to arriving at a sentence which is both fair and proportionate.”
In essence, the courts will have regard to three core principles::
1. Gravity of the crime
A court must make a judgment on the relative gravity of the offence, bearing in mind that maximum sentences should be reserved for the worst cases. In practical terms, this means that a court should begin by locating the offence on the overall scale of available punishment and decide on a notional sentence based on offence gravity alone. This, however, is only the first stage of the process.
Proportionality is concerned with the premise that the sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime committed by the particular accused. The case of People (DPP) v Oran Pre-Cast Limited3 established that: where a fine is unlimited (as it was in that case), care and restraint must be used in the power to fine; and, the fine imposed must be proportionate to the level of fault and the means of the offender.
3. Aggravating and Mitigating Circumstance
These are factors which may be taken into account by a court having firstly established both the gravity of the offence and having determined a proportionate sentence relative to both that offence and the circumstances of the offender.
The leading case, in the context of health and safety prosecutions, is the English case of R v F. Howe & Son (Engineers) Limited,4. which has been adopted by the Court of Criminal Appeal in Ireland in People (DPP) v Roseberry Construction Limited5.
While each case should be dealt with on its own particular circumstances, the following mitigating factors are relevant:
1. the previous safety record of the company;
1. a prompt admission of responsibility and an early guilty plea;
2. the means of the company and the effect of the fine on it;
3. the extent of the danger created, for example was it an isolated incident or a persistent one and steps taken to remedy deficiencies after they are drawn to the defendant’s attention.
On the other hand, the court identified the following aggravating factors:
1. the deliberate breach of a duty to maximise profits;
2. where death results from the breach; and
3. a failure to heed warnings
The Court observed that the size of the company and its financial strength or weakness could not affect the degree of care that was required in matters of safety.
The extent to which mitigating factors are considered will vary depending on the circumstances of the particular case. For example, in a recent anti-competition prosecution, the extensive cooperation of the defendant company with the investigation of the Competition Authority was entered by the defence as a plea in mitigation. This was rejected by the judge on the basis that the defendant company only cooperated when it knew that ‘the game was up.’
Judicial discretion in sentencing remains a cornerstone of our sentencing policy in Ireland. This brings with it certain attendant challenges such as overcoming the apparent inconsistency of approach as between individual sentencing courts. Judges and appeal courts will naturally differ as to where particular offences should be located on the scale of gravity and how much weight should be attributed to the particular circumstances and characteristics of the offender. However, for the moment, judges and practitioners are loath to abandon discretionary sentencing lest it should curtail the capacity of the courts to fashion sentences which reflect all of the circumstances of specific cases.
1  S.A.S.C. 375
2  2 IR 92, 104
3 Unreported, Court of Criminal Appeal, Hardiman J. (ex tempore) December 16, 2003.
4  2 Cr. App. R. 37
5  4 IR 338
Tristan is an Associate in the Construction and Engineering and Health and Safety Groups in Arthur Cox. His practice area is focussed primarily on construction and engineering law, advising on all aspects including both contentious and non-contentious matters. Tristan is experienced in various forms of dispute resolution having advised and represented employers, architects and contractors involved in various stages of disputes including settlement discussions, mediations and conciliations. Tristan also advises on all aspects of health and safety law and has represented a number of parties in criminal prosecutions taken against them by the Health & Safety Authority.