Over the period of 2011- 2013 there were 80 prosecutions for health and safety offences: 26 summary and 54 on indictment. The sentences resulted in total fines of €3,380,900. The number of prosecutions over this period has fluctuated but the overall level of fines is on the increase.
Contrary to fears that section 80 prosecutions against managers and directors would become a regular feature of the HSA prosecutorial landscape, the figures show that there have only been four such prosecutions since the Clare County Council case in 2010.
CONSISTENCY IN SENTENCING?
There is an apparent lack of consistency in the sentences imposed and fines have varied widely. This may be due to a number of factors, including judicial discretion and the difficulty encountered by judges in determining the appropriate levels of fines to impose which, on the one hand, should be large enough to punish but not so large as to threaten the financial viability of the company.
The factors to be considered by a court when assessing the level of fine were set out in the DPP v John Bennett & Co Limited and Eamonn McSweeney1. The Court of Criminal Appeal in this case refused the DPP's application for a review of the sentence imposed on the basis that it was too lenient. Macken J, in refusing the application stated:
"... the first point is to consider whether or not the company was in a position to pay the fines... The second matter is to have regard to whether there is a norm that can be considered and against which fines actually imposed can be measured as being unduly lenient. ....it is extremely difficult, and understandably so in the context of charges of this nature, to find what might be considered an appropriate norm, and therefore the Court should be looking at the fundamental principles to be applied having regard to all of the factors".
The Court also noted that the sentencing judge was entitled to take into account not only the fact that such an accident happened and the consequences for the victim, but also an early plea, the remorse shown by the accused, the assistance given in terms of the investigation and the remedial steps taken by both the company and the individual to correct the issues giving rise to the accident.
The system of sentencing in Ireland is one in which judges exercise a relatively broad discretion and compared with other Western countries, Ireland retains a largely unstructured sentencing system. Maximum sentences are prescribed but there is no guidance on the severity of punishment appropriate for any particular offence. In the 2003 Australian case of R v Nemer2, 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 inconsistencies between the approaches of different 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 comes from the Supreme Court in People (DPP) v RMcC3 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:
- Gravity of the crime
Firstly, 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.
Secondly, the Court must consider proportionality, namely whether the sentence to be imposed is the appropriate sentence for the crime committed by the particular accused. The case of People (DPP) v Oran Pre-Cast Limited4 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.
- Aggravating and Mitigating Circumstances
Thirdly, there are factors which may be taken into account by a court which may cause the fine to be raised or lowered. Aggravating factors are those which may increase the sentence, while mitigating factors may have the opposite effect.
The leading case, in the context of health and safety prosecutions, is the English case of R v F. Howe & Son (Engineers) Limited,5 which was adopted by the Court of Criminal Appeal in Ireland in People (DPP) v Roseberry Construction Limited6.
In Howe, the Court identified the following as aggravating factors:
- a deliberate breach of a duty to maximise profits, or a risk run specifically in order to save money;
- where death results from the breach; and »» a failure to heed warnings.
The mitigating factors identified were:
- the previous safety record of the company;
- a prompt admission of responsibility and an early guilty plea;
- 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.
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.
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 between sentencing courts. Judges and appeal courts will naturally differ as to where particular offences are 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 Unreported Court of Criminal Appeal Macken J (ex tempore) March 11, 2011
2  S.A.S.C. 375
3  2 IR 92, 104
4 Unreported, Court of Criminal Appeal, Hardiman J. (ex tempore) December 16, 2003.
5  2 Cr. App. R. 37
6  4 IR 338
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.