Why the judge in the Humphries case got it right
ALL offences, including sexual offences, are sentenced according to the same principles. As a matter of constitutional law, every sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender.
The first and foremost duty of a court is to select a just sentence, having regard to the harm caused by the offence, the offender’s culpability and other relevant circumstances.
Sentencing guidelines exist for a few offences, though there are none for sexual offences. But there are certain well-established principles which judges are required to follow. The maximum sentence, as specified by statute, is reserved for the most serious manifestations of the relevant offence. In all other cases, a judge must first decide where on the scale of gravity the offence lies. Thus, if the maximum sentence is 10 years’ imprisonment and the offence appears to be halfway up the scale of gravity, the starting point or headline sentence is five years.
Credit must then be given for any mitigating factors (where they exist), which means that in this example the final sentence will be lower, perhaps substantially lower, than five years.
A guilty plea is a strong mitigating factor, especially in a sexual offence case, as it saves the victim from having to give evidence and undergo cross-examination which, no matter how sensitively handled, can be quite traumatic. The earlier the plea is entered the more credit it deserves. Other mitigating factors include absence of previous convictions, previous good character and genuine remorse.
A court is also entitled to take account, to a limited degree, of other hardships the offender will suffer as a result of conviction. These may include loss of employment, family breakdown, and future difficulties in securing accommodation or employment and in reintegrating back into society. Nobody suggests that these factors should spare the offender from imprisonment where that is deserved, but they may be put in the balance when determining a proportionate sentence.
The maximum sentence for the defilement offences to which Tom Humphries pleaded guilty was five years’ imprisonment. The judge clearly ranked these offences high on the scale of gravity because she set the headline sentence at four years for each (an element of her decision that has been largely ignored in media comment). Having given due credit for mitigating factors, notably the guilty plea, his medical condition and remorse, she arrived at a final sentence of two-and-a-half years’ imprisonment which seems appropriate in the circumstances.
Mr Humphries also pleaded guilty to charges of child sexual exploitation, an offence which carries a maximum sentence of life imprisonment, but which can vary enormously in gravity. It can involve, for example, causing a child to engage in prostitution or using a child to produce child pornography. In this case, the judge decided on a headline sentence of three years, bearing in mind that the exploitation consisted in sending a large number of text messages.
The most difficult question in a case like this is whether the prison sentences should run consecutively or concurrently. Appeal courts have consistently held that this is a matter within the discretion of the trial judge. Concurrent sentences are more the norm where all the offences arose from the same course of conduct. Consecutive sentences are sometimes imposed where there are two or more victims, to reflect the harm inflicted on each. The decision to impose concurrent sentences in this case reflects existing practice.
The statement made by Judge O’Connor when sentencing Mr Humphries shows that she approached the case with great care. She took account of the aggravating as well as the mitigating factors (as reflected in the fact that she adopted a headline sentence close to the maximum for the defilement offences) and noted that he had not entered a guilty plea until a relatively late stage. She dealt in detail with the impact on the victim and, in saying that one might have some sympathy for the offender’s present situation, she stressed this was not to be interpreted as condoning in any way his criminal conduct.
It is untrue to say that Irish courts do not take sexual crime seriously. Heavy sentences, up to and including life imprisonment, are routinely imposed for serious sexual offences. Defilement offences, particularly when committed against persons under the age of 15 (when the maximum sentence is life imprisonment), are no different. In fact, in 2014, the Central Criminal Court imposed multiple life sentences for the repeated defilement of an 11-year-old child where the conduct was of a very serious nature. This was later varied on appeal to an overall sentence of 15 years, but is a clear indication of how seriously the courts take such offending.
The Humphries case was bound to attract media attention and any sentence, unless it was inordinately severe, was likely to be criticised. But critics should at least take the trouble to specify what they think the appropriate sentence should have been, in view of the applicable law and all the facts known to the judge.
Finally, to claim that the courts are unduly lenient in dealing with sex offenders (which they are not) does little service to anyone, least of all to victims who may be discouraged from reporting offences as a result of such statements.