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SENTENCING RECIDIVIST SEX OFFENDERS: A CHALLENGE FOR
PROPORTIONALITY
Paper delivered at Conference on Recent Developments in Criminal Law at Trinity
College Dublin in December 2008 and subsequently published in Bacik and
Heffernan (eds) Criminal Law and Procedure: Current Issues and Emerging Trends
(Dublin, FirstLaw, 2009), pp. 106-132
Tom O’Malley BL
School of Law
NUI Galway
The sentencing of sex offenders continues to be a subject of intense public interest and
intermittent controversy despite the fact that, almost without exception, those convicted
of serious sex offences are sentenced to lengthy terms of imprisonment. Indeed, it is rare
for any sex offender who has committed a contact offence to escape with a non-custodial
sentence.1 As late as 2007, the Court of Criminal Appeal reiterated in the plainest terms
the principles already established by the Supreme Court in People (DPP) v Tiernan2 on
the sentencing of adult rape.3 These principles require that, save in the most exceptional
circumstances, rape must be punished with an immediate and substantial term of
imprisonment. In addition to primary punishment, which is usually custodial in nature,
most sex offenders are made subject to a notification requirement under the terms of the
Sex Offenders Act 2001 while others are additionally made subject to lengthy postrelease supervision periods under Part 5 of the same Act. Indeed, the introduction of
similar ancillary measures specifically for sex offenders in England and Wales in the late
1990s led to an allegation that the law was creating a kind of criminal apartheid.4 Such a
comment might not be entirely appropriate in Ireland where drug offenders have been
singled out for harsh treatment at least as much as sex offenders. Within the past year or
so, the Irish courts have had to deal with a number of particularly difficult cases
involving repeat rapists or child abusers.5 Many would instinctively feel that recidivist
sex offenders should be severely punished and that an indeterminate prison sentence may
sometimes be only effective means of protecting the public from future victimisation at
1
The reference to a contact offence has been included to distinguish those who have committed
offences involving direct contact from those convicted of indecent exposure or child pornography offences.
Persons convicted of possessing, as opposed to producing or distributing child pornography, are frequently
fined or given suspended sentences of imprisonment unless they are found in possession of large quantities
of material or material of a particularly degrading nature.
2
[1988] I.R. 250.
3
People (DPP) v Keane [2007] IECCA 113.
4
Soothill and Francis, “Sexual Reconvictions and the Sex Offenders Act 1997” (1997) 147 New
Law Journal 1285. See also the same authors’ “Sex Offenders: Specialists, Generalists – or Both? A 32Year Criminological Study” (2000) 40 Brit. J. Crim. 56.
5
These include People (DPP) v RC [2008] IECCA 82; People (DPP) v P.S. [2009] IECCA 1;
People (DPP) v G.K. [2008] IECCA 110; People (DPP) v Power, Central Criminal Court, February 16,
2009.
the hands of proven recidivists. At the same time, Irish courts have shown little
inclination to depart from proportionality as the dominant distributive principle of
sentencing. This in turn raises the question of the extent to which a system committed to
proportionality can respond effectively to recidivist offending of a particularly serious
nature.
The criminal record of a defendant may become an issue at different stages of the
criminal process. At an informal level, the holder of such a record is sometimes more
likely than others to become a suspect in a criminal investigation. Police investigating a
burglary, for example, may well turn their attention first to convicted burglars known to
have been living in the locality where the crime occurred.6 Indeed, they would have some
empirical justification for so doing because of the recidivist tendencies of many burglars
and, as repeat victimisation studies have shown, in Britain at least, some burglars target
the same premises more than once.7 In more formal terms, criminal record is clearly an
important consideration in bail decisions, and it is one of the factors which may be taken
into account when deciding if a remand in custody is necessary to prevent the possible
commission of a serious offence.8 Only rarely and in well-defined circumstances is it
permissible to introduce evidence of a defendant’s previous convictions in the course of a
trial.9 The general rule prohibiting the admission of such evidence is based on the
apprehension that a jury might be distracted from its consideration of the evidence if
they were aware of the defendant’s record, and all the more so where the previous
offences were similar to the charges being tried. However, once a conviction has been
entered, previous convictions are clearly relevant for sentencing purposes. The judge
must be informed of the offender’s record and the existence of any disputed previous
conviction must be formally proved.10 Obviously, the absence of previous convictions is
a significant factor for the purpose of sentence selection. A person who has gone through
life without incurring a criminal conviction should be entitled to some credit on that
account. Few would deny that the presence of previous convictions should also have
some bearing on sentence but, as we shall see presently, the precise manner in which they
are relevant and the weight to be accorded to them are matters of some dispute.
For sentencing purposes, recidivist sex offenders may be divided into three broad
categories each of which poses a distinct set of problems. The first consists of serial
offenders who will have committed numerous sexual offences against one or more
victims before being formally reported, prosecuted and convicted. The second consists of
6
McConville, Sanders and Young, The Case of the Prosecution (London: Routledge, 1991)
provides an interesting account, based on an empirical study, of how cases are constructed against
suspected persons.
7
See, for example, Farrell and Pease (eds), Repeat Victimisation (Criminal Justice Press, New
York, 2001); Bernasco, “Them Again? Same-Offender Involvement in Repeat and Near Repeat Burglaries”
(2008) 5:4 European Journal of Criminology 411; Townsley, Homel and Chaseling, “Repeat Burglary
Victimisation: Spatial and Temporal Patterns” (2000) 33:1 Australian and New Zealand Journal of
Criminology 37.
8
Bail Act 1997, s. 2.
9
This is most likely to happen when an accused person “loses the shield” in accordance with the
Criminal Justice (Evidence) Act 1924, s. 1. See People (DPP) v McGrail [1990] 2 I.R. 38.
10
State (Stanbridge) v Mahon [1979] I.R. 214 at 219.
offenders who have already been convicted and sentenced for sexual offences but who
are later convicted for other similar offences committed during the same era as that to
which the first set of charges related. The third, which is the primary concern of this
paper, consists of persons with one or more previous convictions for sexual crime who
commit a further sexual offence after being released back into the community. That
release may have occurred immediately after conviction if, for example, the offender
received a suspended sentence, but more commonly it will have occurred after the service
of a prison term. Offenders in all of those categories are repeat offenders but the term
recidivist is usually reserved for those in the third, namely, offenders with previous
convictions for similar offences. Sentence sequence is the main problem associated with
those in the first category. Good sentencing practice demands that an offender should
receive a separate sentence for each offence of conviction, but should the sentences be
ordered to run consecutively, concurrently or partly concurrently? Broadly speaking, Irish
courts tend to favour concurrent sentences though they are also willing to make
adjustments when necessary to reflect the overall gravity of the case.11 This can usually
be achieved by ordering one or more of the sentences to run consecutively to another,
leaving the remainder to be served concurrently with the resulting cumulative sentence.
Serial child sexual abuse does, of course, pose difficult theoretical and practical
challenges for the sentencing system on account of the enormous number of offences that
will often have been committed before they are brought to police attention. Questions
have occasionally been raised about the suitability of international criminal tribunals
modelled on domestic criminal courts for dealing with gross and persistent human rights
abuses involving mass violence.12 Somewhat similar questions might be asked about the
adequacy of existing laws and practices for dealing with offenders who have abused one
or more victims dozens or even hundreds of times over a long period, though admittedly
in a radically different context from that in which war crimes will have occurred.
Ultimately, however, courts must operate within the constraints of a system which may
never have envisaged the possibility of such extensive serial offending. Pragmatism, one
of the defining qualities of the sentencing role, demands that condign punishment be
meted out in each case even if it is no more than an imperfect reflection of the suffering
which the offender has visited upon the victims.
The main problem associated with the second category of offenders mentioned above
may be characterised as one of sentencing equity, and it is illustrated by two recent Irish
cases. In People (DPP) v Meaney13 the accused pleaded guilty to some sample charges of
11
People (DPP) v McKenna (No.2) [2002] 2 I.R. 345; People (DPP) v Z, unreported, Court of
Criminal Appeal, March 14 1995. Courts elsewhere, particularly in Australia, favour a similar policy. In
Dicker v Ashton (1974) 65 LSIS (SA) 150 at 151, Wells J. said: “I am of the opinion that, unless the
circumstances are exceptional or the offences in question are the terminal product of separate and
independent courses of criminal conduct that happen to have occurred together, a court is not ordinarily
justified in imposing cumulative sentences of imprisonment of offences that are of a similar character or
ordinarily associated and that simply represent facets of one course of conduct”. Quoted with approval in R
v Scanlon (1987) 89 F.L.R. 77 and R v Murphy [2005] NTCCA 15 at [25]. A similar view was expressed
by Forster C.J. in Brown v Lynch (1982) 15 N.T.R. 9 at 11-12.
12
See, for example, Drumbl, Atrocity, Punishment and International Law (Cambridge University
Press, 2007).
13
Circuit Court, Sligo, January 29, 2008.
indecent assault committed more than 35 years earlier (in 1972) against a young pupil in
a school where he taught. The accused had, in fact, been the appellant in People (DPP) v
M14 where his sentence for similar offences committed against other pupils had been
reduced from 18 to 12 years’ imprisonment. The latter offences appear to have been
committed between the mid-1980s and the early 1990s, and the sentence for those
offences was finalised in 1994. While serving that sentence, he was questioned in relation
to the 1972 assaults and he made certain admissions. However, once charged, he
instituted judicial review proceedings to restrain his trial from going ahead.
Unfortunately, it took well over six years for those proceedings to wend their way
through the superior courts but in a judgment delivered in January 2007, the Supreme
Court refused the application.15 It did however approve a statement by the High Court
judge to the effect the applicant’s entitlement to a fair trial would include a requirement
that account be taken of the sentence which he had already served. Both courts further
accepted regard might be had to the possibility that had the present charges been
preferred earlier, any sentences imposed in respect of them might have been served
concurrently or partly concurrently with those imposed for the other offences. The history
of People (DPP) v O’Connell was even more complicated. The defendant had initially
been charged 1998 with having committed various sexual assaults against five victims. In
November 1999, the indictment was severed which led to several different trials one of
which resulted in an acquittal, another in a quashing of the indictment and two in
convictions which resulted in a cumulative term of four years imprisonment from which
the applicant was released in June 2003. There remained one outstanding trial due to
commence in 2000 but it was adjourned because there was no judge available on the
appointed date. That trial was due to recommence in January 2004, but the defendant
brought judicial review proceedings, unsuccessfully as it happens, to prevent it from
going ahead.16 Eventually, he pleaded guilty and was sentenced to three years
imprisonment on the relevant charge.17 While the Supreme Court, in dismissing the
judicial review application in O’Connell declined to treat the sequence of events as an
exceptional circumstance justifying prohibition, it did say that those events could
properly be taken into account at the sentencing stage. This is a matter which requires
further attention. An appeal in either Meaney or O’Connell, may provide the Court of
Criminal Appeal or Supreme Court with an opportunity to indicate the principles
applicable in circumstances where all of the offences might possibly have been dealt with
at the same time.
The term “recidivism” is commonly reserved for offenders falling into the third category,
namely, those who re-offend despite having been previously convicted and sentenced for
similar offences. One important qualitative difference between recidivist offenders and
repeat offenders in the first category is that recidivists have continued to offend despite
having been formally censured and punished for criminal conduct in the past. They have
14
[1994] 3 I.R. 306.
Admittedly, some of the delay was due to the fact that the Supreme Court, following upon its own
decision in H v DPP [2006] 3 I.R. 375, [2007] 1 I.L.R.M. 401 had invited further submissions in Meaney,
reported as MM v DPP [2008] IESC 1.
16
P. O’C v DPP [2008] IESC 5.
17
People (DPP) v O’Connell, Central Criminal Court, February 9, 2009.
15
consequently displayed incorrigibility as well as persistence and this, according to one
view, would justify more severe punishment for the late convictions. Broadly speaking,
two strategies might be pursued to achieve such a goal. Legislation might require or
permit progressively more severe punishment for those reconvicted of the same or similar
offences. Alternatively it might be left to the courts to fashion appropriate principles to
govern the situation. Both approaches are reflected in Irish law but, as we shall see, it has
largely been left to the courts to work out the appropriate principles.
STATUTORY ENHANCEMENTS
Statutory rules requiring or permitting enhanced punishment for repeat offenders take a
variety of forms but the most severe example in modern times must surely be the “three
strikes” legislation introduced in California in the early 1990s. Offenders with two prior
felony convictions may be subject to crushing prison sentences, often for life, even
though the latest offence of conviction is relatively minor in nature.18 Many other states
adopted somewhat similar measures but California led the way in terms of severity. The
idea of increasing punishment on account of previous convictions is by no means a
creation of twentieth-century American conservative administrations. As far back of
1666, Louis IV of France issued a law prescribing progressively more severe
punishments, culminating on a seventh conviction with the offender’s tongue being cut
out, for recidivist blasphemers.19 In much more recent times, many countries have
adopted various legislative strategies to address the problem of recidivist offending
usually through enhanced prison terms.20 We see the same pattern reflected in some of
the guideline systems adopted during the past few decades in the United States. The
federal sentencing guidelines, for example, are based on a grid with offence levels along
the vertical axis and criminal history scores along the horizontal axis. There are 43
offence levels, and the applicable level in each case must be calculated according to the
detailed and often cumbersome terms of the Guidelines Manual. However, the sentence
which an offender eventually receives will also be determined by his or her previous
record. Along the horizontal axis are six criminal history categories and, again, the
Guidelines Manual prescribes the method by which a criminal history score should be
calculated. The presumptive sentence is to be found at the intersection of the two. The
important point for present purposes is that the sentence range to which an offender is
subject can vary significantly depending on criminal history score. For example, an
offender whose offence level is calculated at 21 (which would be typical for, say,
possession of child pornography), will be liable to prison sentence in the range of 37 to
Zimring, Hawkins and Kamin, Punishment and Democracy: Three Strikes and You’re Out in
California (Oxford University Press, New York, 2001); Vitiello, “Three Strikes: Can We Return to
Rationality?” (1996-1997) 87 J. Crim. Law and Criminology 395. On the operation of California’s three –
strikes law see judgments of O’Connor J. in Ewing v California 538 U.S. 11 at 17-20 (2003) and Lockyer v
Andrade 538 U.S. 63 at 66-68 (2003) where the law was unsuccessfully challenged.
19
Dubber, “The Unprincipled Punishment of Repeat Offenders: A Critique of California’s Habitual
Criminal Statute” (1990) 43 Stanford L.R. 193 at 194-195.
20
Nourse, “Rethinking Crime Legislation: History and Harshness” (2004) 39 Tulsa L. Rev, 925 at
930 (“Between 1920 and 1945, laws mandating or permitting life imprisonment for repeat felonies (two,
three or four prior offences) were passed or operative in more than twenty states”).
18
46 months if he has a criminal history score of 1 or less whereas he will be liable to 77 to
96 months if he has the highest criminal history score of 6. Thus, a substantial number of
previous convictions can double the punishment to which a first- or second-time offender
would be liable.21
Ireland has several statutory provisions stipulating higher maximum sentences for
persons reconvicted of the same or similar offences. To take but one recent example, the
Criminal Law (Sexual Offences) Act 200622 provides substantially higher penalties for
those reconvicted of the offence now known as defilement of a child under the age of 17
years. The same applies to simple possession of drugs contrary to s. 3 of the Misuse of
Drugs Act 1977. The sanctions for repeat violations of s. 15A or s. 15B of the same Act
are now even more draconian as a result of changes introduced in 2006.23 While a first
conviction for either offence carries a presumptive minimum sentence of 10 years’
imprisonment with the possibility of a lesser penalty when the exceptional circumstances
of case so demand,24 a second or subsequent conviction carries a mandatory minimum
sentence of 10 years’ imprisonment.
Aside from these specific provisions, s. 25 of the Criminal Justice Act 2007 introduced a
rule which, at first sight, appears remarkably stringent though it is saved by the presence
of a discretionary element which will probably deprive of much of the punitive bite
which it might otherwise possess. The section applies to a person convicted of an offence
set out in the Second Schedule to the Act who has a previous conviction for either the
same or another scheduled offence.25 A court imposing sentence for the subsequent
offence must ordinarily order that the offence serve at least three-quarters of the
maximum sentence for that offence. Where the subsequent offence carries life
imprisonment, the offender must be ordered to serve at least 10 years. Section 25 does
not apply when the subsequent offence is murder or another offence, such as a s. 15A
drug offence, which already carries a mandatory, mandatory minimum sentence. This
section does not apply unless the subsequent offence was convicted within seven years
from the date of conviction for the earlier offence or from the date of release from
imprisonment for that offence. Most importantly, perhaps, s. 25(3) provides that this
enhanced sentencing arrangement is not to apply if the court is satisfied that to do so
would be disproportionate in all the circumstances of the case. While s. 25 of the Act of
2007 does not apply to sex offences, it is instructive in terms of the legislative strategies
available for responding to repeat offending.
21
The grid can be viewed at www.ussc.gov/2008guid/5a_SenTab.htm. Since the Supreme Court
decision in United States v Booker 543 U.S. 220 (2005) the federal guidelines have been advisory rather
than mandatory though this change in legal status does not appear to have brought about any dramatic
change in federal sentencing practice.
22
S. 3, as amended by the Criminal Law (Sexual Offences) (Amendment) Act 2007, s. 5.
23
Criminal Justice Act 2006, Part 8.
24
Misuse of Drugs Act 1977, s, 27(3A) as inserted by Criminal Justice Act 1999, s. 5.
25
The scheduled offences are: murder, serious non-fatal offences against the person, explosives and
firearms offences, aggravated burglary, drug trafficking offences, organised crime, blackmail, extortion and
demanding money with menaces.
JUDICIALLY-DEVELOPED PRINCIPLES
Apart from specifying higher maximum sentences for some repeat offenders and a
mandatory minimum sentence for repeat drug traffickers, statute law offers very little
guidance on the significance and weight to be attributed as a matter of principle to
previous convictions. That has been left to the courts and, until recently, there has been
little authoritative guidance on the matter. The differential treatment of repeat offenders
is sometimes justified on the ground of incorrigibility, to use a rather old-fashioned term.
If an offender, despite having been convicted and sentenced in the fairly recent past, has
defied the system by repeating the same criminal conduct after his release from prison, he
has shown himself more dangerous, more defiant, more culpable or less capable of selfrestraint, depending on how his personality is assessed, than a person who has committed
many offences before being detected or reported. It seems intuitively acceptable, perhaps
even morally necessary, that a person with a previous conviction for a similar offence
should be punished more severely than somebody without such a record (though the latter
may have previous convictions for unrelated minor offences). The treatment of previous
convictions as an aggravating factor gives rise to two related problems. First, the offender
will already been punished for the earlier offence and will have served the relevant
sentence. Secondly, the fact that a person is a repeat offender does not detract from the
applicability of the fundamental principle that the sentence in each case most be
proportionate to the gravity of the offence and the personal circumstances of the offender.
Let us suppose therefore that offender A sexually assaulted a young relative on 12
different occasions before being arrested. Offender B was convicted five years ago of
sexually assaulting a pupil in a school of which he was caretaker and now, having served
his sentence for that offence, he has committed a similar offence in a totally unrelated
environment. Assuming for the sake of argument that all of these offences were of a
similar level of gravity and that the impact on the victims was much the same, which
offender deserves the heavier punishment? Is it the person who sexually assaulted the
same victim 12 times or the person who committed a single sexual assault on each of two
different victims? In relation to offender B, can it seriously be said that the gravity of the
second offence is affected by the fact that he had previously committed a similar one? Or,
should the existence of the previous conviction be treated as a relevant personal
circumstance, one which will aggravate rather than mitigate the otherwise deserved
punishment?
It is with the last two questions that we are principally concerned, and the answer must
depend largely on the meaning of “gravity” and the factors which may properly be
considered in its assessment. Irish courts have never really considered the ingredients of
offence seriousness meaning in the abstract. They have usually concentrated on
identifying factors which contribute to the seriousness of specific offences, e.g. whether
in a manslaughter case, the accused had arrived at the scene already armed with a knife or
other dangerous weapon. Few would deny that, in some circumstances at least, previous
convictions are relevant to sentence, but precisely how they are relevant has long been a
source of contention. More than 40 years ago, Lord Reid remarked on the enduring
sentencing problem posed by persistent offenders26 and his comments are probably
equally valid today in most common-law jurisdictions. Three policy options immediately
suggest themselves. The first would ignore previous convictions entirely and concentrate
exclusively on the offence(s) of conviction. This, in fact, is the only option when the later
offence is governed by a truly mandatory (as opposed to a mandatory minimum)
sentence. A person convicted of murder must be sentenced to life imprisonment
irrespective of the presence or absence of previous convictions. A criminal record may
have some influence on his later eligibility for parole or temporary release but that is a
matter for authorities other than the sentencing court. Previous convictions are also
irrelevant to most flat-rate administrative fining systems. If illegal parking carries a fixed
penalty of €50, that penalty must be paid for each infraction irrespective of the offender’s
record. Most offences are, of course, subject to maximum rather than fixed sentences,
thereby leaving the courts with considerable discretion in identifying relevant factors and
deciding on the significance to be attributed to those factors.
The second option would be to adopt a policy of progressive loss of mitigation approach
which is certainly more compatible with the proportionality principle as we understand it.
This approach begins with the assumption that a person without previous convictions
should be entitled to mitigation on that account. However, the more convictions the
offender accumulates the less mitigation he will deserve until a point is reached where he
deserves none at all, at least on the ground of record. The classic expression of this
approach is to be found in the following passage from R v Queen,27 decided by the
English Court of Appeal:
”[Counsel for the applicant] has complained properly before this Court that there
is at least a suspicion that the learned deputy judge sentenced this appellant, not
merely for the offences which he committed, but for his record. He submits that
that would have been wrong in principle. He is right in the enunciation of that
principle. Of course no prisoner is to be sentenced for the offences which he has
committed in the past and for which he has already been punished. The proper
way to look at the matter is to decide a sentence which is appropriate for the
offence for which the prisoner is before the court. Then in deciding whether that
sentence should be imposed or whether the court can extend properly some
leniency to the prisoner, the court must have regard to those matters which tell in
his favour, and equally to those matters which tell against him; in particular his
record of previous convictions. Then matters have to be balanced up to decide
whether the appropriate sentence to pass is one at the upper end of the bracket or
somewhere lower down.”
There is admittedly a certain ambiguity towards the end of that statement, but it would
seem to be articulating what we have come to term a progressive loss of mitigation
approach. Translated into a jurisdiction like Ireland which adheres to proportionality, this
26
R v Ottewell [1970] 1 A.C. 642 at 647, [1968] 3 W.L.R. 621, [1969] 1 Q.B. 27, (1968) 52 Cr. App.
R. 679.
27
(1981) 3 Cr. App. R. (S) 245 at 255. The Court made a similar statement of principle in R v Bailey
(1988) 10 Cr. App. R. (S.) 231.
means that once a court has decided where to anchor the offence of conviction on the
scale of gravity, it then decides on the mitigation, if any, to be given for previous good
record. The more convictions the offender has accumulated, the less mitigation he will
deserve until eventually he merits none at all, on this account at least.
The third option is to treat previous convictions as an aggravating factor, either by
holding that they add to the gravity of the offence itself or that they are a relevant
personal circumstance which may warrant a more severe sentence than the particular
offence would otherwise deserve. In practical terms, a choice must be made between the
second and third options, though both are reflected in recent judgments of the Court of
Criminal Appeal. In People (DPP) v G.K.28 the applicant, although first charged with
rape and a threat to kill, pleaded guilty to aggravated sexual assault on the understanding
that the threat to kill could be taken into account for sentencing purposes. He had two
previous convictions for rape, one in England where he had been sentenced to eight
years’ imprisonment in 1987 and another in Ireland where, in 1999, he had been
sentenced to 10 years’ imprisonment reviewable at the half-way point. The present
offence, which arose from a serious and prolonged attack on a woman as she was walking
home from work, had been committed some months after his release from prison. The
trial judge had imposed a sentence of life imprisonment but this was varied by the Court
of Criminal Appeal to one of 16 years with effect from March 2006, with the last three
years suspended and coupled with a ten-year post-release supervision order. The most
interesting aspect of the court’s judgment for present purposes is its treatment of the
previous convictions. Few direct precedents were available though the court paid
particular attention to its earlier decision in People (DPP) v Melia29 where the applicant
had pleaded guilty to multiple sexual offences and robberies committed against four
women victims in the Dublin area during a short period in late 1997. His earlier criminal
record included a rape conviction for which he was sentenced to six years’ imprisonment
in 1991. Increasing his overall sentence for the 1997 offences from eight to 12 years’
imprisonment, the Court of Criminal Appeal, per Keane J., said that account had to be
taken of “the disquieting fact” that he had a previous rape conviction.
The court in G.K. was careful to declare its continuing allegiance to proportionality as the
cardinal principle of sentencing. That principle, it will be recalled, demands that a
sentencing court should first locate the specific offence on the overall scale of gravity and
then proceed to make any necessary allowance for relevant personal circumstances. Thus,
a particular theft might be considered about half way up the scale of gravity thereby
suggesting a presumptive sentence of five years’ imprisonment. However, the offender’s
personal circumstances which, for this purpose, are accepted to include his response to
the charge, may well lead to a substantial reduction in the presumptive sentence. The
absence of previous convictions is generally regarded as a matter in respect of which
mitigation may be granted at the second stage of the sentence-selection process. This,
indeed was recognised by the court in G.K. which then, rather controversially, proceeded
to say that the presence of previous convictions could be considered in assessing the
gravity of the offence during the first stage of the process. The court said:
28
29
[2008] I.E.C.C.A. 110.
Unreported, Court of Criminal Appeal, November 29, 1999.
“This court is satisfied that while previous good character is relevant to the
character and circumstances of the accused which may be mitigating factors in
terms of sentence, previous convictions are relevant not in relation to mitigation
of sentence but in aggravation of the offence. Accordingly in determining an
appropriate sentence in this case it follows that the learned trial judge was entitled
to have regard to the two previous convictions of rape, the fact that the offence
was committed within six months of having been released from prison for an
offence of rape and the matters disclosed in the Probation Service report. These
circumstances are relevant not just in terms of their absence in mitigation of
sentence but also in terms of assessing an appropriate sentence in terms of the
seriousness of the offence, which sentence will be proportionately more severe
than would be the case were these circumstances absent.”
Although there were few direct precedents on the matter, it had generally been assumed
that previous convictions, when relevant at all, went towards the reduction of any
mitigation that might have been available on account of a previous clear record. Now the
Court of Criminal Appeal was saying that previous convictions could go towards the
assessment of the gravity of the offence. Granted, at a later point in its judgment the court
referred to previous convictions for like offences as being relevant for this purpose and
also said that it should not impose a disproportionately severe sentence where it
apprehended the commission of further offences. It was also satisfied that the approach it
was now adopting did not offend against the principle thought to derive from People
(Attorney General) v O’Callaghan30 which prohibits the imposition of punishment for
offences not yet committed.
Exactly six months after its decision in G.K., the Court of Criminal Appeal had to revisit
the question of previous convictions in People (DPP) v P.S..31 There, the applicant had
been given multiple life sentences coupled with some determinate prison sentences for
sexual offences committed against two boys over a two-and-a-half-year period. One of
the victims was aged between nine and 11 years and the other between 11 and 13 years
when the offences were committed. The applicant had several previous convictions for
similar sexual offences committed against young males, and he had been sentenced to
four years’ imprisonment in 199532 and five years’ imprisonment in 1997. On this
occasion, however, the Court of Criminal Appeal took a rather different approach to
previous convictions as reflected in the following passage:
“Accepting that in relation to the previous offences the applicant has already been
punished and should not on the occasion of sentencing for the present offences be
punished again for those former offences and that previous offending will
normally be regarded as an absence of a mitigating factor, nevertheless the nature
30
[1966] I.R. 501.
[2009] I.E.C.C.A. 1.
32
The unreported judgment refers to this sentence as having been imposed in 2005. However, media
reports suggest that it was imposed in 1995 and in any event the applicant must have been at large in 2005
as the instant offences were committed during the years 2004 to 2006 inclusive.
31
of the previous offending indicates that the offender represents a continuing
danger to the public. That is the situation here. The applicant represents a danger
to the public for the foreseeable future. This is a relevant factor in sentencing.”33
While this approach seems to represent a return to progressive loss of mitigation, it is
complicated by the reference to possible future offending. The court in P.S. made no
reference to its earlier decision in G.K., an omission which leaves the relevance of
previous convictions in an uncertain state. The trial judge in P.S. had indicated that, in the
absence of previous convictions, ten years’ imprisonment would have been an
appropriate sentence, an opinion with which the Court of Criminal Appeal expressly
agreed. However, the latter court also said that it is preferable where possible to select a
determinate rather than an indeterminate sentence in such circumstances. It therefore
quashed the life sentence and replaced it with a 15-year sentence with the last two-and-ahalf years conditionally suspended coupled with a 10-year post-release supervision order.
In so doing, it had regard to certain mitigating factors including an early guilty plea, cooperation with the police and an apparently genuine expression of remorse. The applicant
had also had a difficulty childhood during which he himself had experienced sexual
abuse. However the court also said that “account must be taken of the applicant’s record
of previous offending which indicates that he will represent a continuing danger to the
public.”
This, in turn, raises the spectre of preventive detention which the court had expressly
disavowed in G.K. although in P.S. it referred to People (DPP) v King34 where Carney J.
imposed a life sentence on a man convicted of serious sexual offences who claimed that
he had “a licence from God to rape loose women”. The policy dilemma facing the courts
in cases such as these should not be underestimated. Those of us who would generally
favour the progressive loss of mitigation approach cannot deny that public protection is a
key objective of the criminal law and the criminal justice system. Recidivism among
convicted sex offenders may be statistically lower than is generally believed, but
common sense tells us that an offender such as G.K. or P.S. may well re-offend in the
future. The questions to be resolved are quite intractable, and this article does not propose
to provide the answers. However, it may be helpful to ask, first of all, how previous
convictions may legitimately be treated within a sentencing system committed to
proportionality, secondly to consider the problems associated with preventive detention
and civil confinement and finally to survey some of the literature on sex offender
recidivism.
PROPORTIONALTY AND PREDICTED RECIDIVISM: SQUARING THE
CIRCLE
Proportionality may be an intuitively attractive and morally sound principle, but it is
severely challenged by recidivist offending, and all the more so when that offending
appears to be a product of a mental or personality disorder. What the Irish version of the
33
34
People (DPP) v P.S. [2009] I.E.C.C.A. 1.
Central Criminal Court, May 4, 2004 (Irish Times, May 5, 2004).
proportionality requires, it will be recalled, is that a sentence should be proportionate to
the gravity of offence and the personal circumstances of the offender; both factors must
be taken into account. This raises the question of when, if ever, a court is justified in
increasing punishment on the basis of previous offences. The progressive loss of
mitigation approach poses few problems in this regard as it does not treat previous
convictions are relevant to the gravity of the instant offence but permits the absence of
such convictions to be treated as a relevant personal circumstance deserving of
mitigation. It is entirely logical, and perfectly compatible with the proportionality
principle, to reduce or withhold mitigation on this ground when the offender already has
a criminal record. More difficult problems arise when the offender’s record strongly
suggests a propensity towards violent offending. Courts may, of course, adhere to the
progressive loss of mitigation approach and, while acknowledging the possibility (or
perhaps even the probability) of future offending, insist that their role is to sentence
offenders on the basis of past rather than future crimes.35 Yet, they cannot deny that
public protection remains an important consideration in sentencing. In fact, to adopt
Hart’s well-known expression, it is probably the general justifying aim of the entire
criminal law.36 Is it sufficient therefore to impose a proportionate sentence, which may be
relatively lenient in the light of the offender’s personal circumstances, when there is a
clear risk that the offender may commit further crimes of violence once released back
into the community? To illustrate this point further, it may be helpful to consider the
background to the leading Australian case of R v Veen (No.2)37 and the reasoning of the
High Court in the appeal against sentence. Veen, who had been a homosexual prostitute
since his early teens, was convicted in 1971 of malicious wounding after stabbing his
landlady with a knife. He was almost 16 years of age at the time. In 1975, he killed a
male sexual partner after both had been drinking heavily. Although charged with murder,
he was convicted of manslaughter on the grounds of diminished responsibility. The life
sentence he received on that occasion was later reduced by the High Court to 12 years’
imprisonment38 and he was released on licence in January 1983. In October of that year,
he stabbed to death another male sexual partner. He was charged with murder but the
prosecution later accepted a plea of guilty to manslaughter on the ground of diminished
responsibility. Again, he received a life sentence which, on this occasion, a majority of
the High Court refused to disturb.
What makes the case of particular interest is the reasoning adopted by the High Court
majority who acknowledged the policy difficulty in imposing lengthy sentences in these
circumstances. They referred, for example, to a well-known article by Wooton on
diminished responsibility which had been published shortly after that defence was
introduced into English law by the Homicide Act 1957.39 She had remarked upon the
35
See von Hirsch, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of
Criminals (New Brunswick, Rutgers University Press, 1985), p. 2, where he poses the central question:
“When a convicted criminal faces sentence, should the blameworthiness of his criminal acts decide his
punishment? Or should the sentence be based on how dangerous he is?”
36
Hart, Punishment and Responsibility: Essays in the Philosophy of Criminal Law (Oxford
University Press, 1968).
37
(1988) 164 C.L.R. 465.
38
R v Veen (No. 1) (1979) 143 C.L.R. 458.
39
Wooton, “Diminished Responsibility: A Layman’s View” (1960) 76 L.Q.R. 224.
apparent contradiction in imposing heavier sentences on those who, by virtue of
diminished responsibility, were probably less morally blameworthy than other offenders
but who, on account of a mental or personality disorder, were more likely to re-offend.
The High Court majority responded to this by remarking that “sentencing is not a purely
logical exercise”,40 a statement that has been quoted with some comfort by many other
courts in the meantime. Having noted the possibility that diminished responsibility may
create a risk of recidivism, they said that “consideration of the danger to society cannot
lead to the imposition of a more severe penalty than would have been imposed if the
offender had not been suffering from a mental abnormality.”41 Somewhat paradoxically,
owever, they then proceeded to say that a system which imposed the more lenient
sentences on those whose responsibility was most diminished “would prove adventitious
in practice and destructive of public confidence in the processes of criminal justice.”42
The case is perhaps best known for the following passage from the majority judgment:
“There are two subsidiary principles which should be mentioned. The first is that
the antecedent criminal history of an offender is a factor which may be taken into
account in determining the sentence to be imposed, but it cannot be given such
weight as to lead to the imposition of a penalty which is disproportionate to the
gravity of the instant offence. To do so would be to impose a fresh penalty for
past offences: Director of Public Prosecutions v. Ottewell. The antecedent
criminal history is relevant, however, to show whether the instant offence is an
uncharacteristic aberration or whether the offender has manifested in his
commission of the instant offence a continuing attitude of disobedience of the
law. In the latter case, retribution, deterrence and protection of society may all
indicate that a more severe penalty is warranted. It is legitimate to take account of
the antecedent criminal history when it illuminates the moral culpability of the
offender in the instant case, or shows his dangerous propensity or shows a need
to impose condign punishment to deter the offender and other offenders from
committing further offences of a like kind. Counsel for the applicant submitted
that antecedent criminal history was relevant only to a prisoner's claim for
leniency. That is not and has never been the approach of the courts in this country
and it would be at odds with the community's understanding of what is relevant to
the assessment of criminal penalties.”43 (Emphasis added).
The minority judgments appear, for the most part, to have favoured the progressive loss
of mitigation approach. Wilson J. said that “the proper benchmark of an appropriate
sentence” should be determined by reference to the objective features of the crime.44
Matters personal to the offender, including any previous convictions, are relevant only
the issue of extending leniency to the offender.45 The difficulty with the majority
approach is reflected in the italicised portion the above quotation. It offers three possible
40
41
42
43
44
45
(1988) 164 C.L.R. 465 at 476.
(1988) 164 C.L.R. 465 at 477.
Ibid.
Ibid.
(1988) 164 C.L.R. 465 at 488. See also judgment of Deane J., esp. p. 491.
Ibid.
justifications for taking account of previous criminal history. The first is that it may
illuminate the moral culpability of the offender. This, as we shall see, may have some
principled justification even within a strictly proportionate system of sentencing. The
second, the offender’s dangerous propensity, may not be so justifiable unless it can be
shown that he or she was in a position to exercise meaningful control over that
propensity. The third, like all deterrence-based arguments, creates the risk of an
individual offence being used instrumentally in order to send a message to others.
Previous convictions cannot legitimately be treated as an aggravating factor within a
proportionate system of punishment unless they are clearly relevant to the gravity of the
offence or the personal circumstances of the offender. As already noted, the Court of
Criminal Appeal in People (DPP) v G.K.46 believed that previous convictions might, in
some circumstances at least, accentuate the gravity of an offence. If gravity is to be
assessed by reference to culpability and harm combined,47 then previous convictions must
affect our assessment of one or other of these ingredients. Culpability stands out straight
away as the more obvious candidate. This is usually determined by reference to the
intention or other mental state of the offender when committing the offence. The English
Sentencing Guidelines Council, for example, refers to four levels of criminal culpability
for sentencing purposes: intention, recklessness, knowledge and negligence.48 However,
the same document lists among the factors which may aggravate culpability a “failure to
respond to previous sentences” which, in effect, means that some account may be taken
of previous convictions. At first glance, it is difficult to see how such a factor could affect
any of the primary levels of culpability identified by the Council. The question of
whether a person intended to perform a given act or whether he was negligent or reckless
as to its consequences is scarcely affected by the presence or absence of a criminal
record. Arguably, however, the primary levels of culpability initially identified by the
Council are unduly restrictive. They are identical with the traditional orders of mens rea
which are, of course, crucially important in the determination of criminal liability. When
it comes to sentence, a broader approach to culpability may be necessary, one that
extends beyond the traditional indicia of moral culpability to embrace, within reason,
matters of social and civic responsibility. All of us have a civic duty to contribute to an
ordered society in which our fellow citizens (in the broadest, not necessarily legalistic,
sense) are protected as much as possible from victimisation. Viewed in this light, the
offender who has already been formally censured for criminal conduct and thereby put on
direct notice of the prohibited and injurious nature of that conduct may be treated as more
socially culpable than the first-time offender. The criminal law with its attendant
sanctions may be treated as a general warning issued to the public at large.49 Its full
46
[2008] IECCA 110.
This is a reasonably widely-shared view of the content of offence gravity. The (English) Criminal
Justice Act 2003, s. 143(1), for example, provides: “In considering the seriousness of any offence, the court
must consider the offender’s culpability in committing the offence and any harm which the offence caused,
was intended to cause or might foreseeably have caused.” See also the Sentencing Guidelines Council
guideline “Overarching Principles: Seriousness” (2004) which elucidates the concept of offence seriousness
further.
48
Sentencing Guidelines Council, op. cit. (note 47above).
49
The concept of fair warning is central to the criminal law. See, for example, Sampsell-Jones,
“Reviving Saucier: Prospective Interpretations of Criminal Laws” (2007) 14:3 George Mason L.R. 725 at
47
ramifications may not become evident to particular individuals until they are convicted
and punished for a breach of that law. However, once convicted and punished, they are
more fully and directly aware of the law’s proscriptions and arguably more culpable for
repeated breaches.
Such a principle, if adopted, would have to be subject to several qualifications and
exceptions some of which give rise to troubling choices. The first qualification is that in
order to be consistent with proportionality, previous convictions could increase
culpability only to a limited extent. Attention must still be concentrated primarily on the
other ingredients of the offence of conviction, notably the state of mind of offender at the
relevant time, and the harm caused, intended or foreseen. The principal objection to
treating previous convictions as an aggravating factor is that it may lead to the imposition
of double punishment (though as von Hirsch and Ashworth point out, this may not
always be true if the offender has previously been granted leniency for the absence of a
criminal record50). It must be admitted that the justification offered in the previous
paragraph for treating previous convictions as aggravating culpability may involve an
element of double punishment. Care must therefore be taken to ensure that the weight
attributed to previous convictions for this purpose is strictly limited. For this purpose
some inspiration may be drawn from the Recommendation of the Council of Europe
Committee of Ministers on Consistency in Sentencing (1993)51 which provides as follows
in relation to previous convictions:
1. Previous convictions should not, at any stage in the criminal justice system, be
used mechanically as a factor working against the defendant.
2. Although it may be justifiable to take account of the offender's previous
criminal record within the declared rationales for sentencing, the sentence should
be kept in proportion to the seriousness of the current offence(s).
3. The effect of previous convictions should depend on the particular
characteristics of the offender's prior criminal record. Thus, any effect of previous
criminality should be reduced or nullified where: (a) there has been a significant
period free of criminality prior to the present offence; or (b) the present offence is
minor, or the previous offences were minor; or (b) the offender is still young.
4. There should be a coherent policy with regard to the relevance of discontinued
proceedings, foreign judgments, amnesty, pardon or time-barred offences.
734-735 (“The fair warning requirement has venerable roots.48 It is based largely on the fundamental ideal
that ‘a fair warning should be given to the world in language that the common world will understand, of
what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line
should be clear.’”, quoting from McBoyle v United States 283 U.S. 25, 27 (1931), Holmes J.)
50
Von Hirsch and Ashworth, Proportionate Sentencing: Exploring the Principles (Oxford
University Press, 2005), p. 148.
51
Rec. No. R(92)17 (19/101993), para. D, reprinted in (1993) 4:2 Criminal Law Forum 355, and
widely available on Council of Europe Internet sources.
5. Where an offender is sentenced on one occasion for several offences, the
decision on the severity of the sentence or combination of sentences should take
some account of the plurality of offences but should also remain in proportion to
the seriousness of the total criminality under consideration.”
PREVENTIVE DETENTION
The concept of extended sentences for habitual offenders dates back to the Gladstone
Committee Report of 189552 which is generally lauded for having heralded a new and
more progressive approach towards the treatment of prisoners. This positive evaluation of
the report is justified in so far as it sought to emphasise reformation as an important penal
objective at a time punishment and deterrence were officially treated as the institutional
goals of the prison system. However, it also drew attention to what it described as “a
large class of habitual criminals – who live by robbery and thieving and petty larceny –
who run the risk of comparatively short sentences with comparative indifference.”53
Extended sentences for habitual offenders were therefore suggested to deal with the
problem. A decade later, Herbert Gladstone, who had masterminded the report, happened
to find himself as Home Secretary in a Liberal Government. He took advantage of that
position to give effect to his committee’s recommendations in the Prevention of Crime
Act 1908 which is most notable today for having introduced Borstal training. Part II of
the Act (which remained formally in force in this country until 199754) permitted an
additional five to ten years’ imprisonment to a custodial sentence imposed on a person
who had accumulated at least three previous convictions since reaching the age of 16
years. This arrangement lasted in England and Wales until 1948 and was amended in
various ways under later criminal justice legislation.55 In fact, it appears to have had little
impact on violent offenders from whom the public was in greatest need of protection. A
major study by Norval Morris found that just over 1,000 offenders began sentences of
preventive detention during the lifetime of the Act of 1908.56 The vast majority, in later
years at least, appear to have been recidivist petty criminals. Furthermore, under the Act
of 1908, a specific jury finding that a person was an habitual criminal was required (in
the absence of an express concession to that effect by the offender himself) and as time
went by juries appear to have been increasingly reluctant to make such a finding. A study
of recidivist offenders in English prisons conducted by West and published in the early
House of Commons, Report of the Committee on Prisons (1895). See Katkin, “Habitual Offender
Laws: A Reconsideration” (1971-1972) Buffalo L.R. 99; MacDonald, “A Critique of Habitual Offender
Legislation in Canada and England” (1969) Univ. British Columbia L.R. 87; Harding, “The Inevitable End
of a Discredited System? The Origins of the Gladstone Report on Prisons 1895” (1988) 31:3 The Historical
Journal 591; Walker, “The Habitual Criminal: An Administrative Problem” (1963) 41 Public
Administration 265.
53
Ibid., p. 31. There were some earlier recommendations to the same effect. Edmund Du Cane, for
example, had said in 1883 that it was only reasonable that incorrigible offenders should be restrained “just
as a beast of prey would be, for such time as they are likely to continue in that frame of mind…” (quoted in
McConville, English Local Prisons 1860-1890: Next only to Death (London: Routledge, 1995), p. 184).
54
Part II was repealed by the Criminal Law Act 1997.
55
Criminal Justice Act 1948.
56
Morris, The Habitual Criminal (Harvard University Press, 1951).
52
1960s found that the majority were persistent thieves who stole as an alternative to
having a lawful occupation though many of them had various personality problems as
well.57 This remains one of the problems associated with extended sentences or
preventive detention for recidivist offenders. A substantial of those qualifying for such
measures will, in all probability, be low-level offenders and many of them nowadays will
be drug addicts as well.
As a consequence of People (Attorney General) v O’Callaghan58 it is believed that it
would be contrary to the Constitution to detain a convicted person beyond the term of
imprisonment objectively merited by his offence solely in order to restrain him from
committing further offences. In O’Callaghan, Walsh J. said:
“In this country it would be quite contrary to the concept of personal liberty
enshrined in the Constitution that any person should be punished in respect of any
matter upon which he has not been convicted or that in any circumstances he
should be deprived of his liberty upon only the belief that he will commit offences
if left at liberty, save in the most extraordinary circumstances carefully spelled out
by the Oireachtas and then only to secure the preservation of public peace and
order or the public safety and the preservation of the State in a time of national
emergency or in some situation akin to that.”59
While this statement was made in the context of bail rather than sentencing, it has
certainly been adopted as a sentencing principle in the meantime. In People (DPP) v M,60
Denham J, relying on this passage from O’Callaghan, said:
“In contemplating the sentences it is appropriate to consider the offences and their
nature and their circumstances, but this is not done for the purpose of determining
whether the appellant should be incarcerated for the future so as to prevent him
committing further offences: he is sentenced solely for the offences before the
court.”
Although Walsh J did not entirely exclude the possibility of preventative detention, he
was careful to say that it would be permissible only in clearly defined circumstances and
for the purpose of addressing a pressing social need. There is, all the same, a subtle but
important distinction to be drawn between taking account of incapacitation in the
selection of sentence and allowing the nature and severity of sentence to be determined
exclusively by preventative purposes. In other words, provided a sentence complies with
the proportionality principle, a court is entitled to have regard to the risk that the offender
might pose to the community if he was given a community-based, as opposed to a
custodial, sanction. What is not apparently permitted is the incarceration of an offender to
a degree that is disproportionate to the offence solely or primarily for the purpose of
social protection. The distinction can easily be blurred in cases where the offender has
57
58
59
60
West, The Habitual Prisoner (London, Macmillan, 1963).
[1966] I.R. 501.
[1966] I.R. 501 at 516-517.
[1994] 3 I.R. 306 at 318.
previous convictions for similar offences. As already noted, the Court of Criminal Appeal
in G.K. was careful to stress that it was not including an element of preventive detention
in the sentence which it substituted in that case.
RECIDIVISM
Risk reduction is obviously a key concern for any person or agency concerned with the
sentencing or management of sex offenders. Reliable information about the risk posed by
an individual offender or the risk levels associated with the category to which a particular
offender belongs would clearly be of great benefit to sentencing judges and to others,
such as parole authorities. It is they, after all, who are charged with making the allimportant decisions about the kind of sanction to be imposed on an offender or the point
at which he may safely be released back into the community. Two related questions
therefore arise: how much do we really know about recidivism rates among sex offenders
and how effective are treatment programmes in reducing the risk of recidivism?
Numerous studies conducted in Britain, the United States, Canada, Australia and
elsewhere during the past decade have revealed a host of methodological problems in
defining and assessing levels of recidivism.61 It is scarcely surprising therefore that they
have produced widely differing estimates of general or sexual re-offending among
convicted sex offenders.62 The following are among the factors which may explain
variations in recidivism estimates for sex offenders:
61

Scope of definition. A definition of recidivism which includes all subsequent
offences, as opposed to sex offences only, will naturally reveal higher levels of reoffending.63 More fundamentally, the manner in which recidivism is measured
will also affect outcomes quite considerably. Some North American studies were
based on re-arrests while others were based on reconviction or re-incarceration.
Those based on reconviction may, at first sight, appear to be the more reliable. On
the other hand, with high attrition levels in prosecutions and convictions for sex
offences generally, re-arrest may sometimes provide a more complete picture.

Follow-up period. As discussed further below, this is a crucially important factor.
Many studies have adopted follow-up periods of three years or less from the date
of conviction or the date of release from incarceration. Yet many leading studies
have shown that the longer the follow-up period the higher the recidivism rate is
Center for Sex Offender Management, Recidivism of Sex Offenders (May 2001) available at
www.csom.org/pubs/recidsexof.html (visited February 2009).
62
Hanson and Bussiere, “Predicting relapse: A meta-analysis of sexual offender recidivism studies”
(1998) 66: 2 Journal of Counselling and Clinical Psychology 348; Hanson and Harris, Dynamic Predictors
of Sexual Recidivism (Solicitor General of Canada, Ottawa, 1998); Gelb, Recidivism of Sex Offenders:
Research Paper (Sentencing Advisory Council of Victoria, 2007), available at
www.sentencingcouncil.vic.gov.au (visited February 2009); New York State Division of Probation and
Correctional Alternatives, Research Bulletin: Sex Offender Populations, Recidivism and Actuarial
Assessment (2006);
63
One study, for example, found that 58 per cent of those surveyed were arrested for some offence
during a six-year follow-up period compared with 31 per cent for a sexual offence: Rice, Quinsey and
Harris, “Sexual recidivism among child molesters released from a maximum security psychiatric
institution” (1991) 59:3 Journal of Consulting and Clinical Psychology 381.
likely to be. One such study concluded that when the follow-up period is limited
to 24 to 36 months, only one-third of offences committed by rapists and onequarter of offences committed by child sex abusers are detected.64 Short-term
studies do, of course, have a certain value. As Hood et al point out, the study of
reconviction rates within short periods can help to identify if, for example, parole
authorities were mistaken in their risk assessment before releasing an offender.65
In effect, therefore, we need information covering a variety of time periods.

Aggregation of offenders. Despite the popular tendency to treat all sex offenders
as a homogenous group, recidivism rates of various sub-groups can vary
considerably. Exhibitionists, for example, and some categories of child abusers
have been found to have higher levels of recidivism than other sex offender
groups.

The nature of the later violation. This is another definitional but it draws attention
to the need for careful comparison between the offence of conviction and later
offences. For instance, a violation of a sex offender notification order or a
residency restriction order (where such exists) might, for some purposes, be
classified as a sex offence although it may not, in fact, have involved any sexual
misconduct. A more difficult classification decision would arise if, for example, a
convicted child abuser was later convicted of possessing child pornography.

The problem of undetected crimes. In most jurisdictions a considerable number of
sex offences go unreported. This raises the question of whether recidivism
research should draw on sources of information other than formal criminal justice
data by, for example, administering self-report questionnaires or drawing on
clinical records. Both of these strategies could produce their own share of
practical and ethical problems. Offenders will be less likely to self-report in
jurisdictions with mandatory reporting laws while clinical information is
ordinarily governed by an expectation, if not a duty, of confidentiality.
Empirical studies of sex offender recidivism have produced widely different results with
percentages of re-offending ranging from single digits to 50 per cent or more.66 The most
alarming results to date were produced by Langevin et al who conducted a follow-up
study over a period of 25 years and longer of 320 sex offenders and 31 violent non-sex
Prentky et al., “Recidivism Rates among Child Molesters and Rapists: A Methodological
Analysis” (1997) 21:6 Law and Human Behaviour 635; Zgoba and Simon, “Recidivism Rates of Sexual
Offenders up to 7 Years Later” (2005) 30:2 Criminal Justice Review 155; La Fond, Preventing Sexual
Violence: How Society Should Cope with Sex Offenders (American Psychological Association,
Washington, DC, 2005).
65
Hood, Shute, Feilzer and Wilcox, “Sex Offenders Emerging from Long-Term Imprisonment”
(2002) 42 Brit. J. Crim. 371.
66
A recent Alaskan study of 864 released offenders showed that 3 per cent of persons convicted of a
sexual offence in 1999 had at least one new sexual offence conviction within three years of release. Sex
offenders were the least likely to be convicted of the same type of offence (Alaska Judicial Council,
Criminal Recidivism in Alaska (Anchorage, 2007). However, as noted below, other studies elsewhere have
found much higher rates, particularly when measured over longer periods.
64
offenders who were psychiatrically assessed during the period 1966 to 1974.67 Of the 320
sex offenders, more than 60 per cent were later convicted of sex offences although this
figure rose to 80 per cent when all offences were taken into account. The authors of the
study were able to access data about undetected sexual offences committed by members
of this group and when that it added, it showed that 88 per cent would have been
considered sex offence recidivists if they had been caught. This study has proved to be
particularly controversial and questions have been raised about its methodology68 though,
strangely enough, as far back as 1989, Furby et al, having surveyed 42 earlier studies,
found that recidivism rates varied from 0 per cent to 88 per cent.69
One recent and widely-quoted Canadian study covered more than 4,700 sex offenders
covered in several earlier studies.70 It sought to identify recidivism rates for different
categories of sex offenders and also in accordance with the time period that had elapsed
since the offenders in question were released back into the community. The results have
been reported as follows:
Recidivism Rates
Type of Sex Offender
Time Since Release into Community
5 years
Rape
Incest offenders
Child sex abusers
(female victims)
Child sex abusers
(male victims)
10 years
15 years
14%
6%
21%
9%
24%
13%
9%
13%
16%
23%
28%
35%
This study also showed, as several earlier ones had done, that a previous conviction for a
sex offence increased the likelihood of recidivism. When surveyed across all categories,
an offender with no previous conviction apart from the base offence, had an average
recidivism rate of 10 per cent after five years which rose to 19 per cent after 15 years.
However, for those with previous convictions, the recidivism rates rose to 25 per cent
after five years and 37 per cent after 15 years. A later study by one of the authors
estimated that the actual recidivism rates were considerably higher when account was
taken of the low level of reporting of sex offences generally. It estimated that the real rate
Langevin et al., “Lifetime sex offender recidivism: A 25-year follow-up study” (2004) 46
Canadian Journal of Criminology and Criminal Justice 531.
68
Webster, Gartner and Doob, “Results by design: The artefactual construction of high recidivism
rates for sex offenders” (2006) 48 Canadian Journal of Criminology and Criminal Justice 79; Rice and
Harris, “What Population and What Question?” (2006) 48 Canadian Journal of Criminology and Criminal
Justice 95.
69
Furby et al., “Sex offender recidivism: A review” (1989) 105 Psychological Bulletin 3.
70
Harris and Hanson, Sex Offender Recidivism: A Simple Question (Public Safety and Emergency
Preparedness, Ottawa, 2004).
67
of offending in a 20-year follow-up period could be in the region of 40 to 55 per cent.71
Many other studies have, of course, been conducted around the world and the two
Canadian studies mentioned here are merely intended as illustrations of the varying
results that may emerge depending on follow-up periods, the categorisation of offenders,
the method by which recidivism is identified and related matters. It is not being suggested
that recidivism patterns in Ireland are the same as those estimated to exist elsewhere.
Two widely-held assumptions which are seriously challenged by some of the empirical
literature are that incarceration decreases the risk of recidivism and that treatment during
custody has the same effect.72 Incarceration naturally prevents the offender from
victimising others within the general community, but only while he remains in prison. (It
should not, of course, be forgotten that serious sexual offences may be committed within
the prison itself). The imprisonment of sex offenders may be justified by reference to any
of the conventional purposes of punishment. Advocates of lengthy terms of imprisonment
for such offenders often appear motivated by considerations of specific or general
deterrence. In simple terms, policies specific deterrence are based on the assumption that
the experience of imprisonment will dissuade the offender from engaging in further
criminal conduct while general deterrence is based on the assumption that the
imprisonment of a convicted offender will act as a lesson to others. The two need be
mutually exclusive though there is little to suggest that either works or, at least, not to the
extent that is popularly believed. A number of North American studies have shown that
incarceration has little or no impact of recidivism. A recent one, for example, found that
there is no “optimal length of incarceration for sexual offenders that maximally reduces
recidivism compared to shorter or longer periods of incarceration”.73
CIVIL CONFINEMENT OPTION
Those who strongly oppose the notion of treating previous convictions as an aggravating
factor of any sort typically argue that the criminal courts should concentrate on selecting
a proportionate sentence in each case having regard solely to the offence of conviction
and the circumstances of the accused at the time of sentence. When faced with the
argument that some offenders are at a high risk of committing further crimes of personal
violence on their release, the holders of this view might well argue that this is a matter to
be addressed by the civil authorities once the risk appears likely to materialise. In effect
what they are saying is that appropriate persons or bodies could invoke mental health
legislation in order to have the offender confined in a psychiatric hospital or some similar
institution. This civil confinement model has been the subject of extensive litigation in
the United States where a number of states have introduced legislation permitting persons
71
Hanson, Sexual Offender Recidivism. Presentation to National Association of Sentencing
Commissions, Philadelphia, 2006, quoted in “Myths and Facts: Current Research on Managing Sex
Offenders” (Division of Criminal Justice Services, New York State, 2008) available at
http://criminaljustice.state.ny.us/nsor/som_mythsandfacts.htm.
72
Studies elsewhere have shown that judges generally believe that incarceration decreases
recidivism. See, for example, Bonta et al., Presentence Reports in Canada (Ottawa, 2005).
73
Nunes et al., “Incarceration and Recidivism among Sexual Offenders” (2007) 31 Law and Human
Behaviour 305.
who have completed or are about to complete a prison sentence to be transferred to a
mental health facility.