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Mandatory minimum sentences for second or subsequent offences were unconstitutional

By: Mark Tottenham BL

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Supreme Court allows appeal from Court of Appeal, and determines that legislation providing for mandatory minimum sentences in respect of second or subsequent convictions for certain firearms offences was unconstitutional, on the grounds that the Oireachtas had impermissibly interfered with the separation of powers by requiring that the minimum sentence only be imposed on a limited group of offenders, namely those who had previously committed a relevant offence.

Finlay Geoghegan J (nem diss): Criminal law - challenge to constitutional validity of s. 27A(8) of the Firearms Act 1964, as substituted by s. 59 of the Criminal Justice Act 2006 and amended by s. 38 of the Criminal Justice Act 2007 - charge of offence of possession of sawn off shotgun - further charge of possession of sledgehammer, plastic bottle containing petrol - plea of guilty - previous convictions - fully suspended sentence imposed - application by DPP for review of sentence - undue leniency - challenge to constitutionality of section - minimum sentence imposed by statute - whether sentence required to be spent in actual custody - challenge unsuccessful in High Court and Court of Appeal - Oireachtas being sole legislature - limitation on legislative power of Oireachtas - mandatory minimum sentence on second or subsequent conviction - prior convictions - whether prior convictions amounted to aggravation or a loss of mitigation - whether permissible for Oireachtas to legislate for a mandatory minimum penalty which was not universal to all persons convicted of the offence - presumption of constitutionality.

"That general power of the Oireachtas is subject to constitutional restraints which require a rational relationship between the penalty and, as was put by the Court, “the requirements of justice with regard to the punishment of the offence specified”. Deterrence may form part of such requirements of justice. As it is prescribed in legislation which applies generally, irrespective of the circumstances in which the offence is committed or the personal circumstances of the offender, it must be justifiable by reference to the gravity of the offence or possibly, in the Heaney v. Ireland public law sense, proportionate to the gravity of the offence, irrespective of the circumstances in which it was committed or the personal circumstances of the offender."

"Accordingly, what is at issue in this appeal is a question which has not previously been considered by a judgment of this Court. It is whether it is consistent with the Constitution for the Oireachtas to legislate for a fixed or minimum mandatory sentence or penalty which does not apply to all persons convicted of the offence, but only to a limited class of such offenders, determined by reference to a fact which is either one characteristic of the offender, namely that he has one or more prior relevant conviction, or is one of the circumstances in which the offence of conviction is considered to have been committed, namely that it is the second time or more that the offender has committed this offence or a similar relevant offence."

"Where does the boundary lie in relation to determining the penalty to be applied to an offender convicted of a specified offence between the exclusive law making function of the Oireachtas and the exclusive role of the Courts to administer justice in the context of a criminal trial? The answer, in accordance with the case law considered, is that the Oireachtas may, by law, determine that a specified penalty shall apply to all persons convicted of a specified offence subject to the constitutional limitation of a rational relationship, or possibly proportionality ..."

Charleton J (concurring): Role of legislature in indicating the seriousness of offences by placing maximum sentences - history of mandatory minimum sentences - search for a just sentence - danger of rigidity.

"No comment is made in this judgment as to the correctness of the decision of Judge Ring in sentencing Wayne Ellis on 7 May 2013. The judge, not being aware of the mandatory minimum sentence, took the view that the benefit to society of a criminal with some 26 convictions reforming himself, rather than continuing a career of crime, meant that she could exceptionally impose an extremely lenient sentence by suspending imprisonment but binding the convict to the peace for the duration."

"Crime is the worst violation of human rights that exists within our society. Certainly, it is horribly pervasive. Punishment for crime is not just a risk run by those who embark in a criminal enterprise, it is an entitlement of a Christian and democratic society."

"Policies of shutting people away for life or for ages within life, in Shakespeare’s sense, may be appropriate depending on the gravity of the crime. But, provided a court is not hoodwinked, mercy may sometimes also be a proper approach to ending or cutting short a criminal career. Perhaps best of all is to sentence for the crime in question, but to also temper some portion of the sentence so as to hang a sword of Damocles over the chance that repeat offending may occur. If a sentence is apparently unduly lenient, it can be reviewed by the Court of Appeal or, potentially, by this Court. A fixed minimum sentence based on prior convictions structured in the way that section 27 of the Firearms Act 1964 was recast by section 59 of the Criminal Justice Act 2006 thus offends the Constitution and requires agreement with the analysis in the main judgment, of Finlay Geoghegan J, that it should be struck down."

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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