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Judgment
Title:
Ellis -v- Minister for Justice and Equality & Ors
Neutral Citation:
[2019] IESC 30
Supreme Court Record Number:
172/2017
Court of Appeal Record Number:
337/2016
Date of Delivery:
05/15/2019
Court:
Supreme Court
Composition of Court:
McKechnie J., MacMenamin J., Charleton J., O'Malley Iseult J., Finlay Geoghegan J.
Judgment by:
Charleton J.
Status:
Approved
Result:
Appeal allowed
Judgments by
Link to Judgment
Concurring
Charleton J.
O'Malley Iseult J.
Finlay Geoghegan J.
McKechnie J., MacMenamin J., O'Malley Iseult J.



An Chúirt Uachtarach

The Supreme Court


McKechnie J
MacMenamin J
Charleton J
O’Malley J
Finlay Geoghegan J


Supreme Court appeal number: S:AP:IE: 2017: 000172

[2019] IESC 030

Court of Appeal record number: 2016 no 337

[2017] IECA 237

High Court record number: 2015 no 4533P

[2016] IEHC 234


      Between

Wayne Ellis
Applicant/Appellant


- and -


The Minister for Justice and Equality, Ireland and the Attorney General
Respondent/Respondent

Judgment of Mr Justice Peter Charleton of Wednesday 15 May 2019

1. Much of the criminal legislation from past centuries could be regarded as what in modern times are referred to as sentencing statutes. Hence, as Finlay Geoghegan J states at paragraph 64 of what is the principal judgment in this case, the Oireachtas has a role in determining sentencing policy. In the now-repealed Larceny Act 1916, to take one instance, multiple offences share the same basic element of taking and carrying away something without a claim of right made in good faith. But for dozens of different categories, classified as to what is stolen, the legislature had cast the sentence differently. Thus, under section 3, the penalty for stealing horses or cattle was “penal servitude for any term not exceeding fourteen years”, while stealing a dog, contrary to section 5, rendered the convict liable to “imprisonment for any term not exceeding eighteen months, with or without hard labour”. Stealing a “will, codicil, or other testamentary instrument, either of a dead or of a living person” could result in “penal servitude for life.” Similarly, in the Forgery Act 1913, while the mental element was defined as an intent to defraud, or in the case of a public document, an intent to defraud or deceive, the sentences were gradated. Thus forging an official seal rendered the convict liable to “penal servitude for life” under section 5, while general forgery of documents, those which did not have a penalty otherwise specified under the Act, resulted in “imprisonment with or without hard labour for not exceeding two years” under section 4 of that Act.

2. Behind every such distinction was an indication to the judiciary of the thinking of the legislature. While a very severe penalty for stealing horses or cattle is indicated under the 1916 Act, no one can help leaving their livestock to graze in the fields unattended and thus the penalty reflects those aggravating factors of ease of theft and necessity for especial legal protection. While a will is only a piece of paper, the effect of it being apparently lost, but in fact stolen, would be to change an entire testamentary disposition, with beneficiaries cheated out of an inheritance. The same thinking runs through the 1913 Act. In each case, however, the legislature, having given an indication to the judicial system as to how seriously an offence ought to be viewed, left the decision on penalty to be weighed by the courts. In doing so, it was recognised that while a maximum penalty reflected the worst circumstances in which an offence might be committed, other factors indicating a minimal level of guilt were, certainly in general, unpredictable.

3. Some 60 years before, with offences and penalties defined by the Larceny Act 1861 and the Forgery Act of the same year, mandatory minimum sentences could be found on the statute book together with a maximum limit. Thus under the Forgery Act 1861, making a false dividend warrant while employed by the Bank of England rendered the convict liable to penal servitude “not exceeding Seven Years and not less than Three Years”, or imprisonment “for any Term not exceeding Two Years, with or without Hard Labour.” With the foundation of this jurisdiction, distinctions between imprisonment and penal servitude fell into disuse, as did punishments such as whipping which were still to be found in the Larceny Act 1916 and which were eventually abolished; Criminal Law Act 1997, section 12. As the State progressed, treason was provided for by Article 39 of the Constitution of 1937 and the mandatory death penalty for those convicted of treason was retained in the Treason Act 1939, section 1. The offence of treason had been previously defined in the Treasonable Offences Act 1925, which similarly provided for a mandatory death penalty. The Treason Acts of 1790, 1795 and 1814, and the Treason by Women Act (Ireland) 1796 had also provided for a mandatory death penalty with concomitant gruesome tortures. The 1925 Act in any event was apparently not used as to carrying out the death penalty, possibly because of historical resonance of the offence of treason and because other offences would readily be available for those intent on armed conflict with the State or of subversion of the State. The mandatory death penalty for treason was not abolished until the introduction of the Criminal Justice Act 1990, which now provides for a mandatory life sentence for treason offences. In Kelly: The Irish Constitution (5th edition, Dublin, 2018) at 1449, the authors note that no prosecution has been brought under the 1939 Act either since its enactment. Despite the fact that the law also provided for a mandatory sentence to death by hanging for murder, every sentence was commutable by the President under Article 13.6 of the Constitution which provides “the right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction”, and that “such power of commutation or remission may also be conferred by law on other authorities.” In O’Shea v Ireland [1998] IESC 23, the Supreme Court held that a presidential order commuting a sentence was not “bad on its face” because it failed to “cite any authority or law.” The power of commutation or remission by the Government is provided for under the Criminal Justice Act 1951 as amended, section 23; see also Criminal Justice Act 1990, section 5(1) which regulated the statutory power of remission for offences which previously would have been defined as capital murder. Murder is punishable as of now by imprisonment for life; Criminal Justice Act 1990, section 2.

4. Mandatory minimum sentences are provided for under legislation for other offences apart from murder and treason. This is, however, a generally recent development. Up to a decade ago, practically all sentences were not at the discretion of the courts. To use discretion as a concept, however, is a misnomer since the courts do not act out of discretion in sentencing. Rather sentences are chosen by the courts at a level up to the maximum sentences prescribed by legislation. The Criminal Justice Acts 2006 and 2007 introduced mandatory penalties for certain drugs offences, as well as firearms offences. It may be thought that mandatory disqualification of drivers who commit such offences as driving while intoxicated had been a precursor to that canon, but that is not so. There is an entitlement to drive only in accordance with the laws which the State makes to ensure the safety of travellers by road. That entitlement may be lost through imperilling others. In Conroy v Attorney General [1965] IR 411, Walsh J held at 436 that the “primary consideration in determining whether an offence be a minor one or not is the punishment which it may attract.” Thus in that case, as the maximum potential punishment for drunk driving was six months’ imprisonment and a £100 fine, or both, it was a minor offence and the accused was not entitled to a trial by jury. It is generically different to revoke a licence that is not given as of right but only given on the tacit promise of lawful conduct and following tests of competence and knowledge of the applicable rules. A criminal penalty may also be imposed for breaches of road safety legislation. In 1999, the Oireachtas amended the Misuse of Drugs Act 1977 to provide that those who possessed drugs for unlawful supply which had a market value of €13,000, then £10,000, or more were liable under section 15A to an enhanced penalty. This was proscribed by section 27(3D) as carrying a 10 year mandatory minimum sentence unless “the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence, it would be unjust in all the circumstances”; inserted by section 33 of the Criminal Justice Act 2007. With a second conviction, for possession or importation for supply of that value of drugs, sections 27(3E) and 27(3F) remove the unless provision for all convicts who committed the offences when aged 18 years and upwards.

5. Moving to the Firearms Act 1925, this was recast by section 42 of the Criminal Justice Act 2006 and by section 35 of the Criminal Justice Act 2007. The existing law was altered by setting down a potential maximum penalty of up to life imprisonment for possessing a firearm with intent to endanger life with an indicative sentence of 10 years, provided that such a sentence would not have to be imposed by the courts if by “reason of exceptional and specific circumstances relating to the offence, or the person convicted of it” it “would be unjust in all the circumstances”. Again, the exception is removed by section 42(6) of the 2006 Act in the case of a subsequent offence or for a second offence under sections “26, 27, 27A or 27B of the Firearms Act 1964 or section 12A of the Firearms and Offensive Weapons Act 1990”. Provided the offences were committed by those of 18 years and upwards, the legislation provides that “the court shall, in imposing sentence, specify a term of imprisonment of not less than 10 years as the minimum term of imprisonment to be served by the person.” There are no exceptions. Similar provisions apply to those other offences, thus taking a vehicle while in possession of a firearm contrary to section 26 of the Firearms Act 1964, using or producing a firearm to aid an escape from lawful custody under section 27 of the 1964 Act, carrying a firearm with criminal intent under section 27B of the 1964 Act and shortening the barrel of a shotgun or rifle contrary to section 12A of the Firearms and Offensive Weapons Act 1990 carry indicative sentences of five years or ten years, with the exception for not applying same removed where a person has previously committed one or more of that range of offences.

6. In this instance, the accused pleaded guilty to possession in suspicious circumstances of a 12 gauge double barrelled shotgun that had the barrels sawn down under section 27A of the 1964 Act and also to possession of what are in effect instruments of robbery or arson; a sledgehammer and a plastic bottle made up with petrol and socks into a Molotov cocktail. When pleading guilty in April 2013, he had two relevant prior convictions; the first from 2003 for which a term of 6 years’ imprisonment was imposed and the second from 2009 for which a term of 7 years’ imprisonment was handed down. Hence, although a drug addict who the trial judge considered was intent on turning away from crime, the mandatory minimum sentence, without exception, was five years’ imprisonment. This was provided for, in similar terms to the statutes already quoted, by section 27A of the Firearms Act 1964 as substituted by section 59 of the Criminal Justice Act 2006. Section 27A provides for a mandatory sentence for a subsequent offence in all circumstances, and does not come under the remit of section 25 of the Criminal Justice Act 2007. It in part reads:

      (1) Subject to subsections (2) and (3), where a person (other than a person under the age of 18 years)—

      (a) has been convicted on indictment of an offence specified in Schedule 2 (in this section referred to as “the first offence”),

      (b) has been sentenced to imprisonment for a term of not less than 5 years in respect of that offence, and

      (c) who is convicted on indictment of an offence specified in Schedule 2 (in this section referred to as “the subsequent offence”) that is committed—

      (i) during the period of 7 years from the date of conviction of the first offence and, for the purpose of determining that period, there shall be disregarded any period of imprisonment in respect of the first offence or the subsequent offence, or

      (ii) during any such period of imprisonment,

      (in this section the total period comprising the periods referred to in subparagraphs (i) and (ii) is referred to as “the specified period”),

      the court shall, in imposing sentence on the person in respect of the subsequent offence, specify as the minimum term of imprisonment to be served by the person, a term of not less than three quarters of the maximum term of imprisonment prescribed by law in respect of such an offence and, if the maximum term so prescribed is life imprisonment, the court shall specify a term of imprisonment of not less than 10 years.

      (2) Subsection (1) shall not apply if any of the following provisions apply in respect of the subsequent offence:

      (a) section 2 of the Criminal Justice Act 1990;

      (b) section 15(8) of the Act of 1925;

      (c) section 26(8), 27(8), 27A(8) or 27B(8) of the Act of 1964;

      (d) section 12A(13) of the Act of 1990; or

      (e) section 27(3F) of the Misuse of Drugs Act 1977.

      (3) Subsection (1) shall not apply where the court is satisfied that it would be disproportionate in all the circumstances of the case to specify as the minimum term of imprisonment to be served by the person concerned the term of imprisonment referred to in that subsection in respect of the subsequent offence.

      (4) Subsection (1) shall apply to a person in respect of the subsequent offence only if that offence is committed after the commencement of this section and that subsection shall apply to a person whether the first offence is committed before or after such commencement.

7. Section 25 thus explicitly states under sub-section (2) that the mandatory sentence of five years for a subsequent firearms offence under section 27(A) of the Firearms Act 1964 applies without exception. The case of Osmanovic v Director of Public Prosecutions [2006] 3 IR 504, concerned a range of penalties for evasion of excise duty, and as to that Murray CJ stated at paragraph 26:

      It is quite clear from the judgment of Ó Dálaigh CJ in Deaton v The Attorney General and the Revenue Commissioners [1963] IR 170 that the Oireachtas does have powers to lay down general parameters within which a sentence is to be imposed. There is no necessity in this judgment and indeed it would be wholly undesirable to consider what the limits might be (if any) on the power of the Oireachtas to provide for either fixed sentences or mandatory sentences. One could postulate extreme situations where the sentencing powers of judges were removed altogether and every offence had a mandatory sentence. The constitutionality of such a law would obviously be questionable. But it has always been accepted and indeed was accepted, in Deaton v The Attorney General and the Revenue Commissioners that, within reason at least, the Oireachtas has power to lay down those parameters.
8. 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. The Director of Public Prosecutions considered that an appeal was warranted under section 2 of the Criminal Justice Act 1993; which provides for the appeal to the Court of Criminal Appeal from the High Court or Circuit Court of unduly lenient sentences. On appeal, the relevant sections being pointed out to the Court of Appeal, the mandatory minimum of five years’ imprisonment was imposed; [2017] IECA 237, judgment of Sheehan J of 26 July 2017.

9. As the brief legislative survey above may indicate, murder has always been the ultimate offence. It can never be committed by criminal negligence, by wilful blindness, or advertent recklessness, but only through the intentional taking of the life of another. Guilt is established by proof of intent “to kill, or cause serious injury” to another person; section 4 of the Criminal Justice Act 1964. The moral culpability associated with murder has disapplied conviction where the circumstances lack that ultimate degree of exceptional wrong associated with the offence. Hence, an intentional killing that is provoked by the deceased and the wrongful use of force in self-defence where the degree of force exceeds what is reasonable enable a jury to give a verdict of manslaughter against an accused on a murder charge; The People (AG) v Dwyer [1972] IR 416, The People (DPP) v MacEoin [1978] IR 27, The People (DPP) v Bambrick [1999] 2 ILRM 71, The People (DPP) v Curran [2011] IECCA 95 and The People (DPP) v Cahoon [2015] IECA 45. Unsurprisingly, the turpitude that a murder conviction not just attracts, but unerringly signifies, justifies the mandatory life sentence that is the modern equivalent of the ultimate sentence that in the common law stretches back immemorially; Lynch and Whelan v Minister for Justice [2012] 1 IR 1. A further aspect of even the justifiable mandatory minimum sentence in the case of murder is demonstrated by the way the case law has developed in strictly confining those who may be found guilty.

10. What is reasonable as regards the resolution of conflict between two opposing constitutional rights, thus saving legislation from any finding of unconstitutionality, is not the same as the legislature predicting a sentence minimum with such accuracy that it would never be unjust. In Re Article 26 and the Regulation of Information (Services Outside the State for the Termination of Pregnancies) Bill 1995 [1995] 1 IR 1 at 46, Hamilton CJ considered that:

      the approach to be taken by the Court in determining whether the provisions of the Bill or any provision thereof are or is repugnant to the Constitution … [is] to determine from an objective stance whether the provisions of the Bill represent a fair and reasonable balancing by the Oireachtas of the various conflicting rights and are not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or on the constitutional rights of the mother or any other person or persons.

11. Apart from murder, sentences are difficult to predict with the degree of accuracy that would say that a minimum term must always be served. As Finlay Geoghegan J states at paragraph 37 of the principal judgment, if such a choice is made rationally, so as to be applicable to predictable circumstances, then provided it could justly apply to all who commit the crime, irrespective of mitigation, it could conform to constitutional strictures. What should not be ignored, however, is that such legislation may go too far. In this instance, it is to remove from the courts their entitlement to suspend even a year out of ten years or a month out of five years with a view to both encouraging and warning a prisoner into turning to a useful and law-abiding life. Such has always been the entitlement of the courts. Section 99 of the Criminal Justice Act 2006 puts this entitlement on a statutory footing, providing that where a person is sentenced by a court to a term of imprisonment for an offence:

      (other than a mandatory term of imprisonment) … that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.

12. But it is more than an entitlement of a court to say what is an appropriate sentence to fit the crime and the circumstances in which it was committed and the degree of participation of the offender and the effect on the victim and any mitigating background of the offender. Courts have a duty to impose a just sentence. That is a judicial power which cannot be removed.

13. 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. Serious offences turn the lives of victims upside down. Intrusions into the privacy of the home through burglary can put an older citizen into permanent dependence, even though they are not assaulted; see Desmond O’Neill et al, Effects of burglary on elderly people, British Medical Journal (1989, Volume 278). Sexual violence can undermine trust in the most intimate sphere of human existence, with consequences over an entire lifetime. Assaults can alter a victim’s existence permanently. It is not just the shock of being robbed that alters people’s state of mind, but the alteration in the victim’s mind that can be triggered by being the object of violence. Through assaults people can have their health taken. Enough has been said as to the scourge of addiction. As regards the kind of offence in question here, terrible harm is stored up by proliferating firearms. By altering them for concealment, no good towards the people of Ireland was intended. The legislature is thus entitled to provide for condign maximum sentences. Further, by increasing a sentence in legislation, a message may be validly sent to the courts as to how seriously those democratically representing the public view an offence.

14. The function of the courts in sentencing offenders is to strike a fair balance between the entitlement of society to punish crime, the expectation of the particular victim that an offence will be properly punished with a correct sentence, and the rehabilitation of the convict. Finding that balance is a matter for the courts. Such instances of universal minimum sentences, such as in murder, as will always meet the justice of every case, are considered to be apart. It is only through the process of sifting through the facts, in order to arrive at the truth, always indispensable to the correct application of the law, that a just result may be arrived at. Doing what is morally right as between competing interests of punishment and the deprivation of liberty and giving what is due to society, the victim, and the offender is what justice entails. What is lost in the application of mandatory minimum sentences is any realisation that circumstances can take offences beyond what policy might foresee. Exclusively, it is the function of the Oireachtas to legislate on the basis of where the seriousness of categories of offences should be seen within society. That is usually and appropriately done, however, by setting a maximum norm for the worst set of circumstances that the definition of the offence admits of. Usually, as in many of the offences quoted in the paragraphs preceding, such maximum sentences leave more than enough latitude for a just penalty to be imposed.

15. Under foreign rule, mandatory penalties of death were imposed historically for an extraordinary range of offences by parliament on the courts for various offences, and continued for murder, and death and dismemberment in the case of treason, or whipping for minor offences. That was the historical situation and it then reflected the sovereignty of parliamentary rule. An argument could thus be advanced that the final authority as to criminal penalty is vested in the Oireachtas. That proposition is untenable. With the enactment of the Constitution in 1937, a definite recasting of authority occurred. While checks and balances are vested in the functions of Dáil Éireann and Seanad Éireann as to legislation, except as to money bills, certainly the role of the courts is to uphold those laws but that is only permissible in the context of the supremacy of the Constitution. A reading of the punishments proscribed under the former rule can be seen as an affront to human dignity. But under the order then established such mandatory punishments were considered justice. What was regarded as justice in a prior age is not what people of reason would today necessarily regard as giving to criminal offenders their due. Justice under the Constitution is not merely that derived from equal measure of punishment for equal wrong, but is fundamentally altered by the Christian nature of the State; see Brian Walsh - The Judicial Power, Justice and the Constitution of Ireland, in Curtin and O’Keeffe eds, Constitutional Adjudication in European Community and National Law: Essays for the Hon Mr Justice TF O’Higgins (Dublin, 1992) at 145. As Walsh J put the matter in McGee v AG [1974] IR 284 at 318-319:

      Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity - not the charity which consists of giving to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good with the due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured.

16. Thus, while under Article 15.2.1º of the Constitution, the “sole and exclusive power of making laws” is “vested in the Oireachtas” with “no other legislative authority” having “power to make laws for the State”, Article 34.1 just as unequivocally provides that justice “shall be administered in courts established by law by judges appointed in the manner provided by this Constitution”. The requirement to administer justice is the foundational objective of the courts and, in the context of legal process, it is for the courts to strive to say what a just result is. For both legislative and executive branches of authority, however, “true social order” is the objective of the exercise of their functions just as much as it is that of the courts. To quote further from the Preamble to the Constitution, the aims of the State are to be pursued “with due observance of Prudence, Justice and Charity”. These aims both inform the Constitution and require the analysis of law to abide by their precepts.

17. This is not far from the theory of law and justice as integrity as developed by philosopher Ronald Dworkin. Under this theory, propositions of law are true if they figure in or follow on from principles of justice, fairness and procedural due process. To take an example, in deciding whether the law should grant an individual compensation for an injury, it means deciding “whether legal practice is seen in a better light if we assume the community has accepted the principle that people in [that individual’s] position are entitled to compensation.” The setting of punishment cannot be different. It is right that this theory, to quote from page 243 of Law’s Empire (Cambridge, Harvard University Press, 1986), asks judges to therefore assume:

      so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process, and it asks them to enforce these in the fresh cases that come before them, so that each person’s situation is fair and just according to the same standards.

18. In the search for a just sentence, judges will be aware of and may exercise visiting rights to prison and will also be aware of the body of empirical research into sentencing that has been engaged with by them over the last eight years; see Director of Public Prosecutions v Mahon [2019] IESC 24. This has resulted in detailed sentencing analyses on at least ten different categories of the most serious offences. In setting policy, with the oversight of needs that attends decisions on legislation and on priorities in expenditure, the Oireachtas and Government have individual and separate roles to which they are uniquely suited through being chosen in the democratic process. The courts should not intrude on that. The roles are separate; though informed by the Christian and democratic nature of the State and by the aim of attaining true social order. Article 34 of the Constitution provides for courts of first instance and of appeal, with the Supreme Court as the final court of appeal. The High Court under the Constitution is vested “with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal”. This, of course, does not mean that the High Court has the power to determine everything that might be regarded as a legal controversy, much less areas of politics or of general policy. For instance, courts do not have power to give planning permission, to issue a mining licence or to raise a tax assessment; Deighan v Hearne [1990] 1 IR 499, O’Keeffe v An Bórd Pleanála [1993] 1 IR 39, Doherty v South Dublin County Council (No 2) [2007] 2 IR 696 and Cussens v Brosnan [2008] IEHC 169. But, what courts cannot escape is their fundamental duty to do justice.

19. In very many cases, the legislative arm of the State may well be accurate in fixing a mandatory minimum standard to appropriate punishment, but it is their responsibility in embarking on such a process to find a minimum sentence that always meets the justice of the case. The danger is in the rigidity which that approach imposes on the courts. What is not apparent in that approach is what O’Higgins CJ stated in State (Healy) v Donoghue [1976] IR 325 at 348, which was that judges are severely limited in what they can do since no “court under the Constitution has jurisdiction to act contrary to justice”. And there the problem lies. The Oireachtas is not entitled to proscribe a potentially unjust mandatory minimum sentence.

20. No matter how it is viewed, or how carefully it is researched, as it now is within the court system by the Judicial Researchers Office, the sentencing of offenders will always be a matter of public controversy in some cases. The courts are there to discern the balance of justice. What is indicative from the Oireachtas cannot be wrong, provided there is an interests of justice clause to enable an appropriate sentence to be handed down notwithstanding the legislative view. There can be offences which are so egregious, such is murder as analysed in Lynch and Whelan, where a mandatory sentence can be set. Any setting of a mandatory sentence depriving a person of liberty requires, however, that such mandatory minimum sentence is always just. It is, as this Court has previously held, in the ultimate offence of murder to prescribe automatic punishment on conviction by life imprisonment. Other offences providing for imprisonment require the application of a balanced approach to the conduct of the offender and any circumstances of mitigation. As exercising the sovereign power of the Irish people, the Oireachtas can clearly set maximum penalties, thus leaving to those who are bound to administer justice the decision on where an offence fits in terms of culpability. What is wrong however, to echo the words of McLachlin CJ in R v Nur [2015] 5 LRC 662 at 44-45, is where not just an emphasis but an emphatic command is made to the courts to put retribution and deterrence as the only instruments of sentencing policy. This does not mean, however, that there is necessarily any infringement of the principles of justice in mandatory fines or disqualifications consequent on the violation of regulatory offences or for the purpose of policing such areas as the disposal of waste or enforcing care on the roads. Regulatory offences are differently defined in terms of mental element to the kind of offence here under consideration.

21. In every case, it is for the courts to punish those who so grossly violate its laws and infringe on the human rights of those under its protection, to condignly punish serious breaches of criminal law. In very rare circumstances, however, it can also be right to encourage a criminal away from a career in violating the human rights of others by choosing an option which removes any incentive, even within a prison term, for it to end early in favour of probation supervision or conditional release in pursuit of a solution to a prisoner’s difficulties. 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.

22. 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. This does not mean, and should not mean in this case, the automatic release of the offender. The correct disposal of the matter requires further submission as to the imposition of a just sentence before the Court of Appeal.











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