|Ellis -v- Minister for Justice and Equality & Ors|
| IESC 30|
Supreme Court Record Number:
Court of Appeal Record Number:
High Court Record Number:
Date of Delivery:
Composition of Court:
|McKechnie J., MacMenamin J., Charleton J., O'Malley Iseult J., Finlay Geoghegan J.|
|Finlay Geoghegan J.|
Link to Judgment
O'Malley Iseult J.
Finlay Geoghegan J.
McKechnie J., MacMenamin J., O'Malley Iseult J.
THE SUPREME COURT
[Appeal No: 2017/172]
Finlay Geoghegan J.
The Minister for Justice and Equality, Ireland and the Attorney General
Judgment of Ms. Justice Finlay Geoghegan delivered on the 15th day of May, 2019.
1. This appeal raises the important and difficult question of the constitutional boundary between the respective roles of the Oireachtas and the Courts in deciding what is the appropriate sentence to be served by a person convicted of an offence.
2. The issue arises in relation to a challenge brought by the appellant to the 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 (“the 1964 Act, as amended”).
Factual and Procedural Background
3. On 7 July 2012, the appellant was charged with an offence of possession of a sawn off shotgun at Knocklyon Shopping Centre on 5 July 2012, contrary to s. 27A(1) of the 1964 Act, as amended.
4. On 13 November 2012, he was charged with the offence of possession of a sledgehammer, plastic bottle containing petrol and socks with the intention that they be used in connection with that same offence at Knocklyon Shopping Centre, contrary to s. 15(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001 (“the 2001 Act”).
5. On 8 April 2013, the appellant pleaded guilty to both offences. At the sentencing hearing on 7 May 2013, Her Honour Judge Ring (as she then was) heard evidence of, inter alia, 26 previous convictions, including an offence of carrying a firearm with criminal intent contrary to s. 27B of the 1964 Act, as amended. He had been sentenced in respect of that conviction on 7 July 2009 to a period of 7 years imprisonment, with 2 years suspended.
6. The Circuit Judge adjourned the sentencing hearing initially to 29 July 2013, to obtain reports in relation to the appellant and again three further times before finalising the sentence. At the time, the appellant was addressing his drug problems in Coolmine Drug Treatment Centre. On each adjournment, evidence was given that the appellant was continuing to progress his drug rehabilitation successfully and had not come to adverse Garda attention. Ultimately, on 26 May 2014, the Circuit Judge imposed, in respect of the offence contrary to s. 27A(1) of the 1964 Act, as amended, a five year sentence and fully suspended the same. She also imposed a fully suspended three year sentence in respect of the offence contrary to the 2001 Act.
7. The Director of Public Prosecutions sought a review of both sentences from the Court of Appeal, pursuant to s. 2 of the Criminal Justice Act 1993, on grounds of undue leniency. It appears from the subsequent judgment of the Court of Appeal (Sheehan, Mahon and Edwards JJ.) delivered by Sheehan J. on 25 July 2016: D.P.P. v. Ellis  IECA 358, that the Director advanced a number of grounds, but the principal argument focused on whether or not the Circuit Judge was entitled to suspend the sentence of five years imposed on the first count, having regard to s. 27A(8) of the 1964 Act, as amended, and the fact that the appellant had a previous relevant conviction for a firearms offence.
8. The hearing of the Director’s above appeal appears to have been adjourned following the commencement by the appellant of these plenary proceedings challenging the constitutionality of s. 27A(8) of the 1964 Act, as amended. That subsection is central to this appeal and must be considered in its context of the entirety of s. 27A, which provides:-
9. The challenge to the constitutionality of s. 27A(8) of the 1964 Act, as amended, was unsuccessful in the High Court, for the reasons set out in a judgment delivered by Twomey J. on 9 May 2016: Ellis v. Minister for Justice and Equality & ors.  IEHC 234. The High Court also refused a declaration of incompatibility of s. 27A(8) of the 1964 Act with the European Convention on Human Rights, pursuant to s. 5(1) of the European Convention on Human Rights Act 2003.
“(1) It is an offence for a person to possess or control a firearm or ammunition in circumstances that give rise to a reasonable inference that the person does not possess or control it for a lawful purpose, unless the person possesses or controls it for such a purpose.
(2) A person guilty of an offence under this section is liable on conviction on indictment—
(a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and
(b) at the court’s discretion, to a fine of such amount as the court considers appropriate.
(3) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005.
(4) Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.
(4A) The purpose of subsections (5) and (6) of this section is to provide that in view of the harm caused to society by the unlawful possession and use of firearms, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under this section, shall specify as the minimum term of imprisonment to be served by the person a term of not less than 5 years, unless the court determines that 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 to do so.
(5) Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose the court may, subject to subsection (6), have regard to any matters it considers appropriate, including—
(a) whether the person pleaded guilty to the offence and, if so—
(i) the stage at which the intention to plead guilty was indicated, and
(ii) the circumstances in which the indication was given, and
(b) whether the person materially assisted in the investigation of the offence.
(6) The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 5 years imprisonment is unjust in all the circumstances, may have regard, in particular, to—
(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, and
(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
(7) Subsections (4) to (6) of this section apply and have effect only in relation to a person convicted of a first offence under this section (other than a person who falls under subsection (8)(b) of this section), and accordingly references in those first-mentioned subsections to an offence under this section are to be construed as references to a first such offence.
(8) Where a person (except a person under the age of 18 years) —
(a) is convicted of a second or subsequent offence under this section,
(b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,
the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.
10. A judgment of relevance to the Director’s appeal in D.P.P. v Ellis had been given by the Court of Appeal on 23 January 2015: D.P.P. v Prenderville  IECA 33. That was also an appeal against leniency in respect of a sentence imposed for an offence contrary to s. 27A(1) of the 1964 Act, as amended, but as it was a first offence, the statutory provisions in relation the sentence to be imposed were those in ss. 27A(4) - (7).
11. The relevance of the judgment in Prenderville to the appeal of the Director in the appellant’s criminal proceedings may be explained by simply recording that one of the sentences imposed on Mr. Prenderville in respect of the offence contrary to s. 27A was six years imprisonment with the last 18 months suspended. The issue relevant to these proceedings was the construction by the Court of Appeal of the phrase “not less than five years as the minimum term of imprisonment to be served by the person” in s. 27A(4). That provision was of course, in the case of Mr. Prenderville, subject to the provisions in subss. (5) to (7), which permitted the Court to reduce the period below the minimum sentence specified in subs. (4).
12. On the interpretation issue, the Court of Appeal stated at paras. 15 and 16:-
13. On the facts of Prenderville, the Court of Appeal concluded:-
“15. In the Court's view, the plain and ordinary language of the section makes it very clear that, unless there are exceptional and specific circumstances present which would make a sentence of five years or more unjust, the court is required to impose a sentence of five years as a minimum to be actually served in custody. Only if there are exceptional and specific circumstances identified is it possible to suspend all or part of the sentence so as to reduce the sentence to be served in custody below five years.
16. If the section had been couched in terms of "the court shall impose a five years sentence or shall impose a sentence of five years imprisonment" there might be an argument to be made, but the reference to specifying a term of imprisonment of not less than five years as the minimum term of imprisonment to be served puts the matter beyond doubt. An interpretation that would permit a suspension of circumstances of a sentence in the absence of exceptional and specific circumstances would be to set the clearly expressed intentions of the Oireachtas at nought.”
14. In the Director’s appeal in the criminal proceedings relating to the appellant, the Court of Appeal, following Prenderville, approached the statutory minimum term imposed by s. 27A(8) of the 1964 Act as requiring as a starting point a minimum sentence of five years, with no ability to suspend any part thereof. Its conclusion as to what was done by the Circuit Judge, what was impermissible and what the Court of Appeal should do in relation to offence contrary to s. 27A(1) is set out at paras. 15 – 19 of the judgment:-
“20. In the present case, the learned trial judge, having found there were no exceptional and specific circumstances present making it unjust to impose a sentence of not less than five years, erred in suspending a portion of the sentence so as to reduce the effective sentence, the sentence to be served below this statutory minimum. That error requires the intervention of this Court.”
15. In relation to the second count, the Court of Appeal upheld the suspended sentence imposed by the trial judge for the reasons set out at para. 20. Its reasoning is of some relevance to the consideration of the constitutional issues arising in this appeal. They stated:-
“15. At the sentence hearing in the Circuit Court the appellant was 33 years of age and had 26 previous convictions including relevant previous convictions for firearms offences in 2003 and 2009. The sentencing judge believed at the time of sentence that she was entitled to suspend the mandatory minimum five year sentence which the respondent was liable to following his earlier firearms conviction. The appellant had a young child and partner and by the 26th May, 2014, when sentence was imposed in this case he had been drug free for a period of two years. There had been evidence before the court that the appellant had been a heroin addict, had been abusing illegal substances since the age of thirteen, and had spent most of his 20's in prison. The fact that the appellant had been drug free for a period of two years was something which seriously influenced the sentencing judge. When finalising sentence she stated as follows:-
‘We are now at a period nearly two years after the date of the offence and in light of his prior history it is significantly to his credit that there is no information of any offending in the interim. … As indicated Mr. Ellis has remained in the community without reoffending. He has used all the services provided to him and the testimonials before the court confirm that not only did he participate, but he participated well with the various agencies that he used in the interim so in that regard I will suspend the operation of the sentence of five years imprisonment for a period of five years.’
16. The principle issue before us in this appeal was whether or not the Circuit Court judge was entitled to depart from the minimum five year sentence given the evidence before her of previous convictions of firearms offences. That matter has now been settled. The trial judge was not entitled to suspend any part of the five year sentence imposed on the firearms offence and we must approach sentence on the basis that the starting point is a sentence of five years imprisonment. We allowed the appeal to be adjourned to enable proceedings to be taken in the High Court by the respondent to test the constitutionality of the relevant legislation. The appellant did so and was unsuccessful, the judgment of the High Court being delivered on the 9th day of May 2016, by Twomey J. in which he upheld the constitutionality of the mandatory five year sentence for a second firearms offence.
17. We are satisfied therefore that the trial judge was not entitled to suspend any part of the five year sentence imposed on the firearms offence and we must approach sentence on the basis that the starting point is a sentence of five years.
18. This respondent has made a significant breakthrough in his life. While we were told at the conclusion of the oral hearing at this appeal that he may have committed an offence since his release on bail, it is of significance that there appears to be no more than one slip up. He appears to have made huge strides in overcoming his addiction. The court is satisfied that there is no need to impose any sentence in excess of the mandatory minimum sentence of five years imprisonment on the five year firearms charge.
19. The court therefore will accede to the application by the Director of Public Prosecutions for a review of this sentence. We will set aside the original sentence on the firearms charge and impose in lieu thereof a sentence of five years imprisonment from today. Credit to be given for the time spent in custody on this matter.”
16. In summary, at the time of commencement of these proceedings challenging the constitutionality of s. 27A(8) of the 1964 Act, as amended, the appellant was a person in respect of whom an experienced Circuit Judge, having adjourned sentencing on several occasions, imposed as the appropriate sentence for the appellant a suspended five year sentence. This sentence was decided in application of principles not criticised by the Court of Appeal, taking into account what the Circuit Judge then understood (in error) to be permissible, having regard to the statutorily imposed minimum five year sentence. That was the position at the time of the High Court hearing and judgment. By the time of the appeal hearing and judgment in the Court of Appeal in these plenary proceedings, the appellant was serving a five year custodial sentence imposed by the Court of Appeal as being the mandatory minimum sentence imposed by s. 27(8) of the 1964 Act, as amended, as properly interpreted.
“20. … The previous convictions of the appellant are such that in normal circumstances an immediate custodial sentence was to be expected. The fact that an experienced trial judge decided that this was one of those unusual cases where the public interest was best served by a suspended sentence arose in circumstances where there was evidence before her that the appellant had struggled successfully to rehabilitate and had become drug free. In our view the trial judge marked the huge significance of this by effectively giving the appellant an opportunity to further prove he could become a productive member of society albeit with the inducement of a suspended sentence hanging over him. This occasional imposition of a suspended sentence in circumstances where one might normally expect immediate imprisonment has always been part of Irish sentencing practice. O'Malley, in Sentencing Law and Practice (2nd Ed.) at para. 6.51 says under the heading ‘Last Chance Principle’
‘Some authority exists for the proposition that a person with a criminal record and perhaps a lengthy one should be given a last chance if there are indications that he is now intent on relinquishing a criminal way of life. This was clearly the view of the Court of Criminal Appeal in People (DPP) v. Jennings, where the applicant was given a two and a half year prison sentence, with provision for review for his role in a robbery. Reducing his sentence the court per O'Flaherty J. said:
“But there comes a time in everyone's life and it is a principle of sentencing as well, where the court detects that it may be make or break time. If he is given this his last chance perhaps, he will hopefully take it and rehabilitee himself, get employment and become a useful member of society.”
(Ex tempore, Court of Criminal Appeal 15th February, 1999)’”
17. Whilst it is clear that the Circuit Judge considered the appropriate sentence for the offence of which he was convicted to be a five year suspended sentence, it is not possible for this Court to ascertain from the judgment of the Court of Appeal in the criminal proceedings whether, absent the mandatory minimum term of five years imposed by s. 27A(8), it would have considered that the appropriate sentence for the appellant to be something less than a five year custodial sentence. The Court has, however, noted that the Court of Appeal upheld the approach of the Circuit Judge to the suspension of the full three years of the sentence in respect of the other offence which was to run concurrently and her application of what is referred to as the “last chance principle” to the then circumstances of the appellant in light of his progressing drug rehabilitation.
18. The challenge made by the appellant to the constitutionality of s. 27A(8) of the 1964 Act, as amended, in the High Court, Court of Appeal and now this Court, is essentially based upon two arguments. First, that the sub-section is an impermissible encroachment on the exclusive jurisdiction of the courts under Article 34 and Article 38.1 of the Constitution in sentencing a person convicted of an offence. Secondly, it is contended that even if the Oireachtas may legislate for such a mandatory minimum sentence, any such statutory provision must pass proportionality tests set out in Heaney v. Ireland  1 I.R. 580 and s. 27A(8) of the 1964 Act, as amended, does not do so. The focus of the submissions may have differed slightly in each court.
19. In the High Court, Twomey J., having referred to the judgments of this Court in Deaton v. Attorney General  I.R. 170 (“Deaton”) and Lynch and Whelan v. Minister for Justice  1 I.R. 1 (“Lynch and Whelan”), identified at para. 18 the following as the principles to be extracted:-
20. Applying those principles to s. 27A(8) and the issues in the proceedings, he concluded that as a matter of principle, it was consistent with the Constitution for the Oireachtas to enact laws which provide for mandatory minimum sentences which cannot be suspended by a sentencing judge. On the second question, he considered that the mandatory minimum penalty under s. 27A(8) applied to all citizens, in the sense intended by Ó’Dálaigh C.J. in Deaton in the passages considered below. Finally, he concluded that there was a rational relationship between the requirements of justice and the mandatory minimum penalty in s. 27A(8) in the light of what he termed “the serious nature of the offences at issue”.
“18. The following principles can be extracted from these two decisions to assist this Court in considering the constitutionality of s. 27A(8) of the 1964 Act:-
i. It is permissible as a matter of principle for the Oireachtas to impose a fixed or mandatory penalty for a particular offence.
ii. The mandatory penalty must apply to all citizens.
iii. There must be a rational relationship between the fixed penalty and the requirements of justice.”
21. In the Court of Appeal, Birmingham J. (Mahon and Hedigan JJ. concurring);  IECA 237 indicated at the outset of the judgment that he was “in complete agreement with the conclusions arrived at by Twomey J. and indeed his reasoning”. Birmingham J. took what I would respectfully describe as a broad approach to the role of the Oireachtas in relation to legislating for fixed or minimum sentences. Again, reliance was placed upon Deaton and Lynch and Whelan and also on Gilligan v. Ireland  IESC 45,  2 I.R. 450. His conclusion was that the Oireachtas can prescribe minimum sentences. Further that it is entitled to “a considerable margin of appreciation when addressing sentencing policy” and that the particular approach in the enactment of s. 27A(8) of the 1964 Act, as amended, cannot be seen as “irrational or disproportionate”.
22. The submissions of the appellant and respondents must be considered in the context of the relevant existing law starting with the constitutional provisions at issue, the law in relation to sentencing and the case law of this Court in relation to the respective roles of the Oireachtas and the Courts in deciding the appropriate sentence to be imposed on a convicted person.
23. Article 15.2.1º of the Constitution vests in the Oireachtas the “sole and exclusive power of making laws for the State”. Article 34.1, insofar as relevant, states that “justice shall be administered in courts established by law by judges appointed in the manner provided in this Constitution...”. Article 38.1 provides that “no person shall be tried on any criminal charge save in due course of law”.
24. The appellant relies on both Article 34.1 and Article 38.1 to submit that the appellant has a constitutional right, as part of his right to a trial in due course of law, when convicted of an offence, to have the appropriate sentence both determined and imposed on him by a judge sitting in court. In this connection, reliance was placed upon the summary of the general sentencing principles in the judgment of the Court of Criminal Appeal delivered by McKechnie J. in D.P.P. v. Begley  2 I.R. 188 at paras. 29 – 36:
25. The appellant, in reliance upon the extract from the State (Healy) v. Donoghue  I.R. 325, cited above by McKechnie J., contended that he has a constitutional right to receive from the court a sentence “appropriate to his degree of guilt and his relevant personal circumstances”. It is submitted that the mandatory minimum sentence in s. 27A(8) of the 1964 Act, as amended, must properly be considered to be a limitation of that right.
“ The essential principles of sentencing law are firmly established as part of our criminal jurisprudence and have been consistently applied, as a matter of course, for many years. At the level of generality it can be said that all sentences will result from a consideration of the gravity of the offence and of the circumstances in which it has been committed: from an appraisal of the personal situation of the accused person and from the assignment, to all mitigating factors, of a fitting value. Such an exercise should result in the sentence being proportionate to the crime and the person: if the result is otherwise, it must be adjusted so that at the end of the process an appropriate sentence is imposed.
 There are many elements involved in sentencing both at a general and specific level. Each has its own justifying reason. Some evidently are more influential than others: some may apply in isolation whilst others are best suited to have a cumulative effect. Not all will arise in any given case but all are part of an overall armoury, designed to deal with a multitude of different circumstances, relative to both crime and criminal, which when properly used, will result in the imposition of a just sentence in all circumstances.
 A judgment of some importance in this regard, which expressly directed the court's attention, not only to the crime but also to the offender, is that of Walsh J. in The People (Attorney General) v. O'Driscoll (1972) 1 Frewen 351 , where it was stated at p. 359:-
“The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard to the particular crime but in regard to the particular criminal” (emphasis added).
 This requirement also has a constitutional basis being that as identified by Henchy J. in The State (Healy) v. Donoghue  I.R. 325 at p. 353:-
“When the Constitution states that ‘no person shall be tried on any criminal charge save in due course of law’—(Article 38. s. 1), that ‘the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen’—(Article 40, s. 3, sub-s. 1), that ‘the State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen’—(Article 40, s. 3, sub-s. 2), and that ‘no citizen shall be deprived of his personal liberty save in accordance with law’—(Article 40, s. 4, sub-s. 1), it necessarily implies, at the very least, a guarantee that a citizen shall not be deprived of his liberty as a result of a criminal trial conducted in a manner, or in circumstances, calculated to shut him out from a reasonable opportunity of establishing his innocence; or, where guilt has been established or admitted, of receiving a sentence appropriate to his degree of guilt and his relevant personal circumstances” (emphasis added).
See also Denham J. in The People (Director of Public Prosecutions) v. M.  3 I.R. 306, at p. 316, as an example of one of numerous subsequent cases that endorsed these principles.
 Consequently, the general position is not in doubt; therefore these guiding principles will permeate the views of all courts when passing sentence on convicted persons.
 When called upon to apply such principles, the following passage at p. 104 from the judgment of Kearns J. when speaking for the Supreme Court in The People (Director of Public Prosecutions) v. R.McC.  IESC 47,  2 I.R. 92 succinctly captures what is the preferred if not the only approach in this regard, at p. 104:-
“ … This requires that any sentencing court should conduct a systematic analysis of the facts of the case, assess the gravity of the offence, the point on the spectrum at which the particular offence or offences may lie, the circumstances and character of the offender and the mitigating factors to be taken into account – all with a view to arriving at a sentence which is both fair and proportionate.”
 The judge went on to say at para. 32 that “[t]he general approach outlined above was even more emphatically endorsed in the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Kelly  IECCA 14 ,  2 I.R. 321 . This above passage is well representative of the approach most favoured in dealing with sentencing, but it is also important to bear in mind the following clarifying aspect of this view. Kearns J. added at p.104:-
“ … [this] is not to say that every step in the sentencing process has to be particularised in some formulistic or rigid way by the trial judge, but rather that the basis for the sentence imposed should be both apparent and consistent with these principles.”
This court fully supports what is herein stated.
 Finally, in a general context, it is also appropriate to make reference to what was said in the The People (Director of Public Prosecutions) v. M.  3 I.R. 306 at p. 315 where Egan J. said:-
“It must be remembered also that the reduction in mitigation is not always to be calculated in direct regard to the maximum sentence applicable. One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an appropriate reduction made.”
26. The judgment of this Court in Deaton has been considered and certain of the principles applied in a number of the subsequent judgments. The judgment declaring s. 186 of the Customs (Consolidation) Act 1876 repugnant to the Constitution was delivered by Ó’Dálaigh C.J. Section 186 of the 1876 Act purported to confer on the Revenue Commissioners the right to elect, on the hearing of a criminal charge, the penalty to be imposed by the Court. In considering the judgment of the Court and its reasoning which has subsequently been relied upon, it is of importance to note what the Court recorded at p.181 as being “common ground”, and also what the opposing submissions and the dispute under consideration were. The Court recorded these at p.181 in the following paragraph:-
27. As appears, the Court was not being asked to consider in that case the entitlement of the Oireachtas to legislate for a mandatory fixed or minimum penalty or the constitutional limitation on same. Rather, it appears broad propositions “that it is for the Legislature, when it creates an offence, to prescribe what punishment shall attach to the commission of such offence” and “that the Legislature may for a particular offence prescribe a single or fixed penalty, or a maximum penalty, or a minimum penalty, or alternative penalties, or a range of penalties” were “common ground” between the parties. It was on such common ground, that the Court was required to decide on the dispute between the parties as to whether it was consistent with the Constitution for legislation which provided for a choice of penalties to permit the choice to be made by the Executive, or whether such choice had to be made by the courts. The general statements of principle which were set out subsequently in the judgment of the Court must be considered having regard to what was agreed and what was in dispute.
“It is common ground that it is for the Legislature, when it creates an offence, to prescribe what punishment shall attach to the commission of such offence. It is also common ground that the Legislature may for a particular offence prescribe a single or fixed penalty, or a maximum penalty, or a minimum penalty, or alternative penalties, or a range of penalties. Where a choice of penalty is prescribed by the Legislature, either by reference to alternatives or a range of penalties, the choice of the penalty to be imposed in a particular case cannot, the appellant says, be committed to any person or body not being a judge or Court. The selection of penalty, where the Legislature affords a choice, is, he submits, part of the administration of justice. The respondent's contention, on the contrary, is that the selection of penalty is not a judicial function or part of the administration of justice, but that it falls into the domain of administrative or executive action and, accordingly, in the present case, that the power of the Revenue Commissioners to elect for a higher penalty is constitutional. It was submitted that when the Legislature prescribes a fixed penalty it selects the penalty for a particular case, and that this demonstrates that the selection of a penalty is not a judicial function, or part of the administration of justice, or otherwise in the judicial domain.”
28. In considering the opposing arguments, the Court in Deaton divided the functions which a judge discharges in a criminal case under three heads:-
29. It appears there was no dispute as to functions (i) and (iii) being exclusively within the judicial function.
30. The State, however, argued that by reason of the ability of the legislature to prescribe a fixed penalty, the selection of a sentence is not exclusively a judicial function and accordingly, could be assigned to the Executive. That argument was rejected as unsound, at p. 182:-
31. This passage requires careful consideration. I draw attention to three aspects; first, to what the Court understood to be “the prescription of a fixed penalty”. This is “the statement of a general rule” such that “all citizens convicted of the offence must bear the same punishment”. Second, to the clear distinction identified between the prescription by the Oireachtas of a fixed penalty (in the sense used) and the application thereof and, if a choice is available, the selection of the penalty to be applied to a convicted person, which is to be done by the Courts. Finally, to the conclusion that the “selection of punishment [for an individual citizen] is an integral part of the administration of justice”, albeit that this was stated in the context of legislation which provided for a choice of penalties by the Executive, which was considered impermissible. Nevertheless, it is important and repeated in subsequent judgments.
“In my opinion this argument is unsound. There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case. It is here that the logic of the respondents' argument breaks down. The Legislature does not prescribe the penalty to be imposed in an individual citizen's case; it states the general rule, and the application of that rule is for the Courts. If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment. But if the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular case, then a choice or selection of penalty falls to be made. At that point the matter has passed from the legislative domain. Traditionally, as I have said, this choice has lain with the Courts. Where the Legislature has prescribed a range of penalties the individual citizen who has committed an offence is safeguarded from the Executive's displeasure by the choice of penalty being in the determination of an independent judge. The individual citizen needs the safeguard of the Courts in the assessment of punishment as much as on his trial for the offence. The degree of punishment which a particular citizen is to undergo for an offence is a matter vitally affecting his liberty; and it is inconceivable to my mind that a Constitution which is broadly based on the doctrine of the separation of powers—and in this the Constitution of Saorstát Éireann and the Constitution of Ireland are at one—could have intended to place in the hands of the Executive the power to select the punishment to be undergone by citizens.
In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive as Parliament purported to do in s. 186 of the Customs Consolidation Act, 1876.”
32. Deaton was considered by this Court in Osmanovic v. Director of Public Prosecutions  3 I.R. 504. That judgment concerned a challenge to s. 186 of the Customs (Consolidation) Act 1876, as amended by s. 89(b) of the Finance Act 1997. It provides that the penalty for conviction on indictment on charges of the illegal importation of goods is a fine of treble the value of the goods, including the duty payable thereon, or of €12,700, whichever is the greater, or, at the discretion of the Court, imprisonment for a term not exceeding five years, or both a fine and imprisonment.
33. The constitutional challenge in Osmanovic was based upon an argument that the fine was a fixed penalty contrary to the principles of separation of powers. The applicant sought to rely upon Deaton. The challenge was rejected in part because the Court considered that the section did not impose a fixed penalty, but rather provided for a choice of penalty between the fine, the amount of which was prescribed, or imprisonment, or both. The Court at para. 26 stated:-
34. Deaton received further consideration by the Court in Lynch and Whelan v. Minister for Justice  1 I.R. 1. Those two appeals concerned a constitutional challenge to the mandatory life sentence for treason or murder provided for by s. 2 of the Criminal Justice Act 1990 (“the 1990 Act”). The two plaintiffs had each been convicted of murder and it was in relation to the offence of murder that the challenge was considered.
“26 There is clearly a multiple choice here. Even within the power to impose a prison term there is clearly the implied power to suspend all or part of that term. The prison sentence whether custodial or suspended or partly custodial and partly suspended may be the only sentence or may be combined with the fine. The selection is entirely to be made by the court. There is no question, therefore, of either the legislature or the executive fixing the punishment. Only the court exercising its judicial power does that. This court cannot accept that because there is a legislative prescription in relation to the fine option there is a breach of the principle of separation of powers. It is quite clear from the judgment of Ó Dálaigh C.J. in Deaton v. The Attorney General and the Revenue Commissioners  I.R. 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.”
35. The Court rejected the constitutional challenge to s. 2 of the 1990 Act. The single judgment of the Court (in accordance with what was then Article 34.4.5° of the Constitution) was delivered by Murray C.J. and initially set out at paras. 40 – 45 the context in which, and reasons for which, the crime of murder has always been considered to be one of exceptional gravity, and summarised the context in which the constitutional challenge required to be considered at paras. 45 and 46:-
36. The Court then referred to Deaton and, having quoted relevant extracts from that judgment, including that cited above, then set out its conclusion at paras. 49 – 52:-
“45. While it is undoubtedly the case that the crime of murder may be committed in a myriad of circumstances and the degree of moral blameworthiness will vary accordingly, such as where it is committed in particular heinous circumstances, nonetheless the crime itself, by its very nature, has always been considered at the highest level of gravity among all forms of homicide or other crimes against the person, whatever the circumstances. Again, that is the reason why the most serious of deterrents is provided by law.
46. It is in the foregoing context that the assertion by the plaintiffs that the Oireachtas, in providing that a mandatory life sentence be imposed in respect of the offence of murder has usurped the powers of the judiciary to an extent incompatible with the Constitution, falls to be considered.”
37. The Court in Lynch & Whelan appears to have been referring to and accepting the constitutional entitlement of the Oireachtas to legislate for a fixed penalty for a particular offence in the same sense as that term was used by O Dálaigh C.J. in Deaton namely, a penalty that would apply to all persons who commit the crime, irrespective of the circumstances in which it was committed or the personal circumstances of the convicted person.
“49. The court is satisfied, as O Dálaigh C.J. explained in that case, that the Oireachtas in the exercise of its legislative powers may choose in particular cases to impose a fixed or mandatory penalty for a particular offence. That is not to say that legislation which imposed a fixed penalty could not have its compatibility with the Constitution called in question if there was no rational relationship between the penalty and the requirements of justice with regard to the punishment of the offence specified.
50. In this case however s. 2 of the Act of 1990 applies to the crime of murder. For the reasons already indicated that crime has always and legitimately been considered to be one of profound and exceptional gravity and, in the court's view, one for which the State is entitled to impose generally a punishment of the highest level which the law permits. Given that it is an offence which is committed when, and only when, a person is unlawfully killed and that the person so doing intended to kill or cause serious injury, it is one which can therefore properly be differentiated from all other crimes, including manslaughter.
51. The court is of the view that the trial judge was correct when she concluded at p. 168 "… there can be nothing offensive in the Oireachtas promoting the respect for life by concluding that any murder even at the lowest end of the scale, is so abhorrent and offensive to society that it merits a mandatory life sentence …"
52. Accordingly the court concludes that s. 2 of the Act of 1990 in requiring the imposition of a mandatory life sentence for murder is not repugnant to the Constitution.”
38. The Court then considered a separate argument made by the plaintiffs that the mandatory sentence in s. 2 of the 1990 Act deprives a trial judge imposing a sentence which, as the plaintiffs put it in that case, is in accordance with the constitutional doctrine of proportionality. The Court acknowledged that in some instances reference is made to a constitutional principle of proportionality in sentencing principles, but distinguished between the required consideration of proportionality in sentencing and the public law constitutional principle of proportionality in cases such as Heaney v. Ireland  3 I.R. 593. In the light of its conclusion that it was constitutionally permissible for the Oireachtas to legislate for a mandatory penalty of life imprisonment for crime of murder, the Court rejected the submission that the Constitution required the courts to be permitted to impose a different sentence which a judge might consider to be proportionate to the particular crime committed by the particular person.
39. However, in its judgment in Lynch & Whelan, the Court has made clear that the reason for which the fixing of the penalty of life imprisonment for murder by the Oireachtas is constitutionally permissible is by reason of the fact that it is an offence of exceptional gravity and, as stated at para. 45, “has always been considered at the highest level of gravity amongst all forms of homicide or other crimes against the person, whatever the circumstances”. Further, it appears from para. 49 that the Court concluded that there was a rational relationship between the penalty prescribed and the requirements of justice with regard to the punishment of the offence specified, i.e. murder. Whilst not expressed as passing the public law test of proportionality as set out in Heaney, it is difficult to see any difference of substance.
40. This Court was also referred to the single judgment of the Court delivered by MacMenamin J. on 14 October 2013 in Gilligan v. Ireland and ors.  IESC 45. Whilst that judgment also concerns the separation of powers between the Oireachtas and the judiciary in matters relating to sentencing, it does not relate to a statutory provision which fixed a penalty or specified a minimum penalty to be applied to a person convicted of a particular offence. Rather, it concerns s. 13 of the Criminal Law Act 1976, which provides that a sentence of imprisonment imposed for an offence committed whilst a person is serving a sentence shall be consecutive on the sentence being served. There are certain exceptions which need not be referred to. The challenge was rejected for the reasons set out in summary at para. 57:-
41. The final judgment to which I wish to refer in which the respective roles of the Oireachtas and the Courts in sentencing has been considered is the judgment of this Court in P.C. v. Minister for Social Protection, Ireland and the Attorney General  IESC 63. That concerns a challenge to the constitutionality of s. 249(6) of the Social Welfare Consolidation Act 2005, as amended. That section, and regulations made thereunder, disqualified the appellant from receiving the State Pension Contributory [SPC] whilst serving a custodial sentence. A single judgment was delivered by MacMenamin J. on 27 July 2017 (with whom Denham C.J., McKechnie, Clarke and O’Malley JJ. concurred). In his judgment at para. 53, MacMenamin J. stated of Deaton:-
“57. In summary, therefore, the section does not ascribe a constitutionally questionable role in the administration of justice either to the executive or the legislature. It is to be presumed that the section will be applied in a constitutional manner. The section itself does not prescribe a fixed mandatory sentence; but, rather, only stipulates that, in certain limited conditions, an offender on conviction will receive a consecutive sentence. The provision challenged allows for the application of proportionality by the judiciary in sentencing. There is a rational connection between the nature of the penalty and the harm it seeks to address. For these reasons, the appeal will be dismissed.”
42. He further considered the role of the courts under Article 34 and Article 38 of the Constitution at para. 59:-
“53. However, as Ó’Dálaigh C.J. further explained, a mandatory penalty suffers from the flaw that all citizens, if convicted, no matter what their circumstances, must face the same penalty. Such is not the position when the legislature prescribes a choice of penalties. The underlying principle, identified in Deaton, therefore, was that, while the legislature states a general rule, the application of that rule is for the courts; that is, the degree of punishment which a particular citizen is to undergo for an offence is a matter which may vitally affect his liberty or welfare. Thus, the identification of the degree of punishment is a function of the administration of justice. Is s.249 (1) reconcilable with Deaton principles?”
43. In P.C., the relevant statutory provision was held to be inconsistent with the Constitution as contravening the principles of separation of powers and administration of justice fundamental to the Constitution.
“59. To my mind, the prohibition on the payment of the SPC to sentenced persons can only constitute an additional punishment. Article 34 of the Constitution provides that justice shall be administered in courts established by law, by judges appointed under the Constitution. Article 38 provides that no person shall be tried on any criminal charge, save in due course of law. But this punishment is not imposed by a court at all. As such, it contravenes Articles 34 and 38 of the Constitution. The imposition of penalties, in the context of sentencing a person convicted of crimes, is a function exclusively reserved by Article 34 of the Constitution to the courts. Sentencing is an integral part of trial in due course of law, guaranteed by Article 38 of the Constitution. The provision, as applied, offends against those principles.”
44. As appears from the foregoing, the principles which emerge from these decisions relevant to the issue of the separation of powers or respective roles of the Oireachtas and the Courts in determining the sentence to be imposed on a person convicted of a specified offence are nuanced and the manner in which they have been set out very often depend on the particular issue being considered by the Court in the judgment and indeed, what may have been the agreed position of the parties, as is evident from the judgment in Deaton.
45. A limited number of relevant principles can be extracted from the above judgments. The first and most obvious is the broad principle that each of the Oireachtas (as part of its law making function pursuant to Article 15 of the Constitution) and the Courts (as part of the administration of justice pursuant to Article 34 and Article 38 in relation to criminal trials) may have a role in the determination of the sentence which will be imposed on a convicted person. In Lynch & Whelan, the Court was satisfied, at para. 49 of its judgment, that “the Oireachtas in the exercise of its legislative powers may choose in particular cases to impose a fixed or mandatory penalty for a particular offence”. In being so satisfied, the Court referred to the explanation given by O Dálaigh C.J. in Deaton.
46. In Deaton, as already pointed out there were certain rather broad statements in relation to the role of the legislature which were stated to be “common ground”. However, even in that context, O Dálaigh C.J. for the Court identified, in the passage set out above, “a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case”. He further stated that “[t]he prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case”. This is as stated in Deaton “an integral part of the administration of justice”. In Lynch & Whelan, the Court at para. 50 referred to the entitlement of the State to “impose generally a punishment of the highest level”. Thus, it appears that Lynch & Whelan, when read with Deaton, decided that it is constitutionally permissible for the Oireachtas to provide in legislation that a specified penalty will apply on the commission of an identified offence. Another way of putting it is that the Oireachtas may prescribe by legislation that all persons convicted of a particular offence shall be subject to the prescribed penalty. To do so is not in breach of the separation of powers as an intrusion on the exclusive jurisdiction of the courts to administer justice.
47. That legislative power is, however, subject to the constitutional limitation identified in Lynch & Whelan. 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. There may be other permissible policy objectives such as deterrence which apply generally which are relevant to justification.
48. The judgments cited, Deaton, P.C. and others, however also indicate that the selection of the punishment to be imposed on a particular person convicted of a particular offence forms part of the administration of justice which, pursuant to Articles 34.1 and 38, is exclusively a matter for judges sitting in courts. The convicted person also has the constitutional right, identified inter alia by Henchy J. in The State (Healy) v Donoghue, in the passage in Begley quoted above, to receive a sentence “appropriate to his degree of guilt and his relevant personal circumstances”. The precise manner in which the above are reconcilable, or where the dividing line between the roles of the Oireachtas and the Courts lies, is less clear.
49. Notwithstanding, it is important to distinguish the constitutional principles at issue in Lynch & Whelan, in application of what the Court then understood to have been decided by Deaton. First there is the separation of powers, which is not breached by the Oireachtas, in exercise of its legislative power, prescribing by law a fixed or mandatory penalty, including imprisonment, for a particular offence which applies to all persons convicted of the offence. Such legislation is not considered an impermissible encroachment upon the exclusive jurisdiction of the courts.
50. Second, such law making is subject to the constitutional limitation of rational connection with the requirements of justice set out in Lynch & Whelan.
51. I now turn to what is at issue in this appeal. The appellant was convicted of an offence contrary to s. 27A(1) of the 1964 Act, as amended. That offence was, as is sometimes spoken of, the “offence of conviction”. It is the offence for which the appellant required to be sentenced. The first point of difference from what was at issue in Lynch & Whelan is that the Oireachtas has not prescribed a fixed penalty for the commission of a firearm offence contrary to s. 27A(1) of the 1964 Act, as amended. The effect of the various subsections of s.27A is to make all convicted persons liable to a penalty of imprisonment with a maximum of 14 years and a fine, but to prescribe two different statutory regimes applicable to a minimum term of imprisonment, depending on whether the offence of conviction is the first offence contrary to s. 27A(1) of the 1964 Act (and certain other specified firearm offences) or a second or subsequent such offence. Sub-sections 27A(4)-(7) prescribe what is sometimes referred to as a “presumptive” or “indicative” minimum sentence to be imposed of five years’ imprisonment, but permits the court to depart from this if it “is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances”. However, where the offence of conviction contrary to s. 27A(1) is a second relevant offence, s. 27A(8) precludes any departure by the court from the minimum term of five years to be served, irrespective of the circumstances in which the offence of conviction was committed or the personal circumstances of the offender. Hence, this mandatory minimum penalty only applies to a limited class of persons convicted of an offence contrary to s. 27A(1) of the 1964 Act, as amended. It is not a penalty prescribed for all persons who commit an offence contrary to s. 27A(1).
52. 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.
53. I do not propose considering whether or not the fact that s. 27A(8) of the 1964 Act, as amended, prescribes a minimum, as distinct from a fixed, penalty and hence, is giving the Court a choice, is sufficient to distinguish it from the principles set out in Lynch & Whelan. For reasons which will become apparent, it is not necessary. The primary submissions of the appellant focused on the application by the Oireachtas in s. 27A(8) of the 1964 Act, as amended, of the minimum mandatory penalty specified therein to a limited class of offenders determined by reference to one circumstance only which either is a characteristic of the offender or a circumstance in which the offence was committed, as distinct from the gravity of the offence created by s. 27A(1) of the 1964 Act, as amended.
54. Turning to the essential principles of sentencing law, as set out by the Court of Criminal Appeal in D.P.P. v Begley cited above, at a level of generality they require consideration of the following four matters to determine an appropriate sentence: (1) the gravity of the offence; (2) the circumstances in which it was committed; (3) the personal situation of the accused and (4) mitigating factors. As more fully set out in the judgment delivered by Charleton J these form part of the process which should lead to the imposition of a just sentence which strikes a fair balance between the interests of society, victim and convicted person identified at paragraph 14 of his judgment.
55. Prior convictions, or the absence thereof, always form part of the consideration of the above factors by a sentencing judge in reaching an appropriate sentence for the offence of conviction and the person convicted. It is unnecessary to consider in any detail the justification for this approach and the principles underpinning same. There appear to be two different theoretical bases considered in the writing; first, it is considered as a progressive loss of mitigation from which a first time offender benefits. The more convictions he accumulates the less mitigation he deserves until eventually, he is entitled to none. The second approach is that the Court should treat each conviction as an aggravating factor of the circumstances in which the offence was committed. This latter has been the subject of criticism. For a more detailed discussion, see Sentencing Law and Practice, 2nd Ed. O’Malley at p.1 40 – 144. As pointed out by Mr. O’Malley. an increase in sentence for a later offence by reason of prior convictions risks being perceived as a repeated punishment for the prior convictions for which the offender has already received, and most likely has served, the appropriate sentence.
56. It is not, therefore, in doubt that a court, in applying current sentencing principles, will always have regard to, and take into account, prior convictions of the convicted person. It is not necessary to decide whether such consideration forms part of the consideration of the circumstances of the commission of the offence of conviction or of the personal circumstances of the offender. Whichever, it does not form part of the consideration of the gravity of the offence.
57. Hence, the question to be determined is whether it is permissible for the Oireachtas to legislate for a mandatory minimum penalty which is not a universal penalty that applies to all persons convicted of the offence. It is not necessary in this appeal to consider whether it is constitutionally permissible for the Oireachtas to specify a mandatory minimum penalty (as distinct from a fixed penalty) which applies to all persons convicted of the offence and which may, in accordance with the approach in Lynch and Whelan, be justifiable as a minimum sentence by reason of its rationality to the gravity of the offence, irrespective of the circumstances in which it is committed or character of the offender. Section 27A(8) of the 1964 Act, as amended, only applies to a limited class of persons who commit an offence contrary to s. 27A(1). Further, the class is determined by reference to only one of the potentially relevant circumstances in which the offence was committed, or only one of the characteristics of the offender that would be taken into account by a sentencing court.
58. The starting point is the presumption of constitutionality of s. 27A(8) of the 1964 Act, as amended. The Oireachtas, pursuant to Article 15 of the Constitution, may lawfully create offences and also has a role in specifying the penalties to which a convicted person may be liable for the commission of the offence or as put in Osmanovic “lay down general parameters within which a sentence is to be imposed” for the offence. The potential penalties or parameters inter alia indicate the policy of the Oireachtas in relation to punishment for the offences in question. That policy will include deterrence. The law is of general application and applies to all persons convicted of the offence. The law may impose fixed penalties to which all persons convicted of the offence are liable, subject at least to a constitutional limitation of rationality or proportionality to the gravity of the offence, as set out in Lynch & Whelan.
59. However, justice may only be administered in Courts in accordance with Article 34. The selection of the appropriate sentence in accordance with law for the particular offence committed by the individual offender forms part of the administration of justice to be conducted by the Court: Deaton. It is also part of the right of the offender to a fair trial pursuant to Article 38.1. As has been determined in Lynch & Whelan, it may be permissible for the Oireachtas to specify a mandatory penalty which is to generally apply to all convicted of the offence irrespective of the circumstances of the committal of the offence or the personal circumstances of the offender. In such circumstances, the selection of the penalty in accordance with law is fixed by the Oireachtas and the Court is obliged to select that penalty. That is not in breach of the separation of powers. However, the Oireachtas in enacting such a law, is limiting the constitutional right of an individual to have the appropriate sentence for the offence of conviction determined by a court in accordance with his relevant personal circumstances for the reasons stated, inter alia, by Henchy J. in The State (Healy) v. Donoghue. That interference with the constitutional right of the offender is subject to a rational relationship between the penalty and the requirements of justice with regard to the punishment of the specified offence, as stated at para. 49 of Lynch & Whelan.
60. 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, identified in Lynch & Whelan. This forms part of the law making function which has general application. However, it is not constitutionally permissible for the Oireachtas to determine or prescribe, by Statute a penalty to which only a limited class of persons who commit a specified offence are subject, by reason either of the circumstances in which the offence was committed, or the personal circumstances of the convicted person. This is because the law no longer simply determines the applicable penalty for all who are convicted of the crime and the selection of the appropriate sentence in accordance with law for the particular offence committed by the individual offender forms part of the administration of justice and is pursuant to Article 34.1 exclusively the domain of judges sitting in courts. That is what the Oireachtas purported to do by enacting s. 27A(8) of the 1964 Act, as amended.
61. In the courts below, some emphasis was placed upon the fact that s. 27A(8) only specifies a mandatory minimum sentence and the Court is given discretion in the fixing of the appropriate sentence in excess of the mandatory minimum sentence. With respect, that does not appear relevant to the issue which we have to consider on appeal. The appellant is a person in respect of whom an experienced Circuit Judge considered that the appropriate sentence, having regard to the circumstances in which he committed the offence of conviction contrary to sub-s. 27A(1) and his own personal circumstances (including prior convictions) and having regard to the minimum of five years specified by the Oireachtas in s. 27A(8) (admittedly misunderstood), was a suspended sentence of five years. The Court of Appeal, correctly, in accordance with the true meaning of s. 27A(8), determined that it was not then open to the Circuit Judge to impose a suspended five year sentence. As set out in para. 14 above, the Court of Appeal in sentencing the appellant approached the sentence to be imposed on him by taking into account that s. 27A(8) of the 1964 Act required as a starting point a minimum sentence of five years, with no ability of the court to suspend any part thereof . It held, on the facts, that there was no need to impose a sentence in excess of the mandatory minimum sentence The appellant is a person therefore, in respect of whom the minimum sentence for the offence of conviction contrary to s. 27A(1) which might be imposed on him has been selected or determined by the Oireachtas by reference to one fact which relates to the circumstances in which the offence was committed and/or the personal circumstances of the offender, rather than being determined by a court, taking into account all relevant matters to reach a just sentence as explained by Charleton J, as part of his trial in due course of law, and as required by Articles 34 and 38.1 of the Constitution.
62. Accordingly, for the reasons set out in this judgment, I have concluded that in enacting s. 27A(8) of the 1964 Act, as amended, the Oireachtas has impermissibly crossed the divide in the constitutional separation of powers and sought to determine the minimum penalty which must be imposed by a court, not on all persons convicted of an offence contrary to s. 27A(1), but only on a limited group of such offenders identified by one particular characteristic, namely that such person has previously committed one or more of the listed offences.
63. It follows from this conclusion that the appellant is entitled to a declaration that s.27A(8) of the Firearms Act, 1964 (as substituted by s.59 of the Criminal Justice Act, 2006) is repugnant to the Constitution.
64. I wish to make clear that the Court is not asked to consider on this appeal any form of legislation which falls short of excluding the entitlement of a court to depart, in any way, from the sentence specified by law. In accordance with the judgments considered, the Oireachtas clearly has a role in determining policy in relation to penalties for the commission of offences which apply to all convicted persons. The extent of the permissible role of the Oireachtas in specifying factors which should be taken into account by a court in deciding on an appropriate sentence or a starting point from which a court may, for stated or exceptional reasons, depart did not require consideration. What is sometimes termed the presumptive or indicative minimum sentence, such as is provided in sub-ss. 27A(4) to (6) of the 1964 Act, as amended, is one such example which is not under consideration in these proceedings.
65. I would allow the appeal and grant a declaration that s.27A(8) of the Firearms Act, 1964 (as substituted by s.59 of the Criminal Justice Act, 2006) is repugnant to the Constitution.
66. This judgment is in plenary civil proceedings. The approach of the Court of Appeal in the criminal proceedings, DPP v Ellis, to the sentence imposed on the appellant in July 2016 after the High Court judgment in these proceedings was informed by s.27A (8) of the 1964 Act. The consequences of the declaration being granted in these proceedings for the sentence imposed on the appellant is not for this Court in this appeal. The criminal appeal should now be promptly re-entered before the Court of Appeal.