Dara Murphy (Cork North Central, Fine Gael) | Oireachtas source

I apologise for the absence of the Minister for Justice and Equality, Deputy Frances Fitzgerald, who is participating in a debate in the Seanad.

It is important to note that burglary is an indictable defence which is triable summarily. While the vast majority of burglary trials ultimately take place in the District Court on a summary basis, trial on indictment is the default position in the Criminal Justice (Theft and Fraud Offences) Act 2001. Even for what might be considered a less serious incidence of the offence, a summary trial can only occur where a court is of the opinion that the offence is a minor one fit to be tried summarily, the accused does not object to being tried summarily and the Director of Pubic Prosecutions consents to the accused being tried summarily. In that context, we must keep in mind the wide variety of offending that can constitute burglary ranges from a terrifying home invasion to the less serious offence of entering a garden shed to commit criminal damage through graffiti or by damaging the shed in another way. Providing for a mandatory three-year minimum term of imprisonment for such behaviour could in some cases be seen as disproportionate.

Apart from offences where mandatory sentences or presumptive mandatory sentences apply - for example, in murder or drug trafficking cases, respectively - the general approach is for the Oireachtas to set a maximum sentence in statute and leave the precise sentence in any case to the discretion of the judge who will have regard to the relevant principles and circumstances of each case. Proportionality is the main principle in forming the approach to sentencing in Ireland. Tom O'Malley, BL, the leading legal academic on sentencing law and a member of the Law Reform Commission, has stated, "However, in this country we adhere strongly to proportionality as the dominant distributive principle of punishment." He continued to say that a sentence should be "proportionate to the gravity of the offence and the personal circumstances of the offender as they exist at the time of sentence."

The Law Reform Commission examined the issue of mandatory sentences in detail in its 2013 report. It was in favour of retaining the mandatory sentence for murder but was of the view that for other offences, mandatory sentencing regimes are too rigid and have not been shown to be effective in reducing offending and offences. It recommended that presumptive minimum sentences should not be extended and that existing provisions should be repealed. The unanimous report of the Joint Committee on Justice, Defence and Equality published in March 2013 is also an important contribution to the debate on penal reform and contains analysis and recommendations which significantly advance the debate on how best to protect society through effective offender management and reduced use of imprisonment. The report of the penal policy review group which took the joint committee's report into account was published in September 2014. The Minister, Deputy Fitzgerald, referred the group's report to the joint committee in November 2014 for its consideration and appreciates the committee's feedback. While the reports have much in common, there are some variations in approach. These can be examined as part of the ongoing process of implementation.

The penal policy review group recommended that no further mandatory sentences or presumptive minimum sentences should be introduced and existing provisions should be reviewed. The report of the review group contains 43 recommendations in total, some of which can be implemented in the short to medium term while others will require a much longer-term approach. As an initial step, in November 2014, the Minister obtained the agreement, in principle, of Government to proceed immediately with the implementation of the following key recommendations: to bring forward legislative proposals to establish the parole board on an independent statutory basis; to prepare proposals and options for Government on reform of sentencing policy including a review of the threshold at which presumptive minimum sentences on drugs and other offences apply; to prepare proposals for Government on legislating for the review's recommendation that courts set out in writing their reasons for imposing a custodial sentence; to prepare proposals on the potential for increased use of earned remission; and to pursue options for an open prison for female offenders. Work is under way to progress the implementation of these recommendations.

To this end, the Minister has established a penal policy implementation oversight group to oversee implementation of these recommendations and to report back to her on a regular basis. The group is chaired by Dr. Mary Rogan who is head of law at the Dublin Institute of Technology and who was a member of the review group. In November 2015, the group presented its first progress report to the Minister and she is considering it at present. The intention is the group will again revert to the Minister in or around May 2016 and in light of this work on the broader framework of sentencing and offender management, the Minister believes it would not be timely to amend the Bill as proposed by Deputy Niall Collins in amendments Nos. 1, 2 and 3. The implementation oversight group should be allowed to continue its work, particularly on preparing proposals and options for the Government on reform of sentencing policy and minimum sentences.

It is clear, however, that lengthy custodial sentences can be applied by the Judiciary in appropriate cases. The 2001 Act allows for sentences of up to 14 years for burglary and life for aggravated burglary. Repeat offending is a factor that is viewed as aggravating and the Bill will ensure that where a court decides to impose a custodial sentence, it will be consecutive to any other custodial sentence imposed for domestic burglary committed within a 12-month time window.