Clare Daly (Dublin Fingal, Independent) | Oireachtas source

That would be great. Nobody can be under any doubt but that we have a massive problem in how our criminal justice system deals with sexual crime. One need not be a genius to work that out, from the inconsistent sentencing and the traumatising of victims by putting them on trial to the pathetically low conviction rates, the broader cultural problems and so on. We should take as a given that it is an appalling situation.

The prevention of sexual offences, at the least, is not as simple as long prison sentences. It is far too complicated to be handled by what is deemed to be the bluntest instrument in the criminal justice arsenal, namely, mandatory or presumptive minimum sentences, to which I have a strong opposition based on evidence and on information that tells us as a society that they do not work and that while they might make a nice media headline to make it look like we are doing something to deal with these issues, none of the evidence supports that view.

It was interesting that in our deliberations on child sex offenders and putting the sex offender risk assessment and management initiative on a statutory basis yesterday, we as a committee dealt with those issues sensitively in terms of our key goal and what it should be, which is protecting the public. These matters can whip up a significant emotional response to sexual predators but, in fact, how society is to be protected is more complicated. Sure enough, the headline on the front page of today's edition of theIrish Daily Mailis, "Should parents be told where predators live?", Although the article was not as bad, that was a frenzied headline. It is about whipping up and inciting emotional responses and so on, and this measure is in the same vein. It is an emotional response to a problem that will not address the problem that it seeks to identify and it uses an instrument that will be problematic.

I made some points on Second Stage that I will repeat. In general, years of evidence show us that presumptive or mandatory minimum sentences for any crime are not an effective deterrent. This is reflected in the fact that the Law Reform Commission report of 2013 on mandatory sentencing and the 2014 strategic review of penal policy made clear recommendations that no new presumptive sentencing schemes should be introduced. Why do we commission these reports if we ignore what they say? The strategic review of penal policy, in particular, was a cross-agency report which included victims' representative groups alongside agencies tasked with crime prevention, the Irish Penal Reform Trust and so on. While deterrents might be an appealing concept in theory, which sounds good as a headline for the tabloid press, the empirical evidence to support the theory is not there. In fact, there is evidence that sanctions in general provide some deterrent, but there is none to suggest that the more severe the penalty, the greater the deterrent than a less severe one. That is a fact. We are having a feel-good session to vent the legitimate horror of the public to these appalling crimes and to give the appearance that something is being done, but it will not do anything.

We must bear in mind the issues with the Judicial Council Bill. The Judiciary has cried out for years for sentencing guidelines but it is entirely wrong-headed to introduce mandatory minimums ad hocin advance of that. Sinn Féin did a deal with the Government over the Judicial Appointments Commission Bill, and those sentencing guidelines will be given, but why are we doing this in advance of that? Judicial guidelines are a different matter as they are carefully considered, data based and evidence driven. They are far more effective and a useful tool for the Judiciary to decide appropriate sentencing. There is a problem with judicial sentencing but it is addressed by the guidelines, not by a blunt instrument like this. The problem with the Bill, in common with other presumptive minimum sentence legislation, is that it allows for judicial discretion in the handing-down of a sentence. If the court is satisfied that it would be disproportionate to impose one of the minimum sentences laid out in the Bill, the court may deviate from it, but that begs the question as to what is the point of having the Bill at all, given that the judge may ignore it if he or she sees fit. Why do we not allow the judge who is in possession of all the facts of the case make his or her decision on what sentence is appropriate, as is done now? What is the point of this window dressing?

Furthermore, the evidence tells us the judges will ignore this legislation because they ignored the last one. The Criminal Justice Act 1999 introduced a ten-year mandatory minimum sentences for possession of drugs valued over €13,000 but over the years, convictions under the mandatory minimum legislation attracted a ten-year sentence in less than 4% of all cases. As Mr. Tom O'Malley said about minimum sentencing for drugs offences, "One suspects ... that [this section] seldom impinges on day-to-day practice, save to the extent that courts will have regard to relevant previous convictions as a matter of course."

From my experience in respect of the Coroners (Amendment) Bill, I know what a torturous process it is to get the Department of Justice and Equality to deal with legislation. The Judicial Council Bill, which is necessary and which might address some of the matters this Bill attempts to highlight, has been 20 years in the making and has been languishing in the Seanad since last November. Prioritising this Bill, however, which will not have any effect on repeat offenders, deter anyone or have any effect on the actual sentences handed down for repeat sexual crime, is taking time away from Bills like the Judicial Council Bill that would make a difference. It is terrible.

It is interesting that on Second Stage while talking about on repeat sex offenders the Minister did not once say the Bill would make them less likely to reoffend or that it would be a deterrent. Rather, he stated:

By putting these provisions in place the Government is recognising the impact of sexual offences, both on individual victims and on society as a whole. It is ensuring that appropriate measures are available to the Judiciary at sentencing in order to ensure that these crimes can be dealt with both appropriately and effectively.

With respect, members of the Judiciary already have measures available to them at sentencing to ensure the crimes are dealt with. The Bill will not change that or give the Judiciary any new powers. It will have exactly the same powers after this Bill is passed as it has now. The civil servants clearly know this. I do not get it.

These sections do not make sense. The provisions are arbitrary, which is unbelievable. They provide that if someone commits a sexual offence that carries a sentence of five years and then goes on to commit another sexual offence within ten years of conviction, a presumptive minimum sentence applies. What if an offender rapes somebody ten years and five days after the first offence? If all we are doing in this legislation is sending a signal, as the Minister of State said, what kind of signal does it send to a victim when we treat the violent assault she experienced less seriously than we would have treated it if it had happened ten days previously? That is the import of this legislation. What if we were talking about a child victim of sexual abuse whose abuser was convicted of abuse of another child 12 years previously? According to the bizarre logic of this Bill, the abuse suffered by the current victim would be less serious than it would have been if the abuser had committed it when the victim was two years younger because in such circumstances, the abuse would have fallen within the scope of this Bill. That is the reason we have judicial discretion and the reason it is preferred in these matters to the blunt instrument of legislation and the kind of arbitrary cut-off point we have here, which has no logic to it whatever. It is crazy.

What message are we sending? Let us be generous and imagine that the Bill is seeking to right the wrongs of the past when we saw shocking sentences handed down for the worst crimes. I believe that is the motivation of the Minister in this scenario and that it is the effect of terrible wrongs done in the past when terrible sentences were handed down for very serious crimes. However, in constructing a Bill which provides that the suspended proportions of the sentence are not counted in calculating the minimum for the second offence, the Minister is not fixing that problem either. The message in this Bill to those who got away with a suspended or partly suspended sentence for a first offence because of what the Minister of State correctly described as the deep-seated problems in our judicial system in dealing with sexual crimes is that they will have the slate wiped clean. Nothing is changing in that regard. Thankfully, judicial discretion will still apply and the hope would be that a judge will bear this in mind when an offender who has committed an offence previously and got away with it lightly comes before the court. The point is that this Bill will not fix that as it excludes such offenders from its provisions.

We have to move away from a model of criminal justice legislation that is knee-jerk and emotional to one that is evidence led. That is what we tried to do yesterday at the committee and we saw how the media misrepresented it to get a headline. We all know that sex sells papers. A system that hoovers up people and spits them out again and does not deal with the greater societal problems is not doing anybody a favour. It is not doing society or the victims a favour and I believe it sends out a bad signal. The signal I want to send out is that this legislation will not work, will not help, is not based on evidence and is a knee-jerk reaction, which is what we have to move away from. That might be a difficult comment to make, and all the political parties may disagree with that, but it is right.

We are talking about caring for victims of sexual crime. It was only recently that a second sexual abuse and violence, SAVI, report was sanctioned. We have a huge problem with sexual violence in our society but the Government reduced the funding for the Rape Crisis Network by half.

The final point I will make is critical. It was also made by the Irish Penal Reform Trust, IPRT, in response to the Private Members' Bill that gave rise to this legislation. The IPRT stated that "mandatory sentencing regimes are proven to be ineffective in reducing crime, are extremely costly to the Exchequer, and divert resources and attention away from where they are most needed." It also set out a number of tangible measures that could make a difference in respect of dealing with sexual violence in our society. These were the restoration of funding to victim support services; investment in child protection services; investment in crime prevention, detection and prosecution; investment in prison treatment services and regimes; and well-resourced post-release supervision and monitoring in the community. The Bill, which I am sure was well motivated, will not achieve anything and it would be wrong to put it on the Statute Book.