Clare Daly (Dublin Fingal, Independent) | Oireachtas source

There are a lot of points to which to respond. The first is that I feel my contribution and that of Deputy Wallace are very much in defence of the Judiciary in some ways. I think Deputy O'Callaghan's example showed very clearly that judges are more than capable of taking previous crimes into consideration when they are giving their sentencing decisions. Although there have been some appalling judgments given in cases of sexual offences and other instances, Deputy O'Callaghan's point that things are slowly beginning to change is fair. It is absolutely not happening quickly enough. We know that rape is the least likely of all violent crimes to go to trial. Some 85% of alleged rapes go unpunished. The figures suggest that for every 100 women who allege they have been raped and who get to trial, only eight will get to see a judgment in their favour.

There are major problems. Deputy Brophy stated that there is a complete difference between mandatory minimum sentencing and judicial guidelines. Judicial guidelines are a process of research, evidence-based education of judges and all interested groups. They have been proven to be incredibly effective in guiding judges in sentencing. Time would be better spent on this area, which is evidence based and worthy, and the Judicial Council Bill, which would deal with rogue judges who come out with some wacky, appalling and awful judgments, although they are a minority, but there is nothing we can do now without that Bill. Instead of the Department dealing with those issues which would achieve what the Minister wants to achieve, it has been spending time on this, which the Minister acknowledged will apply in very limited circumstances - I might even say probably none.

On that basis, one could ask why are we bothering to oppose it, if we believe it is going to have no impact. I do not believe it will be applied, to be honest, but I think we have a responsibility to challenge it because it should not be on the Statute Book on that basis. The reason I say it does not even do what it says on the tin is because the Bill specifically states that if a judge feels it is disproportionate to impose one of these presumptive minimum sentences, he or she can do what he or she likes. Judges can do what they like now as well so nothing is changing.

I would like to see the logic of this formula. I want to talk through what we are talking about here. We are not only talking about rape and so on. I appreciate that rape is not the only crime involved and that sexual assault, child sexual assault, aggravated sexual assault and incest are all covered too. However, the Bill only deals with crimes that attract sentences of five years or more.

If a person committed an offence but received a sentence of less than five years - the offence could have been bad, given the sentencing in sexual offences cases - that person will not fall within the remit of the Bill. They will be out of the equation to begin with. I would like that logic to be explained to me. The Bill states that where someone was convicted on indictment of an offence specified in the Schedule - rape, sexual assault, child sexual abuse and so on - and sentenced to a term of imprisonment of at least five years, the Bill will not apply. If that person is subsequently convicted of another scheduled offence committed within ten years of the first conviction, a presumptive minimum sentence will apply to the second conviction. The sentence for the second offence has to be at least three quarters of the maximum sentence that can be imposed for it. If the maximum term is life imprisonment, the minimum sentence should be at least ten years. The Bill states any suspended portion of a sentence will not apply. If a person was sentenced to a term of imprisonment of seven years for an offence, three of which were suspended, and commits another offence, they will not fall within the remit of the Bill, as they will have only served four years of the sentence. The matter is complicated. Sentence lengths and the reasoning are arbitrary and I have not heard a reason for it. It is unworkable. If I was a judge trying to calculate the formulas, I would just do what I would anyway. I would look at it and say the person did something before and should not get away with it this time and increase the sentence. What are we doing? I support the bits about incest, which are fine and on which we all agree. The matter was supposed to have been cleared up earlier, but these bits should not have been added. I know that the Minister of State is sincere in his motivation, but we should not be engaging in this process. It is completely wrong.

It is not me who is going on about mandatory sentencing but the Law Reform Commission in the strategic review of penal policy. Every organisation that has looked at this issue has stated we should be moving away from specifying it in legislation. We should give judges discretion in dealing with all of the nuances in addressing these issues.