Oireachtas Joint and Select Committees

Wednesday, 2 December 2015

Select Committee on Justice, Defence and Equality

Criminal Justice (Burglary of Dwellings) Bill 2015: Committee Stage

3:00 pm

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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As we have a quorum, the committee is in public session. There are no apologies. Please turn off all mobile phones as they cause interference with the recording equipment in the committee room, even when on silent mode.

We are here to consider the Criminal Justice (Burglary of Dwellings) Bill 2015. I welcome the Minister of State at the Department of Justice and Equality, Deputy Dara Murphy, and his officials.

Section 1 agreed to.

NEW SECTIONS

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Amendments Nos. 1 to 3, inclusive, are related and may be discussed together.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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I move amendment No. 1:

In page 5, between lines 13 and 14, to insert the following:

“Amendment of section 12 of Criminal Justice (Theft and Fraud Offences) Act 2001

2.Section 12 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 is amended by the substitution of the following for subsection (3):
“(3) A person guilty of burglary is liable on conviction on indictment to imprisonment for a term not less than 3 years but not exceeding 14 years except where the court is of the opinion that there are particular circumstances which—
(a) relate to any of the offences or to the offender, and

(b) would make it unjust to do so in all the circumstances.”.”.

I will speak on the three amendments together. The purpose of amendment No 1 is to provide for a tougher sentencing regime. When we engage with members of the Garda Síochána, particularly at public meetings around the country, they tell us that the same small number of people are engaged in the vast number of burglaries. We want the message to go out that there will be stiffer sentences. We do not think, from what we have been told, that the number of people involved is large so there will not be a revolving-door problem with the prisons. Its purpose is to try to build in tougher sentencing.

Photo of Dara MurphyDara Murphy (Cork North Central, Fine Gael)
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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.

Amendment put and declared lost.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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I move amendment No. 2:

In page 5, between lines 13 and 14, to insert the following:

“Amendment of section 12 of Criminal Justice (Theft and Fraud Offences) Act 2001

2. Section 12 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 is amended by the insertion of the following subsection after subsection (4):
“(5) Where the court does not impose such a sentence, it shall state in open court that it is of that opinion and what the particular circumstances are.”.”.

Amendment put and declared lost.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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I move amendment No. 3:

In page 5, between lines 13 and 14, to insert the following subsection after subsection (4):

“Amendment of section 12 of Criminal Justice (Theft and Fraud Offences) Act 2001

2. Section 12 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 is amended by the insertion of the following after subsection (4):
“(5)(a) Where—
(i) a person is convicted of a burglary committed after 30th July 2015,

(ii) at the time when that burglary was committed, he or she was 18 or over and had been convicted in Ireland of two other burglaries, and

(iii) one of those other burglaries was committed after he or she had been convicted of the other, and both of them were committed after 30th July 2015,
the court shall impose an appropriate custodial sentence for a term of at least 7 years except where the court is of the opinion that there are particular circumstances which—
(I) relate to any of the offences or to the offender, and

(II) would make it unjust to do so in all the circumstances.
(b) Where the court does not impose such a sentence, it shall state in open court that it is of that opinion and what the particular circumstances are.”.”.

Amendment put and declared lost.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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I move amendment No. 4:

In page 5, between lines 13 and 14, to insert the following:

“Amendment of section 12 of Criminal Justice (Theft and Fraud Offences) Act 2001

2. Section 12 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 is amended by the insertion of the following subsection after subsection (4):
“(5) Any individual who utilised a vehicle in carrying out an offence under this section shall have their driving license disqualified for a period of 2 years as allowed for in the Road Traffic Acts and the Road Traffic Act 2006 following the serving of their custodial sentence under the Criminal Justice (Theft and Fraud Offences) Act 2001.”.”.

The thinking behind this amendment is that, as the Minister of State is aware, many people who commit crimes in this city or in rural Ireland in particular use vehicles in the commission of those crimes. This amendment provides for an added penalty whereby if a person is convicted of an offence and a vehicle was used in the carrying out of the crime, there should be a penalty in terms of restricting such a person's ability to drive for a period. That is the rationale.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Does the Minister of State wish to respond?

Photo of Dara MurphyDara Murphy (Cork North Central, Fine Gael)
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I again thank Deputy Niall Collins for this amendment. Section 27 of the Road Traffic Act 1961 already provides for ancillary disqualification orders to be made where a person is convicted of an offence in the commission of which a mechanically-propelled vehicle is used. As the Deputy will appreciate, road traffic legislation contains its own technicalities and I am advised by officials that the appropriate place for any amendments to disqualification orders is through the Road Traffic Acts. Therefore, I do not propose to accept amendment No. 4. However, I understand the road traffic (amendment) Bill will be before the Houses shortly and this may present an opportunity to tablet amendments such as this to it.

Amendment, by leave, withdrawn.

SECTION 2

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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If amendment No. 5 in the name of Deputy Niall Collins is agreed to, amendment No. 6 cannot be moved. Amendments Nos. 5 and 6 are physical alternatives and will be discussed together.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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I move amendment No. 5:

In page 6, to delete lines 22 to 24.

Photo of Dara MurphyDara Murphy (Cork North Central, Fine Gael)
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Summary prosecution for burglary in the District Court would allow for a sentence of up to 12 months for any one offence and up to an aggregate maximum of two years for consecutive sentences under the terms of the Bill as initiated. Prosecution on indictment before the Circuit Court would allow for a maximum sentence of 14 years for any one offence of burglary and up to life imprisonment for any one offence of aggravated burglary. There is, in theory, no limit to the aggregate consecutive sentence which the Circuit Court could impose and while the courts have set no definitive limit to the aggregate maximum sentence the District Court can impose by way of consecutive sentence, to date the standard approach taken in legislation is not to exceed two years. Article 38.2 of the Constitution provides that "Minor offences may be tried by courts of summary jurisdiction." In the case of Meagher v. O'Leary, the courts upheld the provisions of section 5 of the Criminal Justice Act 1951, which allow for the District Court to apply consecutive sentences up to an aggregate of two years' imprisonment. Mr. Justice Moriarty acknowledged that had the District Court been statutorily permitted to impose "an indeterminate succession of consecutive sentences, it could give rise to an aggregate sentence of six years imprisonment, which would exceed the maximum allowable for many serious offences following trial on indictment, and could on no rational basis be viewed as an exercise of jurisdiction pursuant to Article 38.2" of the Constitution. Unfortunately, the Deputy's proposed amendments would clearly contravene the constitutional principles underpinning Article 38.2 of the Constitution - as explained in the judgment I have read out - and, therefore, the Government cannot accept either amendment No. 5 or amendment No. 6.

Amendment, by leave, withdrawn.

Amendment No. 6 not moved.

Section 2 agreed to.

Section 3 agreed to.

Title agreed to.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I thank the Minister of State and his officials for their attendance.

Bill reported without amendment.