Brian Lenihan Jnr (Dublin West, Fianna Fail)

ln this regard, the Minister is also providing that the granting of temporary release from prison can be subject to the restriction of movement and electronic monitoring.

As I mentioned earlier, the traditional approach to sentencing is for the Oireachtas to lay down by law the maximum penalty appropriate to a particular offence and for the courts, having considered all the circumstances of a case, to impose an appropriate penalty up to that maximum. There are a small number of circumstances where statute has intervened to create exceptions to this approach. One such provision is the mandatory sentencing provision contained in the Misuse of Drugs Act 1977, as inserted by section 5 of the Criminal Justice Act 1999, in respect of an offence related to the possession of drugs with a value of €13,000 or more for the purpose of unlawful sale or supply. The provision provides for a mandatory minimum sentence of ten years' imprisonment for the offence unless exceptional and specific circumstances exist in regard to the offence or the offender which would make it unjust in all the circumstances to impose a sentence of not less than ten years. Factors to which the court may have regard include whether the person pleaded guilty, taking account of the stage at which such an intention was indicated and the circumstances surrounding the indication, and whether the person materially assisted the investigation of the offence.

It is well known that the Minister has in the past been critical of the extent to which the mandatory sentence of ten years has been availed of by the courts. The Minister and I believe that the increasingly adverse impact of certain offences, such as serious drug offences, on our communities, merit the Oireachtas providing sentencing guidelines to the courts to the effect that a specified minimum sentence should be imposed unless to do so would be unjust in all the circumstances. In the circumstances, a number of amendments have been brought forward to the provisions contained in the 1999 Act by way of Committee Stage amendments to the Criminal Justice Bill 2004. It is intended to provide that when considering whether the imposition of a mandatory minimum sentence would be unjust the courts may not only have regard as at present to certain mitigating factors such as the stage at which the offender pleaded guilty and whether the offender materially assisted in the investigation, but also to the public interest in preventing these offences and to whether the offender has been previously convicted in respect of these offences.

Neither I nor the Minister consider that the Judiciary can be said to be pursuing an excessively lenient sentencing policy. While this may be the public perception based on a small number of cases which may be the subject of public criticism, we do not believe this perception reflects reality. It is worth quoting the observations of the Court of Criminal Appeal in the case of Director of Public Prosecutions v. R., 2001:

Even where exceptional circumstances exist which would render the statutory minimum term of imprisonment unjust, there is no question of the minimum sentence being ignored. Perhaps the most important single factor in determining an appropriate sentence is the ascertainment of the gravity of the offence as determined by the Oireachtas. Frequently an indication as to the seriousness of the offence may be obtained from the maximum penalty imposed for its commission. . .

What is even more instructive is legislation which, as in the present case, fixes a mandatory minimum sentence. Even though that sentence may not be applicable in a particular case the very existence of a lengthy mandatory minimum sentence is an important guide to the courts in determining the gravity of the offence and the appropriate sentence to impose for its commission...

If the court is satisfied that factors exist which would render the mandatory minimum sentence unjust then the court is not required to impose it but the existence of such matters or circumstances does not reduce the inherent seriousness of the offence. It remains the task of the court to impose a sentence which is appropriate having regard to the relevant circumstances and also the fundamental gravity of the offence as determined by the Oireachtas and reflected in the sentences which it has prescribed.

Those are the views of the Court of Criminal Appeal.

The Committee Stage amendments to the Criminal Justice Bill also include provisions which will add to the statutory exceptions providing for mandatory sentences. The proposals include a new offence of importation of drugs to the value of €13,000 or more which will attract the ten year mandatory minimum sentence and provision for mandatory minimum sentences of between five and ten years for certain firearm offences.

Provision is also included in the Criminal Justice Bill 2004 for the introduction of a fixed charge procedure for certain public order offences. Section 29 of that Bill amends the Criminal Justice (Public Order) Act 1994 to provide for a fixed penalty procedure for certain public order offences under that Act. The procedure will apply to an offence under section 4, intoxication in public place, and section 5, disorderly conduct in a public place. It is intended the fixed penalty procedure will be an alternative to criminal proceedings being taken in the first instance.

ln general, the section provides that a member of the Garda Síochána, who has reasonable grounds for believing that a person who is not less than 18 years of age is committing, or has committed, an offence under these sections of the 1994 Act, may serve on the person personally or by post a fixed charge notice. ln default of payment the person will be prosecuted for the offence.

The fixed charge notice will be in a prescribed form and will state specified matters including when and where the fixed charge offence was alleged to have been committed, that a prosecution for it will not be instituted if within 28 days the person pays the prescribed amount and how the payment may be made. Various consequential provisions deal with the ancillary regulations.

The complex question of sentencing policy was addressed at length by the Law Reform Commission in 1996 in a report which specifically recommended against the introduction of statutory sentencing guidelines. Its report pointed out a number of differences of opinion among members of the commission in relation to some of the recommendations in the report which tends to underline the obvious complexities which arise in sentencing policy.

The Minister supports the recommendation made by the Law Reform Commission against the introduction of statutory sentencing guidelines.

See this speech in context