Michael McDowell (Dublin South East, Progressive Democrats)

Section 59 substitutes a new section for section 27A of the Firearms Act 1964. This provides for a maximum sentence of 14 years' imprisonment and a minimum sentence of five for the possession of firearms or ammunition in suspicious circumstances. Section 60 substitutes a new section for section 27B of the 1964 Act and provides for a maximum of 14 years and a minimum of five for the offence of carrying a firearm with criminal intent.

Section 65 inserts a new section 12A into the Firearms and Offensive Weapons Act 1990 providing for new offences on the alteration of firearms. It creates new offences of shortening the barrel of a shotgun or rifle, converting a deactivated or replica firearm into a live firearm, modifying a firearm to fully automatic and increasing the calibre of a firearm. It also makes it an offence to possess a firearm altered in any of those ways. There is a maximum sentence of ten years and a minimum sentence of five years for those offences.

Section 61 inserts a new section 27C into the Firearms Act 1964 making specific provision for mandatory minimum sentences and provides that the power to commute sentences under the 1951 Act and normal provisions on temporary release under the Prisons Act and the Criminal Justice Act do not apply in relation to mandatory minimum sentences. These sections, as they stand, allow for some judicial discretion in imposing sentences. Where the court is satisfied that there are exceptional specific circumstances relating to the offence or the person convicted of the offence that would make the imposition of a sentence not less than the mandatory minimum sentence provided for unjust in all the circumstances, the mandatory minimum sentence need not be applied. These circumstances include any matters the court considers appropriate, including an early guilty plea and material assistance to the Garda investigation. However, the legislation clearly states that this is only to happen where there are exceptional and specific circumstances that would make a mandatory minimum sentence unjust. Therefore the mere fact of an early guilty plea is not in itself an exceptional circumstance and does not in itself allow a departure from the mandatory minimum sentence.

On Committee Stage Deputy Jim O'Keeffe proposed that there should be no judicial discretion for a second or subsequent offence under these sections. At the time I indicated that I was disposed to the thrust of his argument but that I wanted to discuss the matter further with the Attorney General to ensure that I was on firm ground. Following these discussions with the Attorney General's office I am advised that such an approach would be constitutionally sound.

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