Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

I move amendmentNo. 69:

In page 18, to delete lines 21 to 44, to delete pages 19 and 20 and in page 21, to delete lines 1 to 11.

This amendment proposes to delete section 24, which deals with sentencing in its entirety. However, I will deal first with amendments Nos. 70 and 80, which are alternatives to amendment No. 69.

Amendments Nos. 70 and 80 propose that the provision that section 24 applies to offences specified in Schedule 2 should include an exception in the case of "an offence under section 2 of the Illegal Immigrants (Trafficking) Act 2000 unless the offender in committing the offence acted for the purpose of making profit". It is preferable that we should have a Bill dealing specifically with human trafficking rather than attempting to deal with the issue by stealth.

Members on this side of the House, as well as some Deputies on the other side, have been pushing for legislation on human trafficking for several years. In the absence of such legislation, it is difficult to ascertain whether this section should stand. There are instances, for example, where a person may have assisted another in good conscience, rather than for personal gain, to enter the State and avail of its protection and sanctuary. I understand what the Minister is trying to do here but I am not sure it is appropriate. Those who are involved in the trafficking trade, which is essentially modern day slavery, deserve the harshest possible punishment. However, the imposition of mandatory sentencing may lead to the criminalisation of people who have acted in good conscience. It is inappropriate to deal with such persons through these provisions. Separate legislation is required.

Amendment No. 69 proposes to delete section 24 in its entirety. The Minister admitted earlier that a working group on sentencing outcomes is engaged in ongoing work. Would it not be better to await the report of this "judge-led initiative", as the Minister described it, before introducing legislative provisions on sentencing? I do not know the timeframe within which this working group must report; it may be open ended. It is only after we receive its report that we should consider what is appropriate to include in legislation.

I have made the case during debates on other legislation that mandatory sentencing is ineffective and inoperable. Experience in other jurisdictions shows that mandatory minimum sentences do not necessarily reduce the incidence of drug related crime, drug supply or drug abuse. Many of those in our prison system are drug abusers. It is they who are most likely to be subjected to this provision because they are the people most likely to re-offend.

I do not condone such reoffending. However, it is incumbent on us to ensure there is adequate investment in rehabilitative and support services for prisoners who are drug abusers when they enter jail. We must ensure they are drug-free when they leave. Otherwise, we face the prospect of increasing numbers of those convicted of crimes related to their drug habit returning to prison. I do not excuse such crimes, but far more must be done before we go down this road. Supports must be put in place to ensure the rate of recidivism is reduced to a level similar to that in the rest of Europe. It is only when we have achieved such a reduction that we should consider the provisions proposed in this Bill for re-offenders.

There is a danger that the imposition of mandatory sentences may discourage some accused persons from pleading guilty, which is helpful to both the court system and the victims in ensuring a speedier trial. There is no inducement for persons charged with a crime to engage with the justice system in this regard because they know they will, on conviction, be subject to three quarters of the maximum sentence for a second offence, for example. There is no leeway to encourage accused persons to co-operate with the courts.

The Human Rights Commission, the Irish Council for Civil Liberties and others have raised this issue in the context of the accused's right to a fair trial. A mandatory sentencing regime means that the sentence is already decided before the person is even brought before the courts. Questions have also been raised as to whether sections 24 and 30 in particular would withstand the test of a constitutional challenge from the perspective of proportionality. The Minister does not like opening the way for barristers to receive even more money. We should do everything we can to ensure this legislation is not subject to constitutional challenges that tie up the courts.

I have made my arguments on mandatory sentencing before. I know where the Minister is coming from and I do not agree with him. The Human Rights Commission and the Irish Council for Civil Liberties have pointed to elements of case law that are relevant to this issue. I am interested in the Minister's opinion on some of these. For example, they refer to the comment by Ó Dálaigh CJ in Deaton v. the Attorney General:

... It is inconceivable to my mind that a Constitution which is broadly based on the doctrine of separation of powers... could have intended to place in the hands of the Executive the power to select the punishment to be undergone by citizens. It would not be too strong to characterise such a system of Government as one of arbitrary power... In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive.

In The State (Healy) v. Donoghue, Henchy J. stated that the Constitution, by virtue of Articles 38.1, 40.3.1°, 40.3.2° and 40.4.1° " necessarily implies ... where guilt has been established or admitted, of receiving a sentence appropriate to his degree of guilt and the relevant personal circumstances". That is one of the issues, that there needs to be proportionality and it needs to be taken into account rather than in each case the sentence is already decided under this section. Other points have been raised on the issue of sentencing. I urge the Minister to reconsider deleting this section.

We have not had the debate that should have taken place on this issue in the preparation of this legislation or the time between Second and Committee Stages. If we had taken more time it would have been interesting to hear the views of various interested groups. That is the way we should approach judicial legislation of this magnitude. There are many different parts of this Bill that need to be teased out in greater detail. Thankfully the Bill has been recommitted, but it is a pity we do not have sufficient time to debate it because once it is passed we will not come back to it.

See this speech in context