Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I welcome the opportunity to contribute to this debate. Fianna Fáil supported the Bill in its passage through the Seanad and will also support it in this House. When dealing with criminal justice legislation, we tend to concentrate on the offences outlined in the Bill in question. Our laws are full of detailed definitions of serious and less serious criminal offences. For example, there is legislation to define how organised crime, firearms offences and misuse of drugs are prescribed and criminalised, including detailed descriptions of the nature of the criminal behaviour. Similarly, even in the case of minor offences such as minor road traffic offences, our laws outline the nature of the offence in detail.

This is the first opportunity I have had to deal with legislation focusing exclusively on sentencing. It is important that we acknowledge the importance of sentencing. We spend a lot of our time drafting legislation that criminalises certain types of human behaviour and includes, at the end, a section stating what will be the penalties. We must become more mature and advanced in our approach to the types of penalties and sentencing that are available to the courts. As things stand, the sentences imposed are largely the same sentences that were imposed in Victorian times, namely, fines and imprisonment. Part 10 of the Criminal Justice Act 2006 provides for different types of sentencing. Section 99, which we are dealing with today, is concerned with the imposition of suspended sentences. Other sentences are provided for under the legislation, such as the power to impose a fine, defer a sentence, restrict a person's movement and monitor the movement of an individual who has been found guilty of an offence.

We need to move beyond the standard fine and imprisonment and make available to the courts greater types of penalties to impose, particularly in respect of offences that do not involve violence or a threat to the safety of others.

What we are talking about this evening are suspended sentences. As the Tánaiste stated, such sentences play an important part in the criminal justice armoury. They are generally used in situations where a court thinks that an individual should be subjected to a custodial sentence but where there may be some exceptional circumstances giving rise to that sentence being suspended. Sometimes that applies when an individual has been convicted of an offence for the first time or where there are exceptional circumstances - for example, where the person convicted has young children to look after. It is important to recognise that suspended sentences should continue to play an important part in the criminal justice system.

The reason for this legislation arose out of section 99 of the Criminal Justice Act 2006, which deals with the power of the courts to impose suspended sentences. For many years after the enactment of that legislation, there was considerable difficulty with criminal practitioners in the courts as to how it should be applied. I suppose we should be grateful to Mr. Justice Moriarty, who clarified the matter and who brought a definitive conclusion to it in his decision given on 19 April last year in the case of Moore v. DPP. There were five other related proceedings with which the judge dealt in that judgment. Mr. Justice Moriarty was not the first judge to identify that there were failings and faults within section 99. The late Mr. Justice Hardiman commented upon it on 5 March 2015 in the Supreme Court decision in DPP v. Carter and DPP v. Kenny. It should be noted that when he was giving judgment in that case, the late Mr. Justice Hardiman referred to the fact that, as Mr. Justice O'Donnell had noted, section 99 had given rise to innumerable practical difficulties and problems of interpretation only some of which were illustrated by the present cases. He then went on to agree with the sentiments expressed by Mr. Justice O'Donnell, who had said that it was clear and beyond dispute that section 99 was in need of urgent and comprehensive review. I am pleased that this legislation, which has been brought before the Oireachtas in recent times, provides for that comprehensive review.

It should also be noted that the late Mr. Justice Hardiman also referred to the fact that some of the difficulties with section 99 would not have arisen if there had been any proper effort to consult the judges who implement the procedures for the activation of suspended sentences. There can be difficulties in trying to ask judges to review or consider legislation as it is going through this House because that would come close to interfering with the separation of powers. It is important, however, that when we are putting together sentencing legislation, we seek - in some general sense and without getting into the area of policy - indications and recommendations from those who have been judges as to how the legislation will be implemented and whether it can be implemented coherently and credibly by those operating in the courts each day.

The Tánaiste set out the difficulties in respect of section 99. If an individual is convicted of an offence and if the judge imposed a suspended sentence, there should be no difficulty provided the individual in question remains of good behaviour and that suspended sentence is not invoked or reactivated. In circumstances where the person commits and is convicted of a subsequent offence, however, problems arise. The reason for this is that the triggering of the second offence automatically reactivates the suspended sentence. The problem Mr. Justice Moriarty and other judges identified was that the individual, when convicted of the second offence and returned to prison on foot of it, had no opportunity to appeal because the suspended sentence had already been activated. If he or she appealed successfully, he or she had would have been sent to prison when that should not have happened because he or she would not have been guilty of the offence.

I welcome the legislation. I do not propose to go through it section by section since the Tánaiste has done that already. It will be a useful addition to the body of law relating to criminal justice. It will help judges in seeking to impose suspended sentences. It will help individuals who are given suspended sentences and who then find themselves in a situation where they are convicted of another offence that they wish to appeal.

I also welcome that the legislation takes into account that consecutive sentences can, and in certain circumstances should, apply if an individual is convicted of another offence. All too often there is no downside to an individual being convicted of an offence while he or she is already convicted of an offence because sometimes it does not result in an increased sentence - the person can serve his or her sentences concurrently. It is important that this provision provides for consecutive sentences.

I also note that at the time this judgment was delivered, some efforts were made to make Mr. Justice Moriarty stop short of striking down the relevant subsections on the basis that revocation arrangements could be put in place in respect of the individual cases. Mr. Justice Moriarty was correct when he stated he had considerable reservations about the appropriateness and fairness of such a course.

I welcome the legislation. In many respects, it is unfortunate that the only time we have discussed sentencing legislation in the life of this Dáil is as a result of a decision of the High Court. The latter has forced us to draft legislation and to get it through the House in order to rectify the deficiencies in section 99. It is important that the Oireachtas considers further advancements in respect of the area of sentencing. This is an area to which we do not devote sufficient attention. We need to consult broadly. We may need a commission in respect of sentencing. We must mature our attitude to sentencing. Generally, unless the convicted are guilty of violent offences or offences, such as those involving drugs, which give rise to a threat to the safety of others, we should be slow about putting those individuals in jail. That may create difficulties in circumstances where persons are involved in and convicted of criminal offences which result in significant property crimes, but I think we need a more sophisticated attitude. We cannot merely keep putting those convicted into jail because that does not seem to work. We need a more mature attitude to sentencing. Suspending sentences is an important part of our repertoire. However, we need to look at more and different types of sentences that can be made available to judges who have to deal with the different variety of criminal offences that exist in the criminal justice system.

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