Ivana Bacik (Independent)

The appropriate way to deal with this might be to delete the words "greater than" because the more I think about this the more I believe it would be open to challenge. A common law sentencing must be exercised in a reasonable manner. If a court is being told it can devise what would be an otherwise appropriate fine without regard to financial circumstances, when it would examine the financial circumstances, sections 12 and 13 would allow it to reduce the fine and that would be appropriate and fair to the accused because it would giving him or her a lesser sanction.

However the two words "greater than" also empowers a court to impose a more than reasonable fine on a person by virtue of his or her financial circumstances and that seems unfair to an accused and potentially in breach of that common law principle. I am trying to think of case law on that common law principle, but I believe there is some constitutional backing for the idea that sentencing should not be exercised in an unreasonable manner. I accept that the power is obviously subject to the maximum fine where that fine is imposed. As the Minister will be aware courts will often impose a fine that they consider reasonable and is not the maximum fine in respect of a particular offence because of the circumstances of the offence and of the offender. This is giving the court power to sentence in an unreasonable manner that is unfair and disadvantageous to an accused because of his or her financial circumstances. It may only apply to a tiny number of accused persons but it is still a problematic phrase.

The Minister is probably right in that exceptional circumstances might not be the best way to deal with this but if the words "greater than" were removed, the true purpose of the section would become clear; it is to allow the court to impose a fine that is less than the appropriate fine where the offender cannot afford to pay the otherwise appropriate fine.