Ivana Bacik (Independent)

I welcome the Minister and thank him for taking the time to consider the points I made, supported by Senator Regan, on Committee Stage. This is an important point and I do not believe the Minister's amendment No. 2 deals with the issue we raised on Committee Stage. I am aware of the Law Reform Commission recommendations. I accept that the effect of the fine should not be made more severe because of the person's financial circumstances. The difficulty lies in the power given to the court in subsection (3) to impose a fine which is greater than the otherwise appropriate fine. My alternative amendment would delete subsections (3) and (9), thereby enabling the court to take into account financial circumstances without stating it can impose a fine greater than the otherwise appropriate fine, having regard to the offender's financial circumstances.

I am conscious of Mrs. Justice Denham's words in DPP v. M, and of the emphasis she gave to the principle of proportionality which has been accepted generally in the sentencing courts. That principle is the difficulty here. The effect of the section, even with the Minister's amendment which does not make it much clearer, is that a court can determine a fine to be "otherwise appropriate" and decide that an offender who is especially wealthy should be made to pay a higher fine than that which is deemed appropriate.

In a nutshell, my difficulty is that this would treat wealth as an aggravating factor in sentencing and I am not sure that fits the principle of proportionality. It is entirely appropriate that a court should be able to impose a lesser fine than the otherwise appropriate one in ease of the accused, where the accused's financial circumstances are such that his or her own situation or his or her dependants' situation would be made more severe by reason of their financial circumstances. In other words, poverty should be allowed to mitigate but it is not necessarily a good idea, or constitutionally in keeping with the proportionality principle, to allow wealth to constitute an aggravating factor. It is as if we are saying that a judge can choose a benchline sentence and then look at the mitigating factors by which to reduce it and at the aggravating ones to increase it. Here, the offender's wealth is the only factor that will allow the court to increase a fine above what would otherwise be appropriate and I am somewhat concerned about this.

The Minister said he would look at the matter and I am grateful he has done so but am not sure his amendment will answer the difficulty. It seems a court may still impose an unreasonably larger fine, with a detrimental effect on the convicted person.