Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank Senators Walsh and Wilson for the amendment. The effect of the amendment would be to remove the possibility of imposing a fine as part of the penalty for an offence under section 3. That includes the offences of obtaining or providing a child for the purposes of sexual exploitation and related offences. The aim of the amendment is to ensure persons convicted of such appalling offences cannot escape with a fine instead of imprisonment. While that is an understandable aim, it is, however, the norm, in particular for offences which may be motivated by, for example, financial gain, to include a fine in addition to a penalty of imprisonment. The purpose of providing the options of a fine, a sentence of imprisonment or both is to ensure the court can determine the most appropriate sentence in all the circumstances of a particular offence and a particular offender. It leaves this to the discretion of the court having regard to the particular offence, circumstances and so forth.Obviously these offences will vary and there is no question about that. As we know, there are different levels of exploitation and the related offences as well.

I want to highlight that section 3 contains a number of related offences. It includes offences of paying for a child, providing a child and accepting a child for the purpose of sexual exploitation. I have to agree that it is almost impossible to imagine any circumstances under which anything, other than a prison sentence, is an acceptable sentence for such offences. It is also the case that a person who agrees to accept or give money to a child for the purposes of sexual exploitation but then thinks better of it, and does not proceed any further, is guilty of an offence under section 3. That is one example of the kind of range that one could have. I am not passing any judgment on that but making the point that one can have different types and levels of offences under section 3. I mention that example not to suggest for a moment that any particular offence for which a fine alone may be appropriate, just to illustrate the range of offences and circumstances which are covered by section 3.

In other areas of law, for example in the case of a non-fatal assault, where in a similar discussion to what we are having here, one might say: "Well, of course, imprisonment is the option here." In fact, we again leave it to the discretion of the court. There is a possibility, in certain circumstances as we know, of a fine or a prison sentence or both. It is leaving the discretion to the court, with the judge to decide having considered all of the evidence. It is a recognition that the court is best placed to determine the appropriate sentence in a particular situation, taking into account all of the circumstances. I think it is appropriate to provide in law a range of possible sentences, including under this section. That is the usual practice. Senator Walsh said that my colleague and the Minister of State, Deputy Aodhán Ó Ríordáin, referred to the fact that it is the norm to have that range of sentences so that the judge has the option, in terms of examining each case, to decide what is the most appropriate sentence. As I have said, in other very serious offences, that is what we do in our law. We give the range of sentences and then leave it to the courts to actually decide. We are reflecting, in this legislation, the general approach in terms of the kind of discretion that we allow the courts to make so I cannot accept the amendment.