Niall Ó Donnghaile (Sinn Fein) | Oireachtas source

Gabhaim mo bhuíochas leis an Aire Stáit as a bheith linn inniu don díospóireacht thar a bheith tábhachtach seo.

I welcome the opportunity to speak on Senator Marie-Louise O'Donnell's Bill. We acknowledge the real significance of the intent and the sincere and honest desire to see a change in the law in this regard. While there will be a divergence of opinion on this Bill and some of the nuances concerning it, given that some of the victims and the organisations that represent them are in the Visitors Gallery, as has been reflected thus far it is important that Members of the Seanad have approached the debate in a very respectful frame of mind.

Like my Fianna Fáil colleague, we will be opposing the Bill. That is not to take away from the Senator's passionate contribution. I appreciate fully why she wants to see this Bill advanced, but let me outline some of the reasons Sinn Féin will be opposing it on this Stage.

This Private Members' Bill is designed to provide a mechanism whereby the court, on passing a sentence for murder, can determine the amount of time an offender will spend in prison before he or she may be deemed eligible for remission, parole or early release and introduces minimum custodial periods of sentencing depending on the category of the type and nature of the offence of murder. Currently a conviction for murder receives a mandatory minimum life sentence but the actual length of time which an offender will serve in prison depends on the circumstances of the case. Under this Bill the person convicted will serve a minimum of 25, 30 or more years, depending on the circumstances. There is a provision to give judicial discretion but with the caveat that an offence cannot have a sentence lower than the 30 years or 25 years as set out in the Bill.

Our party's approach to justice matters is that policy should be developed on a clear and evidential basis. While I recognise that the proposed provisions of the Bill are not quite mandatory sentencing, given there is some very limited judicial discretion in it, the manner in which it is constructed is certainly akin to a mandatory sentencing regime, depending on the nature and type of murder for which a defendant is convicted.

Sinn Féin is opposed to the use of mandatory sentencing. While advocates of mandatory sentencing argue that it makes sentencing more consistent and judges more accountable for their decisions, its use holds the potential for miscarriages of justice. By applying an identical sentence to all offenders who have committed similar but not identical crimes, it is in our view an overly blunt sentencing tool. It is our belief that the Bill, in spite of the range of items that a judge may take into consideration, will prevent the Judiciary considering the nuances of the situation, including offender intent and degree of social harm. We believe there is more than what is contained in the Bill that must be taken together in order to form a complete picture of the seriousness of the offence and the appropriateness of a given sentence. This, of course, could create the potential for an injustice. We are not convinced either that this would have any deterrent factor on those at whom it is aimed.

Sinn Féin believes, indeed agrees with the drafters of the Bill, that sentencing must be proportionate to each crime committed, but judicial discretion is essential when determining the sentence to be administered by the court. This allows the judge to factor in the circumstances in which the offence occurred, whether there were aggravating factors, particularly violent behaviour, as well as the character, age and previous criminal record of the defendant. It allows the judge to consider alternatives to custody such as rehabilitative programmes where they may be appropriate. I accept and acknowledge fully also that there will be occasions where that is not appropriate. It is our view, and this applies to all offences across the board, that the introduction of non-statutory sentencing guidelines should include setting out the principles that should underpin sentencing, including the principle of imprisonment as a last resort, community safety imperatives and the principle of proportionality between the severity of the sentence and the seriousness of an offence.

I recognise the particular issues pertaining to the mandatory life sentence for murder in Ireland but it is our view that a sentencing guidelines council should be established to monitor sentencing guidelines and their effectiveness. The Law Reform Commission that has been mentioned has also called for a similar body to be introduced. The effect of this Bill is to introduce a sentencing regime that is tantamount to mandatory sentencing regimes. While we acknowledge there is scope for some judicial discretion, the introduction of minimum custodial periods of detention effectively amounts to a presumptive sentencing regime.

While we support the idea of judges taking into account degrees of planning and premeditation, other offences and mitigating factors such as a lack of premeditation, or whether the offender was provoked through domestic violence or acted in self defence and co-operated with the Garda Síochána, we believe the objective would be better achieved through the introduction of a sentencing guidelines council that would effectively guide the Judiciary in its task. The Law Reform Commission has repeatedly called for the establishment of a body that is empowered to develop and publish non-statutory sentencing guidelines, reflecting the general aims of the criminal sanctions. These could set out the principles that should underpin sentencing, including the principle of imprisonment as a last resort and the principle of proportionality between the severity of the sentence and the seriousness of the offence. It is our view that this would be a more appropriate approach to take for all offences. We further believe that sentencing judges should provide written explanation of any custodial sentences imposed, including the mitigating and aggravating factors considered. It would also be helpful if plans were established at the outset of all sentences for the convicted person regarding his or her imprisonment and engagement with rehabilitation services.

I commend the Senator's wish to examine this issue but believe that the offence of murder should not be dealt with in isolation and that non-statutory sentencing guidelines would be a much more appropriate approach to take at this stage. As I said at the outset, I appreciate fully the intent of Senator Marie-Louise O'Donnell. I hope to work on this issue with the proposer and seconder and other colleagues on this much-needed review of our criminal justice system and our sentencing laws.

In the spirit of honesty and genuine aspiration to change the law, we do not think this Bill does what is necessary.