David Stanton (Cork East, Fine Gael) | Oireachtas source

This amendment raises several interesting issues which I will deal with in turn.

Making assault under section 2 of the 1997 Act an arrestable offence would be problematic, as arrestable offences are by their nature more serious crimes and assault under section 2 is by definition a summary offence. The offence under section 3 of the 1997 Act, assault causing harm, is an offence that may, in more serious cases, be subject to trial on indictment in the Circuit Court and is an arrestable offence. Section 4 provides for the most serious category of assault, that is, causing serious harm, with a maximum penalty of life imprisonment. It would be imprudent to distort the continuum of seriousness provided by sections 2, 3 and 4 of the 1997 Act.

Section 32 of the Bill provides for a power of arrest without warrant for breach of a domestic violence order on receipt of a complaint by or on behalf of the person who applied for the order. An assault of the type covered by section 2 of the 1997 Act would usually constitute breach of an order and so would be arrestable as breach of the order.

I note that, with regard to powers of arrest generally, almost all the offences under the Non-Fatal Offences Against the Person Act 1997 are arrestable offences.

As regards the time limit for the bringing of charges under section 2, the six-month time limit for prosecuting offences applies to offences that can only be tried as summary offences.

Section 2 of the 1997 Act is intended to deal with assault in its most minor form and, for that reason, it can be prosecuted summarily only. To extend the period for prosecuting an offence under section 2, as proposed by the amendment, would be a disproportionate departure from the intention of the Oireachtas to provide for the swift administration of justice, except of course where there are compelling reasons to do so. I do not believe that it would be appropriate to significantly extend the timeframe for bringing prosecutions against individuals who are accused of an offence under section 2 unless there is justifiable cause.

The second, and perhaps more pressing issue with this amendment, is the fact that it would extend the period for prosecuting all offences of assault under section 2 and not only those that relate to incidents of domestic violence.While the intention is understandable, this is an overly broad amendment for this Bill, which is focused on domestic violence.

As regards aggravating factors, the short answer to the Senators’ proposal is that courts will have the power to take a wide range of aggravating factors into account when it comes to sentencing and, in practice, do take account of many factors. However, it could be counter-productive to set down in an Act of the Oireachtas a list such as that proposed by the Senators in their amendment.

Aggravating circumstances for criminal offences are not usually listed in statute. It is primarily a matter for individual judges to identify and determine what are the appropriate aggravating factors to be taken into account in determining a sentence in a particular case in line with the jurisprudence of the Irish courts. The courts have recognised that the aggravating and mitigating factors of sentencing regarding the particular offence should be identified and applied by the sentencing court. The courts have a duty to pass an appropriate sentence in each case, having regard to the particular circumstances of that case, not only in regard to the particular offence, but also in regard to the particular offender. Where a person is convicted on indictment, the Director of Public Prosecutions may apply to the Court of Appeal for review of a sentence she regards as unduly lenient and, in that case, can raise issues regarding aggravating circumstances.

In providing an exhaustive list, as in the Senators’ amendment, all other aggravating factors will be excluded. Given the complexity of domestic violence and the inexhaustible capacity of human beings to devise new ways of being cruel to each other, particular cases may in the future give rise to other aggravating factors. These could not be taken into account if the Senators' amendment was on the Statute Book. The new section to be inserted by amendment No. 47b will ensure that where offences involving physical or sexual violence are committed in a domestic violence context, that fact shall be an aggravating factor at sentencing. As the aggravating factors in the Senators’ amendment would apply to all offences under the Non-Fatal Offences Against the Person Act 1997 and not only domestic violence cases, such a wide-ranging amendment to that Act would not be appropriate to be dealt with in this Bill. Again, I ask the Senators not to press this amendment. I do not propose to accept it.