Frances Black (Independent) | Oireachtas source

I move amendment No. 1:

In page 4, between lines 9 and 10, to insert the following:

“(b) by the deletion of subsections (4), (4A), (5) and (6),”.

The purpose of this amendment is to remove presumptive minimum sentencing from the Firearms Act 1925. I am here on behalf of my Civil Engagement Group colleague, Senator Ruane. She spoke last week of an opportunity here to create a fairer and more caring judicial system, one that is built on the idea of justice for rehabilitation. For the Minister of State's part, he recognises the importance of creating such a judicial system. In order to achieve a system which best supports rehabilitation, it is important that we empower the Judiciary to sentence on a case-by-case basis, particularly in respect of firearms and drug offences, which are often highly circumstantial. By accepting this amendment to section 4, the State would have the opportunity to support the Judiciary to make the sentences circumstantial and judges would thus be empowered to make decisions that would best serve the rehabilitation of the offenders in front of them, as well as society at large, rather than simply making decisions based on arbitrary minimum sentencing legislation. After all, the laws we write are often quite simple. As the Ellis case has shown, however, their application in the context of the complexity of life is hard. By removing subsections (4), (4A), (5) and (6) from section 15 of the Act, we offer the accused and, subsequently, society as a whole a fairer and, crucially, a more understanding justice system. By removing these subsections, we would remove the legislation binding judges to pass a presumptive minimum sentence of ten years in prison. Instead, we would implicitly insert an opportunity for judges to offer sentences which they believe will best rehabilitate the offender.

I will speak to amendments Nos. 2 to 5, inclusive. The purpose of these amendments is to remove presumptive minimum sentences from the Firearms Act 1964. Minimum sentencing in regard to the Firearms Act 1964 is what brings this Bill before us today, specifically, issues arising from minimum sentencing legislation in respect of the Ellis v.Minister of Justice and Equality case. In this case, having heard of Mr. Ellis's circumstances and the details of his crime, the judge sentenced Mr. Ellis to a five-year fully suspended sentence and noted in her judgment that he was taking credible measures to reform himself and was, therefore, entitled to a degree of leniency. However, due to the mandatory minimum sentencing legislation in place, the judge was barred from delivering the suspended sentence. This was despite the fact that the circumstances of the case suggested to her that such a sentence would be best for facilitating Mr. Ellis' rehabilitation. Instead, Mr. Ellis faced prison.

This Bill rightly looks to remove the mandatory sentences for second offences, but the presumptive minimum sentencing legislation for first offence remains. As long as this presumptive minimum sentencing legislation remains, it will beg the question: how many more judges wish to suspend the sentence in relation to an offence under the Firearms Act 1964 only to be bound by the legislated minimum sentencing? Currently, the threshold set in the Firearms Act 1964 for when a judge may ignore the presumptive minimum sentencing is in exceptional cases. In such cases, we are asking members of our Judiciary to judge whether or not a case meets an abstract exceptional standard before they can use knowledge of the circumstances of the case to hand down an appropriate sentence. Instead, our amendments would remove this arbitrary exceptional standard and allow judges to offer sentences which they feel are appropriate to the circumstances of each individual case, rather than being bound to abstract minimum sentencing legislation.

Amendment No. 6, which relates to section 6, seeks the removal of presumptive minimum sentences, but this time, from the Misuse of Drugs Act 1977. Even more so than the two Firearms Acts, which the previous two amendments addressed, convictions under the Misuse of Drugs Act 1977 are, by their nature, highly circumstantial. In order to hand down a sentence which respects these circumstances, a judge must be free from the binding of the presumptive minimum sentencing legislation set out in section 27 (3C) and (3D). Once again, the legislation uses the exceptional circumstances threshold to determine when it is not necessary to hand down the presumptive minimum sentence of ten years' imprisonment. As noted by prominent legal academic, Thomas O'Malley, this is a remarkable severe punishment for what is, in essence, a non-violent offence. In practice, it means that those convicted of possessing drugs for sale or supply with a street value marginally in excess of €13,000 will be open to prosecution under this presumptive minimum sentencing.

As I noted at the beginning, cases concerning the misuse of drugs are highly circumstantial. It is for these reasons that the Law Reform Commission recommended, in their 2013 mandatory sentences report, that subsections (3C) and (3D) be removed because they bind judges to restrictive minimum sentencing legislation in cases which require nuance and understanding in order to deliver a fair and correct sentence. We know, for example, that those who are prosecuted in under the 1977 Act are usually individuals whose involvement in the drugs trade comes about through circumstance - individuals for whom any minimum sentencing legislation is unlikely to serve as a deterrent. I therefore urge the Minister of State to accept these amendments and allow our Judiciary to sentence offenders on a case-by-case basis, to sentence without the restrictive binding of minimum sentencing legislation in order to deliver sentences that are not just punishments, but instead, paths to rehabilitation.

Amendment No. 7 relates to section 7 and seeks to remove subsections (9), (9A), (10) and (11) of the Firearms and Offensive Weapons Act 1990. This is part of the legislation under which Mr. Ellis, whose case brings us here today, was prosecuted. I believe the facts of the case speak for themselves. They speak to why we should grasp this opportunity not only to remove the mandatory minimum sentence for second time offenders, but to remove all minimum sentencing in the Firearms and Offensive Weapons Act 1990 and to allow members of our Judiciary to hand down sentences based on the individual circumstances of each case which comes before them. To accept this amendment would be to accept the recommendations made by both the Irish Penal Reform Trust and the Law Reform Commission. It would be to accept a step towards a fairer and more understanding judicial system.

Amendment No. 8 relates to section 8. This amendment seeks to remove section 25 of the Criminal Justice Act 2007, and subsequently, the deletion of section 8 of the Bill. The amendment is proposed with the aim of allowing those convicted under both the misuse of drugs and the firearms legislation access to the possibility of temporary release. To the Minister of State's credit, he flagged his concern with this section when Senator Ruane brought it to his attention last week.It is important to ground this submission in the details of the Ellis case, which brings us all here today. Under the current legislation, with section 25 of the Criminal Justice Act 2007 intact, should Mr. Ellis be subsequently imprisoned, due to his suspended sentence being overturned the judge would be barred from allowing him temporary release to continue undertaking the credible measures to rehabilitate himself, which ultimately led to the delivery of the suspended sentence in the first place.

If the Minister of State truly believes in building a justice system that is rehabilitative rather than simply punitive then he will take this opportunity to remove section 25 and allow offenders access to the rehabilitative supports available through temporary release.