Barry Ward (Fine Gael) | Oireachtas source

I agree with this legislation and welcome it, on behalf of Fine Gael. It is important to set things right. I am generally opposed to the concept of minimum mandatory sentences as they unduly fetter the Judiciary. That is not to say that I think all mandatory sentences should be removed. There is a mandatory life sentence for murder, for example, which is appropriate. It puts back into the hands of the Executive the decision as to how much time that person will serve behind bars. One often gets the misconception that the mandatory sentence is for 13 to 15 years as it is in other jurisdictions that we might see in popular media and things like that. In Ireland, a life sentence is a sentence for life and the person remains under sentence for life. That does not necessarily mean he or she will be behind a locked door for life but will be under the sentence for life. I am concerned that these amendments essentially suggest that we should do away with all mandatory sentencing. I do not agree with that although it is something that should be used less rather than more.

I am concerned about some of the things that Senator Black said in her remarks. Senator Ruane, the co-sponsor of these amendments, and I agreed on Second Stage on almost everything that was said. I am referring, for example, to the suggestion that particularly in the case of firearms and drugs offences, we should remove this provision. I do not agree. Firearms offences are pervasive. Earlier Senator McDowell referred to the context in which this law was brought in and to section 27A in terms of sending a message to gangland. I would be concerned at the notion that that message was in any way diluted. The Oireachtas has made very clear its intention regarding the seriousness of those offences. By the same token, Mr. Ellis, as he has been referred to, is not a nice guy. He arrived into a premises carrying a sawn-off shotgun to rob those premises. Yes, he may have been wronged in a legal sense and, yes, the Supreme Court agreed that he was entitled to a declaration of unconstitutionality, which is as it should be. I also agree with the right of the judge, and the sentencing judge in the case, to be allowed to take into consideration all of the factors that had a bearing on his case, and to render what the judge felt was the appropriate sentence.

An American lawyer friend of mine recounts a story about a friend of his who referred to Ernesto Miranda. People will know that surname because of the Miranda rights that arose from the Miranda v.Arizona case in the 1960s. That means that the police in America are now obliged to read to a defendant or an arrested person their Miranda rights, which means he or she has a right to an attorney, a right to remain silent, etc. This person's friend said "Thank God for Mr. Miranda as only for him people would not have these rights". Ernesto Miranda was a kidnapper and rapist who just was not accorded those rights in Arizona and, subsequently, got a declaration along those lines in the United States from the US Supreme Court.

In the context of this debate, there is a slight danger of suggesting that we should in any way reduce the efficacy of the ability of the courts to deal with serious offences. In the context of what has been said by both of my colleagues, I would not for a moment want the message to go out that we are not in favour of hard sentencing for hard criminals. People commit serious offences and obviously different offences have a different effect on victims. Sometimes it is not possible to identify an individual who is the victim of a drugs offence but a person who possesses drugs, in contravention of section 15A of the Misuse of Drugs Act 1977, is in possession of a serious quantity of drugs worth over €13, 000 for sale or supply. Whether there is an identifiable victim in that case does not mean that the person is not involved in criminality that has led to violence, intimidation or aided gangland. There has been a suggestion, for example, that this should particularly apply to drugs offences.

That said, I appreciate where Senators Ruane and Black are coming from on this. There is a major problem in the war on drugs, mar dheadh. We continue to fight the drugs, and the danger is that the casualties in that war are the middlemen or lieutenants and not the kingpins. We must work on a continual basis. We hope that An Garda Síochána and the prosecutorial authorities in the State are constantly working away at those kingpins but there is collateral damage in that war. People have been unfairly given mandatory sentences of ten years, for example, under section 15A. I think there are issues with that but there is also, in the legislation, an opportunity for judges to apply exceptional circumstances.

In the context of these amendments, we need to be clear what message goes out from here concerning serious criminal offending, including drugs offences. If one has cocaine that is worth many tens of thousands of euro then one is not a good person. However, there may well be extenuating circumstances around the possession of drugs and I have dealt with those cases myself. I have defended people in incredibly sad circumstances where they have, perhaps, been discharging a drugs debt or been coerced into holding drugs or whatever it might be. That happens and it is entirely appropriate in such a case that a judge would have the discretion to take that on board. For the most part, the people who are involved in that kind of activity are involved in an activity that brings nothing but pain, death and misery to communities throughout this country, particularly communities in disadvantaged areas. Let there be no doubt that in passing this legislation what we are doing is acknowledging the Supreme Court decision and acknowledging the importance of allowing judges to have discretion. We are not in any way diminishing the seriousness of the offences involved or the importance of rendering harsh sentences for people who are involved in this activity. That is even more true for firearms offences because although the firearm may not have been used it is still a violent offence. If one is a shopkeeper who has a sawn-off shotgun brandished in one's face then that will have a serious effect on the shopkeeper or on the staff who work in the shop. I would not want to dilute the importance of that. My concern with what these amendments seek to do is to say that there should be no mandatory sentence or we should put everything in the hands of judges.

Earlier Senator McDowell referenced the judicial sentencing guidelines. They will come in due course and we will have a debate on them in due course. It is important that the Oireachtas and the Legislature places a very clear line in the sand so that certain offences will be treated harshly. I absolutely agree with the notion that legislation should make it clear to judges that certain offences must be treated in a particular way. When that is done, by which I mean the Director of Public Prosecutions, from a policy perspective knows when charging a person with that offence what the consequences are and will balance that up in the context of the facts of the case as they are known. In general, the office of the DPP will have a better picture than anyone. It will have seen the full Garda investigation into the matter and have a full set of facts but obviously pending what the defence might have to say in any case. This is not to say that mandatory minimum sentences never have a place. What this says is that we must respect the decision of the Supreme Court and accord greater discretion to judges in terms of dealing with what they see before them.