Michael McDowell (Independent) | Oireachtas source

I ask Senators to recall that section 40(a), of the legislation that was passed in 2007, states:

The purpose of subsections (10) and (11) is to provide that in view of the harm caused to society by the unlawful possession and use of firearms, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under this section, shall specify as the minimum term of imprisonment to be served by the person a term of not less than 5 years, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of it, it would be unjust in all the circumstances to do so.

I want to make the point that it was provided that it would not apply where it is unjust. I cannot see how a Supreme Court could say that it is unconstitutional to provide a guideline but say it does not apply where its consequence would be unjust in the view of the sentencing judge, and say that is unconstitutional. I just cannot see the logic of that at all.I fully agree with Senator Ward that there is a tendency to demand minimum sentences. When I was Minister for Justice, Equality and Law Reform, I saw American penal institutions crowded out with people who fell foul of the "three strikes and you are out" rule on felonies, which includes minor thefts, for which they may end up with a life sentence. The typical prisoner in such institutions is a black or white male from a ghetto. He ends up spending the rest of his life, without the right to parole, in one of these hellholes that the Americans consider penitentiaries.

I agree with Senator Black completely that the rehabilitative portion must always be there. That is why the let-out that it would be unjust to do this seemed to me so obvious that I cannot understand how the Supreme Court took the view that it did not apply at all or that the section meant something else. I will say this to Senator Black, and Senator Ruane, if she were here, would probably agree with me. In certain portions of an area with which Senator Ruane is well acquainted, we have an epidemic of crack cocaine at the moment. As Senator Ward said, you cannot identify any individual person living in that area and say that person is the victim, but we as legislators surely must take a view on that kind of offence.

Day in, day out, we read in the papers that €250,000 or €3 million worth of this or that was stolen. I am beginning to wonder whether these people or the people who are arrested ever get prosecuted. The number of detections is so high, you would wonder. I fully accept that there may be a situation in which an exploited non-national is put in charge of a grow house and is arrested or whatever, but I just wonder who at all is serving sentences for all these apparent offences. I think we need about three or four big prisons given the rate at which I read about these things in the newspapers.

Senator Black has taken a very strong view on the whole subject of abuse of alcohol in our society, and drink-driving is one of the issues that arises in that regard. There is no doubt but that the mandatory disqualification is the punishment. It is unfair in certain circumstances. I am thinking of the fellow who has three drinks at his kid's communion party and proceeds to drive and is unfortunate enough to run into a garda. His job as a taxi driver goes up in smoke and his family is put on the dole as a consequence. Mandatory disqualification is very punitive but it works. Rehabilitation does not arise in that case. The catastrophe for some people of mandatory disqualification is very substantial. I am just saying that what is sauce for the goose is sauce for the gander. Sometimes, if you really want to take something seriously, you must, as Senator Ward pointed out, send out the signal to society at large and to the Judiciary that they are not free just to impose any old sentence that comes their way and that it is not just a matter of the Director of Public Prosecutions appealing particular things. If guidelines from the Judiciary are all right, what is wrong with guidelines from the Legislature, especially when there are loopholes? That is all I am saying.