Written answers

Tuesday, 21 September 2021

Department of Justice and Equality

Domestic Violence

Photo of Neasa HouriganNeasa Hourigan (Dublin Central, Green Party)
Link to this: Individually | In context | Oireachtas source

477. To ask the Tánaiste and Minister for Justice and Equality her plans to prescribe a set minimum sentence for those convicted of domestic violence; and if she will make a statement on the matter. [44441/21]

Photo of Hildegarde NaughtonHildegarde Naughton (Galway West, Fine Gael)
Link to this: Individually | In context | Oireachtas source

As the deputy may be aware, depending on the circumstances of the individual case, a perpetrator of domestic violence may be charged with specific offences such as an offence under the Non-Fatal Offences Against the Person Act 1997, murder, manslaughter, a sexual offence, the offence of coercive control, or the offence under section 33 of the Domestic Violence Act 2018 of contravention of a domestic violence order.

The court is required to impose a sentence which is proportionate not only to the crime but also to the individual offender, in that process identifying where on the sentencing range the particular case should lie and then applying any mitigating factors which may be present. Section 40 of the Domestic Violence Act 2018 provides that where offences involving physical or sexual violence are committed in the context of a marriage, civil partnership or an intimate and committed relationship, that fact shall be an aggravating factor at sentencing. This sentencing provision applies to any offence that involves violence or the threat of violence to a person.

While presumptive mandatory minimum sentences are provided for in respect of certain offences, the Law Reform Commission (2013) and the Strategic Review of Penal Policy (2014) studied their use and recommended against their continued use. The reports raised concerns about the effectiveness of such sentencing regimes in reducing crime as well as their proportionality and fairness.

It may interest the deputy to know that officials in my Department are currently working on the repeal of all criminal penalties involving mandatory minimum sentences for second or subsequent offences via the Criminal Justice (Amendment) Bill 2021.

This is being done on foot of a Supreme Court ruling (Ellis v the Minister for Justice) that provision involving a mandatory minimum sentences for second or subsequent offences in the Firearms Act 1964 was unconstitutional. The mandatory minimum sentence applied in cases in which the convicted person was before the court for a second firearms offence, or had previously been convicted of another similar firearms offence.

The Supreme Court held that the provision impermissibly encroached on the judiciary’s role to administer justice in individual cases under Article 34.1 of the Constitution, and breached the constitutional principle of the separation of powers. The Court noted that the penalty discriminated between different categories of persons (those who may not have committed an offence previously and those that have done so) and therefore was an interference by the legislature with the administration of justice, a function reserved to the Judiciary.

As such, my Department is proposing to repeal provisions which provide for mandatory minimum sentences for second or subsequent offences from legislation on firearms / explosives, misuse of drugs, receiving stolen goods, illicit distillation / liquor licensing, false imprisonment, threats of harm, organised crime and blackmail / extortion.

While the distinction here - that all of these provisions relate to mandatory minimum sentences for second or subsequent offences, as opposed to mandatory minimum sentences in general - is a real and important one, in the Ellis case, the Supreme Court made a general point that sentencing always involves a consideration of the following factors by the Judiciary:

- the gravity of the offence,

- circumstances in which it was committed,

- the personal situation of the accused, and

- mitigating factors.

Comments

No comments

Log in or join to post a public comment.