Friday 24 May 2019

Law on jail terms for repeat firearms offenders struck down

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Shane Phelan

Shane Phelan

The Supreme Court has struck down a law requiring judges to impose a mandatory minimum five-year jail term on second time firearms offenders.

In a decision which could have implications for a number of prisoners and could also signal softer sentences in future for repeat firearms offenders, the court found the Oireachtas had "impermissibly crossed the divide in the constitutional separation of powers".

The ruling did not relate to mandatory sentences generally, but specifically to the use of such sentences for a certain cohort of people, in this case repeat offenders.

Ms Justice Mary Finlay Geoghegan said the Oireachtas had sought to determine the minimum sentence which must be imposed, not on all persons convicted of a firearms offence, but only on a limited group who had also been previously convicted of one or more listed offences.

She said this was not constitutionally permissible and it followed that the appellant in the case, convicted criminal Wayne Ellis, was entitled to a declaration section 27A of the Firearms Act 1964, as amended, was “repugnant to the constitution”. 

The decision in favour of Ellis by the five-judge court does not necessarily mean he will get out of jail sooner. However, it will assist him in an appeal he had brought to the Court of Appeal.

Ms Justice Finlay Geoghegan said this appeal “should now be promptly re-entered".

Ellis (37), of Landen Road, Ballyfermot, pleaded guilty at Dublin Circuit Criminal Court in April 2013 to possession of a sawn-off shotgun at Knocklyon Shopping Centre in south Dublin in July 2012.

He had 26 previous convictions, including two for producing a firearm.

Initially he received a suspended five-year sentence as the judge accepted his offending was a result of his drug addiction and he had not reoffended while undergoing rehabilitation.

However, his suspended sentence became a custodial one following an appeal by the Director of Public Prosecutions against the leniency of the punishment.

In the Supreme Court proceedings, lawyers for Ellis argued the sub-section of the firearms legislation relating to minimum five-year terms for second time offenders was “an impermissible encroachment on the exclusive jurisdiction of the courts under Articles 34 and 38.1 of the Constitution”.

They argued Ellis was entitled to have the appropriate sentence both determined and imposed on him by a judge sitting in court.

It was submitted that the mandatory minimum sentence he received was a limitation to that right.

Lawyers for the DPP argued the constitutionality of fixed sentences was well settled and that it was for the Oireachtas to make law and the judiciary to apply it.

Ms Justice Finlay Geoghegan said what was at issue in the appeal was whether it was consistent with the Constitution for the Oireachtas to legislate for a fixed or minimum mandatory sentence which does not apply to all persons convicted of the offence.

In this case, the issue was that a limited class of offender, people who were being convicted for the second time or more, was being subjected to a minimum sentence.

She said it was not in doubt that any court, in applying current sentencing principles, will always have regard to previous convictions.

“Hence the question to be determined is whether it is permissible for the Oireachtas to legislate for a mandatory minimum penalty which is not a universal penalty that applies to all persons convicted of the offence,” Ms Justice Finlay Geoghehan said.

She said it was not necessary to consider whether it was constitutionally permissible for the Oireachtas to specify a mandatory minimum penalty which applies to all persons convicted of an offence. Section 27A of the 1964 Act only applied to a limited class of person, she said.

Ms Justice Geoghegan said it had previously been determined in another case that it may be permissible for the Oireachtas to specify a mandatory penalty which is to generally apply to all persons convicted of the offence, irrespective of the circumstances of the committal of the offence or the personal circumstances of the offender.

“In such circumstances, the selection of the penalty in accordance with the law is fixed by the Oireachtas and the court is obliged to select that penalty. That is not in breach of the separation of powers,” she said.

“However, it is not constitutionally permissible for the Oireachtas to determine or prescribe by statute a penalty to which only a limited class of persons who commit a specified offence are subject, by reason either of the circumstances in which the offence was committed, or the personal circumstances of the convicted person.”

She said Ellis fell into this category.

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