HC 228/04

THE HIGH COURT
JUDICIAL REVIEW
 [2002 No. 358 J.R.]
BETWEEN
SAMANTHA SWEENEY 
APPLICANT 
AND
IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE CATHERINE MURPHY
NOTICE PARTIES
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 27th day of May 2004.

	By order of this Court (Murphy J.) made 24th June, 2002, the applicant was given leave to apply by way of an application for judicial review for:
(i)	A declaration that s. 89 (b) of the Finance Act, 1997, is inconsistent with the provisions of Bunreacht Na hÉireann and accordingly unconstitutional. 
(ii)	An order of prohibition and/or an order by way of an injunction restraining the Director of Public Prosecutions (herein after referred to as “the Director”) from further prosecuting certain proceedings against the applicant.  
	The grounds upon which the applicant was given leave are as follows:-
"The applicant stands charged with indictable offences under s. 186 of the Customs Consolidation Act, 1876 as amended. 
By virtue of s. 13 of the Criminal Procedure Act, 1967 the applicant may plead guilty in the District Court.  If the applicant pleads guilty in the District Court in respect of any such offence she may be fined a sum not exceeding £1000 or at the option of the District Judge, may be imprisoned for a term of up to 12 months or both.  
In the event of the applicant not pleading guilty in the District Court she will be sent forward for trial in the Circuit Criminal Court and on conviction by virtue of s. 89 (b) of the Finance Act, 1997 she must be fined the sum of £10,000, that sum being greater than three times the stated value of the goods concerned, or at the discretion of the trial judge be imprisoned for a term of imprisonment of up to 5 years or both. 
1 (i) Section 89 (b) of the Finance Act, 1997 is unconstitutional and inconsistent with fair procedures insofar as it dictates to a trial judge the penalty to be imposed on a person convicted of any such offence and deprives a court of jurisdiction to exercise discretion so that different sentences may be applied as appropriate in different circumstances. 
(ii) The section thereby interferes with the independence of the judiciary contrary to Article 34.1 of Bunreacht na hEireann. 
(iii) The section thereby is also in conflict with Article 38 of Bunreacht na hEireann. 
2 (i) The effect of the said s. 89 (b) taken in conjunction with s. 13 of the Criminal Procedure Act, 1967 in the case of an impecunious accused, is to pressurise such an accused to plead guilty despite having a good defence to such charges as have been laid against the Applicant, because of fear that if she is tried and her defence fails she will be fined in a sum beyond her means or imprisoned for a period probably substantial though not to exceed five years. To that extent it interferes with the constitutional right of the Applicant of free access to the Court and the exercise of what should be an unrestricted right to present a defence to the charges without fear of being, in effect, punished for doing so. 
(ii) The section is also, for the reasons given above, inconsistent with Article 40.1 ofBunreacht na hEireann in failing to take account of the ability to pay of a person convicted as aforesaid."
	The application is grounded upon an affidavit of Terence Hanahoe, Solicitor, who indicates that the applicant was proceeded against by the Director of Public Prosecutions hereinafter referred to as “the Director” by three summonses dated 13th September, 2001, in respect of alleged offences on 23rd June, 2000, contrary to s. 186 of the Customs Consolidation Act, 1876, as amended by s. 34 of the Finance Act, 1963, as amended by s. 72 of the Finance Act, 1983, as amended by ss. 89 and 90 of the Finance Act, 1997, and as applied by s. 9 (1) of the Finance (Excise Duty on Tobacco Products) Act, 1977.  Mr. Hanahoe indicates that when the matter first came before the District Court on 11th January, 2002, he was the solicitor assigned to the applicant under the Legal Aid Scheme and the matter was put back to 8th March, 2002.  He indicates that on that date the matter was adjourned to 19th June, 2002, for the purpose of the Director furnishing to the applicant’s legal representatives statements of evidence.  He indicates that when the matter came before the District Court on 19th June, 2002, counsel on behalf of the applicant submitted that the statutory framework appeared to be inconsistent with the provisions of the Constitution of Ireland and asked for an adjournment in order to have this question raised for a decision by the High Court, and indicated that it was intended to take High Court proceedings quickly.  The District Court then adjourned the matter for mention to 11th July, 2002.   Mr. Hanahoe indicates that having taken instructions from the applicant, he believes that the applicant has a good defence to the charges.   He says that, as appears from the summonses, the estimated value of the goods concerned is £1,213.60.   He describes the applicant as a young woman and a single parent having given birth to her baby in or about the month of April 2002.  He describes her as being of modest means.  He states that because of this she is unable to engage in any gainful employment and has no private means and lives in very modest circumstances.   
	A statement of opposition has been filed on behalf of the respondents in which it is pleaded as follows:-
1.	It is denied that the applicant is entitled to the relief sought or to any relief.
2.	The issue raised in this judicial review is premature and moot in that the applicant here has not been returned for trial to the Dublin Circuit Criminal Court. 
3.	The issue raised in this judicial review is premature and moot in that the applicant herein has not indicated that a plea of guilty or not guilty is intended. 
4.	This judicial review is moot in that the applicant has not been tried or convicted of the offences she is charged with and thus the question of the constitutionality of what penalty will be imposed, if any, has not yet arisen.
5.	Without prejudice to the foregoing, it is denied that s. 89 (b) of the Finance Act, 1997, (No. 22 of 1997) is inconsistent with the provisions of Bunreacht na hÉireann and is unconstitutional. 
6.	It is denied that s. 89 (b) of the Finance Act, 1997 dictates to a trial judge the penalty to be imposed on a person convicted or deprives a court of jurisdiction to exercise discretion so that different sentences may be applied, as appropriate in different circumstances. 
7.	It is denied that s. 89 (b) of the Finance Act, 1997, interferes with the independence of the judiciary contrary to Article 34. 1 of Bunreacht na hÉireann. 
8.	It is denied that s. 89 (b) of the Finance Act, 1997, is in conflict with Article 38 of Bunreacht na hÉireann.
9.	It is denied that s. 89 (b) of the Finance Act, 1997, taken in conjunction with s. 13 of the Criminal Procedure Act, 1967 pressurises any accused to plead guilty despite having a good defence either as alleged or at all.  It is denied that s. 89 (b) interfaces with the constitutional right of the applicant of free access to the court and the exercise of what should be an unrestricted right to present a defence to the charges without fear of being, in effect, punished for doing so. 
10.	It is denied that s. 89 (b) of the Finance Act, 1997 is inconsistent with Article 38 of Bunreacht na hÉireann in failing to take account of the ability to pay a person convicted. 
11.	It is denied that the applicant is entitled to an order of prohibition and/or an order of injunction restraining the first named notice party from further prosecuting the applicant. 
	The issue before this court concerns the imposition of a mandatory fine for contravention of the relevant provisions of the Finance Act, 1997.  
Submissions
	On behalf of the applicant it is submitted by Mr. Maurice P. Gaffney that in the first place it is hard to justify in general the imposition of a mandatory fine.  It is stated that this appears to run contrary to the provisions of equality in the Constitution and to be inconsistent with the grant of discretion in sentencing to the judiciary to deprive the judiciary of discretion with regard to the sentences for offences against customs provisions.  
	Counsel points out that in the instant case a person convicted on indictment of an offence contrary to s. 186 of the Customs Consolidation Act, as amended by s. 89 (b) of the Finance Act, 1997 must be fined approximately €12,697.38 or imprisoned for a term of up to five years, thus no discretion is allowed to the court should a fine be thought appropriate but discretion would appear to be allowed to the court where imprisonment might be thought to be appropriate.  Nevertheless, were a judge to consider that imprisonment was appropriate so that the court should exercise discretion accordingly, the serious possibility is opened that the offender punished with a fine might find himself far more severely dealt with than another offender in almost identical circumstances.   
	It is submitted that this position is in contrast to that created by s. 15 A of the Misuse of Drugs Act as inserted by s. 4 of the Criminal Justice Act 1999, where a mandatory punishment is prescribed by the legislature.  However, when imposing a sentence for the offence of possessing drugs to the value of £10,000 (€12,700) or more, whilst the court is obliged to order the offender to serve at least ten years imprisonment, the court retains a discretion to depart from the minimum ten year sentence if satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make the mandatory element of the sentence unjust in all the circumstances.  
	While the injustice affected by mandatory fine may be thought to be remediable by executive clemency, where such is provided for, it is submitted that the difficulty in this case is that this has to be exercised by the Government rather than by a court.  Counsel submits that mandatory fines pay no or little respect to the principle that fines should bear some proportion to the criminality and other circumstances of the offence and the offender.  In this regard counsel refers to the case of Cox v. Ireland [1992] 2 I.R. 503.  
	Counsel refers to The People (Director of Public Prosecutions) v. W. C. [1994] 1 I.L.R.M. 321 where Flood J. stated, inter alia, at p. 324 of the report:
“The sentence to be imposed on an accused person in a particular case is solely a matter for the trial judge in the independence and impartial exercise of judicial discretion.   To suggest otherwise would be to countenance a constitutionally impermissible invasion of judicial independence and the doctrine of the separation of powers as provided for by Articles 6 and 34.1 of the Constitution.”
	At p. 325 of the report he stated, inter alia, as follows:-
“In my view the selection of the particular punishment to be imposed on an individual offender is subject to the constitutional principle of proportionality.  By this I mean that the imposition of a particular sentence must strike a balance between the particular circumstances of the commission of the relevant offence and the relevant personal circumstances of the person sentenced.  It is not opened to a judge in criminal case when imposing sentence, whether for a particular type of offence, or in respect of a particular class of offender, to fetter the exercise of his judicial discretion through the operation of a fixed policy, or to otherwise predetermine that issue.”
	Counsel refers to The People (Director of Public Prosecutions) v. M. [1994] 3 I.R. 306 and in particular to the judgment of Denham J. at p. 316 where under the heading of proportionality she stated, inter alia, as follows:-
“Sentences should be proportionate.  Firstly, they should be proportionate to the crime.  Thus, a grave offence is reflected by a severe sentence.” 
	Further on the same page she stated as follows:-
“However, sentences must also be proportionate to the personal circumstances of the appellant.  The essence of the discretionary nature of sentencing is that the personal situation of the appellant must be taken into consideration by the court.”  

In The People (Attorney General) v. O’Driscoll (1972) 1 Frewen 351 at p. 359
Walsh J. stated: 
“The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him insofar as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course.   It is therefore the duty of the courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard to the particular crime but in regard to the particular criminal.”
	At p. 317 Denham J. continued:-
“In a similar vein there is a constitutional protection.  In The State (Healy) v. Donoghue [1976] I.R. 325 at p. 353 Hinchy J. stated that the Constitution guarantees that a citizen shall not be deprived of his liberty by a trial conducted so as to shut out “a sentence appropriate to this degree of guilt and his relevant personal circumstances.”
Thus, having assessed what is the appropriate sentence for a particular crime it is the duty of the court to consider then the particular circumstances of the convicted person.”
Counsel refers to Rock v. Ireland [1997] 3 I.R. 484 and to a portion of the judgment
of Hamilton C.J. at p. 500 of the report where he stated, inter alia, as follows:-
“The principle of proportionality is by now a well established tenet of Irish constitutional law.”
	Hamilton C.J. quoted with approval a portion of the judgment of Costello J. in Heaney v. Ireland [1994] 3 I.R. 593 in which he considered the test of proportionality.  In that case Costello J. adopted a formulation by the Supreme Court, Canada in the following terms:-
“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right.   It must relate to concerns pressing and substantial in a free and democratic society.  The means chosen must pass a proportionality test.  They must:
(a)	Be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b)	Impair the right as little as possible, and
(c)	Be such that their effects on rights are proportional to the objective: Chaulk v. R [1990] 3 S.C.R. 1303 at pp. 1335 and 1336.”  
	Counsel refers to the Tuohy v. Courtney [1994] 3 I.R. 1 in which the Supreme Court indicated that where a statute which required the legislature to balance constitutional rights is challenged as being unconstitutional, the role of the judiciary is not to impose its view of the correct or desirable balance in substitution for the view of the legislature, but rather to determine from an objective stances whether the balance contained in the legislation is so contrary to reason as to constitute a unjust attack on a person’s constitutional right.”
	Counsel refers to Deaton v. The Attorney General and The Revenue Commissioners [1963] I.R. 170 in which the Supreme Court held that s. 186 of the Customs (Consolidation) Act, 1876, which conferred on the Revenue Commissioners power to elect which of two penalties there prescribed the court is to impose for a customs offence was repugnant to the Constitution to the extent that the said power was an integral part of the administration of justice, and, as such, could not be committed to the hands of the Executive.  At p. 183 of the report Ó Dálaigh C.J. in delivering the judgment of the court stated, inter alia, as follows:-
“The individual citizen needs the safeguard of the courts in the assessment of punishment as much as on his trial for the offence.   The degree of punishment which a particular citizen is to undergo for an offence is a matter vitally affecting his liberty; and it is inconceivable to my mind that a Constitution which is broadly based on the doctrine of the separation of powers – and in this the Constitution of Saorstát Éireann and the Constitution of Ireland are at one – could have intended to place in the hands of the Executive the power to select the punishment to be undergone by citizens.  It would not be too strong to characterise such a system of government as one of arbitrary power.”
	Counsel refers to the personal circumstances of the applicant and submits that if she wishes to have a discretion exercised on her behalf by reason of her circumstances in regard to any punishment or conviction that she is given no option but to plead guilty in the District Court.  Counsel indicates her intention to plead not guilty but indicates that she faces the problem that if she does not succeed in her defence on indictment she will become liable to a fine far in excess of her total resources or imprisonment which will be likely to entail considerable and disproportionate suffering on herself and her child.   
	Counsel submits that the position that obtains in regard to the applicant in effect means that her freedom to put forward a plea of not guilty to which she may claim a constitutional right is seriously threatened by the provision under challenge.  It is submitted that, to the extent that the freedom of the applicant to have recourse to the courts in pursuit of justice is obstructed, so also is her right to have her guilt or innocence of an indictable offence determined by a jury of her peers.  On this basis it is submitted that the impugned section deprived the applicant of her rights under Article 38 of the Constitution.   It is submitted that the effect of this section is that it interferes with the constitutional right of free access to the court and the exercise of what should be an unrestricted right to present a defence to the charges without fear of being in effect punished for doing so.  
	It is submitted, that to the extent that the impugned provision limits the discretion of the judiciary in any way with regard to punishment to be inflicted for offences, it is inconsistent with Article 34.1 of the Constitution.
	Counsel refers to The People (Director of Public Prosecutions) v. Redmond [2001] 3 I.R. 390 and to the judgment of the Court of Criminal Appeal in which the court indicated that the principle on which fines are assessed is such that regard must be had to the means of the offender when a fine is being imposed.  
	Counsel refers the fact that in the Courts of the United States of America it has been held that a judge may not base the severity of a sentence solely on the defendant’s decision to stand trial.  Counsel further indicates that there is authority from the United States Supreme Court that Defendants should not be coerced to waive their constitutional rights to trial.  In this regard reference is made North Carolina v. Pearce 395 U.S. 711 (1969) where the United States Supreme Court established that “punishing a person because he has done what the law plainly allows him to do is a due process violation and further both judges cannot impose a vindictive sentence that penalises a defendant for going to trial.”   Counsel further refers to United States v. Jackson 390 U.S. 570 (1968) in which it was held that a statute that even needlessly encourages a defendant to enter a guilty plea is an impermissible infringement on a constitutional right.  In that case a statute permitted a jury to impose the death penalty where a defendant was convicted at trial but if a guilty plea was entered the death penalty could not be imposed.  The Supreme Court held that the different statutorily imposed penalty unconstitutionally encouraged defendants to forfeit their right to a jury trial.
	Counsel refers to Corbitt v. New Jersey 439 U.S. 212 (1978) in which the United States Supreme Court held that legislatures in the United States may create statutes which mandate life imprisonment for those who are convicted but give a discretion to a judge to reduce the sentence for defendants pleading guilty to the crime.  Those pleading guilty would have a chance to a lesser sentence than those convicted at trial, but the lesser sentence would not be guaranteed by the legislatures, it would be a matter for the discretion of the judiciary.   
	Counsel further refers to the an academic article written by Colin Howard in “Reshaping the Criminal Law Essays in Honour of Glanville Williams” edited by P.R. Glazebrook (Stevens & Sons London, 1978) and Counsel adopts the views of the author of the article in question appearing at p. 404 of the book entitled an “Analysis of Sentencing Authorities.”  At p. 406 he states as follows: 
“As a general principle it is unwise for the legislature to specify a mandatory, fixed sentence for any serious (indictable) crime.  It is impossible that the legislative level to foresee and provide in adequate detail either for the multitudinous variety of circumstances under which serious crimes were committed, or for the sometimes considerable differences of personality, background and intelligence between the people who commit them.  For serious offences the fixed sentence implies a certain primitiveness of thought which confuses the offender with the offence, and by so doing diminishes the effectiveness of correctional system in promoting the ultimate interests of society.  It is simply not the case that society is damaged or threatened to exactly the same extent every time a given offence is committed, or that every offender who commits that offence will respond in the same way to the same penalty, or that the effect on public opinion will in all cases be the same.  What is virtually certain is that legislative imposed fixed penalties for serious crimes will require the frequent intervention of executive clemency.  Such a result means that discretion is being exercised by Government instead of by the courts, which are in the great majority of cases better equipped to do so.”
	Counsel further refers to The People (Director of Public Prosecutions) v. W.C. [1994] 1 I.L.R.M. 321 in which Flood J. made specific reference to Deaton v. Attorney General [1963] I.R. 170 and referred to The State (O.) v. O’Brien [1973] I.R. 50.  In that case Flood J. referred to the fact that the Constitution not only protects the independence of a judge in the selection of a particular sentence but, in addition, places on him a constitutional duty to impose a sentence which is appropriate to the degree of guilt, taking into account all relevant circumstances which may arise in the case.  Flood J. indicated as follows at p. 325 where he stated inter alia:
“In my view the selection of the particular punishment to be imposed on a individual offender is subject to the constitutional principle of proportionality.  By this I mean that the imposition of a particular sentence must strike a balance between the particular circumstances of the commission of the relevant offence and the relevant personal circumstances of the person sentenced.   It is not open to a judge in a criminal case when imposing a sentence, whether for a particular type of offence, or in respect of a particular class of offender, to fetter the exercise of his judicial discretion through the operation of a fixed policy, or to otherwise predetermine that issue.”
	On behalf of the respondents it is submitted by Mr. Edward Comyn, S.C., that in the first case there is an element of mootness about the instant case.  It is submitted that the issue raised is premature.  Counsel submits that the applicant must be tried on indictment.  Only in circumstances where the Director consents to the matter being dealt with by way of a plea in the District Court that the option of having the matter dealt with in that court arises.  Counsel points out that in the present case there is no evidence that the stage was reached where the Director had to formally consent to the matter being dealt with by of a plea in the District Court.   Until such time, if ever, as the District Court ascertains that the accused wishes to plead guilty and that such consent is given, the charges faced by the applicant can only be dealt with in the Circuit Court.  On this basis it is submitted that the question as to whether the applicant is pressurised by the legislation to plead guilty in the District Court simply does not arise, since it is only where both the accused wishes to and the prosecutor consents that the matter can be dealt with in the District Court and the applicant can get the benefit of that court’s limited sentencing jurisdiction.  Council refers to the provisions of s. 4 A (1) of the Criminal Procedure Act, 1967, as inserted by s. 9 of the Criminal Justice, 1999, which indicates that a District Judge must return an accused person for trial unless one of the exceptions expressly referred to applies.  These exceptions are:-
1.	That the case is being tried summarily,
2.	The case is being dealt with under s. 13 of the Act (which pertains to a guilty plea), or
3.	The accused is unfit to plead. 
In addition the Director must by s. 4 A (2) consent to the return for trial.  If no
consent is forthcoming, the District Court is obliged to strike out the proceedings.  (See s. 4 A (3)).  
	Counsel refers to the fact that the applicant has not been tried or convicted of the offences with which she is charged, and thus the question of the constitutionality of what penalty which may be imposed, if any, has not yet arisen.  It is submitted that it is not opened to a person who has not had a particular sentence imposed to challenge the constitutionality of that sentence.   Further it is submitted that as the applicant has neither indicated a willingness to plead guilty nor has she pleaded guilty, and nor has she been convicted and further there has not been a sentence hearing.  Thus, the question as to whether there are any mitigating factors in her case that would lead to a lesser sentence than the maximum laid down by law being imposed has not yet arisen.  In such circumstances, the applicant should not be permitted to argue that the legislation somehow deprives the court of the ability to take mitigating factors (such as modest means or an inability to pay a particular fine) into account.  It is submitted that for the applicant’s solicitor to make some averments in the grounding affidavit about the applicant’s position in life is not the same as a plea in mitigation at the sentencing stage of the criminal justice process.  It is submitted that the courts only deal with constitutional issues if they are necessary for the determination of a case.   
	It is submitted in the written submissions filed on behalf of the Director that the proper interpretation of s. 89 (b) is that it does not lay down a mandatory sentence.  In particular, it does not dictate to a trial judge the penalty to be imposed on a person convicted or deprive a court of jurisdiction to exercise discretion so that different sentences may be applied as appropriate in different circumstances.  For this reason it is submitted that s. 89 (b) does not interfere with the independence of the judiciary contrary to Article 34.1 of the Constitution.   
	Counsel refers to The People (Attorney General ) v. Murtagh [1966] I.R. 361 where the Supreme Court held that s. 2 of the Criminal Justice Act, 1964 imposes an obligation on the trial judge to sentence a person convicted of murder to imprisonment for life.  In that case Walsh J. stated, inter alia, a p. 372:
“It is correct to say that ordinarily a statute which provides that a person shall be liable to suffer imprisonment or penal servitude for life should be construed as being a reference only to the maximum term save where otherwise appears.  The court’s attention has been directed to certain provisions of the Larceny Act, 1916, which provide in respect of particular offences that the person found guilty shall be liable to penal servitude for life.  Such provisions are correctly construed as referring only to maximum sentences.  However, the important qualification to each such similar or identical phrase in the Criminal Justice Act, 1964, is that there is the contra-indication that, as I have already stated, the words have the special meaning of referring only to a fixed sentence. 
In my view therefore the correct construction of s. 2 of the Act of 1964, is that the sentence of penal servitude for life there referred to is not a maximum sentence only but is the only sentence and is the one which must be imposed.”
	Counsel refers to the fact that in that case Walsh J. noted that the Offences against the Person Act, 1861 permitted sentences of penal servitude for life in respect of a large number of offences.   The discretion to give a lesser term than life was expressly conferred in certain sections of the Act of 1861, by the use of the phrase “…at the discretion of the court…”.  Counsel refers to the fact that this phrase was inserted into the Act of 1861, by the Penal Servitude Act, 1891.  In the words of Walsh J. “Thus by express enactment, namely the Act of 1891, a court was empowered to award a term of penal servitude other than the originally mandatory term of penal servitude for life expressed in the words ‘liable to penal servitude for life’.  Counsel refers to the fact that in that case it was by reason of the special legislative history of the relevant sections that the court came to the conclusion that the sentence for life is a mandatory one.
	Counsel submits that there is nothing in s. 89 (b) of the Finance Act to suggest that the ordinary principle of construction as laid down by the Supreme Court in The People (Attorney General) v. Murtagh [1966] I.R. 361 should not apply, namely that it does not create a fixed sentence.   Counsel further submits that the process of trial is not interfered with by the imposition of a fixed sentence.  It is submitted that the onus is on the plaintiff to show that there is a total lack in judicial discretion or an interference with the judicial independence. 
	Counsel submits that the legislative arm of Government has charge of defining policy in relation to sentence under the terms of the Constitution. 
	Counsel refers to the nature of the offence charged against the applicant which, of itself, suggests a loss of revenue.  It submitted that it is for the applicant to show that there has been a lack proportionality by reason of the impugned provision.  Counsel submits that the dilemma faced by the applicant is always a dilemma as to what course one should take when charged with a criminal offence.  Counsel submits that a discount for a plea is something that is generally recognised.
	Dealing with the construction of the section, counsel submits that if the section has two modes of construction that the rule of double construction ought to be applied such that the section be construed within the limits of the constitution.  Counsel further refers to the discretion in relation to the imposition of imprisonment contained in the section.
	Counsel refers to a portion of the judgment of Ó Dálaigh C.J. at p. 181 of Deaton v. The Attorney General and The Revenue Commissioners [1963] I.R. 170 in which he stated, inter alia, as follows:-
“It is common ground that it is for the Legislature, when it creates an offence, to prescribe what punishment shall attach to the commission of such offence.  It is also common ground that the legislature may, for a particular offence, prescribe a single or fixed penalty, or a maximum penalty, or a minimum penalty, or alternative penalties, or a range of penalties.  Where a choice of penalty is prescribed by the legislature, either by reference to alternatives or a range of penalties, the choice of the penalty to be imposed in a particular case cannot, the appellant says be committed to any person or body not being a judge or court.   The selection of penalty, where the legislature affords a choice, is, he submits, part of the administration of justice.  The respondent’s contention, on the contrary, is that the selection of penalty is not a judicial function or part of the administration of justice, but that it falls into the domain of administrative or executive action and accordingly, in the present case, that the power of the Revenue Commissioners to elect for a higher penalty is constitutional.”
	Later, at p. 182, Ó  Dálaigh C.J. stated, having rejected the submissions of counsel for the Attorney General and the Revenue Commissioners:-
“There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case.  The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case.  It is here that the logic of the respondents’ argument breaks down.  The legislature does not prescribe the penalty to be imposed in an individual citizen’s case; it states the general rule, and the application of that rule is for the courts.  If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment.  But if the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular case, then the choice or selection of penalty falls to be made.   At that point the matter has passed from the legislative domain.”
	Counsel refers with approval to the views of the authors of Kelly, The Irish Constitution, 3rd ed., (Dublin, 1994), where at p. 368 having referred to The State (O.) v. O’Brien [1973] I.R. 50 they state: 
“The principle of the Deaton judgment was accordingly followed and reinforced.  All this, however, does not necessarily prevent the Oirechtas from prescribing mandatory sentences or mandatory consequences upon conviction
Counsel further refers to a portion of the text at p. 371 where under the heading “Limits to Independence of the Judicial Function: legislation may make mandatory a particular order on establishment of particular facts,” they state 
“The mere fact that a statute obliges a court, once a certain state of facts has been judicially established, to make a particular order, is not an encroachment on the judicial functions.”  
The authors refer to the decision in The State (O’Rourke) v. Kelly [1983] I.R. 58 
“Mandatory sentences or orders, referred to in this judgment, have never been challenged on constitutional grounds.  Examples of the mandatory sentence of penal servitude for life in conviction of murder (Criminal Justice Act, 1964 s. 2); and the consequential disqualification order which a court must make on convicting a person of certain driving offences (Road Traffic Act 1961 s. 26 (1))”.
Counsel further refers to Casey, Constitutional Law 3rd Ed., (Dublin, 2000), at 241 to similar effect.  Counsel again refers to the dilemmas faced by an accused whether to plead guilty or not.  Counsel submits that the fact that the statute permits amelioration where a plea of guilty is made, provided the prosecution consents, does not render the section invalid.  
	Counsel further refers to the fact that there is no mention in the instant case of the ability of the applicant to pay a fine of £10,000.00 or its equivalent in euro should same be imposed.
	In reply, it is submitted by Mr. Gaffney that it is not an issue that there is power in the legislative arm of Government to appoint fixed sentences.   It is submitted that in the case of s. 89 (b) the legislature has trespassed beyond the powers in imposing a fixed penalty which must work an injustice.  It is submitted that as a price of working a fixed penalty, which would be particularly oppressive upon the applicant because, of her means she must abandon her constitutional right to plead not guilty.  Counsel further refers to a footnote at p. 371 of the Kelly where the authors, having quoted a portion of the judgment of Flood J. in The People (Director of Public Prosecutions) v. W.C. [1994] 1 I.L.R.M. 321, state that the logical consequence of the view expressed by Flood J. would, of course, ultimately cast a shadow over the constitutionality of the mandatory sentences.
	Counsel refers to the dilemma faced by counsel in advising a client in indicating whether they may be free to fight a prosecution that if they fail that the accused is liable to be fined the sum of €12,700.
Conclusions 
	It is clear that the applicant bears the onus of proof in establishing a case of this nature where a declaration of invalidity having regard to the provisions of the Constitution is sought.  While the Act of 1886 has been amended from time to time the relevant portion of same now reads as follows:
“Every person who shall import or bring, or be concerned in importing or bringing into the State any prohibited goods or any goods the importation of which is restricted, contrary to such prohibition or restriction, whether the same be unshipped or not; or shall unship, or assist, or be otherwise concerned in the unshipping of any goods which are prohibited, or of any goods which are restricted and imported contrary to such restriction, or of any goods liable to duty, the duties for which have not been paid or secured; or shall deliver, remove, or withdraw from any ship, quay, wharf, or other place previous to the examination thereof by the proper officer of Customs, unless the care or authority of such officer, any goods imported into the State or any goods entered to be warehoused after the landing thereof, so that no sufficient account is taken thereof by the proper officer, or so that the same are not duly warehoused; or shall carry into the warehouse any goods entered to be warehoused or to be re-warehoused, except with the authority or under the care of the proper officer of the Customs, and in such manner, by such persons, within such time, and by such roads or ways as such officer shall direct; or shall assist or be otherwise concerned in the illegal removal or withdrawal of any goods from any warehouse or place of security in which they shall have been deposited; or shall knowingly harbour, keep, or conceal, or knowingly permit or suffer, or cause or procure to be harboured, kept, or concealed, any prohibited, restricted, or uncustomed goods, or any goods which shall have been illegal removed without payment of duty from any warehouse or place of security in which they may have been deposited; or shall knowingly acquire possession of any such goods; or shall be in any knowingly concerned in carrying, removing, depositing, concealing, or in any manner dealing with any such goods with intend to defraud the Central Fund of any duties due thereon, or to evade any prohibition or restriction of or applicable to such goods; or shall be in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duties of Customs, or of the laws and restrictions of the Customs relating to the importation, unshipping, landing, and delivery of goods, or otherwise contrary to the Customs Act:”
As originally provided, the punishment was expressed in the terms that the person
guilty of the conduct in question "shall for each such offence forfeit either treble the value of the goods, including the duty payable thereon, or one hundred pounds, which ever is greater, and the offender may either be detained or proceeded against by summons.”  The penalty has been changed over time such that the same is now dealt with by s. 89 of the Finance Act, 1997, which provides: 
“In section 186 of the Customs Consolidation Act, 1876, there shall be substituted, in lieu of the penalty for each such offence specified therein (being forfeiture of either treble the value of goods including the duty payable thereon, or one hundred pounds, whichever is the greater)-
(a) on summary conviction, a fine of £1,000, or at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both the fine and the imprisonment, 
( b ) on conviction on indictment, a fine of treble the value of the goods, including the duty payable thereon, or £10,000, whichever is the greater, or at the discretion of the court, to imprisonment for a term not exceeding 5 years or to both the fine and the imprisonment. 
The value of the goods for the purposes of the Customs Consolidation Act 1886
and other legislation is provided for by s. 34 of the Finance Act, 1963 as amended. 
Section 34 (6) (c) of the Finance Act, 1963 as inserted by s. 90 of the Finance Act, 1997 provides: 
"Section 34 of the Finance Act. 1963, is hereby amended by the insertion in subsection (6) of the following paragraph after paragraph (b): 
"(c) the application of s. 13 of the Criminal Procedure Act. 1967, to offences under section 186 of the Customs Consolidation Act, 1876, s. 3 of the Customs Act 1956, or any other provision of the Customs Acts or s. 106 of the Finance Act, 1992.”
Section 13 of the Act of 1967 has been amended by s. 10 of the Criminal Justice Act, 1999, the relevant part of which came into force on the 1st October 2001.  This section provides, inter alia, as follows: 
"(1) Part II of the Act of 1967 is hereby amended by the substitution of the following title for the title to that Part: 
"Guilty Pleas and Other Matters". 
 (3) Section 13 of the Act of 1967 is hereby amended by the substitution of the following subsections for subsection (2): 
"(2) If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the court is satisfied that he understands the nature of the offence and the facts alleged, the Court -
(a) may, with the consent of the prosecutor, deal with the offence summarily, in which case the accused shall be liable to the penalties provided for in subsection 
(3), or 
(b) if the accused signs a plea of guilty, may, subject to subsection (2A), send him forward for sentence with that plea to that court to which, but for that plea, he would have been sent forward for trial. 
(2A) The accused shall not be sent forward for sentence under this section without the consent of the prosecutor."
The case has been presented to this court on the basis of the fact that this section creates a fixed penalty.  I am prepared to assume this to be the situation notwithstanding, the fact that counsel for the respondents has not directly conceded such to be case.   I do, however, accept the submission made that the application in this case is somewhat premature.   Nevertheless, I do express the view that the applicant has not satisfied me that the imposition of a fixed penalty is such as to render such provision as imposes same to be invalid having regard to the provisions of the Constitution.  It is clearly within the power of the legislature to determine what, if any, penalties may be imposed by the courts in the imposition of penalty in any given case.  It is in this vein that the legislature is given freedom to impose fixed penalties in certain cases.  Section 29 (1) of the Criminal Justice Act, 1999 appears to acknowledge the fact that a sentence may be fixed by law.  This is an enactment which enjoys the presumption of constitutionality.  The section in question reads:
“(1) In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court, if it considers it appropriate to do so, shall take into account—
     (a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and
     (b) the circumstances in which this indication was given.
(2) To avoid doubt, it is hereby declared that subsection (1) shall not preclude a court from passing the maximum sentence prescribed by law for an offence if, notwithstanding the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence.
(3) In this section, "fixed by law", in relation to a sentence for an offence, means a sentence which a court is required by law to impose on a person of full capacity who is guilty of the offence.”
	I am not satisfied that any of the authorities referred to by counsel for the applicant or indeed by counsel for the Attorney General satisfy this court that the imposition of a fixed penalty is ipso facto invalid having regard to the provisions of the Constitution.  It is on this basis that I must conclude that the applicant has failed to establish any entitlement to the declaration which she seeks or to any order restraining the further prosecutions by the Director of Public Prosecutions of the offence charged against her.  In all the circumstances, I refuse to the applicant the relief which she seeks.