Neutral Citation: [2016] IEHC 234
THE HIGH COURT
[2015 No. 4533P]
BETWEEN:
WAYNE ELLIS
APPLICANT
-AND-
THE MINISTER FOR JUSTICE AND EQUALITY,
IRELAND
RESPONDENTS
JUDGMENT of Mr. Justice Twomey delivered on the 9th day of May, 2016
1. This case concerns the constitutional validity of s. 27A(8) of the Firearms Act, 1964 ("the 1964 Act"), as substituted by s. 59 of the Criminal Justice Act, 2006, and as amended by s. 38 of the Criminal Justice Act, 2007. The applicant seeks a declaration of unconstitutionality of the above provision and also a declaration pursuant to s. 5(1) of the European Convention on Human Rights Act, 2003, that the said provision is incompatible with the European Convention on Human Rights.
Background
2. On 7th July, 2012, the applicant was charged with an offence of possession of a sawn off shotgun at Knocklyon Shopping Centre on 5th July, 2012, contrary to s. 27A(1) of the 1964 Act.
3. On 30th November, 2012, he was charged with an offence of possession of a sledge hammer, plastic bottle containing petrol and socks with the intention that they be used in connection with that same offence at Knocklyon Shopping Centre, contrary to s. 15(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001.
4. On 8th April, 2013, the applicant pleaded guilty to both offences. At the sentencing hearing on 7th May, 2013, evidence was given that the applicant had some 26 previous convictions, including an offence of carrying a firearm with criminal intent, contrary to s. 27B of the 1964 Act, in respect of which he was sentenced to a seven year term of imprisonment with two years suspended. He had also been convicted on 7th May, 2001, under s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, of robbery and a charge of carrying a firearm with criminal intent and was sentenced to 6 years.
5. Therefore, on 7th May, 2013, at his sentencing hearing for the offence contrary to s. 27A(1) of the 1964 Act, the applicant was also guilty of a previous offence under s. 27B of the 1964 Act. For this reason, the provisions of s. 27A(8) of the 1964 Act are relevant:-
“(8) Where a person (except a person under the age of 18 years)-
(a) is convicted of a second or subsequent offence under this section,
(b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,
the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served (emphasis added) by the person.”
6. The sentencing judge heard evidence of the applicant's history of addiction and rehabilitation. It was accepted by the investigating officer that the offences committed by the applicant were as a result of addiction. The evidence before the sentencing judge demonstrated the applicant was engaging with drug treatment. The Court was provided with letters from the Coolmine Drug Treatment Centre, the Ana Liffey Drug Project and a psychological report. These documents demonstrated the considerable effort made by the applicant to overcome his addiction. The applicant progressed from the Coolmine Centre to Cuan Dara, to Keltoi and was then transferred to a Community Links Project.
7. The matter was adjourned before the sentencing judge on a number of occasions on receipt of evidence that the applicant's drug rehabilitation was ongoing and he had not come to adverse Garda attention.
8. On 26th May, 2014, a sentence of five years imprisonment was imposed on the applicant in respect of the offence contrary to s. 27A(1) of the 1964 Act. This sentence was suspended in full for the whole period of five years on the applicant’s own bond of €200 to keep the peace and be of good behaviour. A three year sentence, suspended on the same terms, was imposed in respect of the offence contrary to s. 15(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001. In passing sentence, the sentencing judge noted in particular the applicant’s efforts to effect his rehabilitation as well as the fact he had not reoffended in the two years since the date of the offence, which was significant in light of his prior history of re-offending.
9. On 17th June, 2014, the Director of Public Prosecutions served notice on the applicant of her intention to apply to the Court of Criminal Appeal for a review of the sentence. This application was based on the grounds of undue leniency as provided for in s. 2 of the Criminal Justice Act, 1993.
10. Since the date of the sentencing of the applicant in this case under s. 27A of the 1964 Act, the Court of Appeal considered the terms of that statutory provision in DPP v. Prenderville [2015] IECA 33. Accordingly, it is important to set out the relevant sections of s. 27A in full:-
"(1) It is an offence for a person to possess or control a firearm or ammunition in circumstances that give rise to a reasonable inference that the person does not possess or control it for a lawful purpose, unless the person possesses or controls it for such a purpose.
(2) A person guilty of an offence under this section is liable on conviction on indictment—
(a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and
(b) at the court’s discretion, to a fine of such amount as the court considers appropriate.
(3) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005.
(4) Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.
(4A) The purpose of subsections (5) and (6) of this section 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.
(5) Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose the court may, subject to subsection (6), have regard to any matters it considers appropriate, including—
(a) whether the person pleaded guilty to the offence and, if so—
(i) the stage at which the intention to plead guilty was indicated, and
(ii) the circumstances in which the indication was given, and
(b) whether the person materially assisted in the investigation of the offence.
(6) The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 5 years imprisonment is unjust in all the circumstances, may have regard, in particular, to—
(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005 , and
(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.
(7) Subsections (4) to (6) of this section apply and have effect only in relation to a person convicted of a first offence under this section (other than a person who falls under subsection (8)(b) of this section), and accordingly references in those first-mentioned subsections to an offence under this section are to be construed as references to a first such offence.
(8) Where a person (except a person under the age of 18 years)—
(a) is convicted of a second or subsequent offence under this section,
(b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,
the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.”
11. In the Prenderville case the DPP sought a review of the sentence handed down to the applicant based on undue leniency. In that case, the sentencing judge had found that there were no exceptional and specific circumstances which would make it unjust to impose the presumptive minimum term of five years set out in s. 27A(4). On this basis, she imposed a six year sentence, but suspended the final eighteen months, so that the sentence ended up being for four and a half years. The Court of Appeal had to consider, whether having been obliged under s. 27A(4) to impose the presumptive minimum sentence of five years, the sentencing judge was correct, after fixing a sentence of six years, to suspend 18 months of the six year sentence, so that the presumptive minimum sentence of five years would not in fact be served by the appellant in that case, but a lesser sentence of four and a half years. At paragraphs 15 to 16 of the judgment, Birmingham J. held that:-
"In the Court’s view the plain and ordinary language of the section makes it very clear that, unless there are exceptional and specific circumstances present which would make a sentence of five years or more unjust, the court is required to impose a sentence of five years as a minimum to be actually served in custody. Only if there are exceptional and specific circumstances identified is it possible to suspend all or part of the sentence so as to reduce the sentence to be served in custody below five years.
If the section had been couched in terms of “the court shall impose a five years sentence or shall impose a sentence of five years imprisonment” there might be an argument to be made, but the reference to specifying a term of imprisonment of not less than five years as the minimum term of imprisonment to be served puts the matter beyond doubt. An interpretation that would permit a suspension of circumstances of a sentence in the absence of exceptional and specific circumstances would be to set the clearly expressed intentions of the Oireachtas at nought."
On this basis, the Court of Appeal ruled that the sentencing judge had erred in principle by handing down a sentence which was below the five year sentence set out in s. 27A(4). In essence, the presumptive minimum sentence under s. 27A(4) had, by virtue of the absence of exceptional and specific circumstances, become a mandatory minimum sentence of five years and the Court of Appeal therefore held that it could not be suspended since, to use colloquial language, ‘mandatory’ meant ‘mandatory’.
12. Since ss. 27A(4) and 27A(8) use the same phrase - “a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person” - the applicant in this case argues that, as a result of the decision in Prenderville, in the appeal of his case by the DPP to the Court of Criminal Appeal, that Court will have no option but to interpret s. 27A(8) of the 1964 Act to find that the sentencing judge should have given the plaintiff the mandatory minimum term of imprisonment of five years and had no authority to suspend the five year sentence she imposed.
13. On this basis, the applicant alleges that the discretion of the sentencing judge before sentencing, to take account of all of the circumstances of a convicted person, including rehabilitation (which was clearly a relevant factor to the sentencing judge in the applicant’s case), is removed. This, counsel for the applicant argues, is an impermissible encroachment on the administration of justice, since the passing of sentences (including the decision to suspend a sentence in the interests of the convicted person’s rehabilitation) is an integral part of the administration of justice. It was argued on behalf of the applicant that this discretion should not have been removed from the sentencing judge, as it has been by s. 27A(8) of the 1964 Act, as now interpreted in light of the Court of Appeal decision in Prenderville.
Analysis
14. The net issue in this case is whether, in order to protect its citizens from the effects of gun violence, the elected representatives of this State can pass laws which provide for a minimum mandatory sentence of five years for a person who is found guilty of a second firearms offence, which sentence cannot be suspended.
15. The key argument being made in this case is that the passing of sentences is part of the administration of justice. It was submitted on behalf of the applicant that a law which takes away the discretion of the judge in passing sentences, by having minimum mandatory sentences, is unconstitutional as it amounts to an encroachment by the legislature on the judicial function, in light of the separation of powers between the legislative, executive and judicial function in Article 6 of the Constitution and the vesting in the Courts of the sole and exclusive jurisdiction for the administration of justice in Articles 34 to 37.
Caselaw
16. Two cases are of particular relevance to this Court’s consideration of this matter. The first is Deaton v. Attorney General [1963] IR 170 in which there was a challenge to the constitutionality of legislation which permitted the executive (through the Revenue Commissioners) to select the penalty in relation to customs offences under s. 186 of the Customs (Consolidation) Act, 1876. This section entitled the Revenue Commissioners to elect that a person who was guilty of a customs offence could be liable to a penalty of £100 or to forfeit treble the value of the goods the subject of the offence. The statutory provision was found to be unconstitutional since it involved the executive choosing between different penalties in individual cases, rather than the courts. At p. 181 of the report, Ó’Dálaigh C.J. states:-
“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. […..]
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."
17. The second case is Lynch & Whelan v. Minister for Justice [2012] IR 1. That case involved a challenge to the constitutionality of the Oireachtas fixing a mandatory life sentence for murder under s. 2 of the Criminal Justice Act, 1990. This challenge was rejected by the Supreme Court and the entitlement of the Oireachtas to fix a mandatory sentence for murder was upheld. It was stated by Murray C.J. at para 49:-
"The court is satisfied, as O Dálaigh C.J. explained in [Deaton v. Attorney General] that the Oireachtas in the exercise of its legislative powers may choose in particular cases to impose a fixed or mandatory penalty for a particular offence. That is not to say that legislation which imposed a fixed penalty could not have its compatibility with the Constitution called in question if there was no rational relationship between the penalty and the requirements of justice with regard to the punishment of the offence specified."
18. The following principles can be extracted from these two decisions to assist this Court in considering the constitutionality of s. 27A(8) of the 1964 Act:-
Turning now to consider s. 27A(8) under each of these headings:
i. It is permissible as a matter of principle for the Oireachtas to impose a fixed or mandatory penalty for a particular offence.
19. Relying on Murray C.J.’s statement, above, that there is no constitutional prohibition on the legislature imposing "a mandatory penalty for a particular offence", this Court concludes that it is the settled law that the legislature is entitled as a matter of principle under our Constitution to fix a mandatory sentence. This principle is based on the role of the Oireachtas as the sole and exclusive law maker and on the principle of the separation of powers, since Article 15.2.1° of our Constitution states:-
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”
20. The Lynch & Whelan case itself concerned a mandatory life sentence for murder and this is why Murray C.J. refers to a "mandatory penalty" being permissible. Yet, this Court sees no substantive difference between the Oireachtas choosing a mandatory or fixed penalty for a particular offence as in the Lynch & Whelan case, and the applicant’s case here, where it is not in fact a ‘fixed penalty’ for the second firearms offence under s. 27A(8), since the penalty is a sentence in the range between the mandatory minimum sentence of five years and the maximum sentence of 14 years. The Court takes this view because the underlying principle, that the Courts should not encroach on the Oireachtas’ exclusive law-making function set out in Article 15.2.1°, applies whether the Oireachtas chooses a fixed penalty for the offence, as in the Lynch & Whelan case, or a mandatory minimum penalty, as in the applicant’s case. This Court would therefore conclude that as a general principle it is permissible for the Oireachtas to impose for a particular offence, a fixed or mandatory penalty, including a minimum mandatory penalty as exemplified by s. 27A(8) of 1964 Act.
Does the fact that the minimum mandatory penalty in s. 27A(8) cannot be suspended by a sentencing judge make it per se unconstitutional?
21. This Court is being asked to find that, because s. 27A has recently been interpreted by the Court of Appeal as meaning that a sentencing judge cannot suspend a sentence under that section, as the sentence must be ‘served’, this must mean that s. 27A(8) is unconstitutional, since not only is there a minimum mandatory sentence, but there is no prospect of the sentence being suspended.
22. This Court does not agree with this argument, as it is of the view that the Lynch & Whelan case makes clear that the Oireachtas is entitled to take away completely the discretion of the judge regarding sentencing, since in that case life imprisonment was mandatory and there was no prospect of that sentence being suspended. This is clear from the Lynch & Whelan case, where at page 10 of the judgment Murray C.J. quoted Mustill L.J. in Reg. v. Secretary, Ex p. Doody [1994] 1 AC 531 at pp 549 to 500:-
“Although it is a very grave occasion it is a formality in this sense, that the task of the judge is entirely mechanical. Once a verdict of guilty is returned the outcome is preordained. No matter what the opinion of the judge on the moral quality of the act, no matter what circumstances there may be of mitigation or aggravation there is only one course for him to take, namely to pass a sentence of life imprisonment."
Having noted as aforesaid the entirely mechanical role of the sentencing judge in the case of a sentence of life for murder, Murray C.J. then went on to state at p. 21 of his judgment:-
"Since, as the court has concluded, the stipulation of a mandatory sentence of life imprisonment in s. 2 of the Act of 1990 for the crime of murder is consistent with the Constitution it cannot be accepted that the Constitution, in some other fashion, requires that a trial judge should be able to give consideration to imposing a different sentence which he or she might consider more appropriate or proportionate to the particular circumstances of the case. ”
23. Relying on Lynch & Whelan, it is this Court’s view that to hold s. 27A(8) unconstitutional, on the basis that the job of the sentencing judge becomes mechanical in the sense that she must impose a mandatory minimum sentence of five years and that there is no prospect of the sentence being suspended, would be a thwarting of the legislative intention of ensuring that mandatory sentences means mandatory sentences, and would constitute an encroachment by the judiciary on the exclusive domain of the Oireachtas as the law-maker in this State.
24. In support of this conclusion is the fact that if the applicant were correct in his argument that the determination of sentences is part of the judicial function to such a degree that it is unconstitutional to have it fettered by the Oireachtas in the manner suggested in this case, a logical corollary of this would be that, not only is it unconstitutional for the Oireachtas to have mandatory minimum sentences, but it is also unconstitutional for the Oireachtas to have mandatory maximum sentences, since this equally involves a fettering of the judge’s discretion, albeit on the upside rather than the downside.
25. Just as a judge in an individual case may like to have the discretion to give a lighter sentence than is permitted by law, he also may wish in an individual case to have the discretion to give a heavier sentence than is permitted by law. One example of such a situation is the case involving Carney J. sentencing a man guilty of the sexual abuse of his sister at their home in Roscommon. Since sentencing judgments are usually given ex tempore, and are often not contained in law reports, but in national newspapers, Carney J.’s comments that ‘if he were not constrained by a such a low maximum term, he would have imposed a higher sentence’ are reported in the Irish Times on 21st October 2009.
26. However, it is this Court’s view that it is the role of the Oireachtas to create offences and set the sentences for those offences, whether mandatory minimum sentences or mandatory maximum sentences. In doing so, it is entitled if it wishes to provide, not just in relation to maximum sentences, but also in relation to minimum sentences, that ‘mandatory means mandatory’. It is not a fettering of the judicial function that a judge cannot give a lesser sentence than is permitted by law by seeking to suspend the sentence, just as it is not a fettering of the judicial function that a sentencing judge cannot give a greater sentence than is permitted by law. The judge’s function is to apply the law, not to seek to change the law by thwarting the intention of the Oireachtas in those cases where the Oireachtas provides for mandatory minimum sentences for particular offences.
27. On the basis of the foregoing, this Court concludes that it is constitutional as a matter of principle for the Oireachtas to enact laws which provide for mandatory minimum sentences, which cannot be suspended by a sentencing judge. This Court must next consider whether in the particular circumstances of this case, the mandatory minimum sentence in s. 27A(8) of the 1964 Act is constitutional.
ii. The mandatory penalty must apply to all citizens.
28. The second principle to be extracted from the foregoing two cases, is the statement of Ó’Dálaigh C.J. in Deaton v. Attorney General that:-
“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”.
29. In the present case, the argument was made on behalf of the applicant that, since the mandatory minimum sentence in s. 27A(8) only applies to persons who have previous firearms convictions and does not apply to persons under 18 years of age, it does not apply to all citizens and therefore is unconstitutional.
30. This Court does not find this reasoning persuasive and is of the view that Ó’Dálaigh C.J. did not intend the principle he enunciated to be interpreted as meaning that the Oireachtas could not create fixed penalty offences, unless those offences were capable of being committed by every single citizen of the State, regardless of age, gender, capacity etc. Otherwise, it could be argued, to take but one example, that it would be unconstitutional for the Oireachtas to make certain male-specific sexual offences subject to mandatory sentencing because they could only be committed by a male, a proposition which this Court could not accept.
31. It is this Court’s view that what Ó’Dálaigh C.J. meant by requiring mandatory sentences to apply to all citizens, is that a fixed penalty cannot be applied irrationality to a sub-set of citizens, e.g. that people from a certain part of the country might be subject to a fixed penalty for an offence, whereas people from a different part of the country would not be subject to the same fixed penalty for the same offence. His statement is not to be interpreted as meaning that a fixed penalty should be applied to a sub-set of citizens even where there are good policy or other reasons why it should not be so applied. There are good policy reasons why the Oireachtas might decide that the mandatory minimum sentence in s. 27A(8) only applies to persons over 18 years of age, since the circumstances of a person of tender age are such and can change so quickly that it may be appropriate for the sentencing judge to have discretion as to whether to suspend the sentence. Similarly, there are good policy reasons as to why the Oireachtas might decide that the mandatory minimum sentence in s. 27A(8) only applies to persons who have previously committed a firearms offence, since it gives an incentive to those persons who have been found guilty of a firearms offence to make sure that they do not re-offend.
32. For this reason, the application of this minimum mandatory penalty to only those persons who are over 18 and have committed a previous firearms offence, is not irrationally applied to sub-set of citizens and so does not render the fixed penalty unconstitutional.
33. In any case, it is this Court’s view that the true character of the reference in s. 27A(8) to a person having a previous conviction for a firearms offence is, in fact, simply a pre-condition for the offence under s. 27A(8) to be committed. It is not a characteristic or category of citizen, so as to fall foul of the principle enunciated by Ó’Dálaigh C.J. and create an offence which is not capable of being committed by all citizens. To use an analogy, it is this Court’s view that if there were a fixed penalty offence for dog-owners, the suggestion that this offence does not apply to all citizens, but only to dog-owning citizens, so as to fall foul of Ó’Dálaigh C.J.’s principle, is not sustainable. On this basis, it is this Court’s view that the mandatory penalty in s. 27A(8) applies to all citizens, save those who are under 18 years of age.
iii. There must be a rational relationship between the fixed penalty and requirements of justice.
34. The final principle to be taken from these two Supreme Court cases is the principle enunciated by Murray C.J. that there must be a rational relationship between the fixed penalty, in this case a mandatory minimum sentence of 5 years for a second firearms offence, and the requirements of justice.
35. In this regard, it is noteworthy that we live in a country where a very conscious decision has been taken by our elected representatives to maintain our police force as an unarmed force, despite the easy availability of guns and the prevalence of gun crime. As a result of this decision, the Gardaí are at even greater risk, in this State than in many other countries, from criminals who ignore the law on firearms and choose to carry weapons. For this reason, it is not surprising that our elected representatives would wish to set down in law, in the strongest possible terms, society’s abhorrence of any person who would put, not only the lives of Gardaí in danger, but also the lives of innocent persons.
36. Indeed some indication of what the Oireachtas might have been thinking in passing s. 27A(8) is provided by the wording of s. 27A(4A) which states:-
“The purpose of subsections (5) and (6) of this section 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.”
37. This section was inserted by the Criminal Justice Act, 2007, and thus postdates s. 27A(8) which was inserted by the Criminal Justice Act, 2006. Nonetheless, the express reference to the harm caused to society by firearms is likely to have been a factor in the Oireachtas’ decision during the previous year to enact the mandatory minimum sentences for repeat firearms offenders in s. 27A(8).
38. To consider whether there is a rational relationship between the fixed penalty and the requirements of justice, it is important to consider not only the foregoing likely legislative intent but also s. 27A in its totality:-
• under s. 27A(2) the maximum sentence for possessing a fire-arm in suspicious circumstances is 14 years;
• under s. 27A(4) there is a presumptive minimum sentence of five years for this offence;
• this presumptive minimum five year sentence can be disapplied in the case of a first offender, since s. 27A(5) allows for a sentencing judge to fix a different sentence if there are exceptional and specific circumstances which would make the minimum term unjust;
• s. 27A(7) provides that these subsections (4) and (5), which allow for the disapplication of the five year minimum sentence, only apply to a person who is convicted of a firearms offence as a first offence;
• s. 27A(8) imposes, inter alia, a minimum term of imprisonment of five years for a person who is guilty of a first offence under s. 27A but who has committed a previous offence under s. 27B of the 1964 Act. Since pursuant to s. 27A(7) the possibility of having the five year sentence reduced only applies to first offenders, it is therefore clear that s. 27A(8) imposes a mandatory minimum sentence of five years for second offenders.
39. On the basis of the foregoing, for a person to be subject to the mandatory minimum sentence of five years, he must be guilty of an offence under s. 27A, namely the offence of possessing a firearm or ammunition in circumstances which give rise to a reasonable inference that the person does not control it for a lawful purpose, which is itself a serious offence (and is subject to a maximum sentence of 14 years). However, he must also have been guilty of a previous offence under s. 15 of the Firearms Act 1925, section 26, 27 or 27B of the 1964 Act or section 12A of the Firearms and Offensive Weapons Act, 1990. In this case, the applicant is guilty of an offence under s. 27B of the 1964 Act. This is an offence of carrying a firearm with intent to commit an indictable offence or to resist or prevent the arrest of the person or another person, which is clearly a serious offence and which itself is subject to a maximum sentence of 14 years.
40. In view of the foregoing, it seems to this Court that the Oireachtas decided, in light of the harm to society caused by gun crime, to provide for a maximum 14 year sentence upon conviction for all offenders of serious firearms offences, but a presumptive minimum sentence of five years for first offenders, which sentence for first offenders could be reduced to zero if the sentencing judge felt that the circumstances justified it. In essence, the Oireachtas empowered the sentencing judge to give the first offender a second chance, while making it clear that because of the harm to society, a person who was guilty of a second serious firearms offence was subject to a mandatory minimum five year sentence, and mandatory means mandatory (save of course that, as counsel for the applicant advised, the reduction on remission of the five years to three years and nine months continued to be available to a convicted person).
41. This Court is of the view that it is well within the rights of the Oireachtas as the exclusive law-maker in the State to seek to discourage gun crime in this State by giving a second chance to first time firearms offenders, while at the same time making it absolutely clear that if someone is guilty of a second offence, there is a mandatory sentence.
42. In considering whether there is a rational relationship between the penalty in this case and the requirements of justice, it is noteworthy that no argument was made by the applicant that the presumptive minimum sentence of five years for first offenders, or that the maximum sentence of 14 years for all offenders, bears no rational relationship to the requirements of justice for these serious firearms offences. On this basis, it seems that it is not the five year length of the minimum mandatory sentence under s. 27A(8) that is the issue for the applicant, but the fact that it is mandatory.
43. It is this Court’s view that it could not in any way be described as an irrational penalty to have a sentence length of five years (which could be reduced to three years and nine months, with remission) for a person, such as the applicant, found guilty of possession of a firearm in suspicious circumstances (which is subject to a maximum sentence of 14 years) who has a pervious conviction of possession of a firearm with criminal intent (which is subject to a maximum sentence of 14 years). If the minimum mandatory sentence were say 13 years, then perhaps an argument could be made that there was no rational relationship between the fixed penalty and the requirements of justice. However, a mandatory minimum sentence of five years is just over a third of the maximum sentence for both offences and in this Court’s view, this amounts to a clear rational relationship between the fixed penalty and the requirements of justice.
44. Although not determinative of the Court’s finding in relation to the rationality of the penalty, it is worth noting that under s. 25 of the Criminal Justice Act, 2007, a court is obliged, in sentencing a person who commits another offence within 7 years of the first offence, to specify as the minimum term of imprisonment, a term of not less than three quarters of the maximum term of imprisonment prescribed by law in respect of such an offence. Applying this section to the s. 27A(8) offence, would lead to the Court being required to impose a sentence of three quarters of the maximum of 14 years on a second offender, being 10 ½ years. In this context, a mandatory minimum sentence of five years under s. 27A(8), less than half what is the position under s. 25 of the Criminal Justice Act, 2007, does not appear to be an irrational penalty.
45. To conclude, this Court does not believe that a sentence length of five years, for a person who has been guilty of possessing a firearm in suspicious circumstances, where he has a previous offence of carrying a firearm with intent, is so irrational as to be unconstitutional. In this Court’s view there exists an obvious rational relationship between the length of that sentence and the requirements of justice and, in particular, the desire of the Oireachtas to seek to address gun-crime in a country where the Gardaí are unarmed.
46. For the reasons set out in this judgement, it has already been held that the mandatory nature of the sentence in s. 27A(8) does not make that section unconstitutional and this Court is of the view that the combination of the length of the sentence at five years and its mandatory nature bear a rational relationship to the requirements of justice in light of the serious nature of the offences at issue. Accordingly, the relief sought by the applicant under the Constitution is being refused.
ECHR
47. As regards the plaintiff’s argument that the fixing of a mandatory minimum sentence of five years for a repeat firearms offender breaches Article 6 of the European Convention on Human Rights, no specific caselaw was opened to the Court by the applicant on this point. The applicant appears to be relying on the case law, opened to the Court for the purpose of challenging the constitutionality of the legislation, in his challenge to the legislation under the ECHR. As this case law has not persuaded the Court in relation to the constitutional challenge for the reasons stated, it also does not persuade the Court in relation to the challenge to the legislation under the ECHR.
Conclusion
48. This Court refuses the relief sought since if this Court were to strike down s. 27A(8) of the Firearms Act, 1964, it would, in this Court’s view, amount to a very significant fetter on the right of elected representatives of this State to make laws which they believe are designed to protect the citizens of this State.
