Ceisteanna – Questions. Priority Questions. - Sentencing Policy.

John Deasy

Question:

1 Mr. Deasy asked the Minister for Justice, Equality and Law Reform the proposals he has to introduce minimum sentencing guidelines for members of the Judiciary. [17256/03]

Under our legal system, the law provides generally for maximum penalties for criminal offences. The law enables the judge to exercise his or her discretion, within the maximum penalty, by reference to the conclusions he or she has reached after trying the case, hearing all the evidence and assessing the culpability and circumstances of the accused.

The Courts and Court Officers Act 1995 enables me, as Minister, to provide funds for judicial training courses arranged by the Judiciary and, in this regard, funds are made available to the Judicial Studies Institute, which was established by the Chief Justice for the purposes of judicial training. It is understood that the issue of sentencing has been examined by the institute in the context of its training programme.

As regards consistency in sentencing, the Deputy should be aware that section 36 of the Courts (Supplemental Provisions) Act 1961 makes provision for meetings of District Court judges to discuss,inter alia, the avoidance of undue divergence in the exercise of the jurisdiction of the court and the general level of fines and penalties. While there is no similar statutory provision in the case of other courts, it is understood they hold similar meetings.

Under the Criminal Justice Act 1993 the Director of Public Prosecutions may, where it appears to him that a sentence imposed on indictment is unduly lenient, apply to the Court of Criminal Appeal to review the sentence. The issue of extending the power to the DPP to appeal against lenient sentences in serious cases before the District Court has been referred by the Attorney General to the Law Reform Commission for consideration.

The complex question of sentencing policy was addressed at length by the Law Reform Commission in 1996 in a report that specifically recommended against the introduction of statutory sentencing guidelines. The report pointed out a number of differences of opinion among members of the commission in regard to some of the recommendation, which tends to underline the obvious complexities that arise in regard to sentencing policy.

The Law Reform Commission recommended that non-statutory guidelines should be introduced to the effect that the severity of the sentence to be imposed on a person found guilty of an offence should be measured in proportion to the seriousness of the offending behaviour and that the seriousness of offending behaviour should be measured by reference to the harm caused or risked by the offender in committing the offence and the culpability of the offender in committing the offence.

Additional InformationThe commission also recommended in this regard that the sentencer should not have regard to the deterrence of the offender or others from committing further crime, to the incapacitation of the offender from committing further crime or, where a sentence of imprisonment is warranted, to the rehabilitation of the offender when determining the severity of the sentence to be imposed.

I generally concur with the Law Reform Commission's thinking behind its recommendation on statutory guidelines. In this regard, the point was made in the report that the more detailed the requirements of any statutory sentencing procedure, the more likely it was that mistakes would arise leaving sentences open to challenge on technical grounds only. As I have mentioned, the report pointed out a number of differences of opinion among members of the commission in relation to sentencing guidelines. A minority opinion dissented from the recommendation that the Government should introduce non-statutory guidelines and expressed the view that, while there is room for further identification and refinement of the criteria by which judicial discretion should be exercised, the task should continue to be entrusted to the Judiciary itself.

This is a complex matter and expert opinion in the matter is divided. In approaching the issue, I am mindful that the role of the Court of Criminal Appeal will,inter alia, be examined by the working group on the jurisdiction of the courts, at present sitting under Mr. Justice Niall Fennelly's chairmanship. The work of the group is being carried out in modules. The first module concerns the criminal law. In this regard, I understand that the group has been examining the merits or otherwise of a mechanism of objective guidance for sentencing. The group is due to report very shortly and I have made it clear that I will carefully consider all the recommendations made by the group, including those in relation to sentencing policy.

In his first speech, the Minister stated, "We will consider providing a statutory basis for sentencing principles and guidelines." His stance has changed on this when one considers his reply. I want to focus on one area. A three month minimum sentence should be handed down to drug offenders in the District Courts. The drugs trade is flourishing and gardaí are continually frustrated as drug dealers get the Probation Act or are fined. At the very least, a minimum sentence of three months needs to be applied to drug dealers. A message must be sent to drug dealers. Will the Minister respond?

I have not changed my mind. When I spoke on this subject, I referred to providing a statutory basis on sentencing and guidelines in that context and I have in mind what the Law Reform Commission recommended, which is maximum sentence guidelines. However, the Deputy's question referred to minimum sentence guidelines, of which I have never spoken in favour as they would be problematic.

Apropos the Deputy's remarks on drug dealing offences, for any offence of drug dealing to be dealt with in the District Court a decision is required of the DPP that it is a minor matter. I do not know about the case to which the Deputy refers but, by definition, it is required, first, that the DPP considers it to be a minor matter and then a District Court judge, exercising a separate, independent judgment on the matter, must also confirm it is a minor matter. If a serious offence for drug dealing was dealt with in the District Court and it ended up in the way described by the Deputy, it could only happen on the basis that the DPP and the judge had independently arrived at the view that the particular episode of dealing amounted to a minor offence.

I am not the DPP, and I must stress that on every occasion I appear in the House. I do not attempt to criticise or usurp his functions. However, dealing in serious drugs, on the face of it, is something society would not regard as a minor offence and only in exceptional cases could dealing in drugs be dealt with at District Court level. Dealing in drugs with a commercial value is the subject of a minimum sentence in the Circuit Court on indictment and, in those circumstances, I do not know how the events outlined by the Deputy could have come about and caused frustration for the Garda because I imagine in all those cases the prosecuting gardaí would have made a recommendation to the DPP as to whether in their view the matter was fit to be tried as a minor offence.

Drug dealers go to one particular District Court and, in many cases, the judges let them off. When one examines the different District Court areas, there are massive inconsistencies. The Garda has pointed this out time and again. To get rid of that inconsistency, the Minister will have to introduce a minimum sentence of at least three months for those who are convicted of drug dealing in the District Court. He is almost inferring that drug dealing and drug abuse are minor matters, which they are not. Those practices are flourishing and are absolutely rampant. The problem has grown since the Minister came to office and he has not addressed this issue.

The Deputy is misquoting me. I said I could only imagine that drug dealing would be dealt with in the District Court as a minor matter in exceptional circumstances because most people would regarding it as a major matter.

It happens all the time.

As the Deputy will be well aware, no offence can be dealt with in the District Court as a minor offence unless a judge adjudicates that it is and no prosecution for an offence that is triable either way, such as drug dealing, can be prosecuted in the District Court unless the DPP says it is a minor matter and is fit for summary trial. The Deputy is alleging there is a huge disparity in sentencing policy among members of the District Court and that some members are allowing drug dealers off on the basis of the Probation Act. This is news to me. I have never heard of this and it has never been suggested to me that that is the case. However, if it is the case, I re-emphasise it can only be that the DPP decided the matter was fit to be tried summarily because it was a minor matter and a District Court judge came to the same conclusion. There is nothing I can do in those circumstances.

I will take an example from the lower end of the spectrum such as somebody who supplied an ecstasy tablet to two others for money in a club. Unless that is what is in prospect, I cannot imagine a circumstance in which a District Court judge would apply the Probation Act to a drug dealer. It has never been suggested to me that this is a problem and the Garda has never reported that that is a problem.

That is exactly what gardaí said at the AGSI conference in April.

I will speak to the Deputy later.