Doyle v Min for Justice and Others
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 20 November 2015 |
| Neutral Citation | [2015] IEHC 728 |
| Judgment citation (vLex) | [2015] 11 JIC 2003 |
| Court | High Court |
| Date | 20 November 2015 |
[2015] IEHC 728
THE HIGH COURT
BETWEEN:
AND
AND
Constitution – Crime & Sentencing – S. 27C of the Firearms Act, 1964 as inserted by s. 61 of the Criminal Justice Act, 2006 – Restrain on temporary release whether unconstitutional
Facts: Following the refusal of temporary release of the applicant being convicted and sentenced for possession of firearms and drugs by the High Court in the legal proceedings commenced by the applicant, the applicant now sought a declaration that s. 27C of the Firearms Act, 1964 as inserted by s. 61 of the Criminal Justice Act, 2006 was unconstitutional. The applicant submitted that s. 27 (C) precluded the temporary release of a particular category of convicted persons notwithstanding the saver contained in s. 27C(4) that was limited to special reasons mentioned therein and thereby disproportionately affected the constitutional rights to personal equality and liberty before the law.
Mr. Justice Kearns P refused to grant the declaration sought by the applicant. The Court held that while s. 27A of the said Act of 1964 contained presumptive mandatory sentence, its purpose was laid down under s. 27A(4A), which was to save the society at large from the harm caused by unlawful possession and use of firearms. The Court found that there was no arbitrary discrimination as s. 27A(4A) also provided grant of temporary release of the accused under certain circumstances and hence, the classification made by the legislature for a particular class of offences was legitimate.
JUDGMENT of Kearns P. delivered on the 20th day of November, 2015
The applicant seeks a declaration that section 27C of the Firearms Act, 1964 as inserted by section 61 of the Criminal Justice Act, 2006 is repugnant to the Constitution of Ireland.
In a judgment delivered on 30 th July, 2015, this Court determined a number of non-constitutional arguments advanced on behalf of the applicant in relation to the interpretation of the relevant statutory provisions governing the granting of temporary release. The background to the present application is set out in detail in that decision and can be briefly summarised as follows.
On the 10th June, 2013 the applicant was sentenced to five years in prison in the Dublin Circuit Court for possession of a controlled drug, at which point in time he also received a concurrent five year sentence for possession of a firearm in suspicious circumstances contrary to S.27A of the Firearms Act 1964, as substituted by s.59 of the Criminal Justice Act 2006, as amended.
Having applied for temporary release in order to pursue a course of study, the applicant's request was refused on the basis that the granting of temporary release to the applicant in respect of his firearms offence is precluded by s.27C(4) of the Firearms Act 1964 (as inserted by s.61 of the Criminal Justice Act 2006) as the applicant is serving a "minimum term of imprisonment" as defined in s.27C(1) of the 1964 Act.
Following this decision, the applicant commenced legal proceedings challenging the respondents' interpretation of the various statutory provisions and those non-constitutional grounds of attack were determined by the decision of this Court delivered on 30 th July, 2015. The Court refused the relief sought by the applicant and submissions from both parties in relation to the remaining constitutional challenge were then heard on 14 th October, 2015.
Section 27 of the Firearms Act, 1964 has been amended on a number of occasions, including by the insertion of certain provisions by the Criminal Justice Act, 2006 and sections 37 and 38 of the Criminal Justice Act, 2007. The annotated section provides, in relevant part, as follows -
2 "27A.-
(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.
2 (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 to 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) he circumstances in which the indication was given, and
(b) whether the person materially assisted in the investigation of the offence..."
Section 27B contains various provisions relating to the carrying of a firearm with criminal intent.
Section 27C, which forms the basis of the applicant's challenge, relates to minimum sentences and the grant of temporary release and provides as follows -
2 "27C.-
(1) In this section, "minimum term of imprisonment" means a term specified by a court under -
(a) section 15 of the Principal Act,
(b) section 26, 27, 27A or 27B of this Act, and
(c) section 12A of the Firearms and Offensive Weapons Act 1990, less any reduction in the period of imprisonment under subsection (3) of this section.
(2) The power to commute or remit punishment conferred by section 23 of the Criminal Justice Act 1951 does not apply in relation to a minimum term of imprisonment.
(3) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct apply in relation to a person serving such a minimum term.
(4) Any powers conferred by rules made under section 2 of the Criminal Justice Act 1960, as applied by section 4 of the Prisons Act 1970, to release temporarily a person serving a sentence of imprisonment shall not be exercised during a minimum term of imprisonment, unless for grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by that reason."
It is submitted on behalf of the applicant that section 27C of the 1964 Act is repugnant to the Constitution in a number of respects.
Counsel for the applicant submits that the offence for which the applicant was convicted, namely one pursuant to S.27A of the 1964 Act, covers a wide range of criminal wrongdoing of varying degrees of seriousness and without regard to personal circumstances. In those circumstances, it is submitted that S.27C operates as a blunt instrument which precludes consideration of the granting of temporary release to a particular category of convicted persons. While it is accepted that s.27C(4) contains a "saver" in relation to the denial of temporary release, the applicant submits that the saver, confined as it is to grave reasons of a humanitarian nature, is unduly narrow in that it relates only to family funerals or other short term exigencies.
It is submitted that the provisions of s.27C must be read in light of the presumptive mandatory sentences proscribed by S.27A, and that it is of relevance that similar presumptive mandatory sentencing regimes have been deemed to be unconstitutional and disproportionate in other jurisdictions. In this regard, counsel relies upon the decision of the Canadian Supreme Court in Rv Nur [2015] SCC 15 in which the court considered the proportionality of mandatory minimum sentences. The Court held that such sentences "function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range" and infringed the Canadian Charter of Rights and Freedoms. It is submitted that the reasoning of the Canadian court can be applied to S.27C of the 1964 Act, which the applicant contends also has a disproportionate impact on a particular category of prisoner.
The...
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