Ellis v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 09 May 2016
• Neutral Citation: [2016] IEHC 234
• Court: High Court
• Docket Number: [2015 No. 4533P]
• Date: 09 May 2016

BETWEEN:

WAYNE ELLIS

APPLICANT

-AND-

THE MINISTER FOR JUSTICE AND EQUALITY,

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2016] IEHC 234

[2015 No. 4533P]

THE HIGH COURT

Constitution – Crime & Sentencing – S. 27A (8) of the Firearms Act, 1964 – European Convention on Human Rights Act, 2003 – Whether prescription of statutory mandatory sentences an encroachment of judicial functions

Facts: The applicant sought declarations that s. 27A (8) of the Firearms Act, 1964 was unconstitutional and that the said s. 27A (8) was incompatible with s. 5(1) of the European Convention on Human Rights Act, 2003. The applicant who had been convicted and imprisoned for a period of five years for an offence contrary to s. 27A(1) of the 1964 Act alleged that the removal of discretion of the sentencing judge under s. 27A (8) of the Act of 1964 in passing the sentence by prescribing the statutory minimum mandatory sentencing regime was contrary to the principle of administration of justice.

Mr. Justice Twomey refused to grant the desired declaratory reliefs to the applicant. The Court observed that it was the role of the legislature to create offences and the judiciary was assigned with the task of applying the law as it was. The Court held that prescription of minimum and maximum penalty was the sole function of the legislature and the judiciary was concerned with the application and interpretation of the relevant provisions. The Court opined that the prescription of the minimum mandatory sentence under s. 27A (8) of the Act of 1964 to the persons above 18 years of age and repeated offenders who were found guilty of a firearms offence was not unconstitutional as the said provision was enacted for the benefit of the public in order to curb gun-crime.

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...