Ellis v Minister for Justice and Equality

JurisdictionIreland
CourtSupreme Court
JudgeMs. Justice Finlay,Mr Justice Peter Charleton
Judgment Date15 May 2019
Neutral Citation[2019] IESC 30
Docket Number[Appeal No: 2017/172] [2019] IESC 030 Court of Appeal record number: 2016 no 337 [2017] IECA 237 High Court record number: 2015 no 4533P [2016] IEHC 234,[S.C. No. 172 of 2017]
Date15 May 2019

[2019] IESC 30

An Chúirt Uachtarach

THE SUPREME COURT

Finlay Geoghegan J.

Charleton J.

McKechnie J.

MacMenamin J.

Charleton J.

O'Malley Iseult J.

Finlay Geoghegan J.

[Appeal No: 2017/172]

Supreme Court appeal number: S:AP:IE: 2017: 000172

[2019] IESC 030

Court of Appeal record number: 2016 no 337

[2017] IECA 237

High Court record number: 2015 no 4533P

[2016] IEHC 234

Between/
Wayne Ellis
Plaintiff/Appellant
and
The Minister for Justice and Equality, Ireland

and

The Attorney General
Defendants/Respondents

Constitutionality – Separation of powers – Firearms Act 1964 s. 27A(8) – Appellant seeking a declaration that s. 27A(8) of the Firearms Act 1964 is repugnant to the Constitution – Whether the sub-section is an impermissible encroachment on the exclusive jurisdiction of the courts

Facts: The appellant, Mr Ellis, challenged the constitutional validity of s. 27A(8) of the Firearms Act 1964, as substituted by s. 59 of the Criminal Justice Act 2006 and amended by s. 38 of the Criminal Justice Act 2007, in the High Court, Court of Appeal and Supreme Court. The challenge was essentially based upon two arguments: first, that the sub-section is an impermissible encroachment on the exclusive jurisdiction of the courts under Article 34 and Article 38.1 of the Constitution in sentencing a person convicted of an offence; and second, it was contended that even if the Oireachtas may legislate for such a mandatory minimum sentence, any such statutory provision must pass proportionality tests set out in Heaney v Ireland [1996] 1 IR 580 and s. 27A(8) of the 1964 Act, as amended, does not do so.

Held by the Supreme Court (Finlay Geoghegan J) that in enacting s. 27A(8) of the 1964 Act, as amended, the Oireachtas had impermissibly crossed the divide in the constitutional separation of powers and sought to determine the minimum penalty which must be imposed by a court, not on all persons convicted of an offence contrary to s. 27A(1), but only on a limited group of such offenders identified by one particular characteristic, namely that such person has previously committed one or more of the listed offences.

Finlay Geoghegan J held that she would allow the appeal and grant a declaration that s. 27A(8) of the 1964 Act, as amended, is repugnant to the Constitution. Charleton J also handed down a judgment.

Appeal allowed.

Judgment of Ms. Justice Finlay Geoghegan delivered on the 15 th day of May, 2018.
1

This appeal raises the important and difficult question of the constitutional boundary between the respective roles of the Oireachtas and the Courts in deciding what is the appropriate sentence to be served by a person convicted of an offence.

2

The issue arises in relation to a challenge brought by the appellant to the constitutional validity of s. 27A(8) of the Firearms Act 1964, as substituted by s. 59 of the Criminal Justice Act 2006 and amended by s. 38 of the Criminal Justice Act 2007 (‘the 1964 Act, as amended’).

Factual and Procedural Background
3

On 7 July 2012, the appellant was charged with an offence of possession of a sawn off shotgun at Knocklyon Shopping Centre on 5 July 2012, contrary to s. 27A(1) of the 1964 Act, as amended.

4

On 13 November 2012, he was charged with the offence of possession of a sledgehammer, 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 (‘the 2001 Act’).

5

On 8 April 2013, the appellant pleaded guilty to both offences. At the sentencing hearing on 7 May 2013, Her Honour Judge Ring (as she then was) heard evidence of, inter alia, 26 previous convictions, including an offence of carrying a firearm with criminal intent contrary to s. 27B of the 1964 Act, as amended. He had been sentenced in respect of that conviction on 7 July 2009 to a period of 7 years imprisonment, with 2 years suspended.

6

The Circuit Judge adjourned the sentencing hearing initially to 29 July 2013, to obtain reports in relation to the appellant and again three further times before finalising the sentence. At the time, the appellant was addressing his drug problems in Coolmine Drug Treatment Centre. On each adjournment, evidence was given that the appellant was continuing to progress his drug rehabilitation successfully and had not come to adverse Garda attention. Ultimately, on 26 May 2014, the Circuit Judge imposed, in respect of the offence contrary to s. 27A(1) of the 1964 Act, as amended, a five year sentence and fully suspended the same. She also imposed a fully suspended three year sentence in respect of the offence contrary to the 2001 Act.

7

The Director of Public Prosecutions sought a review of both sentences from the Court of Appeal, pursuant to s. 2 of the Criminal Justice Act 1993, on grounds of undue leniency. It appears from the subsequent judgment of the Court of Appeal (Sheehan, Mahon and Edwards JJ.) delivered by Sheehan J. on 25 July 2016: D.P.P. v. Ellis [2016] IECA 358, that the Director advanced a number of grounds, but the principal argument focused on whether or not the Circuit Judge was entitled to suspend the sentence of five years imposed on the first count, having regard to s. 27A(8) of the 1964 Act, as amended, and the fact that the appellant had a previous relevant conviction for a firearms offence.

8

The hearing of the Director's above appeal appears to have been adjourned following the commencement by the appellant of these plenary proceedings challenging the constitutionality of s. 27A(8) of the 1964 Act, as amended. That subsection is central to this appeal and must be considered in its context of the entirety of s. 27A, which provides:-

‘(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.

9

The challenge to the constitutionality of s. 27A(8) of the 1964 Act, as amended, was unsuccessful in the...

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