Dáil Éireann - Volume 459 - 14 December, 1995

Ceisteanna—Questions. Oral Answers. - Sentencing Policy.

[1770] 1. Mr. O'Donoghue asked the Minister for Justice the plans, if any, she has to introduce legislation to permit judges to give maximum sentences, even in circumstances where a guilty plea is entered in suitable cases; if so, when; and if she will make a statement on the matter. [18915/95]

50. Mr. Killeen asked the Minister for Justice if she intends to introduce legislation to provide for minimum sentencing in cases where recidivist offenders are convicted of serious sexual offences and are likely to reoffend if released; and if she will make a statement on the matter. [18956/95]

118. Mr. Callely asked the Minister for Justice her views on recent concerns expressed by a court judge that he was restricted by law in the sentence which he could impose in a sex abuse case; the measures, if any, she proposes to take to address this matter; and if she will make a statement on the matter. [19011/95]

Minister for Justice (Mrs. Owen): I propose to take Questions Nos. 1, 50 and 118 together.

These questions arise from the judgment of the Central Criminal Court of 5 December last in the case of the DPP v. JR In that case Mr. Justice Carney, although inclined to impose a life sentence, considered that he was precluded from doing so by superior court judgments which obliged him to reduce the sentence to take account of a guilty plea. This was a particularly horrific case involving rape and other heinous sexual crimes against young people ranging in age from four to 14 years.

The accused pleaded guilty to ten counts of rape, five counts of unlawful carnal knowledge, seven counts of indecent assault and five counts of sexual [1771] assault. The accused was sentenced to 15 years for the rape offences, 15 years' penal servitude for the unlawful carnal knowledge offences and six years and four years' imprisonment, respectively, for the indecent and sexual assault offences, all sentences to run concurrently.

Mr. Justice Carney said he would have wished to have been free to consider the imposition of a life sentence in this case. While the maximum statutory penalty in respect of many of the counts in the indictment was either imprisonment or penal servitude for life, it was clear from the decisions of courts binding on him that this sentence was not open to him in this case, particularly in the light of the accused's plea of guilty.

Mr. Justice Carney said he would have wished to consider a life sentence for a number of specified reasons, including the capacity of the Minister's expert advisers to evaluate when and if a release would be safe from the standpoint of the community in general and its children in particular.

The judge quoted at some length from a number of court decisions. In the first such decision, the DPP v. James Jackson 1993, Hederman J. said that preventive detention was not known to our judicial system and in an apparent reference to the evaluation by the authorities of the fitness of the persons for release having regard to the safety of the community, he said that sentencing policy was exclusively a matter for the Judiciary and not for the Executive. In the second judgment G v. DPP 1993 Finlay C.J. concluded that a life sentence should be reduced to determinate sentence to mark and give effect to the mitigating factor arising from the admission and plea of guilty by the accused at an early stage.

The House will appreciate that it would be inappropriate for me to comment on a judicial decision in any particular case and I cannot comment on the sentencing decision in this case.

It is of course my function to ensure [1772] that the law offers the maximum protection to society against the criminal. Accordingly if, having given this judgment the detailed examination it requires, I am satisfied there are deficiencies in the law and that it needs to be changed for the good of society, and in the interests of the victim and, in particular, children, I will not be slow to bring forward appropriate legislative proposals.

The issues which this judgment raises are serious and complex and require detailed examination and analysis. That examination must take account of the need for maximum protection of our community and our children. It must also take account of the victims of rape and other sexual offences who are spared the trauma of giving painful evidence in court when an accused pleads guilty in the expectation of a reduced sentence.

I am conscious of the fact that sentencing guidelines have not been laid down by the Oireachtas or to any significant extent by the courts. The solution to the issues raised by Mr. Justice Carney's judgment may more appropriately lie in sentencing guidelines to assist the courts in imposing appropriate and consistent sentences.

The question of sentencing guidelines is being examined by the Law Reform Commission in its review of sentencing policy. The commission has already published a comprehensive discussion document on that topic which runs to more than 400 pages and deals with a wide range of issues including such matters as aggravating and mitigating factors and maximum, minimum and mandatory sentencing. I understand that the commission's final report will be published early next year and I will examine it immediately it is available.

I reiterate my assurance that, following a detailed examination of Mr. Justice Carney's judgment which clearly raises the question of a guilty plea and whether it should at all times lead to benefit to the convicted person, I will not be slow to bring forward any legislative proposals which I consider are [1773] necessary to offer the maximum protection to society against sexual and other serious criminal offences.

Mr. O'Donoghue: I thank the Minister for her reply. Will she accept that as a court must take into account the plea of guilty when handing down a sentence and under the Constitution our law cannot provide for preventive detention, the only kind of detention that would be effective in cases of horrific sexual assault, rape and so on is a mandatory life sentence? Even though an individual who is given a determinate sentence of a number of years is likely to reoffend, he must be released into society. Will the Minister agree that the only way to adequately protect society in cases as horrific as the recent one in which Mr. Justice Carney handed down sentence is to provide for a life sentence so that the Department's experts can assure the Government prior to the release of such offenders that they are not likely to reoffend? If they are likely to reoffend they should be detained until such time as the Government is satisfied they will not.

Mrs. Owen: I take it the Deputy is asking if I would consider introducing mandatory sentences, particularly for serious crime. This is not a straightforward matter. As I stated in my reply, Mr. Justice Carney indicated that the plea of guilty was the reason he could not impose a life sentence in the recent case. The judge would have had the freedom to impose a life sentence for the crimes committed by the accused if he had not pleaded guilty because some of the offences he committed carry a maximum sentence of life. The accused pleaded guilty and the judge quoted two previous cases.

The issue of pleading guilty and mitigation of sentence applies to more than serious sexual offences. Many concerns have been expressed about introducing mandatory sentences. In the case of sexual offences, if the accused pleads guilty the victim will not be subjected to questioning in the court and many people, [1774] including the chairperson of the Rape Crisis Centre, have highlighted the importance of protecting in law the victims of sexual offences from exposure to difficult questioning in court.

This is a complex matter which will come up again for discussion when the Law Reform Commission has completed its study of sentencing policy. However, I do not think it is the answer although I will introduce amending legislation if it is found necessary to do so having considered previous court cases in which a guilty plea was entered.

Mr. O'Donoghue: Does the Minister accept that in any assessment of the matter the trauma suffered by the victims in having to go through a trial will have to be balanced against their fear that the individual in question may be released after a number of years and is likely to reoffend? The fears of potential victims in this respect should also be taken into account. The only way to adequately protect society from habitual paedophiles is to provide for a mandatory life sentence. The Minister will have to give this proposal favourable consideration.

Mrs. Owen: It is not the policy of the Department of Justice to grant early release to sex offenders. I cannot say what a future Minister might do in ten or 11 years time when the case of a person sentenced to a term of imprisonment of 15 years comes up for review. A new programme for sex offenders under which consideration may be given to this matter is being introduced. The Deputy may take it, however, that such offenders will serve the 15 years unless a change is made.