Man loses constitutional challenge to mandatory sentencing for firearms offences

Wayne Ellis, 35, had pleaded guilty at Dublin Circuit Criminal Court to possession of a firearm in suspicious circumstances as well as certain articles at Knocklyon Shopping Centre on 5 July 2012. Judge Mary Ellen Ring gave him a wholly suspended sentence on 26 May 2014.

However, the Court of Appeal found last year that his sentence was “unduly lenient” and he was led away to begin serving a five year term of imprisonment.

Mr Ellis’ lawyers challenged the constitutionality of the mandatory minimum sentencing provisions for firearms offences under section 27A (8) of the Firearms Act 1964 as substituted by section 59 of the Criminal Justice Act 2006.

Given that Ellis had relevant previous convictions for possession of firearms, the Circuit Court had no discretion to impose a sentence of less than five years.

The High Court refused to declare the section unconstitutional and the Court of Appeal stated it was in complete agreement yesterday.

Mr Ellis’ barrister, Caroline Biggs SC, submitted that the elimination or restriction of the courts’ sentencing discretion offends the notion of the separation of powers and also conflicts with the requirement that sentences imposed should be proportionate.

She said the constitutional dimension was brought into focus by the fact Ellis originally received a suspended sentence, considered just and proportionate by the sentencing judge in the Circuit Court at the time, and that the courts were in effect compelled by the Oireachtas to impose an actual sentence of a specified minimum duration.

It was also said there is no rational basis for isolating possession of firearms cases from other areas of criminality. What is the rational basis, Ms Biggs asked, for providing a mandatory minimum sentence for firearms offences and not for serious crimes of violence, serious sexual offences or other areas of grave criminality.

In the course of his judgment, Mr Justice Twomey referred to the fact Ireland decided that it’s police force should be unarmed and that provided a clear rationale for viewing firearms offences in a particularly serious light.

Mr Justice Twomey said he agreed that in a country where even the police do not routinely carry arms, the possession of firearms was particularly serious and that the legislature was quite entitled to treat it as such.

Mr Justice Birmingham said it seemed to him that the Oireachtas had a legitimate role in setting sentencing parameters. He said the Oireachtas was entitled to fix maximum penalties and there have been occasions when judges have expressed frustration about low maximums in certain cases.

By the same token, the Oireachtas can prescribe minimum sentences, Mr Justice Birmingham said.

He said the approach of the Oireachtas had been a very measured one. It has provided for a mandatory presumptive minimum in the case of certain firearms offences.

However, in general courts are permitted to depart from that minimum and impose lesser sentences where it identifies the fact that there are exceptional and specific circumstances relation to the offence of the offender.

Departures from the mandatory presumptive minimum were “far from uncommon”.

In the case of a second of subsequent offence, there was an actual mandatory minimum of five years. However, even here, the courts were free to impose a sentence of between the minimum and the maximum provided for of 14 years.

Mr Justice Birmingham said the Oireachtas was entitled to a considerable margin of appreciation when addressing sentencing policy. The threat to society posed by the unlawful use and possession of firearms was so serious that “the approach they have opted for cannot be seen as irrational or disproportionate”.

Mr Justice Birmingham said he was in no doubt that the High Court judge was correct in rejecting the constitutional challenge. Mr Justice Alan Mahon and Mr Justice John Hedigan said they agreed with the judgment.

Ruaidhrí Giblin, Ireland International News Agency Ltd.