A man who had his sentence reviewed from a wholly suspended sentence, to a five-year term of imprisonment pursuant s. 27A (8) of the Firearms Act 1964 has had his constitutional challenge to the legislation dismissed on appeal.
Delivering the judgment of the three-judge Court, Mr Justice Birmingham agreed with the reasoning of the High Court that the Oireachtas should be afforded a wide margin of appreciation when legislating for minimum and maximum sentencing.
Mr Wayne Ellis was charged with two offences arising out of events at Knocklyon Shopping Centre in July 2012.
He was charged with the offence of possession of a sawn off shotgun contrary to s. 27A(1) of the Firearms Act 1964 and also charged with an offence contrary to s. 15(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001 in relation to the possession of a sledgehammer, a plastic bottle containing petrol, and socks with the intention that they be used in connection with an offence.
At a sentence hearing in Dublin Circuit Court, it was heard that the appellant had 26 previous convictions – two of which were for carrying a firearm with criminal intent contrary to s. 27B of the Firearms Act 1964
In May 2014, a sentence of five years imprisonment in respect of the offence contrary to s. 27A(1) of the Firearms Act 1964 was imposed but suspended in its entirety; and a concurrent three-year suspended sentence was imposed in respect of the s. 15(1) Criminal Justice (Theft and Fraud Offences) Act 2001.
Thereafter, the Director of Public Prosecutions sought a review of the sentence on grounds of undue leniency.
Justice Birmingham explained that before the review application came on for hearing, the Court of Appeal delivered the decision in DPP v. Prenderville  IECA 33 in which it was held that the wording of s. 27A(8) of the Firearms Act 1964, i.e. “a term of imprisonment of not less than five years as the minimum term of imprisonment to be served”, required that a minimum of five years imprisonment must actually be imposed as distinct from imposed and suspended.
In July 2016, the Court of Appeal delivered judgment in respect of the undue leniency review and concluded that the trial judge had not been entitled to suspend any part of the five-year sentence imposed on the firearms offence and thus proceeded to impose a term of five years imprisonment.
In essence the situation was, given that Mr. Ellis had relevant previous convictions for possession of firearms, that the Court had no discretion to impose a sentence of less than five years imprisonment to be served.
It was submitted on behalf of the appellant that the effect of the sentencing provisions of the Firearms Act 1964 (as inserted by s. 59 of the Criminal Justice Act 2006) was, in the case of persons appearing before the court with relevant prior convictions, to impermissibly fetter the discretion of a sentencing court and to do so in a manner that offended the Constitution.
Further, it was submitted that the elimination or restriction of sentencing discretion offends the notion of the separation of powers, and conflicts with the requirement that sentences imposed should be proportionate.
Justice Birmingham considered the cases of Deaton v. Attorney General  1 IR 170; Osmanovic v. Director of Public Prosecutions  3 IR 504; Lynch and Whelan v. Minister for Justice  1 IR 1; and Gilligan v. Ireland  2 IR 745
Justice Birmingham stated that the relevant question was “what is the rational basis for providing a mandatory presumptive minimum in the case of firearms offences and an absolute minimum in the case of second or subsequent offences for firearms and not doing it for serious crimes of violence, serious sexual offences or other areas of very grave criminality? “
The High Court judge referred to the fact that Ireland decided that its police force should be unarmed as providing a clear rationale for viewing firearms offences in a particularly serious light.
Agreeing with this rationale, Justice Birmingham stated that the legislature was entitled to treat this offence seriously.
Furthermore, the Oireachtas has a legitimate role in setting sentencing parameters, and is entitled to fix minimum and maximum penalties.
Justice Birmingham was satisfied that the Oireachtas should be entitled to a considerable margin of appreciation when addressing sentencing policy.
In relation to the present case, Justice Birmingham stated that the threat to society posed by the unlawful use and possession of firearms was so serious that the approach the Oireachtas opted for could not be seen as irrational or disproportionate.
Dismissing the appeal, Justice Birmingham stated that he was “in no doubt that the High Court judge was correct in rejecting the constitutional challenge”.
- by Seosamh Gráinséir for Irish Legal News