Supreme Court declares Firearms Act mandatory minimum sentence unconstitutional as it violates separation of powers.

THE SUPREME COURT

[Appeal No: 2017/172]

McKechnie J.

MacMenamin J.

Charleton J.

O’Malley J.

Finlay Geoghegan J.

Between/

Wayne Ellis

Plaintiff/Appellant

and

The Minister for Justice and Equality, Ireland and the Attorney General

Defendants/Respondents

Judgment of Ms. Justice Finlay Geoghegan delivered on the 15th day of May, 2019.

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 High Court, for the

reasons set out in a judgment delivered by Twomey J. on 9 May 2016: Ellis v. Minister for Justice and Equality & ors. [2016] IEHC

234. The High Court also refused a declaration of incompatibility of s. 27A(8) of the 1964 Act with the European Convention on Human

Rights, pursuant to s. 5(1) of the European Convention on Human Rights Act 2003.

10. A judgment of relevance to the Director’s appeal in D.P.P. v Ellis had been given by the Court of Appeal on 23 January 2015: D.P.P.

v Prenderville [2015] IECA 33. That was also an appeal against leniency in respect of a sentence imposed for an offence contrary to

s. 27A(1) of the 1964 Act, as amended, but as it was a first offence, the statutory provisions in relation the sentence to be imposed

were those in ss. 27A(4) - (7).

11. The relevance of the judgment in Prenderville to the appeal of the Director in the appellant’s criminal proceedings may be

explained by simply recording that one of the sentences imposed on Mr. Prenderville in respect of the offence contrary to s. 27A was

six years imprisonment with the last 18 months suspended. The issue relevant to these proceedings was the construction by the

Court of Appeal of the phrase “not less than five years as the minimum term of imprisonment to be served by the person” in s. 27A(4).

That provision was of course, in the case of Mr. Prenderville, subject to the provisions in subss. (5) to (7), which permitted the Court

to reduce the period below the minimum sentence specified in subs. (4).

12. On the interpretation issue, the Court of Appeal stated at paras. 15 and 16:-

“15. In the Court's view, the plain and ordinary language of the section makes it very clear that, unless there are

exceptional and specific circumstances present which would make a sentence of five years or more unjust, the

court is required to impose a sentence of five years as a minimum to be actually served in custody. Only if there

are exceptional and specific circumstances identified is it possible to suspend all or part of the sentence so as to

reduce the sentence to be served in custody below five years.

16. If the section had been couched in terms of "the court shall impose a five years sentence or shall impose a

sentence of five years imprisonment" there might be an argument to be made, but the reference to specifying a

term of imprisonment of not less than five years as the minimum term of imprisonment to be served puts the

matter beyond doubt. An interpretation that would permit a suspension of circumstances of a sentence in the

absence of exceptional and specific circumstances would be to set the clearly expressed intentions of the

Oireachtas at nought.”

13. On the facts of Prenderville, the Court of Appeal concluded:-

“20. In the present case, the learned trial judge, having found there were no exceptional and specific

circumstances present making it unjust to impose a sentence of not less than five years, erred in suspending a

portion of the sentence so as to reduce the effective sentence, the sentence to be served below this statutory

minimum. That error requires the intervention of this Court.”

14. In the Director’s appeal in the criminal proceedings relating to the appellant, the Court of Appeal, following Prenderville,

approached the statutory minimum term imposed by s. 27A(8) of the 1964 Act as requiring as a starting point a minimum sentence of

five years, with no ability to suspend any part thereof. Its conclusion as to what was done by the Circuit Judge, what was

impermissible and what the Court of Appeal should do in relation to offence contrary to s. 27A(1) is set out at paras. 15 – 19 of the

judgment:-

“15. At the sentence hearing in the Circuit Court the appellant was 33 years of age and had 26 previous

convictions including relevant previous convictions for firearms offences in 2003 and 2009. The sentencing judge

believed at the time of sentence that she was entitled to suspend the mandatory minimum five year sentence

which the respondent was liable to following his earlier firearms conviction. The appellant had a young child and

partner and by the 26th May, 2014, when sentence was imposed in this case he had been drug free for a period of

two years. There had been evidence before the court that the appellant had been a heroin addict, had been

abusing illegal substances since the age of thirteen, and had spent most of his 20's in prison. The fact that the

appellant had been drug free for a period of two years was something which seriously influenced the sentencing

judge. When finalising sentence she stated as follows:-

‘We are now at a period nearly two years after the date of the offence and in light of his prior history it is

significantly to his credit that there is no information of any offending in the interim. … As indicated Mr. Ellis has

remained in the community without reoffending. He has used all the services provided to him and the testimonials

before the court confirm that not only did he participate, but he participated well with the various agencies that

he used in the interim so in that regard I will suspend the operation of the sentence of five years imprisonment for

a period of five years.’

16. The principle issue before us in this appeal was whether or not the Circuit Court judge was entitled to depart

from the minimum five year sentence given the evidence before her of previous convictions of firearms offences.

That matter has now been settled. The trial judge was not entitled to suspend any part of the five year sentence

imposed on the firearms offence and we must approach sentence on the basis that the starting point is a

sentence of five years imprisonment. We allowed the appeal to be adjourned to enable proceedings to be taken in

the High Court by the respondent to test the constitutionality of the relevant legislation. The appellant did so and

was unsuccessful, the judgment of the High Court being delivered on the 9th day of May 2016, by Twomey J. in

which he upheld the constitutionality of the mandatory five year sentence for a second firearms offence.

17. We are satisfied therefore that the trial judge was not entitled to suspend any part of the five year sentence

imposed on the firearms offence and we must approach sentence on the basis that the starting point is a

sentence of five years.

18. This respondent has made a significant breakthrough in his life. While we were told at the conclusion of the oral

hearing at this appeal that he may have committed an offence since his release on bail, it is of significance that

there appears to be no more than one slip up. He appears to have made huge strides in overcoming his addiction.

The court is satisfied that there is no need to impose any sentence in excess of the mandatory minimum sentence

of five years imprisonment on the five year firearms charge.

19. The court therefore will accede to the application by the Director of Public Prosecutions for a review of this

sentence. We will set aside the original sentence on the firearms charge and impose in lieu thereof a sentence of

five years imprisonment from today. Credit to be given for the time spent in custody on this matter.”

15. In relation to the second count, the Court of Appeal upheld the suspended sentence imposed by the trial judge for the reasons

set out at para. 20. Its reasoning is of some relevance to the consideration of the constitutional issues arising in this appeal. They

stated:-

“20. … The previous convictions of the appellant are such that in normal circumstances an immediate custodial

sentence was to be expected. The fact that an experienced trial judge decided that this was one of those unusual

cases where the public interest was best served by a suspended sentence arose in circumstances where there

was evidence before her that the appellant had struggled successfully to rehabilitate and had become drug free. In

our view the trial judge marked the huge significance of this by effectively giving the appellant an opportunity to

further prove he could become a productive member of society albeit with the inducement of a suspended

sentence hanging over him. This occasional imposition of a suspended sentence in circumstances where one might

normally expect immediate imprisonment has always been part of Irish sentencing practice. O'Malley, in

Sentencing Law and Practice (2nd Ed.) at para. 6.51 says under the heading ‘Last Chance Principle’

‘Some authority exists for the proposition that a person with a criminal record and perhaps a lengthy one should

be given a last chance if there are indications that he is now intent on relinquishing a criminal way of life. This was

clearly the view of the Court of Criminal Appeal in People (DPP) v. Jennings, where the applicant was given a two

and a half year prison sentence, with provision for review for his role in a robbery. Reducing his sentence the court

per O'Flaherty J. said:

“But there comes a time in everyone's life and it is a principle of sentencing as well, where the

court detects that it may be make or break time. If he is given this his last chance perhaps, he

will hopefully take it and rehabilitee himself, get employment and become a useful member of

society.”

(Ex tempore, Court of Criminal Appeal 15th February, 1999)’”

16. In summary, at the time of commencement of these proceedings challenging the constitutionality of s. 27A(8) of the 1964 Act, as

amended, the appellant was a person in respect of whom an experienced Circuit Judge, having adjourned sentencing on several

occasions, imposed as the appropriate sentence for the appellant a suspended five year sentence. This sentence was decided in

application of principles not criticised by the Court of Appeal, taking into account what the Circuit Judge then understood (in error) to

be permissible, having regard to the statutorily imposed minimum five year sentence. That was the position at the time of the High

Court hearing and judgment. By the time of the appeal hearing and judgment in the Court of Appeal in these plenary proceedings, the

appellant was serving a five year custodial sentence imposed by the Court of Appeal as being the mandatory minimum sentence

imposed by s. 27(8) of the 1964 Act, as amended, as properly interpreted.

17. Whilst it is clear that the Circuit Judge considered the appropriate sentence for the offence of which he was convicted to be a

five year suspended sentence, it is not possible for this Court to ascertain from the judgment of the Court of Appeal in the criminal

proceedings whether, absent the mandatory minimum term of five years imposed by s. 27A(8), it would have considered that the

appropriate sentence for the appellant to be something less than a five year custodial sentence. The Court has, however, noted that

the Court of Appeal upheld the approach of the Circuit Judge to the suspension of the full three years of the sentence in respect of

the other offence which was to run concurrently and her application of what is referred to as the “last chance principle” to the then

circumstances of the appellant in light of his progressing drug rehabilitation.

Plenary Proceedings

18. The challenge made by the appellant to the constitutionality of s. 27A(8) of the 1964 Act, as amended, in the High Court, Court

of Appeal and now this Court, is 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. Secondly, it is 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 I.R. 580 and s. 27A(8) of the 1964 Act, as

amended, does not do so. The focus of the submissions may have differed slightly in each court.

19. In the High Court, Twomey J., having referred to the judgments of this Court in Deaton v. Attorney General [1963] I.R. 170

(“Deaton”) and Lynch and Whelan v. Minister for Justice [2012] 1 I.R. 1 (“Lynch and Whelan”), identified at para. 18 the following as

the principles to be extracted:-

“18. The following principles can be extracted from these two decisions to assist this Court in considering the

constitutionality of s. 27A(8) of the 1964 Act:-

i. It is permissible as a matter of principle for the Oireachtas to impose a fixed or mandatory penalty for a

particular offence.

ii. The mandatory penalty must apply to all citizens.

iii. There must be a rational relationship between the fixed penalty and the requirements of justice.”

20. Applying those principles to s. 27A(8) and the issues in the proceedings, he concluded that as a matter of principle, it was

consistent with the Constitution for the Oireachtas to enact laws which provide for mandatory minimum sentences which cannot be

suspended by a sentencing judge. On the second question, he considered that the mandatory minimum penalty under s. 27A(8)

applied to all citizens, in the sense intended by Ó’Dálaigh C.J. in Deaton in the passages considered below. Finally, he concluded that

there was a rational relationship between the requirements of justice and the mandatory minimum penalty in s. 27A(8) in the light of

what he termed “the serious nature of the offences at issue”.

21. In the Court of Appeal, Birmingham J. (Mahon and Hedigan JJ. concurring); [2017] IECA 237 indicated at the outset of the

judgment that he was “in complete agreement with the conclusions arrived at by Twomey J. and indeed his reasoning”. Birmingham J.

took what I would respectfully describe as a broad approach to the role of the Oireachtas in relation to legislating for fixed or minimum

sentences. Again, reliance was placed upon Deaton and Lynch and Whelan and also on Gilligan v. Ireland [2013] IESC 45, [2013] 2

I.R. 450. His conclusion was that the Oireachtas can prescribe minimum sentences. Further that it is entitled to “a considerable

margin of appreciation when addressing sentencing policy” and that the particular approach in the enactment of s. 27A(8) of the 1964

Act, as amended, cannot be seen as “irrational or disproportionate”.

The Law

22. The submissions of the appellant and respondents must be considered in the context of the relevant existing law starting with the

constitutional provisions at issue, the law in relation to sentencing and the case law of this Court in relation to the respective roles of

the Oireachtas and the Courts in deciding the appropriate sentence to be imposed on a convicted person.

23. Article 15.2.1º of the Constitution vests in the Oireachtas the “sole and exclusive power of making laws for the State”. Article

34.1, insofar as relevant, states that “justice shall be administered in courts established by law by judges appointed in the manner

provided in this Constitution...”. Article 38.1 provides that “no person shall be tried on any criminal charge save in due course of law”.

24. The appellant relies on both Article 34.1 and Article 38.1 to submit that the appellant has a constitutional right, as part of his

right to a trial in due course of law, when convicted of an offence, to have the appropriate sentence both determined and imposed on

him by a judge sitting in court. In this connection, reliance was placed upon the summary of the general sentencing principles in the

judgment of the Court of Criminal Appeal delivered by McKechnie J. in D.P.P. v. Begley [2013] 2 I.R. 188 at paras. 29 – 36:

“[29] The essential principles of sentencing law are firmly established as part of our criminal jurisprudence and have

been consistently applied, as a matter of course, for many years. At the level of generality it can be said that all

sentences will result from a consideration of the gravity of the offence and of the circumstances in which it has been

committed: from an appraisal of the personal situation of the accused person and from the assignment, to all mitigating

factors, of a fitting value. Such an exercise should result in the sentence being proportionate to the crime and the

person: if the result is otherwise, it must be adjusted so that at the end of the process an appropriate sentence is

imposed.

[30] There are many elements involved in sentencing both at a general and specific level. Each has its own justifying

reason. Some evidently are more influential than others: some may apply in isolation whilst others are best suited to

have a cumulative effect. Not all will arise in any given case but all are part of an overall armoury, designed to deal with

a multitude of different circumstances, relative to both crime and criminal, which when properly used, will result in the

imposition of a just sentence in all circumstances.

[31] A judgment of some importance in this regard, which expressly directed the court's attention, not only to the crime

but also to the offender, is that of Walsh J. in The People (Attorney General) v. O'Driscoll (1972) 1 Frewen 351 , where it

was stated at p. 359:-

“The objects of passing sentence are not merely to deter the particular criminal from committing a crime again

but to induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would

be best served if the criminal could be induced to take the latter course. It is therefore the duty of the courts to

pass what are the appropriate sentences in each case having regard to the particular circumstances of that case

– not only in regard to the particular crime but in regard to the particular criminal” (emphasis added).

[32] This requirement also has a constitutional basis being that as identified by Henchy J. in The State (Healy) v.

Donoghue [1976] I.R. 325 at p. 353:-

“When the Constitution states that ‘no person shall be tried on any criminal charge save in due course of law’—

(Article 38. s. 1), that ‘the State guarantees in its laws to respect, and, as far as practicable, by its laws to

defend and vindicate the personal rights of the citizen’—(Article 40, s. 3, sub-s. 1), that ‘the State shall, in

particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the

life, person, good name, and property rights of every citizen’—(Article 40, s. 3, sub-s. 2), and that ‘no citizen shall

be deprived of his personal liberty save in accordance with law’—(Article 40, s. 4, sub-s. 1), it necessarily implies,

at the very least, a guarantee that a citizen shall not be deprived of his liberty as a result of a criminal trial

conducted in a manner, or in circumstances, calculated to shut him out from a reasonable opportunity of

establishing his innocence; or, where guilt has been established or admitted, of receiving a sentence appropriate

to his degree of guilt and his relevant personal circumstances” (emphasis added).

See also Denham J. in The People (Director of Public Prosecutions) v. M. [1994] 3 I.R. 306, at p. 316, as an

example of one of numerous subsequent cases that endorsed these principles.

[33] Consequently, the general position is not in doubt; therefore these guiding principles will permeate the views of all

courts when passing sentence on convicted persons.

[34] When called upon to apply such principles, the following passage at p. 104 from the judgment of Kearns J. when

speaking for the Supreme Court in The People (Director of Public Prosecutions) v. R.McC. [2007] IESC 47, [2008] 2 I.R.

92 succinctly captures what is the preferred if not the only approach in this regard, at p. 104:-

“[31] … This requires that any sentencing court should conduct a systematic analysis of the facts of the case,

assess the gravity of the offence, the point on the spectrum at which the particular offence or offences may lie,

the circumstances and character of the offender and the mitigating factors to be taken into account – all with a

view to arriving at a sentence which is both fair and proportionate.”

[35] The judge went on to say at para. 32 that “[t]he general approach outlined above was even more emphatically

endorsed in the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Kelly [2004]

IECCA 14 , [2005] 2 I.R. 321 . This above passage is well representative of the approach most favoured in dealing with

sentencing, but it is also important to bear in mind the following clarifying aspect of this view. Kearns J. added at

p.104:-

“[32] … [this] is not to say that every step in the sentencing process has to be particularised in some formulistic

or rigid way by the trial judge, but rather that the basis for the sentence imposed should be both apparent and

consistent with these principles.”

This court fully supports what is herein stated.

[36] Finally, in a general context, it is also appropriate to make reference to what was said in the The People (Director

of Public Prosecutions) v. M. [1994] 3 I.R. 306 at p. 315 where Egan J. said:-

“It must be remembered also that the reduction in mitigation is not always to be calculated in direct regard to the

maximum sentence applicable. One should look first at the range of penalties applicable to the offence and then

decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be

looked at and an appropriate reduction made.”

25. The appellant, in reliance upon the extract from the State (Healy) v. Donoghue [1976] I.R. 325, cited above by McKechnie J.,

contended that he has a constitutional right to receive from the court a sentence “appropriate to his degree of guilt and his relevant

personal circumstances”. It is submitted that the mandatory minimum sentence in s. 27A(8) of the 1964 Act, as amended, must

properly be considered to be a limitation of that right.

26. The judgment of this Court in Deaton has been considered and certain of the principles applied in a number of the subsequent

judgments. The judgment declaring s. 186 of the Customs (Consolidation) Act 1876 repugnant to the Constitution was delivered by

Ó’Dálaigh C.J. Section 186 of the 1876 Act purported to confer on the Revenue Commissioners the right to elect, on the hearing of a

criminal charge, the penalty to be imposed by the Court. In considering the judgment of the Court and its reasoning which has

subsequently been relied upon, it is of importance to note what the Court recorded at p.181 as being “common ground”, and also

what the opposing submissions and the dispute under consideration were. The Court recorded these at p.181 in the following

paragraph:-

“It is common ground that it is for the Legislature, when it creates an offence, to prescribe what punishment shall

attach to the commission of such offence. It is also common ground that the Legislature may for a particular offence

prescribe a single or fixed penalty, or a maximum penalty, or a minimum penalty, or alternative penalties, or a range of

penalties. Where a choice of penalty is prescribed by the Legislature, either by reference to alternatives or a range of

penalties, the choice of the penalty to be imposed in a particular case cannot, the appellant says, be committed to any

person or body not being a judge or Court. The selection of penalty, where the Legislature affords a choice, is, he

submits, part of the administration of justice. The respondent's contention, on the contrary, is that the selection of

penalty is not a judicial function or part of the administration of justice, but that it falls into the domain of administrative

or executive action and, accordingly, in the present case, that the power of the Revenue Commissioners to elect for a

higher penalty is constitutional. It was submitted that when the Legislature prescribes a fixed penalty it selects the

penalty for a particular case, and that this demonstrates that the selection of a penalty is not a judicial function, or part

of the administration of justice, or otherwise in the judicial domain.”

27. As appears, the Court was not being asked to consider in that case the entitlement of the Oireachtas to legislate for a mandatory

fixed or minimum penalty or the constitutional limitation on same. Rather, it appears broad propositions “that it is for the Legislature,

when it creates an offence, to prescribe what punishment shall attach to the commission of such offence” and “that the Legislature

may for a particular offence prescribe a single or fixed penalty, or a maximum penalty, or a minimum penalty, or alternative penalties,

or a range of penalties” were “common ground” between the parties. It was on such common ground, that the Court was required to

decide on the dispute between the parties as to whether it was consistent with the Constitution for legislation which provided for a

choice of penalties to permit the choice to be made by the Executive, or whether such choice had to be made by the courts. The

general statements of principle which were set out subsequently in the judgment of the Court must be considered having regard to

what was agreed and what was in dispute.

28. In considering the opposing arguments, the Court in Deaton divided the functions which a judge discharges in a criminal case

under three heads:-

(i) If sitting with a jury, presiding over the trial and directing the jury on matters of law or, in summary jurisdiction,

determining whether an accused is guilty or not guilty;

(ii) Selecting the sentence to be imposed; and

(iii) Imposing the sentence so selected.

29. It appears there was no dispute as to functions (i) and (iii) being exclusively within the judicial function.

30. The State, however, argued that by reason of the ability of the legislature to prescribe a fixed penalty, the selection of a

sentence is not exclusively a judicial function and accordingly, could be assigned to the Executive. That argument was rejected as

unsound, at p. 182:-

“In my opinion this argument is unsound. There is a clear distinction between the prescription of a fixed penalty and the

selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which

is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a

particular case. It is here that the logic of the respondents' argument breaks down. The Legislature does not prescribe

the penalty to be imposed in an individual citizen's case; it states the general rule, and the application of that rule is for

the Courts. If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must

bear the same punishment. But if the rule is stated by reference to a range of penalties to be chosen from according to

the circumstances of the particular case, then a choice or selection of penalty falls to be made. At that point the

matter has passed from the legislative domain. Traditionally, as I have said, this choice has lain with the Courts. Where

the Legislature has prescribed a range of penalties the individual citizen who has committed an offence is safeguarded

from the Executive's displeasure by the choice of penalty being in the determination of an independent judge. The

individual citizen needs the safeguard of the Courts in the assessment of punishment as much as on his trial for the

offence. The degree of punishment which a particular citizen is to undergo for an offence is a matter vitally affecting his

liberty; and it is inconceivable to my mind that a Constitution which is broadly based on the doctrine of the separation of

powers—and in this the Constitution of Saorstát Éireann and the Constitution of Ireland are at one—could have intended

to place in the hands of the Executive the power to select the punishment to be undergone by citizens.

…

In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be

committed to the hands of the Executive as Parliament purported to do in s. 186 of the Customs Consolidation Act,

1876.”

31. This passage requires careful consideration. I draw attention to three aspects; first, to what the Court understood to be “the

prescription of a fixed penalty”. This is “the statement of a general rule” such that “all citizens convicted of the offence must bear

the same punishment”. Second, to the clear distinction identified between the prescription by the Oireachtas of a fixed penalty (in

the sense used) and the application thereof and, if a choice is available, the selection of the penalty to be applied to a convicted

person, which is to be done by the Courts. Finally, to the conclusion that the “selection of punishment [for an individual citizen] is an

integral part of the administration of justice”, albeit that this was stated in the context of legislation which provided for a choice of

penalties by the Executive, which was considered impermissible. Nevertheless, it is important and repeated in subsequent judgments.

32. Deaton was considered by this Court in Osmanovic v. Director of Public Prosecutions [2006] 3 I.R. 504. That judgment concerned

a challenge to s. 186 of the Customs (Consolidation) Act 1876, as amended by s. 89(b) of the Finance Act 1997. It provides that the

penalty for conviction on indictment on charges of the illegal importation of goods is a fine of treble the value of the goods, including

the duty payable thereon, or of €12,700, whichever is the greater, or, at the discretion of the Court, imprisonment for a term not

exceeding five years, or both a fine and imprisonment.

33. The constitutional challenge in Osmanovic was based upon an argument that the fine was a fixed penalty contrary to the

principles of separation of powers. The applicant sought to rely upon Deaton. The challenge was rejected in part because the Court

considered that the section did not impose a fixed penalty, but rather provided for a choice of penalty between the fine, the amount

of which was prescribed, or imprisonment, or both. The Court at para. 26 stated:-

“26 There is clearly a multiple choice here. Even within the power to impose a prison term there is clearly the

implied power to suspend all or part of that term. The prison sentence whether custodial or suspended or partly

custodial and partly suspended may be the only sentence or may be combined with the fine. The selection is

entirely to be made by the court. There is no question, therefore, of either the legislature or the executive fixing

the punishment. Only the court exercising its judicial power does that. This court cannot accept that because

there is a legislative prescription in relation to the fine option there is a breach of the principle of separation of

powers. It is quite clear from the judgment of Ó Dálaigh C.J. in Deaton v. The Attorney General and the Revenue

Commissioners [1963] I.R. 170 that the Oireachtas does have powers to lay down general parameters within which

a sentence is to be imposed. There is no necessity in this judgment and indeed it would be wholly undesirable to

consider what the limits might be (if any) on the power of the Oireachtas to provide for either fixed sentences or

mandatory sentences. One could postulate extreme situations where the sentencing powers of judges were

removed altogether and every offence had a mandatory sentence. The constitutionality of such a law would

obviously be questionable. But it has always been accepted and indeed was accepted, in Deaton v. The Attorney

General and the Revenue Commissioners that, within reason at least, the Oireachtas has power to lay down those

parameters.”

34. Deaton received further consideration by the Court in Lynch and Whelan v. Minister for Justice [2012] 1 I.R. 1. Those two appeals

concerned a constitutional challenge to the mandatory life sentence for treason or murder provided for by s. 2 of the Criminal Justice

Act 1990 (“the 1990 Act”). The two plaintiffs had each been convicted of murder and it was in relation to the offence of murder that

the challenge was considered.

35. The Court rejected the constitutional challenge to s. 2 of the 1990 Act. The single judgment of the Court (in accordance with

what was then Article 34.4.5° of the Constitution) was delivered by Murray C.J. and initially set out at paras. 40 – 45 the context in

which, and reasons for which, the crime of murder has always been considered to be one of exceptional gravity, and summarised the

context in which the constitutional challenge required to be considered at paras. 45 and 46:-

“45. While it is undoubtedly the case that the crime of murder may be committed in a myriad of circumstances

and the degree of moral blameworthiness will vary accordingly, such as where it is committed in particular heinous

circumstances, nonetheless the crime itself, by its very nature, has always been considered at the highest level of

gravity among all forms of homicide or other crimes against the person, whatever the circumstances. Again, that

is the reason why the most serious of deterrents is provided by law.

46. It is in the foregoing context that the assertion by the plaintiffs that the Oireachtas, in providing that a

mandatory life sentence be imposed in respect of the offence of murder has usurped the powers of the judiciary

to an extent incompatible with the Constitution, falls to be considered.”

36. The Court then referred to Deaton and, having quoted relevant extracts from that judgment, including that cited above, then set

out its conclusion at paras. 49 – 52:-

“49. The court is satisfied, as O Dálaigh C.J. explained in that case, that the Oireachtas in the exercise of its

legislative powers may choose in particular cases to impose a fixed or mandatory penalty for a particular offence.

That is not to say that legislation which imposed a fixed penalty could not have its compatibility with the

Constitution called in question if there was no rational relationship between the penalty and the requirements of

justice with regard to the punishment of the offence specified.

50. In this case however s. 2 of the Act of 1990 applies to the crime of murder. For the reasons already indicated

that crime has always and legitimately been considered to be one of profound and exceptional gravity and, in the

court's view, one for which the State is entitled to impose generally a punishment of the highest level which the

law permits. Given that it is an offence which is committed when, and only when, a person is unlawfully killed and

that the person so doing intended to kill or cause serious injury, it is one which can therefore properly be

differentiated from all other crimes, including manslaughter.

51. The court is of the view that the trial judge was correct when she concluded at p. 168 "… there can be

nothing offensive in the Oireachtas promoting the respect for life by concluding that any murder even at the

lowest end of the scale, is so abhorrent and offensive to society that it merits a mandatory life sentence …"

52. Accordingly the court concludes that s. 2 of the Act of 1990 in requiring the imposition of a mandatory life

sentence for murder is not repugnant to the Constitution.”

37. The Court in Lynch & Whelan appears to have been referring to and accepting the constitutional entitlement of the Oireachtas to

legislate for a fixed penalty for a particular offence in the same sense as that term was used by O Dálaigh C.J. in Deaton namely, a

penalty that would apply to all persons who commit the crime, irrespective of the circumstances in which it was committed or the

personal circumstances of the convicted person.

38. The Court then considered a separate argument made by the plaintiffs that the mandatory sentence in s. 2 of the 1990 Act

deprives a trial judge imposing a sentence which, as the plaintiffs put it in that case, is in accordance with the constitutional doctrine

of proportionality. The Court acknowledged that in some instances reference is made to a constitutional principle of proportionality in

sentencing principles, but distinguished between the required consideration of proportionality in sentencing and the public law

constitutional principle of proportionality in cases such as Heaney v. Ireland [1994] 3 I.R. 593. In the light of its conclusion that it

was constitutionally permissible for the Oireachtas to legislate for a mandatory penalty of life imprisonment for crime of murder, the

Court rejected the submission that the Constitution required the courts to be permitted to impose a different sentence which a judge

might consider to be proportionate to the particular crime committed by the particular person.

39. However, in its judgment in Lynch & Whelan, the Court has made clear that the reason for which the fixing of the penalty of life

imprisonment for murder by the Oireachtas is constitutionally permissible is by reason of the fact that it is an offence of exceptional

gravity and, as stated at para. 45, “has always been considered at the highest level of gravity amongst all forms of homicide or other

crimes against the person, whatever the circumstances”. Further, it appears from para. 49 that the Court concluded that there was a

rational relationship between the penalty prescribed and the requirements of justice with regard to the punishment of the offence

specified, i.e. murder. Whilst not expressed as passing the public law test of proportionality as set out in Heaney, it is difficult to see

any difference of substance.

40. This Court was also referred to the single judgment of the Court delivered by MacMenamin J. on 14 October 2013 in Gilligan v.

Ireland and ors. [2013] IESC 45. Whilst that judgment also concerns the separation of powers between the Oireachtas and the

judiciary in matters relating to sentencing, it does not relate to a statutory provision which fixed a penalty or specified a minimum

penalty to be applied to a person convicted of a particular offence. Rather, it concerns s. 13 of the Criminal Law Act 1976, which

provides that a sentence of imprisonment imposed for an offence committed whilst a person is serving a sentence shall be

consecutive on the sentence being served. There are certain exceptions which need not be referred to. The challenge was rejected

for the reasons set out in summary at para. 57:-

“57. In summary, therefore, the section does not ascribe a constitutionally questionable role in the administration

of justice either to the executive or the legislature. It is to be presumed that the section will be applied in a

constitutional manner. The section itself does not prescribe a fixed mandatory sentence; but, rather, only

stipulates that, in certain limited conditions, an offender on conviction will receive a consecutive sentence. The

provision challenged allows for the application of proportionality by the judiciary in sentencing. There is a rational

connection between the nature of the penalty and the harm it seeks to address. For these reasons, the appeal will

be dismissed.”

41. The final judgment to which I wish to refer in which the respective roles of the Oireachtas and the Courts in sentencing has been

considered is the judgment of this Court in P.C. v. Minister for Social Protection, Ireland and the Attorney General [2017] IESC 63.

That concerns a challenge to the constitutionality of s. 249(6) of the Social Welfare Consolidation Act 2005, as amended. That

section, and regulations made thereunder, disqualified the appellant from receiving the State Pension Contributory [SPC] whilst

serving a custodial sentence. A single judgment was delivered by MacMenamin J. on 27 July 2017 (with whom Denham C.J.,

McKechnie, Clarke and O’Malley JJ. concurred). In his judgment at para. 53, MacMenamin J. stated of Deaton:-

“53. However, as Ó’Dálaigh C.J. further explained, a mandatory penalty suffers from the flaw that all citizens, if

convicted, no matter what their circumstances, must face the same penalty. Such is not the position when the

legislature prescribes a choice of penalties. The underlying principle, identified in Deaton, therefore, was that, while

the legislature states a general rule, the application of that rule is for the courts; that is, the degree of

punishment which a particular citizen is to undergo for an offence is a matter which may vitally affect his liberty

or welfare. Thus, the identification of the degree of punishment is a function of the administration of justice. Is

s.249 (1) reconcilable with Deaton principles?”

42. He further considered the role of the courts under Article 34 and Article 38 of the Constitution at para. 59:-

“59. To my mind, the prohibition on the payment of the SPC to sentenced persons can only constitute an

additional punishment. Article 34 of the Constitution provides that justice shall be administered in courts

established by law, by judges appointed under the Constitution. Article 38 provides that no person shall be tried on

any criminal charge, save in due course of law. But this punishment is not imposed by a court at all. As such, it

contravenes Articles 34 and 38 of the Constitution. The imposition of penalties, in the context of sentencing a

person convicted of crimes, is a function exclusively reserved by Article 34 of the Constitution to the courts.

Sentencing is an integral part of trial in due course of law, guaranteed by Article 38 of the Constitution. The

provision, as applied, offends against those principles.”

43. In P.C., the relevant statutory provision was held to be inconsistent with the Constitution as contravening the principles of

separation of powers and administration of justice fundamental to the Constitution.

44. As appears from the foregoing, the principles which emerge from these decisions relevant to the issue of the separation of powers

or respective roles of the Oireachtas and the Courts in determining the sentence to be imposed on a person convicted of a specified

offence are nuanced and the manner in which they have been set out very often depend on the particular issue being considered by

the Court in the judgment and indeed, what may have been the agreed position of the parties, as is evident from the judgment in

Deaton.

45. A limited number of relevant principles can be extracted from the above judgments. The first and most obvious is the broad

principle that each of the Oireachtas (as part of its law making function pursuant to Article 15 of the Constitution) and the Courts (as

part of the administration of justice pursuant to Article 34 and Article 38 in relation to criminal trials) may have a role in the

determination of the sentence which will be imposed on a convicted person. In Lynch & Whelan, the Court was satisfied, at para. 49

of its judgment, that “the Oireachtas in the exercise of its legislative powers may choose in particular cases to impose a fixed or

mandatory penalty for a particular offence”. In being so satisfied, the Court referred to the explanation given by O Dálaigh C.J. in

Deaton.

46. In Deaton, as already pointed out there were certain rather broad statements in relation to the role of the legislature which were

stated to be “common ground”. However, even in that context, O Dálaigh C.J. for the Court identified, in the passage set out above,

“a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case”. He further stated

that “[t]he prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is

wholly different from the selection of a penalty to be imposed in a particular case”. This is as stated in Deaton “an integral part of the

administration of justice”. In Lynch & Whelan, the Court at para. 50 referred to the entitlement of the State to “impose generally a

punishment of the highest level”. Thus, it appears that Lynch & Whelan, when read with Deaton, decided that it is constitutionally

permissible for the Oireachtas to provide in legislation that a specified penalty will apply on the commission of an identified offence.

Another way of putting it is that the Oireachtas may prescribe by legislation that all persons convicted of a particular offence shall be

subject to the prescribed penalty. To do so is not in breach of the separation of powers as an intrusion on the exclusive jurisdiction of

the courts to administer justice.

47. That legislative power is, however, subject to the constitutional limitation identified in Lynch & Whelan. That general power of the

Oireachtas is subject to constitutional restraints which require a rational relationship between the penalty and, as was put by the

Court, “the requirements of justice with regard to the punishment of the offence specified”. Deterrence may form part of such

requirements of justice. As it is prescribed in legislation which applies generally, irrespective of the circumstances in which the offence

is committed or the personal circumstances of the offender, it must be justifiable by reference to the gravity of the offence or

possibly, in the Heaney v. Ireland public law sense, proportionate to the gravity of the offence, irrespective of the circumstances in

which it was committed or the personal circumstances of the offender. There may be other permissible policy objectives such as

deterrence which apply generally which are relevant to justification.

48. The judgments cited, Deaton, P.C. and others, however also indicate that the selection of the punishment to be imposed on a

particular person convicted of a particular offence forms part of the administration of justice which, pursuant to Articles 34.1 and 38,

is exclusively a matter for judges sitting in courts. The convicted person also has the constitutional right, identified inter alia by

Henchy J. in The State (Healy) v Donoghue, in the passage in Begley quoted above, to receive a sentence “appropriate to his degree

of guilt and his relevant personal circumstances”. The precise manner in which the above are reconcilable, or where the dividing line

between the roles of the Oireachtas and the Courts lies, is less clear.

49. Notwithstanding, it is important to distinguish the constitutional principles at issue in Lynch & Whelan, in application of what the

Court then understood to have been decided by Deaton. First there is the separation of powers, which is not breached by the

Oireachtas, in exercise of its legislative power, prescribing by law a fixed or mandatory penalty, including imprisonment, for a particular

offence which applies to all persons convicted of the offence. Such legislation is not considered an impermissible encroachment upon

the exclusive jurisdiction of the courts.

50. Second, such law making is subject to the constitutional limitation of rational connection with the requirements of justice set out

in Lynch & Whelan.

Discussion

51. I now turn to what is at issue in this appeal. The appellant was convicted of an offence contrary to s. 27A(1) of the 1964 Act, as

amended. That offence was, as is sometimes spoken of, the “offence of conviction”. It is the offence for which the appellant required

to be sentenced. The first point of difference from what was at issue in Lynch & Whelan is that the Oireachtas has not prescribed a

fixed penalty for the commission of a firearm offence contrary to s. 27A(1) of the 1964 Act, as amended. The effect of the various

subsections of s.27A is to make all convicted persons liable to a penalty of imprisonment with a maximum of 14 years and a fine, but

to prescribe two different statutory regimes applicable to a minimum term of imprisonment, depending on whether the offence of

conviction is the first offence contrary to s. 27A(1) of the 1964 Act (and certain other specified firearm offences) or a second or

subsequent such offence. Sub-sections 27A(4)-(7) prescribe what is sometimes referred to as a “presumptive” or “indicative”

minimum sentence to be imposed of five years’ imprisonment, but permits the court to depart from this if it “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”. However, where the offence of conviction contrary to s. 27A(1) is a second relevant offence, s.

27A(8) precludes any departure by the court from the minimum term of five years to be served, irrespective of the circumstances in

which the offence of conviction was committed or the personal circumstances of the offender. Hence, this mandatory minimum

penalty only applies to a limited class of persons convicted of an offence contrary to s. 27A(1) of the 1964 Act, as amended. It is not

a penalty prescribed for all persons who commit an offence contrary to s. 27A(1).

52. Accordingly, what is at issue in this appeal is a question which has not previously been considered by a judgment of this Court. It

is whether it is consistent with the Constitution for the Oireachtas to legislate for a fixed or minimum mandatory sentence or penalty

which does not apply to all persons convicted of the offence, but only to a limited class of such offenders, determined by reference

to a fact which is either one characteristic of the offender, namely that he has one or more prior relevant conviction, or is one of the

circumstances in which the offence of conviction is considered to have been committed, namely that it is the second time or more

that the offender has committed this offence or a similar relevant offence.

53. I do not propose considering whether or not the fact that s. 27A(8) of the 1964 Act, as amended, prescribes a minimum, as

distinct from a fixed, penalty and hence, is giving the Court a choice, is sufficient to distinguish it from the principles set out in Lynch

& Whelan. For reasons which will become apparent, it is not necessary. The primary submissions of the appellant focused on the

application by the Oireachtas in s. 27A(8) of the 1964 Act, as amended, of the minimum mandatory penalty specified therein to a

limited class of offenders determined by reference to one circumstance only which either is a characteristic of the offender or a

circumstance in which the offence was committed, as distinct from the gravity of the offence created by s. 27A(1) of the 1964 Act,

as amended.

54. Turning to the essential principles of sentencing law, as set out by the Court of Criminal Appeal in D.P.P. v Begley cited above, at

a level of generality they require consideration of the following four matters to determine an appropriate sentence: (1) the gravity of

the offence; (2) the circumstances in which it was committed; (3) the personal situation of the accused and (4) mitigating factors.

As more fully set out in the judgment delivered by Charleton J these form part of the process which should lead to the imposition of a

just sentence which strikes a fair balance between the interests of society, victim and convicted person identified at paragraph 14 of

his judgment.

55. Prior convictions, or the absence thereof, always form part of the consideration of the above factors by a sentencing judge in

reaching an appropriate sentence for the offence of conviction and the person convicted. It is unnecessary to consider in any detail

the justification for this approach and the principles underpinning same. There appear to be two different theoretical bases considered

in the writing; first, it is considered as a progressive loss of mitigation from which a first time offender benefits. The more convictions

he accumulates the less mitigation he deserves until eventually, he is entitled to none. The second approach is that the Court should

treat each conviction as an aggravating factor of the circumstances in which the offence was committed. This latter has been the

subject of criticism. For a more detailed discussion, see Sentencing Law and Practice, 2nd Ed. O’Malley at p.1 40 – 144. As pointed

out by Mr. O’Malley. an increase in sentence for a later offence by reason of prior convictions risks being perceived as a repeated

punishment for the prior convictions for which the offender has already received, and most likely has served, the appropriate

sentence.

56. It is not, therefore, in doubt that a court, in applying current sentencing principles, will always have regard to, and take into

account, prior convictions of the convicted person. It is not necessary to decide whether such consideration forms part of the

consideration of the circumstances of the commission of the offence of conviction or of the personal circumstances of the offender.

Whichever, it does not form part of the consideration of the gravity of the offence.

57. Hence, the question to be determined is whether it is permissible for the Oireachtas to legislate for a mandatory minimum penalty

which is not a universal penalty that applies to all persons convicted of the offence. It is not necessary in this appeal to consider

whether it is constitutionally permissible for the Oireachtas to specify a mandatory minimum penalty (as distinct from a fixed penalty)

which applies to all persons convicted of the offence and which may, in accordance with the approach in Lynch and Whelan, be

justifiable as a minimum sentence by reason of its rationality to the gravity of the offence, irrespective of the circumstances in which

it is committed or character of the offender. Section 27A(8) of the 1964 Act, as amended, only applies to a limited class of persons

who commit an offence contrary to s. 27A(1). Further, the class is determined by reference to only one of the potentially relevant

circumstances in which the offence was committed, or only one of the characteristics of the offender that would be taken into

account by a sentencing court.

58. The starting point is the presumption of constitutionality of s. 27A(8) of the 1964 Act, as amended. The Oireachtas, pursuant to

Article 15 of the Constitution, may lawfully create offences and also has a role in specifying the penalties to which a convicted person

may be liable for the commission of the offence or as put in Osmanovic “lay down general parameters within which a sentence is to

be imposed” for the offence. The potential penalties or parameters inter alia indicate the policy of the Oireachtas in relation to

punishment for the offences in question. That policy will include deterrence. The law is of general application and applies to all

persons convicted of the offence. The law may impose fixed penalties to which all persons convicted of the offence are liable, subject

at least to a constitutional limitation of rationality or proportionality to the gravity of the offence, as set out in Lynch & Whelan.

59. However, justice may only be administered in Courts in accordance with Article 34. The selection of the appropriate sentence in

accordance with law for the particular offence committed by the individual offender forms part of the administration of justice to be

conducted by the Court: Deaton. It is also part of the right of the offender to a fair trial pursuant to Article 38.1. As has been

determined in Lynch & Whelan, it may be permissible for the Oireachtas to specify a mandatory penalty which is to generally apply to

all convicted of the offence irrespective of the circumstances of the committal of the offence or the personal circumstances of the

offender. In such circumstances, the selection of the penalty in accordance with law is fixed by the Oireachtas and the Court is

obliged to select that penalty. That is not in breach of the separation of powers. However, the Oireachtas in enacting such a law, is

limiting the constitutional right of an individual to have the appropriate sentence for the offence of conviction determined by a court

in accordance with his relevant personal circumstances for the reasons stated, inter alia, by Henchy J. in The State (Healy) v.

Donoghue. That interference with the constitutional right of the offender is subject to a rational relationship between the penalty and

the requirements of justice with regard to the punishment of the specified offence, as stated at para. 49 of Lynch & Whelan.

60. Where does the boundary lie in relation to determining the penalty to be applied to an offender convicted of a specified offence

between the exclusive law making function of the Oireachtas and the exclusive role of the Courts to administer justice in the context

of a criminal trial? The answer, in accordance with the case law considered, is that the Oireachtas may, by law, determine that a

specified penalty shall apply to all persons convicted of a specified offence subject to the constitutional limitation of a rational

relationship, or possibly proportionality, identified in Lynch & Whelan. This forms part of the law making function which has general

application. However, it is not constitutionally permissible for the Oireachtas to determine or prescribe, by Statute a penalty to which

only a limited class of persons who commit a specified offence are subject, by reason either of the circumstances in which the

offence was committed, or the personal circumstances of the convicted person. This is because the law no longer simply determines

the applicable penalty for all who are convicted of the crime and the selection of the appropriate sentence in accordance with law for

the particular offence committed by the individual offender forms part of the administration of justice and is pursuant to Article 34.1

exclusively the domain of judges sitting in courts. That is what the Oireachtas purported to do by enacting s. 27A(8) of the 1964 Act,

as amended.

61. In the courts below, some emphasis was placed upon the fact that s. 27A(8) only specifies a mandatory minimum sentence and

the Court is given discretion in the fixing of the appropriate sentence in excess of the mandatory minimum sentence. With respect,

that does not appear relevant to the issue which we have to consider on appeal. The appellant is a person in respect of whom an

experienced Circuit Judge considered that the appropriate sentence, having regard to the circumstances in which he committed the

offence of conviction contrary to sub-s. 27A(1) and his own personal circumstances (including prior convictions) and having regard to

the minimum of five years specified by the Oireachtas in s. 27A(8) (admittedly misunderstood), was a suspended sentence of five

years. The Court of Appeal, correctly, in accordance with the true meaning of s. 27A(8), determined that it was not then open to the

Circuit Judge to impose a suspended five year sentence. As set out in para. 14 above, the Court of Appeal in sentencing the appellant

approached the sentence to be imposed on him by taking into account that s. 27A(8) of the 1964 Act required as a starting point a

minimum sentence of five years, with no ability of the court to suspend any part thereof . It held, on the facts, that there was no

need to impose a sentence in excess of the mandatory minimum sentence The appellant is a person therefore, in respect of whom the

minimum sentence for the offence of conviction contrary to s. 27A(1) which might be imposed on him has been selected or

determined by the Oireachtas by reference to one fact which relates to the circumstances in which the offence was committed

and/or the personal circumstances of the offender, rather than being determined by a court, taking into account all relevant matters

to reach a just sentence as explained by Charleton J, as part of his trial in due course of law, and as required by Articles 34 and 38.1

of the Constitution.

Conclusion

62. Accordingly, for the reasons set out in this judgment, I have concluded that in enacting s. 27A(8) of the 1964 Act, as amended,

the Oireachtas has 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.

63. It follows from this conclusion that the appellant is entitled to a declaration that s.27A(8) of the Firearms Act, 1964 (as

substituted by s.59 of the Criminal Justice Act, 2006) is repugnant to the Constitution.

64. I wish to make clear that the Court is not asked to consider on this appeal any form of legislation which falls short of excluding

the entitlement of a court to depart, in any way, from the sentence specified by law. In accordance with the judgments considered,

the Oireachtas clearly has a role in determining policy in relation to penalties for the commission of offences which apply to all

convicted persons. The extent of the permissible role of the Oireachtas in specifying factors which should be taken into account by a

court in deciding on an appropriate sentence or a starting point from which a court may, for stated or exceptional reasons, depart did

not require consideration. What is sometimes termed the presumptive or indicative minimum sentence, such as is provided in sub-ss.

27A(4) to (6) of the 1964 Act, as amended, is one such example which is not under consideration in these proceedings.

Order

65. I would allow the appeal and grant a declaration that s.27A(8) of the Firearms Act, 1964 (as substituted by s.59 of the Criminal

Justice Act, 2006) is repugnant to the Constitution.

Addendum

66. This judgment is in plenary civil proceedings. The approach of the Court of Appeal in the criminal proceedings, DPP v Ellis, to the

sentence imposed on the appellant in July 2016 after the High Court judgment in these proceedings was informed by s.27A (8) of the

1964 Act. The consequences of the declaration being granted in these proceedings for the sentence imposed on the appellant is not

for this Court in this appeal. The criminal appeal should now be promptly re-entered before the Court of Appeal.