Averil Discusses Sentencing Policy for Serious Sexual Assault and Domestic Violence Cases (29/01/14)

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Defendants in a number of serious sexual assault and domestic violence cases over the past several years have had some or all of their prison sentences written off in return for payment of financial compensation, much to the disgust of their victims. Most rape and domestic violence cases are not even reported to the Garda, let alone prosecuted in court. It is disgraceful that women who are brave enough to report their attackers and endure the ordeal of facing them in a courtroom would then have to watch them buy their way out of jail. I will not mention specific cases because I do not want to prejudice ongoing or future legal actions but the overall message is that if one has enough money one can escape justice. If one has sufficient financial resources, one can rape and beat women with impunity.
It is a damning indictment of our justice system that people are regularly sent to jail for non-payment of fines or for petty theft but not for vicious attacks on women. As Colette Browne points out in today’s Irish Independent, more than 8,300 people were jailed last year for non-payment of court imposed fines, including 242 who were jailed for failing to pay fines for not having a television licence. Clearly, justice in this country is only for the poor. Financial compensation is entirely appropriate for financial or non-violent crimes but it is outrageous to put a value on the damage that rape or assault does to a person. I ask the Government to change the law so that defendants can no longer pay financial compensation in lieu of jail time. This issue has arisen in several cases. It is not an isolated incident and it is time the Government put a real value on victims’ lives by ensuring this will never happen again.

Minister of State at the Department of Arts, Heritage and the Gaeltacht (Deputy Dinny McGinley): I thank Senator Power for raising this matter on the Adjournment. I am speaking on behalf of the Minister for Justice and Equality who regrets that he is unable to be present due to other business.

As the Senator will appreciate, the courts are independent in the matter of sentencing, as in other matters concerning the exercise of their judicial functions, subject only to the Constitution and the law. In accordance with this principle, the role of the Oireachtas has been to specify in law a maximum penalty for an offence. Having considered all of the circumstances of a case, a court may impose an appropriate penalty up to that maximum. It is the responsibility of the court to determine the sentence to be imposed in a particular case, having heard all the evidence presented and taking case law into account. The court is required to impose a sentence which is proportionate not only to the crime but also to the individual offender, in that process identifying where in the sentencing range the particular case should lie and then applying any mitigating factor which may be present. From time to time, issues arise with consistency in sentencing and the sentences imposed in high-profile or particularly sensitive cases.

The Senator will appreciate that it would be inappropriate for a member of the Executive to make any comment on individual cases. However, I draw attention to an important safeguard, which is the power of the Director of Public Prosecutions to apply to the Court of Criminal Appeal to review a sentence imposed by the Circuit Court, Central Criminal or Special Criminal Court that she regards as unduly lenient.

However, I draw attention to an important safeguard, which is the power of the Director of Public Prosecutions to apply to the Court of Criminal Appeal to review a sentence imposed by the Circuit Court, Central Criminal Court or Special Criminal Court that she regards as unduly lenient.

Section 6 of the Criminal Justice Act 1993 provides for the making of a compensation order, on application or otherwise, against a convicted person by the court instead of or in addition to dealing with the person in any other way, unless it sees reason to the contrary. The Minister intends to seek Government approval very soon for the general scheme of a Bill to replace the Probation of Offenders Act 1907 with modern provisions dealing with community sanctions and the role of the Probation Service in the criminal justice system. In the context of that legislation, consideration will be given to the question of whether the Criminal Justice Act 1993 should be amended to ensure there is to be no link between the payment of compensation by an offender and the sentencing of the offender. The replacement of the court poor box with a transparent statutory reparation fund, which has been recommended by the Law Reform Commission, will also be considered in the new legislation. The details of the proposed Bill will be announced in due course following Government approval.

In September 2012, the Minister for Justice, Equality and Defence announced a strategic review of penal policy. A working group is carrying out this review which is examining all aspects of penal policy, including sentencing. The group is expected to report in the coming months. In its deliberations, the group will take account of the recommendations of the Law Reform Commission’s recent report on mandatory sentencing and both reports will be considered by the Minister in due course. The issue of domestic and sexual violence is one the Government takes very seriously. Cosc, the National Office for the Prevention of Domestic, Sexual and Gender-based Violence, is continuing to co-ordinate the implementation of the National Strategy on Domestic, Sexual and Gender-based Violence 2010-2014.

Since coming into office, the Minister has brought forward important amendments to the Domestic Violence Acts 1996 and 2002 through the Civil Law (Miscellaneous Provisions) Act 2011. The net effect of these changes has been to extend the protections of this legislation to a wider number of people and circumstances. It is the Minister’s intention to bring forward a package of workable and effective proposals for the consolidation and reform of domestic violence legislation as soon as possible, having regard to other legislative priorities. To advance this work, officials in Cosc, the National Office for the Prevention of Domestic, Sexual and Gender-based Violence, have met with representatives of a number of groups to discuss their proposals for legislative change. Careful consideration will also be given to the recommendations from the examination of domestic and sexual violence by the Joint Oireachtas Committee on Justice, Defence and Equality when the report is available.

Senator Averil Power: I accept that the Minister of State is responding on behalf of the Minister for Justice and Equality, Deputy Shatter. I welcome the fact that change in the 1993 Act on financial compensation will be considered. As far as I am concerned it must be changed. I do not see a case for leaving it as it is. It is never appropriate to give financial compensation in an assault case, be it sexual assault or other form of assault such as domestic violence. At the least, it should not be possible to do so without the consent of the victim. If a victim speaks about her ordeal, be it rape or sexual violence, in court and says she objects to financial compensation it should not be possible for the attacker to get off with the payment of a fine or compensation instead. It makes a complete mockery of the seriousness of the crime.

I welcome the fact that such a change is being considered and I hope the legislation will be changed as soon as possible. At the outset the reply stated that it is up to the courts to decide on sentencing. Of course that is true, but we set out penalties in this House and it is up to the Legislature to decide on appropriate penalties and what the spectrum of penalties should be for given offences. It is our job and responsibility to decide on the issue and it is beyond time that we stood up and said that financial compensation is not appropriate in such cases and that we would change the legislation as soon as possible.

Deputy Dinny McGinley: I again thank the Senator for raising the matter. I assure the House that An Garda Síochána takes appropriate action to respond to assaults, domestic violence incidents and sexual offences that are reported to it. Senators will be aware that An Garda Síochána is available at all times of the day and night, every day and every night, to intervene where there is a danger to life or the safety of any citizens of the State. That includes, in particular, victims of domestic violence. An Garda Síochána has comprehensive policies in place on domestic violence, sexual violence and dangers to children.

The courts need to have available to them various methods of disposal to ensure that they can respond appropriately to the wide range of criminal offences that come before them and the circumstances of each individual case. It is fundamental to our system of justice, as Senators will appreciate, that the courts are independent of the Executive in regard to any particular case before them. While specific difficulties arise in regard to particular aspects of criminal justice legislation, the Minister for Justice and Equality will of course bring forward such amending legislation as may be necessary. As I already stated, specific consideration is being given to amendment of the compensation order provisions in the Criminal Justice Act 1993 and reform of the court poor box in the context of forthcoming legislation on community sanctions. The Minister intends that this consolidation and reform of domestic violence legislation will be progressed as soon as possible, having regard to the need for consultations, other legislative priorities and any recommendations of the Oireachtas Joint Committee on Justice, Defence and Equality arising from its examination of domestic and sexual violence.

 

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