The Gazette 1983

JULY/AUGUST

1983

GAZETTE

In Deaton 28 the Court asserted the primacy of judicial power once there was an element of discretion in the selection of punishment. It is notable that the Court showed no favour to the respondents' argument, when the legislature prescribes a fixed penalty it selects the penalty for a particular case. Ó Dálaigh G. J. responded: " I n 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 thé' 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 circumstance of the particular case, then a choice or selection falls to be made. At that point the matter has passed from the legislative domain". 30 With deep respect, it is submitted that O Dálaigh C. J.'s response does not persuasively meet the respondents' point. Firstly, his language could be recast to make the respondents' argument: a mandatory sentencing scheme, which specifies the exact punishment that will follow conviction of a specified offence, provides an example of the legislature selecting a punishment following conviction in a particular case. Secondly, it foreshortens the principle of proportionality as applicable to the distribution of punishments. It reads the idea of the seriousness of the crime in terms of the harm produced or risked by the art ion. Thus it ignores the blameworthiness of the actor. This coheres with Beccaria's opinion that "crimes are only to be measured by the injury done to society. They err, therefore, who imagine that a crime is greater, or less, according to the intention of the person by whom it is committed . ..". 31 Thirdly, it fails to have regard to the independent constitutional imperative to respect moral autonomy. As indicated above, in terms of blameworthi- nesss, offenders vary from each other in ways that the legislature cannot anticipate. The differences of human behaviour are so significant that a legislative definition of crime must standardly cover acts involving different degrees of blameworthiness. The personal circumstances of the individual offender are significant in a criminal justice system based on desert (as well as regards the aims of rehabilitation and social defence). Fourthly, the constitu- tional principle animating O'Callaghan 2 objects to the utilitarian (or instrumental) employment of human persons to achieve general social goals. It would be more consistent with invididual dignity to punish an offender because he or she, deserves it morally, than to deal with the offender for the purpose of important social goals. Sentencing accused persons of varying degrees of blame- worthiness alike for the sake of certainty in the sentencing scheme would appear to implicate an instrumental view of the individual, treating him or her, as a means rather than an end. Thus, in a mandatory sentencing scheme, individual cases would inevitably present themselves in

considerations, and the punishments provided in this regard should have a correspondence to the moral gravity of the offences punished. Ó Dálaigh C. J. stated that "an offence of obliquity even if punishment by a small penalty and made triable only summarily nevertheless should, probably, not be considered a minor offence". 27 In view of the differences in force of the moral imperatives obliging individuals not to do certain acts or omissions, punish- ments should differ in degree relative to the sort of crime perpetrated. Punishment should also vary relative to the criteria of blameworthiness. In consonance with this, in this jurisdiction, intentional killing is treated as more blameworthy than reckless killing, and reckless killing more so than careless killing. In this scale, the operative distinction is that there is a greater degree of volunariness, in the moral sense, in intentional killing than in reckless killing, and so on: The Courts have recognised that the selection of punish- ment is an inherent part of the judicial power. In Deaton v. Attorney General, 28 the Supreme Court considered the consistency with the Constitution of s.186 of the Customs Consolidation Act 1876 which gave the Revenue Com- missioners power to elect which of two penalties should be imposed by a court. Holding that such a power was unconstitutional, Ó Dálaigh C. J., giving the judgment of the Court, said: "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 . . . The individual 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;... 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 .. .". 29 SENIOR ASSISTANT SOLICITOR Coras lompair Eireann invites applications for the post of Senior Assistant Solicitor in the Solicitor's Office in Dublin. Applicants should have: — not less than ten years' experience as a practising Solicitor; — special knowledge and experience in the fields of employers' liability and accident litigation and in the control and conduct of such matters; — desirably a knowledge of the law relating to transport both within the State and inter- nationally and relating to labour relations. It is intended that, if successful in this position, the selected applicant will succeed the Solicitor in due course. General conditions include medical scheme, contributory superannuation and widows' and childrens' pension schemes and travel concessions. Applications, which will be treated in strict confidence, should give details of age,qualifications and career history and should be sent, not laterthan Friday, 15 July, 1983, to: Assistant General Manager (Personnel), Coras lompair Elraann, Heutton Station, Dublin 8.

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