The Gazette 1983

GAZETTE

JULY/AUGUST

1983

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".

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,

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 .. .".

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.

Deaton

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".

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 . ..".

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

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

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