A judge critical of mandatory sentence laws for some low-level crimes ordered a man who illegally sold tobacco to carry out 30 minutes' community service of his choosing.
At Dublin District Court on Wednesday, Judge Anthony Halpin said that this penalty would be instead of a half-hour jail sentence.
The accused, Nicolae Dumitran, must do the work within 12 months.
Judge Halpin said it "may include picking up discarded rubbish on the footpath, helping an old lady across the road or attending a place of worship and offering a few prayers for the community".
He held that his offence was more akin to negligence than to criminality and adjourned the case for four weeks for the defence to consider the order.
Security officer Dumitran, 49, of Kilmore Avenue, Coolock, Dublin, had pleaded guilty earlier to an offence under the Finance Act.
It can result in a fine of up to €5,000 and, or a 12-month sentence. The court may consider a suspended sentence or community service. But it cannot reduce the monetary penalty to under €2,500, and the court must record a criminal conviction.
Discretion
Dumitran admitted unlawfully offering a kilo of tobacco for sale on December 5th, 2018, at Artane Castle Shopping Centre car park.
His solicitor had told the court his client did not know it was an offence to sell the cigarettes.
In this case, Judge Halpin wondered if the mandatory sentencing regime was constitutional and referred the matter to the High Court. Mr Justice Mark Sanfey ruled that the legislation was constitutional and that the district court cannot exercise discretion.
The High Court judge was satisfied that there was no evidence to suggest Dumitran's aim to become a taxi driver would be imperilled by a conviction of his nature.
On Wednesday, the case resumed in the district court. Judge Halpin said a conviction would be an unattractive stain on “an otherwise unblemished record”.
He acknowledged that mandatory sentencing was to punish people guilty of serious crimes. However, he said, low-level crime rarely invites judges to impose mandatory sentences. First-time offenders get a "rap on the knuckles", he added.
Judge Halpin said revenue fraud, social welfare fraud and excise offences were serious, but he believed mandatory sentencing in those cases stifles judicial clemency.
Culpability
Sentencing must have regard for the harm caused, the culpability of the offender, and the defendant's behaviour in relation to the offence.
Non-nationals are invariably unaware of the laws governing excise duty, and what seems harmless to them could result in a criminal conviction in the district court.
Judge Halpin said there must be an onus on the authorities to warn people of this offence; a genuine person could easily fall into this trap.
He accepted some habitually commit these offences. Mandatory sentences are appropriate in those cases, but people like the defendant, who did not know it was an offence, seem to be unfairly subjected to the mandatory sanction.
He said it was inconsistent with the principle that punishment should be proportionate to the offence.
He told the defence the 30-minutes of community service order was as close as possible to applying the Probation Offenders Act. It was a sentence that would not leave an indelible stain upon his record or jeopardise any future career prospects.
