Report on Mandatory Sentences - Law Reform Commission

Bill which would, among other matters, strengthen the presumptive sentencing provisions for drug
offences. 319 The amendments were finalised in the wake of the fatal shooting of Donna Cleary in March
2006. The shooting had led to public outcry not only because of the senselessness of the act but also
because it transpired that one of those suspected to have been involved had been convicted of an
offence under section 15A of the Misuse of Drugs Act 1997 in 1999. 320 Had he been sentenced to the
“mandatory” term of 10 years rather than a term of six years, he would have continued to serve his
sentence in 2006. The amended Bill thus proposed a number of changes to the law regarding drug
offences, 321 two of which are relevant to this <strong>Report</strong>. First, it proposed to create a new offence of
importing drugs with a value of €13,000 or more, which would be punishable by a minimum sentence of
10 years. Second, it proposed to strengthen the existing mandatory sentencing provisions for certain
drug trafficking offences by obliging the sentencing court to consider evidence of previous drug trafficking
convictions. In its final form, the Criminal Justice Act 2006 made these and other amendments to the
Misuse of Drugs Act 1977.
2.140 First, section 81 of the Criminal Justice Act 2006 amended section 15A by inserting subsection
(3A). Section 15A(3A) clarified that mens rea regarding the value of the drugs involved was not an
element of the offence. Thus, the prosecution needed only to establish that the accused knew that he or
she was in possession of drugs with intent to sell or supply and not that he or she knew the value of the
drugs involved. 322
2.141 Second, section 82 of the Criminal Justice Act 2006 inserted section 15B and section 84
amended section 27. The effect was to create a new offence of importing controlled drugs with a value of
€13,000 or more, which would be subject to the same penalty provisions as applicable to offences under
section 15A. Previously, the offence of importing controlled drugs had attracted a maximum sentence of
14 years’ imprisonment. 323 The Minister indicated that it would be strange for this to continue to be the
case when an offence under section 15A now attracted a mandatory minimum sentence of 10 years’
imprisonment and a maximum of life imprisonment. 324
2.142 Third, section 84 of the Criminal Justice Act 2006 inserted subsection (3CC) into section 27.
Section 27(3CC) 325 provided that the court, when deciding whether or not the 10-year minimum would be
appropriate in a given case, could have regard to: (a) any previous drug trafficking convictions, and (b)
the public interest in preventing drug trafficking. While there remained judicial discretion to determine
whether regard should, in actual fact, be had to these factors and the weight to be attributed to them, the
intention of the Oireachtas to narrow the aperture through which the judiciary could justify the imposition
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321
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323
324
325
Dáil Debates, Criminal Justice Bill 2004, Second Stage, 15 February 2005, Vol 597, No 5.
“Mandatory Drug Offence Terms rarely imposed” Irish Times 7 March 2006; Lally and Reid “Sentences for
Drugs, Gun Crimes questioned after Killing” Irish Times 7 March 2006; and Browne “Now that would be a
Watershed” Irish Times 8 March 2006.
Dáil Debates, Criminal Justice Bill 2004 Motion, 28 March 2006, Vol 617, No 97.
In The People (DPP) v Power [2007] 2 IR 509 at 522, the Supreme Court confirmed that even before the
insertion of subsection (3A), section 15A had not required the prosecution to establish mens rea regarding the
value of the drugs. As a result, a number of earlier decisions which had held that mens rea was an element of
the offence were overruled. See, for example: The People (DPP) v Charles Portlaoise Circuit Court 13 July
2004.
Regulation 4 of the Misuse of Drugs Regulations 1988 and section 27(6) of the Misuse of Drugs Act 1977.
Select Committee on Justice, Equality, Defence and Women’s Rights Debates, Criminal Justice Bill 2004,
Committee Stage, 11 May 2006.
Select Committee on Justice, Equality, Defence and Women’s Rights Debates, Criminal Justice Bill 2004,
Committee Stage, 11 May 2006, Mr McDowell TD.
Now section 27(3D)(c).
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