Report on Mandatory Sentences - Law Reform Commission

of more lenient sentences was clear. 326 In this regard, the Minister observed that in the first five years of
the operation of the mandatory sentencing provision, the mandatory minimum sentence had only been
applied in 6 percent of convictions although this figure had increased to 21 percent in 2004. The Minister
asserted that subsection (3CC) would act as a “counterweight” to the mitigating factors, which included
guilty pleas and cooperation, of which the court could take account. 327 He indicated that this sentencing
regime would differ from the regular sentencing regime in so far as it would be less bound to the policy of
individualised sentencing. 328 A court, when deciding whether or not to impose a 10-year minimum
sentence in a given case, should have at the forefront of its consideration the social impact of drug
trafficking and view factors, such as the nature of the drugs and the circumstances of the offender, as
being of lesser importance. 329
2.143 In 2007, the Government introduced the Criminal Justice Bill 2007 which made amendments of a
technical nature. Section 33 of the Criminal Justice Act 2007 consolidated the numbering of the
subsections of section 27 and inserted subsection (3D)(a) which emphasised the social harm caused by
drug trafficking. During the second stage of debates, the Minister reiterated the need for consistency in
sentencing and indicated that since “the policy laid out in 1997 has not been adhered to”, there was a
need to make this policy more explicit by means of legislation. 330 It is arguable that this approach did not
adequately respond to the issue of the minimum term not being applied. At the end of 2007, it was
reported that the minimum sentence had been imposed in only three out of 57 cases. 331
2.144 These amendments, particularly those introduced by the Criminal Justice Act 1999 and the
Criminal Justice Act 2006, marked an important turning point in the Irish sentencing regime which had
until 1999 (with the exception of the sentences for murder, capital murder and treason) accorded primacy
to judicial discretion in the determination of sentences. Against the backdrop of an escalating drugs
problem and a growing realisation that Ireland had become a portal not only to the Irish drugs market but
also to the British and European drugs markets, 332 the Oireachtas introduced the presumptive minimum
sentences to address an apparent rift which had developed between legislative intent and judicial
execution.
2.145 It will be recalled that this move towards a more punitive system of sentencing corresponded to a
similar move in the United Kingdom at the same time. 333
326
327
328
329
330
331
332
333
Select Committee on Justice, Equality, Defence and Women’s Rights Debates, Criminal Justice Bill 2004,
Committee Stage, 11 May 2006. It is interesting to note that Minister McDowell’s reason for inserting
subsection (3CC) - to close the gap between Oireachtas intention and judicial action - was very similar to the
reason which had been offered by Minister O’Donoghue for the introduction of presumptive sentencing in
respect of offences under section 15A of the Misuse of Drugs Act 1977.
Ibid.
Ibid.
Commentators have noted the difficulty in determining what is in the public interest in preventing drug
trafficking. See: Irish Current Law Statutes 2006 at 26-84.
Dáil Debates, Criminal Justice Bill 2007, Second Stage, 22 March 2007, Vol 634, No 2, Col 383; Donohoe
“New Bill to end Judges’ Discretion in serious Drug Cases” Irish Times 13 March 2007; “Tougher Sentencing
on Way in new Crime Package” Irish Independent 13 March 2007; “Ex-Judge knocks new Drug Laws” Irish
Independent 14 March 2007; and O’Mahony “McDowell’s Battle with Judiciary not Justified” Irish Times 22
March 2007.
Lally “Only Three of 57 Drug Dealers got 10-Year Sentence” Irish Times 30 October 2007.
Burke “Rabbitte Revisited: The First <strong>Report</strong> of the Ministerial Task Force on Measures to Reduce Demand for
Drugs - Ten Years On” (2007) 55 Administration 125 at 127-132; and First <strong>Report</strong> of the Ministerial Task
Force on Measures to Reduce Demand for Drugs 1996 at 6-15 and 25-26.
Ashworth “Changes in Sentencing Law” (1997) Crim LR 1.
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