Report on Mandatory Sentences - Law Reform Commission

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proportionality and judicial discretion cast some shadow over the constitutionality of section 24”. 508 In a similar vein, the Irish Council for Civil Liberties asserted that section 24 might “impinge upon the constitutional duty of judges to ensure that sentences are proportionate to both the gravity of the crime and the personal circumstances of the offender.” 509 The Law Society 510 and some prominent criminal law practitioners were also quick to voice their concerns regarding proportionality and the separation of powers. 511 Having consulted the Council of State, the President decided not to refer the Bill to the Supreme Court and signed the Bill into law. 512 2.214 Mandatory sentences for repeat offenders have been considered in a number of recent decisions. In The People (DPP) v McMahon, 513 the Court of Criminal Appeal considered an appeal by the DPP against the leniency of a 10-year sentence. The respondent, a psychiatric patient who had stabbed a doctor, had been convicted of assault causing serious harm, contrary to section 4 of the Non Fatal Offences Against the Person Act 1997, an offence which carries a maximum life sentence. The respondent had a previous conviction for manslaughter for which he had been sentenced to 10 years’ imprisonment, which had been reduced to 7 years on appeal. The respondent had been released approximately 8 months before committing the section 4 offence. The DPP argued that the maximum sentence of life imprisonment should have been imposed as the respondent presented a clear danger to others. 2.215 The Court of Criminal Appeal indicated that the case raised an important issue, namely, whether sentencing courts were obliged to impose the maximum life sentence where there was evidence that the 16 March 2007; Kenny “Crime Bill has Opposition nicked” Sunday Independent 18 March 2007; “Gangland Bill is Vote-getting Ploy that betrays Civil Rights” Irish Independent 19 March 2007; and “Tackling Complex Problem of Crime” Irish Times 11 October 2007. 508 509 510 511 512 513 Observations on the Criminal Justice Bill 2007 (IHRC, 2007) at 15; “Rushed Criminal Justice Legislation may curtail established Human Rights” (IHRC/Law Society, Press Release, 12 October 2007); “Rights Watchdog warns of ‘Danger of Injustice’” Irish Times 30 March 2007; and “IHRC warns Government over rushing Legislation” RTE News 15 October 2007. Available at: www.rte.ie/news/2007/1013/94679-crime/ [Last accessed: 22 May 2013]. What’s Wrong with the Criminal Justice Bill 2007 (ICCL, 2007) at 8; and Kelly “Having a real Impact on serious Crime will require wiser Counsel” Irish Independent 14 March 2007. Murphy “Criminal Justice Bill should be withdrawn” Irish Times 29 March 2007. “Combating Organised Crime” The Irish Times 21 February 2007 (Pauline Walley SC, Ivana Bacik BL, Brendan Grehan SC, Paddy McCarthy SC, Anthony Sammon SC, Gerry O’Brien SC, Conor Devally SC, Michael O’Higgins SC, Niall Durnin SC, Aileen Donnelly SC, Sean Gillane BL, Dominic McGinn BL, Caroline Biggs BL, Vincent Heneghan BL, Garret Baker BL, and Siobhán Ní Chulacháin BL); Grehan “Criminal Justice Bill increases Erosion of Civil Rights” Irish Times, 26 April 2007; Molony “McDowell faces Lawyers’ Revolt over Bill” Irish Independent 29 March 2007; “Barristers revolt over new Bill” Irish Independent 29 March 2007; Gartland “McDowell to accept Amendments to Bill” Irish Times 29 March 2007; Collins and Molony “Tánaiste shrugs off angry Law Protests over Bill” Irish Independent 30 March 2007; Clifford “Chickening out of the Fight against Crime” Sunday Tribune 1 April 2007; “Lawyers rally the Troops to fight McDowell’s Anti-Gangland Bill” Irish Independent 9 April 2007; Rogers “Elements of Criminal Justice Bill do not stand up to Scrutiny” Irish Times 4 April 2007; Brady “McDowell Fury at Lawyers” Irish Independent 3 April 2007; “Government faces Wrath of Law on the Double, in Row over Money and Crime” Irish Independent 16 April 2007; “Lawyers to fight ‘Draconian’ Measures in new Crime Bill” Irish Independent 17 April 2007; “McDowell’s Bill will lead to Abuses, Lawyers say” Irish Independent 23 April 2007; and Bracken “Irish People ‘apathetic’ about Loss of Civil Rights in the Justice System” Sunday Tribune 14 October 2007. De Bréadún “President McAleese signs Criminal Justice Bill into Law” Irish Times 10 May 2007; MacConnell “Council of State to meet over new Justice Bill” Irish Times 7 May 2007; and Lavery “President to make Call on Anti-Gang Bill” Sunday Independent 6 May 2007. The People (DPP) v McMahon [2011] IECCA 94. See also: “Minimum 10-Year Drug Term Reduced for ‘Naive’ Offender” Irish Times 16 January 2012. 100
espondent presented a clear danger to others. While that could “justify a sentence towards the highest end of the appropriate scale”, the Court observed that it was quite a different thing to argue that a court “must, go beyond any sentence however severe which might be considered normally appropriate to the crime (and the criminal) and impose a life sentence, if it is available”. The argument had not been supported by any Irish case or any jurisdiction in which, in the absence of statutory provision, such orders could be made. In any case, the argument was subject to a number of inherent weaknesses. First, it depended “on the happenstance that the offence before the Court is one which carries a possible life sentence”. Second, a sentence of imprisonment appeared to be an “inappropriately indirect and crude way of dealing with [an] offender suffering from a serious psychiatric illness”. Third, detention of persons on the ground that they posed a threat to the public raised issues of constitutionality and compatibility with the European Convention on Human Rights. In particular, the Court noted: “The protection of the public is an appropriate factor in the exercise of the sentencing function, but it cannot be extracted from that function to create a self-standing judicially created jurisdiction to impose a form of preventive detention. Whether sentencing courts should have the power to order the detention of individuals deemed to pose an immediate threat to the public, over and beyond any appropriate sentence for the crime committed, is a matter which should be addressed in the first place by detailed legislation by the Oireachtas after appropriate research and debate, and subject to Constitutional and Convention review if appropriate.” The Court of Criminal Appeal thus dismissed the appeal. 2.216 In The People (DPP) v Ward 514 the appellant appealed against the imposition of two life sentences, to be served concurrently. The appellant had been convicted of five offences, namely, assault causing harm, possession of a firearm with intent to cause an indictable offence, robbery and two counts of possession of a firearm with intent to resist arrest on two separate occasions. He had been sentenced to life imprisonment for counts one and two, and to 12 years’ imprisonment for counts three, four and five. The Court of Criminal Appeal indicated that there had been an element of preventative sentencing evident in the decision of the trial judge, which amounted to an error of principle. The trial judge had stated that the imposition of a life sentence was to ensure that the defendant would not be released from prison until the authorities were satisfied that he no longer posed a threat to the community. The Court found that the appellant’s offending warranted a serious but determinative sentence and thus substituted a sentence of 20 years. E Concluding Observations Regarding the Historical Evolution of Mandatory Sentences 2.217 Parts B to D of this Chapter detailed the historical evolution of the three forms of mandatory sentence under review. The Commission considers that a number of conclusions may be drawn from the manner in which these sentencing regimes developed. 2.218 First, the Commission notes that the mandatory life sentence may be regarded as an evolutionary anomaly. This penalty was specifically introduced to replace the death sentence as the most severe sanction available for the most serious offences. The mandatory life sentence was selected for this purpose as its imposition ensures that those who commit murder continue (in a symbolic sense at least) to pay for the crime with their lives. The mandatory life sentence is therefore an exceptional penalty and one that, in effect, is reserved exclusively for murder. 2.219 Second, the Commission considers that the historical evolution of presumptive minimum sentences may be viewed in two ways. One view is that these regimes are a relatively recent innovation and have largely emerged in response to perceived increases in criminality and particularly egregious incidents. As discussed above, perceived surges in drug-related crime, firearms offences and gangland criminality, in particular, as well as individual high-profile offences have often preceded the introduction of these measures. In this light, the enactment of presumptive minimum sentences may be interpreted as a relatively contemporary development. 514 The People (DPP) v Ward Court of Criminal Appeal 16 January 2012. 101
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REPORT MANDATORY SENTENCES (LRC 108
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MEMBERSHIP The Law Reform Commissio
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ADMINISTRATION STAFF Head of Admini
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ACKNOWLEDGEMENTS The Commission wou
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TABLE OF CONTENTS TABLE OF LEGISLAT
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CHAPTER 5 (1) Presumptive Minimum S
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Pg N o . Criminal Code Act 1899 (Ql
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Pg N o . Misuse of Drugs Act 1971 c
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TABLE OF CASES Pg N o . Attorney Ge
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Pg N o . The People (DPP) v Barry T
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Pg N o . The People (DPP) v Kelly C
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INTRODUCTION A Background: Request
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sentences for offences committed wh
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1 CHAPTER 1 CONCEPTUAL FRAMEWORK FO
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from loss of liberty is clearly evi
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3. Criminal conduct will, in genera
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1.19 In the context of preventing f
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and vocational programmes. 39 Suppo
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standards, recognising that these m
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he lost his post, pension and pay-r
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(i) Identifying the range of applic
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1.58 In general, however, the court
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Thus, depending on the presence of
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matters. She lost interest in study
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of the person who must pay it. In t
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(9) Whether the offence was committ
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e put through the additional suffer
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(1) The Problem of a Lack of Struct
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conviction that restricted employme
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and to hold public seminars on matt
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A mechanism based on measures being
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since 1996; and (iii) information i
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which captured adverse public atten
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compromise which failed to achieve
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2.16 It may be recalled that the ma
Page 74 and 75: y law and applicable in all cases w
Page 76 and 77: ody under Article 5(4). As the Secr
Page 78 and 79: irrespective of whether the sentenc
Page 80 and 81: 2.45 In Attorney General for Northe
Page 82 and 83: five years. This was made permanent
Page 84 and 85: penalty or suspending it for an exp
Page 86 and 87: protection from those with murderou
Page 88 and 89: an application for release under Ar
Page 90 and 91: 2.87 The Supreme Court upheld the d
Page 92 and 93: independent judicial body which wou
Page 94 and 95: whether the life prisoner poses a c
Page 96 and 97: offences became extremely unpopular
Page 98 and 99: who rarely had large quantities of
Page 100 and 101: 2.124 The Crime (Sentences) Act 199
Page 102 and 103: and suppliers. 300 It was proposed
Page 104 and 105: Bill which would, among other matte
Page 106 and 107: (2) Mandatory Sentences for Firearm
Page 108 and 109: (b) England and Wales 2.154 In 2002
Page 110 and 111: filtered into the public domain. Th
Page 112 and 113: now applied to a range of drug and
Page 114 and 115: D Historical Evolution of Mandatory
Page 116 and 117: supervision should be liable to one
Page 118 and 119: “These are unduly weak provisions
Page 120 and 121: offender is being sentenced for any
Page 122 and 123: 2.208 Section 24 of the 2007 Bill p
Page 126 and 127: 2.220 The Commission notes that an
Page 128 and 129: the Prison Rules 2007. 5 This mecha
Page 130 and 131: the case of a prisoner serving a ma
Page 132 and 133: e released. These recommendations w
Page 134 and 135: considers that the seriousness of t
Page 136 and 137: then adjusted to reflect the aggrav
Page 138 and 139: 3.37 In three jurisdictions (the No
Page 140 and 141: (8) Summary 3.43 From this survey,
Page 142 and 143: (b) The Principle of Proportionalit
Page 144 and 145: equirements of Article 5(1) were sa
Page 146 and 147: cannot reflect these variations in
Page 148 and 149: process. In particular, considerati
Page 151 and 152: 4 CHAPTER 4 PRESUMPTIVE MINIMUM SEN
Page 153 and 154: (b) Importation 4.08 The first elem
Page 155 and 156: creates a risk of arbitrary and unj
Page 157 and 158: This permits the court to presume,
Page 159 and 160: should apply. Thus, it has been not
Page 161 and 162: injury. 66 An admission voluntarily
Page 163 and 164: 4.44 Section 27(3D)(c)(i) provides
Page 165 and 166: (4) Drug Mules 4.52 The Commission
Page 167 and 168: used, and (b) a vehicle the means o
Page 169 and 170: (i) Have 4.74 The meaning of the te
Page 171 and 172: Misuse of Drugs Act 1977, material
Page 173 and 174: endanger life or cause serious dama
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“appropriate custodial term”, w
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offensive weapon or an article with
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4.117 Minimum sentences are also pr
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identity theft; 257 (v) certain gan
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examinations; 282 (xv) stalking in
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in Schedule I or Schedule II to the
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possession of a weapon obtained by
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of age. 355 Second, the following o
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ecent years, it would appear that t
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custodial sentence in circumstances
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to commit an indictable offence. 41
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4.183 Section 297 of the Criminal C
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offences. aims. It is arguable, how
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analysis suggested, among other thi
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4.210 Third, the Commission observe
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4.224 In Chapter 1, the Commission
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eneficial” response to other form
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while under the age of 18 years, bu
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C Mandatory Sentence for a Second o
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institution. For the purposes of th
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5.37 Subject to certain conditions,
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operates retrospectively in so far
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the perpetrator has a previous conv
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(iv) Federal Government 5.58 At fed
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(f) Australia 5.65 Certain Australi
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coerced the offender to commit the
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5.79 Division 2A of the Criminal La
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would be manifestly unjust. If the
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deterrent effect of mandatory sente
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treat dissimilar cases differently.
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and have therefore been discussed,
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6 CHAPTER 6 SUMMARY OF RECOMMENDATI
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