Report on Mandatory Sentences - Law Reform Commission

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