Report on Mandatory Sentences - Law Reform Commission

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2.220 The Commission notes that an alternative view is that these sentencing regimes are, when considered in a broader historical context, the product of a long-standing policy approach. As outlined above, presumptive minimum sentences are typically directed at high-risk forms of criminality that have a particularly grave societal impact. In modern times, drugs offences, firearms offences and gangland crime fit this mould. Historically, however, a similar threat was perceived to derive from ‘habitual offenders’ - career criminals who specialised in particular forms of crime. In the 19 th century, such offenders attracted mandatory sentences under the Habitual Offender Acts. These regimes were essentially the precursors to contemporary ‘three strike laws’ and other sentencing practices directed at those considered to be a particular threat to public safety. In this light, presumptive and mandatory minimum sentences for first-time and repeat offenders may be viewed as the continuation of a longstanding penal policy. 2.221 The Commission observes that although the policy underlying these sentencing regimes is not new, the popularity of this penal approach tends to fluctuate. As discussed in Chapter 1, mandatory sentencing regimes appear to correspond most closely to the aims of deterrence, punishment and incapacitation. Accordingly, these measures generally find favour in a more punitive penal climate in which these objectives receive particular legislative emphasis. It is clear therefore that the various aims of sentencing may be differently prioritised at different times and that the challenge for the Oireachtas is to determine which goal merits immediate emphasis. The Commission observes that prioritising one aim over another will, in general, lead to specific consequences. For example, greater emphasis on deterrence, punishment and incapacitation, rather than rehabilitation, may facilitate problems such as prison over-crowding and may also impair the ability of the justice system to enhance public safety. 2.222 The Commission notes that this issue was highlighted, in 2013, by the Sub-Committee on Penal Reform, established by the Joint Oireachtas Committee on Justice, Defence and Equality. In its <strong>Report</strong> on Penal Reform, 515 the Sub-Committee observed that effective rehabilitative programmes cannot work in over-crowded prison environments. 516 It therefore endorsed the view “that a more effective and genuinely rehabilitative penal policy could be developed if the prison population were reduced by onethird over a reasonable period of perhaps ten years… .” 517 The Sub-Committee observed that this “would mean a return to levels of imprisonment in the mid-1990s, before the change in policy which has been identified as increasingly punitive during the 1990s, when mandatory minimum sentences were introduced for a range of offences, and a prison-building regime was embarked upon”. 518 2.223 The Commission also observes that where an emphasis on deterrence, punishment and incapacitation leads to problems such as prison overcrowding, this may produce a reaction against the cost entailed by a higher rate of incarceration. A return to a rehabilitative model may in turn coincide with an economic cycle that is focused on ensuring the most effective and efficient allocation of resources within the general criminal justice system. This may include a consideration of the manner in which limited resources are allocated between, on the one hand, the prison service (which has a more punitive purpose) and, on the other hand, the probation service (which has a more rehabilitative purpose). 519 515 Houses of the Oireachtas, Joint Oireachtas on Justice, Defence and Equality <strong>Report</strong> on Penal Reform (March 2013). 516 517 518 519 Ibid at 23. Ibid at 13. Ibid. The Commission notes, for example, that in its 2013 <strong>Report</strong> on Penal Reform, the Oireachtas Justice Committee’s Sub-Committee on Penal Reform called for a reduction in the prison population and observed that “[i]f the numbers of prisoners are reduced in the prisons, with a subsequent saving of money, such saving should be transferred to the Probation Service.” (Ibid at 19). 102
3 CHAPTER 3 ENTIRELY MANDATORY SENTENCES A Introduction 3.01 In this chapter, the Commission considers the first type of mandatory sentence identified in the Introduction to the <strong>Report</strong>, namely, the entirely mandatory sentence. In Ireland, the only entirely mandatory sentence is the mandatory life sentence prescribed for the offences of: (a) murder; 1 (b) the murder of a designated person such as a member of An Garda Síochána; 2 and (c) treason. 3 In Part B, the Commission begins with an examination of how the mandatory life sentence for murder, in conjunction with the Executive power to grant early release, operates in practice. In Part C, the Commission compares the mandatory life sentence in Ireland with similar provisions in other common law countries. In Part D, the Commission concludes by examining the mandatory life sentence against the conceptual framework for criminal sanctions and sentencing. B The Mandatory Life Sentence for Murder (1) The Mandatory Life Sentence 3.02 Section 2 of the Criminal Justice Act 1990 prescribes a mandatory life sentence for murder. Thus, the court must impose a life sentence in every case in which it is proved beyond a reasonable doubt that the defendant, with an intention to kill or cause serious injury, has unlawfully killed another. 4 Section 4 specifies, however, that if the victim is a designated person under section 3, such as a member of An Garda Síochána, the perpetrator must serve a minimum term of 40 years’ imprisonment or 20 years’ imprisonment for an attempted murder. This means that every person convicted of murder will receive a mandatory life sentence but only those who have murdered a designated person will be required to spend a minimum term in prison. (2) The Mandatory Life Sentence and Temporary Release 3.03 Not every person convicted of murder will spend the rest of his or her life in prison. Indeed, a person convicted of murder may expect to be released before his or her “life” sentence expires because the Executive has at its disposal two mechanisms by which it may grant early release to prisoners serving mandatory life sentences. Thus, in order to fully understand the mandatory life sentence, its examination must take place alongside an examination of these early release mechanisms. (a) Early Release 3.04 Before considering the mechanisms by which the Executive may grant a prisoner serving a mandatory life sentence early release, it should first be noted that most prisoners, other than those sentenced to life imprisonment, are granted early release under the “standard remission” mechanism in 1 2 3 4 Section 2 of the Criminal Justice Act 1990. Section 10 of the International Criminal Court Act 2006 clarifies that if genocide, a crime against humanity, a war crime or an ancillary offence under the 2006 Act involves murder, then a mandatory life sentence will apply. Section 3 of the Criminal Justice Act 1990 Section 2 of the Criminal Justice Act 1990. As the offence of treason is not regularly prosecuted, the Commission does not propose to examine in detail the application of the mandatory life sentence under this provision. Section 4 of the Criminal Justice Act 1964. 103
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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
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y law and applicable in all cases w
Page 76 and 77: ody under Article 5(4). As the Secr
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Page 80 and 81: 2.45 In Attorney General for Northe
Page 82 and 83: five years. This was made permanent
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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
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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
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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
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Page 140 and 141: (8) Summary 3.43 From this survey,
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Page 146 and 147: cannot reflect these variations in
Page 148 and 149: process. In particular, considerati
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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
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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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