Report on Mandatory Sentences - Law Reform Commission

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CHAPTER 4
PRESUMPTIVE MINIMUM SENTENCES
A
Introduction
4.01 In this Chapter, the Commission considers the second type of mandatory sentence identified in
the introduction, namely, the presumptive minimum sentence. Two pieces of legislation provide for such
a sentencing regime in Ireland: the Misuse of Drugs Act 1977 and the Firearms Acts. In Part B, the
Commission considers the sentencing regime under the Misuse of Drugs Act 1977, beginning with an
examination of how this regime operates in practice. In Part C, the Commission considers the practical
operation of the sentencing regime under the Firearms Acts. Part D considers the use of minimum
sentencing regimes in other common law countries. The Commission concludes in Part E by examining
each of these presumptive sentencing regimes against the conceptual framework for criminal sanctions
and sentencing.
B Presumptive Minimum Sentences under the Misuse of Drugs Act 1977
4.02 There are two offences under the Misuse of Drugs Act 1977 which attract a presumptive
minimum sentence. These are the offences of possessing 1 and importing 2 controlled drugs, having a
value of €13,000 or more, 3 with intent to sell or supply. Where a person is convicted of either of these
offences, the court must impose a minimum sentence of 10 years 4 unless there are exceptional and
specific circumstances which would make such a sentence unjust in all the circumstances. 5 In this
section, the Commission considers the application of this category of presumptive minimum sentence by
examining: (1) the elements of the possession and importation offences, (2) the relevant penalty
provisions, (3) the early release provisions, and (4) the particular situation of drug couriers.
(1) Elements of the Offences
4.03 Some of the elements described below are particular to either the possession offence under
section 15A of the Misuse of Drugs Act 1977 or the importation offence under section 15B. Others are
common to both offences.
(a)
Possession
4.04 The first element of the offence under section 15A (but not section 15B) is “possession” of a
controlled drug. While the term possession has not been definitively defined, the legal understanding of
the term may be distinguished from the common understanding. Whereas the common understanding
might equate “possession” with “custody”, the legal understanding identifies “custody” as being just one
aspect of a more complex theory. In this regard, McAuley and McCutcheon observe that possession
comprises control or dominion over goods and knowledge of their existence. 6 Thus, a person may, in
legal terms, possess goods regardless of whether or not he or she has custody of them. Where a person
has custody and exercises control over goods, he or she is said to have “actual possession” of the
1
2
3
4
5
6
Section 15A of the Misuse of Drugs Act 1977, as inserted by section 4 of the Criminal Justice Act 1999.
Section 15B of the Misuse of Drugs Act 1977, as inserted by section 82 of the Criminal Justice Act 2006.
Under section 1 of the Euro Changeover (Amounts) Act 2001, the original figure of £10,000 was adjusted to
€13,000.
Section 27(3C) of the Misuse of Drugs Act 1977.
Section 27(3D) of the Misuse of Drugs Act 1977.
McAuley and McCutcheon Criminal Liability (Round Hall, Sweet and Maxwell, 2000) at 208-209.
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