Report on Mandatory Sentences - Law Reform Commission

(b)
Importation
4.08 The first element of the offence under section 15B (but not section 15A) is “importation” of a
controlled drug. While the term “import” has not been defined by the Misuse of Drugs Act 1977, as
amended, the ordinary meaning of the term is to bring goods or services into a country for sale. 12 In this
regard, it may be noted that while it is an offence under section 15B to import controlled drugs, it is not an
offence under section 15B to export controlled drugs. This raises an issue as to whether a person
convicted of exporting controlled drugs worth €13,000 or more, like a person convicted of importing the
same value of controlled drugs, may attract a presumptive minimum sentence of 10 years.
(c)
Controlled Drug
4.09 The second element of the offences under section 15A and section 15B is that the possession or
importation must relate to a controlled drug. The term “controlled drug” is defined by section 2(1) of the
Misuse of Drugs Act 1977 as:
“... any substance, product or preparation (other than a substance, product or preparation
specified in an order under subsection (3) of this section which is for the time being in force)
which is either specified in the Schedule to this Act or is for the time being declared pursuant to
subsection (2) of this section to be a controlled drug for the purposes of the Act.”
There is thus no distinction between different types of controlled drugs.
(d) Market Value of €13,000
4.10 The third element of the offences under section 15A and section 15B is that the controlled drug
must have a market value of €13,000 or more. The term “market value” is defined as the price that the
drug could be expected to fetch on the market for the unlawful sale or supply of controlled drugs. 13
4.11 Evidence regarding the market value of the drug may be given by a member of An Garda
Síochána or an officer of customs and excise who has knowledge of the unlawful sale or supply of
controlled drugs. 14 In The People (DPP) v Hanley, 15 the applicant had sought leave to appeal his
conviction on the ground that the trial judge had erred in admitting evidence from a retired Garda
regarding the value of the drugs in question. It was submitted that the effect of section 15A(3) was to
prescribe the manner in which the value of the controlled drug had to be proved and that was by means
of a Garda witness giving evidence in accordance with the section. The Court of Criminal Appeal rejected
this argument and held that section 15A(3) was an “enabling provision”:
“It enables the value of the drugs to be proved by a member of the Garda Síochána or an officer
of the Customs and Excise who has knowledge of the unlawful sale or supply of controlled drugs.
But what the subsection does not do is say that such evidence may not be adduced in some
other manner. It could be adduced by an admission. It could be adduced by some other expert.
Certainly any person who would have knowledge of the illegal drug industry may be in a position
to satisfy the trial judge that he has the status of an expert and so place himself in a position to
give evidence.”
The court found that while the retired Garda witness did not come within section15A(3), he had proved
himself an expert by providing evidence regarding his knowledge and experience of the sale and supply
of controlled drugs. Thus, he had been competent to give evidence.
4.12 The use of “market value” as the standard for determining whether an offence under section 15A
or section 15B has been committed, and therefore whether the statutory minimum sentence applies, is
12
13
14
15
New Oxford Dictionary of English (Oxford University Press, 2001) at 918.
Section 15A(5) and section 15B(5) of the Misuse of Drugs Act 1977.
Section 15A(3) and section 15B(2) of the Misuse of Drugs Act 1977.
The People (DPP) v Hanley [2010] IECCA 99
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