Report on Mandatory Sentences - Law Reform Commission

This permits the court to presume, until satisfied to the contrary, 33 that there was such an intention where,
having regard to the quantity of the controlled drug or to such other matters as it considers relevant, it is
satisfied that the controlled drug was not intended for immediate personal use.
(2) Penalties
(a)
Presumptive Minimum Sentence of 10 Years’ Imprisonment
4.26 Section 27(3C) of the Misuse of Drugs Act 1977 34 provides that where a person is convicted of an
offence under section 15A or section 15B, the court must impose a sentence of not less than 10 years. 35
Section 27(3C) must, however, be read in conjunction with section 27(3A), which provides that the
maximum sentence for an offence under section 15A is life imprisonment, and section 27(3D), which
provides that a period shorter than 10 years may be imposed where there are “exceptional and specific
circumstances” relating to the offence or the offender.
4.27 The presumptive 10-year minimum should not be used as a benchmark sentence but may be a
useful guide as to the gravity of the offences under section 15A. In The People (DPP) v Renald, 36 the
applicant sought leave to appeal against a sentence of five years and argued that once exceptional and
specific circumstances were found to exist, the 10-year minimum became irrelevant. The Court of
Criminal Appeal rejected this argument:
“Even where exceptional circumstances exist which would render the statutory minimum term of
imprisonment unjust, there is no question of the minimum sentence being ignored... even though
that sentence may not be applicable in a particular case, the very existence of a lengthy
mandatory minimum sentence is an important guide to the Courts in determining the gravity of
the offence and the appropriate sentence to impose for its commission. That is not to say that
the minimum sentence is necessarily the starting point for determining the appropriate sentence.
To do so would be to ignore the other material provisions, that is to say the maximum
sentence.” 37
This passage has been endorsed by the courts on a number of occasions. 38
4.28 The Court of Criminal Appeal has also considered the method by which the courts determine the
sentence to be imposed in individual cases. In The People (DPP) v Duffy, 39 the applicant sought leave to
appeal against a sentence of six years. In the Circuit Court, the judge had outlined the method by which
he would determine the length of the sentence to be imposed. He indicated that he would first assess the
length of the sentence on the assumption that there were no mitigating factors. He would then consider
the various mitigating factors and reduce the sentence accordingly. If the result was a sentence which
was greater than the statutory minimum, that would be the sentence which he would impose. If, on the
other hand, the result was a sentence which was less than the statutory minimum, he would consider
whether he should increase the sentence to the statutory minimum. The Court of Criminal Appeal upheld
this approach and found that it was “essentially in harmony” with the law as explained by Murphy J in
Renald. It noted that other methods might be equally satisfactory provided that the sentencing judge had
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39
Costello queries whether the term “satisfied to the contrary” requires the accused to establish his or her
innocence as a possibility or on the balance of probabilities. See: Irish Current Law Statutes Annotated 1999
at 10-05.
As amended by section 33 of the Criminal Justice Act 2007; section 84 of the Criminal Justice Act 2006; and
section 5 of the Criminal Justice Act 1999.
That the court may impose a sentence greater than 10 years has been confirmed by the Court of Criminal
Appeal. See, for example: The People (DPP) v Hogarty Court of Criminal Appeal 21 December 2001; and
The People (DPP) v Gilloughly Court of Criminal Appeal 7 March 2005.
The People (DPP) v Renald Court of Criminal Appeal 23 November 2001.
Ibid.
See: The People (DPP) v Botha [2004] 2 IR 375 at 383; and The People (DPP) v Ducque [2005] IECCA 92.
The People (DPP) v Duffy Court of Criminal Appeal 21 December 2001.
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