Report on Mandatory Sentences - Law Reform Commission

4.44 Section 27(3D)(c)(i) provides that the court may have regard to any previous drug trafficking
offences when determining whether the statutory minimum should apply. 86 It is unclear what purpose
section 27(3D)(c)(i) serves other than to emphasise the pre-existing power of the courts to consider
previous convictions. 87 Smith observes that a matter of greater concern is the extent to which evidence of
previous involvement in the drugs trade may be admissible. 88 In The People (DPP) v Gilligan, 89 for
instance, the Court of Criminal Appeal held that the sentencing judge could not have regard to evidence
of previous misconduct for which the accused had neither been charged nor convicted and which the
accused had not asked to be taken into account. The Court noted, however, that the sentencing court
could not “act in blinkers” and was thus entitled, if not obliged, to consider the facts and circumstances
surrounding each offence. 90
4.45 Section 27(3D)(c)(ii) provides that the court may consider whether or not the public interest would
be served by the imposition of a sentence of less than 10 years. This provision clearly echoes the words
of the Minister for Justice when he stated that the courts should keep in mind the social impact of drug
trafficking when determining whether or not to impose the statutory minimum sentence. 91 It has been
noted, however, that it may be difficult to determine what is in the “public interest”. 92 Smith, on the other
hand, observes that the provision suggests that a court should consider that the public interest will not
always be served by committing an offender to prison. 93
(3) Early Release
4.46 The power to grant early release to those who have been convicted of an offence under section
15A or section 15B of the Misuse of Drugs Act 1977, as amended, has been restricted. It has been
observed that this reflects the “clear policy” of the Oireachtas that the courts should, in the absence of
special circumstances, impose a prison sentence of 10 years or longer and that such sentences should
be served in their entirety less remission. 94 Section 27(3H), 95 however, provides that any sentence
imposed for an offence under section 15A or section 15B is subject to ordinary remission for good
behaviour which currently stands at one-fourth of the total sentence.
4.47 Thus section 27(3G) 96 of the Misuse of Drugs Act 1977, as amended, provides that the powers of
commutation and remission conferred on the Government by section 23 of the Criminal Justice Act 1951
cannot be exercised in respect of a person sentenced for an offence under section 15A or section 15B.
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Section 27(3B) provides: “The court, in imposing a sentence on a person for an offence under section 15A or
15B of this Act, may, in particular, have regard to whether the person has a previous conviction for a drug
trafficking offence.”
See, for example: The People (DPP) v Coles [2009] IECCA 144; and The People (DPP) v Farrell [2010]
IECCA 116.
Smith “Sentencing Section 15A Offences” (2010) 20(1) ICLJ 8.
The People (DPP) v Gilligan [2004] 3 IR 87.
Ibid at 91. See also: The People (DPP) v Long [2006] IECCA 49; The People (DPP) v Delaney Court of
Criminal Appeal 28 February 2000; and The People (DPP) v McDonnell [2009] IECCA 16.
Select Committee on Justice, Equality, Defence and Women’s Rights Debate, Criminal Justice Bill 2004,
Committee Stage, 11 May 2006.
Irish Current Law Statutes Annotated 2006 at 26-84.
Smith “Sentencing Section 15A Offences” (2010) 20(1) ICLJ 8. See also: The People (DPP) v McGinty [2007]
1 IR 633 in which the Court of Criminal Appeal noted that where there were “special reasons of a substantial
nature and wholly exceptional circumstances”, a suspended sentence might be appropriate in the interests of
justice.
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 333.
Formerly, section 27(3E).
Formerly, section 27(3D).
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