Report on Mandatory Sentences - Law Reform Commission

(i)
Have
4.74 The meaning of the term “have” has been considered at paragraph 4.64 and will not be
considered again here. It should be noted, however, that by contrast with section 27 which creates the
offence of using or producing a firearm or imitation firearm for the purpose of resisting arrest, section 27B
creates the offence of having a firearm or imitation firearm regardless of whether it is used or produced.
Thus, the fact that an offender has a firearm or imitation firearm on his or her person may be sufficient for
the purposes of section 27B.
(ii)
Intent to Commit an Indictable Offence or to Resist or Prevent Arrest
4.75 While this expression has not been explained in the 1964 Act, it is clear that what is contemplated
is that the offender should have with him or her, a firearm or imitation firearm for the purpose of
committing an indictable offence or resisting or preventing an arrest. 135 Thus, having the firearm is an
element of the overall plan to commit an offence or to resist or prevent an arrest.
(f) Section 12A of the Firearms and Offensive Weapons Act 1990
4.76 Section 12A of the Firearms and Offensive Weapons Act 1990, as amended, 136 provides that it is
an offence for a person to shorten the barrel of a shot-gun to a length of less than 61 centimetres 137 or a
rifle to a length of less than 50 centimetres. 138 Thus, the mere act of shortening the barrel of a shot-gun
or rifle is an offence regardless of whether or not there is other criminal intent. 139
(2) Penalties
4.77 The presumptive sentencing regime under the Firearms Acts is modelled on the presumptive
sentencing regime under the Misuse of Drugs Act 1977. Thus, many of the observations outlined in
respect of the presumptive sentence applicable to offences under the Misuse of Drugs Act 1977 equally
apply to the presumptive sentence applicable to offences under the Firearms Acts.
(a)
Presumptive Minimum Sentence of Five Years’ or 10 Years’ Imprisonment
4.78 Under the Firearms Acts, some offences attract a five-year presumptive sentence while others
attract a 10-year presumptive sentence. The offences which attract a five-year presumptive sentence
are: (i) possession of a firearm while taking a vehicle without authority; 140 (ii) possession of a firearm or
ammunition in suspicious circumstances; 141 (iii) carrying a firearm or imitation firearm with intent to
commit an indictable offence or resist arrest; 142 and (iv) shortening the barrel of a shotgun or rifle. 143 Each
of these offences is subject to a maximum sentence of 14 years 144 with the exception of the offence of
shortening the barrel of a shotgun or rifle, which is subject to a maximum sentence of 10 years. 145 The
135
136
137
138
139
140
141
142
143
144
It is arguable, however, that the provision is broad enough to cover situations in which the offender has a
firearm or imitation firearm and an unconnected intention to commit an indictable offence or resist or prevent
arrest.
Section 65 of the Criminal Justice Act 2006.
Section 12A(1)(a) of the Firearms and Offensive Weapons Act 1990, as amended.
Section 12A(1)(b) of the Firearms and Offensive Weapons Act 1990, as amended.
The Court of Criminal Appeal has considered section 12A in The People (DPP) v Kelly Court of Criminal
Appeal 24 November 2008; and The People (DPP) v McCann [2008] IECCA 129.
Section 26 of the Firearms Act 1964, as substituted by section 57 of the Criminal Justice Act 2006.
Section 27A of the Firearms Act 1964, as substituted by section 59 of the Criminal Justice Act 2006.
Section 27B of the Firearms Act 1964, as substituted by section 60 of the Criminal Justice Act 2006.
Section 12A of the Firearms and Offensive Weapons Act 1990, as substituted by section 65 of the Criminal
Justice Act 2006.
Section 26(2)(a) of the Firearms Act 1964, as amended; section 27A(2)(a) of the Firearms Act 1964, as
amended; and section 27B(2)(a) of the Firearms Act 1964, as amended.
145