Report on Mandatory Sentences - Law Reform Commission

offences which attract a presumptive 10-year sentence are: (i) possession of firearms with intent to
endanger life; 146 and (ii) using a firearm to assist or aid in an escape. 147 These offences are subject to a
maximum sentence of life imprisonment. 148
4.79 As with the presumptive sentencing regime under the Misuse of Drugs Act 1977, it would appear
that the courts must have regard to the presumptive sentence even where it does not apply 149 and to the
maximum sentence. 150
(b)
Exceptional and Specific Circumstances: Mitigating Factors
4.80 Each of the presumptive sentencing provisions under the Firearms Acts provides that the
presumptive sentence will not apply where there are exceptional and specific circumstances relating to
the offence or the person convicted of the offence, which would make a sentence of not less than five
years or 10 years unjust in all the circumstances. 151 Exceptional and specific circumstances may include
“any matters [the court] considers appropriate”, including whether the person has pleaded guilty to the
offence and whether the person has materially assisted in the investigation of the offence. As noted in
Chapter 1, a guilty plea and material assistance are in general considered to be factors which mitigate the
severity of the sentence rather than the seriousness of the offence.
(i)
Guilty Plea
4.81 Subsection (5)(a) 152 of each provision provides that a guilty plea may be considered an
exceptional and specific circumstance for the purpose of determining whether the statutory minimum
sentence of five or 10 years should apply. The provision recognises, however, that the stage at which the
accused indicates his or her intention to plead guilty and the circumstances surrounding that plea may be
relevant. Thus, it has been noted that an early guilty plea merits more credit than a late guilty plea 153 and
that an accused who voluntarily pleads guilty will be given more credit than an accused who pleads guilty
having been caught red-handed. 154 In any case, a guilty plea will usually be considered in addition to
other mitigating factors such as material assistance. 155
(ii)
Material Assistance
4.82 Subsection (5)(b) 156 of each provision provides that material assistance may also be considered
an exceptional and specific circumstance for the purpose of determining whether the statutory minimum
sentence should apply. Presumably, as observed by the Court of Criminal Appeal in relation to the
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149
150
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156
Section 12A of the Firearms and Offensive Weapons Act 1990, as amended.
Section 15 of the Firearms Act 1925, as substituted by section 42 of the Criminal Justice Act 2006.
Section 27 of the Firearms Act 1964, as substituted by section 58 of the Criminal Justice Act 2006.
Section 15(2)(a) of the Firearms Act 1925, as amended; and section 27(2)(a) of the Firearms Act 1964, as
amended.
The People (DPP) v Fitzgerald [2010] IECCA 53.
The People (DPP) v McCann [2008] IECCA 129.
Subsection (5) of each provision and subsection (10) of section 12A of the Firearms and Offensive Weapons
Act 1990.
Subsection (10)(a) of section 12A of the Firearms and Offensive Weapons Act 1990.
The People (DPP) v Barry Court of Criminal Appeal 23 June 2008; and The People (DPP) v Curtin. [2010]
IECCA 54
The People (DPP) v Clail [2009] IECCA 13; The People (DPP) v Dwyer Court of Criminal Appeal 9 February
2009; and The People (DPP) v Walsh Court of Criminal Appeal 17 December 2009.
The People (DPP) v Barry Court of Criminal Appeal 23 June 2008.
Subsection (10)(b) of section 12A of the Firearms and Offensive Weapons Act 1990.
146