Report on Mandatory Sentences - Law Reform Commission

Misuse of Drugs Act 1977, material assistance may be in the form of an admission 157 or the provision of
information.
(iii)
Any Matters the Court considers Appropriate
4.83 Subsection (5) 158 also provides that the court may have regard to “any matters it considers
appropriate”. While these matters have not been exhaustively defined in the legislation or elsewhere,
there are a number of matters to which the courts’ attention has been frequently drawn. As under the
Misuse of Drugs Act 1977, these matters may be divided into two categories: (a) those that mitigate the
seriousness of the offence, and (b) those that mitigate the severity of the sentence.
4.84 The matters that mitigate the seriousness of the offence include those relating to culpability
(duress, naivety), harm (discharge of firearm) and offender behaviour (level of involvement). The fact that
an offender was coerced into committing a firearms offence 159 or was naive 160 may be considered
exceptional and specific circumstances. Similarly, the fact that the offender did not discharge the weapon
may be considered an exceptional and specific circumstance. 161 Finally, the fact that an offender had a
low level of involvement in the commission of the offence may be considered an exceptional and specific
circumstance. 162
4.85 The matters that mitigate the severity of the sentence include previous good character 163 and
personal circumstances, such as the youth of the offender, personal traumas suffered by the offender,
family support and the possibility of rehabilitation. 164
(c)
Aggravating Factors
4.86 Subsection (6) 165 of each provision provides that the court may, when deciding whether or not to
impose the statutory minimum sentence, have regard to: (i) any previous convictions for firearms’
offences, and (ii) the public interest in preventing firearms’ offences.
4.87 The existence of previous convictions for an offence under the Firearms Acts 1925 to 2006, the
Offences Against the State Acts 1939 to 1998, or the Criminal Justice (Terrorist Offences) Act 2005, may
justify an upward departure from the statutory minimum. Subsection (3) and subsection (6)(a) 166 of each
provision provides that the court may have regard to such previous convictions when determining whether
the statutory minimum should apply. 167 The Court of Criminal Appeal will, in any case, take a dim view of
previous convictions. 168
4.88 Subsection (6)(b) of each provision provides that the court may consider whether or not the public
interest would be served by the imposition of a sentence of less than the presumptive minimum.
157
158
159
160
161
162
163
164
165
166
167
168
In The People (DPP) v Curtin [2010] IECCA 54 for instance, the Court of Criminal Appeal referred to the fact
that the accused had admitted that he had pressurised his two co-accuseds into taking part in the offence.
Subsection (10) of section 12A of the Firearms and Offensive Weapons Act 1990.
The People (DPP) v Barry Court of Criminal Appeal 23 June 2008.
The People (DPP) v Kelly Court of Criminal Appeal 23 June 2009.
The People (DPP) v Fitzgerald [2010] IECCA 53.
The People (DPP) v Barry Court of Criminal Appeal 23 June 2008; and The People (DPP) v Purcell [2010]
IECCA 55.
The People (DPP) v Barry Court of Criminal Appeal 23 June 2008.
The People (DPP) v Kelly Court of Criminal Appeal 23 June 2009.
Subsection (11) of section 12A of the Firearms and Offensive Weapons Act 1990.
Subsection (8) and (11)(a) of section 12A of the Firearms and Offensive Weapons Act 1990.
See: The People (DPP) v Dwyer Court of Criminal Appeal 9 February 2009.
The People (DPP) v Donovan Court of Criminal Appeal 28 June 2010; and The People (DPP) v Kelly Court of
Criminal Appeal 29 June 2012.
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