Report on Mandatory Sentences - Law Reform Commission

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4.89 Factors including the nature of the firearm, 169 the fact that it was brandished in a crowded place and the fact that it was discharged, have justified the imposition of sentences longer than the presumptive minimum sentence. 170 The fact that the offender possessed more than one firearm 171 and the fact that he or she possessed a firearm and drugs have also aggravated the minimum sentence. 172 (3) Early Release 4.90 Like section 27 of the Misuse of Drugs Act 1977, section 27C of the Firearms Act 1964, as amended, restricts the power to grant early release to those who have been convicted of an offence under the Firearms Acts. 173 Specifically, section 27C(2) restricts the power to commute or remit punishment; section 27C(3) restricts the power to grant remission for good behaviour; and section 27C(4) restricts the power to grant temporary release. By contrast with the Misuse of Drugs Act 1977, however, section 27C does not permit the court to list a sentence for review. D Comparative Analysis 4.91 In this Part, the Commission considers the use of mandatory and presumptive minimum sentences in other common law countries. (a) Northern Ireland 4.92 In Northern Ireland, in addition to the mandatory life sentence for murder, there are presumptive sentences for certain firearms offences and public protection but not for drugs offences. 174 (i) Firearms Offences 4.93 The use of firearms is regulated by the Firearms (Northern Ireland) Order 2004, as amended. 175 Article 70 stipulates that the courts must impose a minimum sentence of five years on offenders aged 21 years or over and a minimum sentence of three years on offenders aged less than 21 years, unless there are “exceptional circumstances relating to the offence or to the offender which justify its not doing so”. 176 4.94 The offences to which the mandatory sentencing regime applies are: (i) the possession, purchase or acquisition of a handgun without holding a firearm certificate or otherwise than as authorised by a firearm certificate; 177 (ii) the possession, purchase, acquisition, manufacture, sale or transfer of certain controlled firearms or ammunition; 178 (iii) the possession of a firearm or ammunition with intent to 169 170 171 172 173 174 175 176 177 178 The courts do not, in general, distinguish between real and imitation firearms. See: The People (DPP) v Clail [2009] IECCA 13. However, the Court of Criminal Appeal does distinguish between shotguns and other firearms on the basis that shotguns come “towards the top end” of the “hierarchy of weapons”. See: The People (DPP) v Walsh Court of Criminal Appeal 17 December 2009. The People (DPP) v Fitzgerald [2010] IECCA 53; and The People (DPP) v Curtin [2010] IECCA 54. The People (DPP) v Kelly Court of Criminal Appeal 24 November 2008. The People (DPP) v Purcell [2010] IECCA 55. Section 27C(1) provides that section 27C applies to section 15 of the Firearms Act 1925; sections 26 to 27B of the Firearms Act 1964; and section 12A of the Firearms and Offensive Weapons Act 1990. The Misuse of Drugs Act 1971 applies to Northern Ireland. (The Criminal Justice Act 2003 does not apply in this regard). Section 25 of the Misuse of Drugs Act 1971 provides that the punishments applicable to offences under the Act are set out in Schedule 4. Section 25(2) clarifies, however, that the periods and sums of money referred to in Schedule 4 are maximum terms of imprisonment and maximum fines. It would thus appear that drug offences in Northern Ireland do not attract mandatory minimum penalties. See: Schedule 2 to the Violent Crime Reduction Act 2006. Article 70(2) - (4) of the Firearms (Northern Ireland) Order 2004. Article 3(1)(a) of the Firearms (Northern Ireland) Order 2004. Section 45(1)(a), section 45(1)(aa), section 45(1)(b), section 45(1)(c), section 45(1)(d), section 45(1)(e), section 45(1)(g), and section 45(2)(a) of the Firearms (Northern Ireland) Order 2004. 148
endanger life or cause serious damage to property or to enable another person to do so; 179 (iv) the use of a firearm or imitation firearm to resist arrest; 180 (v) the carrying of a firearm with intent to commit an indictable offence or to resist arrest or to prevent the arrest of another; 181 (vi) the carrying or discharge of a firearm in a public place; 182 and (vii) trespass in a building with a firearm or imitation firearm. 183 4.95 The stated purpose of the Firearms (Northern Ireland) Order 2004 is to provide a legislative framework for the control of firearms which is effective and proportionate and strikes a balance between public safety and the reasonable expectations of legitimate shooting enthusiasts. 184 The order was prepared following the publication of a review conducted by the Northern Ireland Office. 185 The Review was inspired by the Criminal Justice Act 2003, which made a number of changes to the sentencing framework in England and Wales, and to a lesser extent by the 2000 Review of the Criminal Justice System in Northern Ireland. 186 The Review examined Northern Ireland’s firearms legislation, the Firearms (Northern Ireland) Order 1981, and recommendations contained in the Cullen Inquiry into the 1996 Dunblane Massacre. 187 (ii) Public Protection 4.96 Two minimum sentencing provisions apply in respect of “dangerous” offenders who are perceived to pose a significant risk to members of the public. 4.97 Article 13 of the Criminal Justice (Northern Ireland) Order 2008 requires the imposition of a life sentence for a specified “serious offence”, 188 where the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences. Under this Article, a life sentence must be imposed: (a) where the offence is one in respect of which the offender would, apart from Article 13, be liable to a life sentence, and (b) if the court is of the opinion that the seriousness of the offence, or of the offence and one or more offences associated with it, justifies the imposition of such a sentence. 189 4.98 Where the serious offence does not fulfil these conditions, the court must impose an “indeterminate custodial sentence” if it considers that an “extended custodial sentence” (discussed below at paragraph 4.101) would be inadequate for the purpose of protecting the public from serious harm occasioned by the commission by the offender of further specified offences. 190 An indeterminate custodial sentence consists of a sentence of imprisonment (or detention, in the case of an offender under the age of 21 years) for an indeterminate period. When imposing this penalty, the court is required to specify a period of at least two years as the minimum term required to satisfy the requirements of retribution and deterrence. 191 An offender sentenced under Article 13 will be released on licence when: (i) he or she has served this minimum period, and (ii) the Parole Commissioners have directed that he or 179 180 181 182 183 184 185 186 187 188 189 190 191 Section 58 of the Firearms (Northern Ireland) Order 2004. Section 59 of the Firearms (Northern Ireland) Order 2004. Section 60 of the Firearms (Northern Ireland) Order 2004. Section 61(1) of the Firearms (Northern Ireland) Order 2004. Section 62(1) of the Firearms (Northern Ireland) Order 2004. Explanatory Memorandum to the Firearms (Northern Ireland) Order 2004. Review of the Sentencing Framework in Northern Ireland (Northern Ireland Office, 2004. Review of the Sentencing Framework in Northern Ireland (Northern Ireland Office, 2004) at 1-2. Public Inquiry into the Shootings at Dunblane Primary School on 13 March 1996 Cm 3386 (1996). Schedule 1 to the Criminal Justice (Northern Ireland) Order 2008 sets out an extensive list of “serious offences” for the purposes of this regime. All of the offences listed are violent and/or sexual offences. Article 13(2) of the Criminal Justice (Northern Ireland) Order 2008. Article 13(3) of the Criminal Justice (Northern Ireland) Order 2008. Ibid. 149
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REPORT MANDATORY SENTENCES (LRC 108
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MEMBERSHIP The Law Reform Commissio
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ADMINISTRATION STAFF Head of Admini
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ACKNOWLEDGEMENTS The Commission wou
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TABLE OF CONTENTS TABLE OF LEGISLAT
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CHAPTER 5 (1) Presumptive Minimum S
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Pg N o . Criminal Code Act 1899 (Ql
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Pg N o . Misuse of Drugs Act 1971 c
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TABLE OF CASES Pg N o . Attorney Ge
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Pg N o . The People (DPP) v Barry T
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Pg N o . The People (DPP) v Kelly C
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INTRODUCTION A Background: Request
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sentences for offences committed wh
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1 CHAPTER 1 CONCEPTUAL FRAMEWORK FO
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from loss of liberty is clearly evi
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3. Criminal conduct will, in genera
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1.19 In the context of preventing f
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and vocational programmes. 39 Suppo
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standards, recognising that these m
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he lost his post, pension and pay-r
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(i) Identifying the range of applic
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1.58 In general, however, the court
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Thus, depending on the presence of
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matters. She lost interest in study
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of the person who must pay it. In t
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(9) Whether the offence was committ
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e put through the additional suffer
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(1) The Problem of a Lack of Struct
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conviction that restricted employme
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and to hold public seminars on matt
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A mechanism based on measures being
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since 1996; and (iii) information i
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which captured adverse public atten
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compromise which failed to achieve
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2.16 It may be recalled that the ma
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y law and applicable in all cases w
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ody under Article 5(4). As the Secr
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irrespective of whether the sentenc
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2.45 In Attorney General for Northe
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five years. This was made permanent
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penalty or suspending it for an exp
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protection from those with murderou
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an application for release under Ar
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2.87 The Supreme Court upheld the d
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independent judicial body which wou
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whether the life prisoner poses a c
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offences became extremely unpopular
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who rarely had large quantities of
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2.124 The Crime (Sentences) Act 199
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and suppliers. 300 It was proposed
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Bill which would, among other matte
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(2) Mandatory Sentences for Firearm
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(b) England and Wales 2.154 In 2002
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filtered into the public domain. Th
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now applied to a range of drug and
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D Historical Evolution of Mandatory
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supervision should be liable to one
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“These are unduly weak provisions
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offender is being sentenced for any
Page 122 and 123: 2.208 Section 24 of the 2007 Bill p
Page 124 and 125: proportionality and judicial discre
Page 126 and 127: 2.220 The Commission notes that an
Page 128 and 129: the Prison Rules 2007. 5 This mecha
Page 130 and 131: the case of a prisoner serving a ma
Page 132 and 133: e released. These recommendations w
Page 134 and 135: considers that the seriousness of t
Page 136 and 137: then adjusted to reflect the aggrav
Page 138 and 139: 3.37 In three jurisdictions (the No
Page 140 and 141: (8) Summary 3.43 From this survey,
Page 142 and 143: (b) The Principle of Proportionalit
Page 144 and 145: equirements of Article 5(1) were sa
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Page 148 and 149: process. In particular, considerati
Page 151 and 152: 4 CHAPTER 4 PRESUMPTIVE MINIMUM SEN
Page 153 and 154: (b) Importation 4.08 The first elem
Page 155 and 156: creates a risk of arbitrary and unj
Page 157 and 158: This permits the court to presume,
Page 159 and 160: should apply. Thus, it has been not
Page 161 and 162: injury. 66 An admission voluntarily
Page 163 and 164: 4.44 Section 27(3D)(c)(i) provides
Page 165 and 166: (4) Drug Mules 4.52 The Commission
Page 167 and 168: used, and (b) a vehicle the means o
Page 169 and 170: (i) Have 4.74 The meaning of the te
Page 171: Misuse of Drugs Act 1977, material
Page 175 and 176: “appropriate custodial term”, w
Page 177 and 178: offensive weapon or an article with
Page 179 and 180: 4.117 Minimum sentences are also pr
Page 181 and 182: identity theft; 257 (v) certain gan
Page 183 and 184: examinations; 282 (xv) stalking in
Page 185 and 186: in Schedule I or Schedule II to the
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Page 189 and 190: of age. 355 Second, the following o
Page 191 and 192: ecent years, it would appear that t
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Page 197 and 198: 4.183 Section 297 of the Criminal C
Page 199 and 200: offences. aims. It is arguable, how
Page 201 and 202: analysis suggested, among other thi
Page 203 and 204: 4.210 Third, the Commission observe
Page 205 and 206: 4.224 In Chapter 1, the Commission
Page 207: eneficial” response to other form
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Page 212 and 213: C Mandatory Sentence for a Second o
Page 214 and 215: institution. For the purposes of th
Page 216 and 217: 5.37 Subject to certain conditions,
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(iv) Federal Government 5.58 At fed
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(f) Australia 5.65 Certain Australi
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coerced the offender to commit the
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5.79 Division 2A of the Criminal La
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would be manifestly unjust. If the
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deterrent effect of mandatory sente
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treat dissimilar cases differently.
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and have therefore been discussed,
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6 CHAPTER 6 SUMMARY OF RECOMMENDATI
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