Report on Mandatory Sentences - Law Reform Commission

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§2D1.13, §2D2.1, §2D2.2, §2D3.1 and §2D3.2 prescribe the same mandatory minimum sentence for the underlying offence as for attempts and conspiracies to commit any offence of importation or exportation. (II) Firearms Offences 4.132 §924(c)(1)(A)(i) and §2K2.4 stipulate that an additional penalty of five years must be imposed for using or carrying a firearm during a crime of violence or drug trafficking crime. §924(c)(1)(A)(ii) and §2K2.4 stipulate that an additional penalty of 7 years must be imposed for brandishing a firearm during a crime of violence or drug trafficking crime. §924(c)(1)(A)(iii) and §2K2.4 stipulate that an additional penalty of 10 years must be imposed for discharging a firearm during a crime of violence or drug trafficking crime. §924(c)(1)(B)(i) and §2K2.4 stipulate that an additional penalty of 10 years must be imposed for possessing a firearm that is a short-barrelled rifle or shotgun. §924(c)(1)(B)(ii) and §2K2.4 stipulate that an additional penalty of 30 years must be imposed for possessing a machinegun, destructive device or firearm equipped with a silencer or muffler. 4.133 §924(c)(1)(C)(i) and §2K2.4 stipulate that an additional penalty of 25 years must be imposed for a second or subsequent conviction under §924(c)(1)(A). §924(c)(1)(C)(ii) and §2K2.4 prescribe a minimum sentence of life for a second or subsequent conviction under §924(c)(1)(A), with a machine gun, destructive device or firearm equipped with a silencer or muffler. §924(c)(5)(A) and §2K2.4 stipulate that an additional penalty of 15 years must be imposed for possession or use of armour-piercing ammunition during a crime of violence or drug trafficking crime. §924(e)(1) and §2K2.4 prescribe a minimum sentence of 15 years for possession of a firearm or ammunition by a fugitive offender or addict, who has three convictions for violent felonies or drug offences. §929(a)(1) and §2K2.4 stipulate that an additional penalty of five years must be imposed for carrying a firearm during a violent offence or drug trafficking crime. (III) Other 4.134 Minimum sentences are also prescribed for: (i) certain immigration offences; 269 (ii) identity theft; 270 (iii) sexual offences against children; 271 (iv) production, possession or use of fire or explosives; 272 (v) airplane hijacking; 273 (vi) obstruction of justice; 274 (vii) illegal food stamp activity; 275 (viii) kidnapping; 276 (ix) hostage-taking; 277 (x) bank robbery, racketeering, and organised crime; 278 (xi) fraud, bribery and white collar crime; 279 (xii) piracy; 280 (xiii) certain types of assault or battery; 281 (xiv) interference with civil service 269 270 271 272 273 274 275 276 277 278 279 §1324(a)(2)(B)(i) and §2L1.1; §1324(a)(2)(B)(ii) and §2L1.1; and §1326(b)(3) and §2L1.2. §1028A(a)(1) and §2B1.6; and §1028A(a)(2) and §2B1.6. §1591(b)(1), §2G1.1, §2D2.1 and §2G1.3; §1591(b)(2), §2G1.1, §2D2.1 and §2G1.3; §2251A(a) and §2G2.3; §2251A(b) and §2G2.3; §2241(c) and §2A3.1; §2250(c) and §2A3.6; §1466A(a), §1466A(b) and §2G2.2; §2251(a), §2251(e) and §2G2.1; §2251(b), §2251(e) and §2G2.1; §2251(c), §2251(e), §2G2.1 and §2G2.2; §2251(d), §2251(e) and §2G2.2; §2252(a)(1), §2252(a)(3) and §2G2.2; §2252(a)(2) and §2G2.2; §2252(a)(4) and §2G2.2; §2252A(a)(1) to §2252A(a)(4), §2252A(a)(6) and §2G2.2; §2252A(a)(5) and §2G2.2; §2252A(g) and §2G2.2; §2257(i) and §2G2.5; §2260(a) and §2G2.1; §2260(b) and §2G2.2; §2260A and §2A3.5; §2422(b), §2G1.1 and §2G1.3; §2423(a) and §2G1.3; §2423(e) and §2G1.3; §3599(e)(1); and §3599(c)(1). §1245(b); §229A(a)(2); §33(b), §2A2.1, §2A2.2, §2B1.1 and §2K1.4; §844(f)(1), §2K1.4 and §2X1.1; §844(h), §2K1.4 and §2K2.4; §844(i) and §2K1.4; §844(o) and §2K2.4; and §2272(b) and §2M6.1. §46502(a)(2)(A), §2A5.1 and §2X1.1; §46502(a)(2)(B), §2A5.1 and §2X1.1; §46502(b)(1)(A), §2A5.1 and §2X1.1; §46502(b)(1)(B), §2A5.1 and §2X1.1; and §46506(1) and §2A5.3. §192; §390; §13a and §2B1.1; §13b; §15b(k); and §195(3) and §2N2.1. §2024(b)(1) and §2B1.1; and §2024(c) and §2B1.1. §1201(g)(1) and §3559(f)(2). §1203(a), §2A4.1 and §2X1.1. §225(a), §2B1.1 and §2B4.1; §1956(h) and §2S1.1; and §2113(e), §2A1.1 and §2B3.1. §4221 and §2B1.1; §622 and §2C1.1; §447; §220(e); §617; §630; and §8. 158
examinations; 282 (xv) stalking in violation of a restraining order; 283 (xvi) treason; 284 (xvii) failure to report seaboard saloon purchases; 285 (xviii) practice of pharmacy and sale of poisons in China; 286 (xix) navigable water regulation violation; 287 (xx) deposit of refuse or obstruction of navigable waterway; 288 (xxi) deposit of refuse in New York or Baltimore harbours; 289 (xxii) violation of merchant marine act; 290 (xxiii) refusal to operate railroad or telegraph lines; 291 (xxiv) sale or donation of HIV positive tissue or bodily fluids to another person for subsequent use other than medical research; 292 (xxv) and trespassing on federal land for hunting or shooting. 293 As discussed in Chapter 5, there are also provisions dealing with habitual offenders. 294 (IV) United States Sentencing Commission <strong>Report</strong> to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (2011) 4.135 In October 2011, the United States Sentencing Commission prepared a report on mandatory sentences pursuant to a congressional directive in section 4713 of the Hate Crimes Prevention Act 2009. 295 The Sentencing Commission was thus required to assess the compatibility of mandatory minimum penalties with the federal guideline system and to discuss mechanisms other than mandatory minimum sentencing laws by which Congress might take action with respect to sentencing policy. 4.136 In the <strong>Report</strong>, the Sentencing Commission indicated that while there was a spectrum of views among its members regarding mandatory minimum penalties, it uniformly believed that a strong and effective sentencing guidelines system best serves the purposes of the Sentencing Reform Act. The Sentencing Commission stated, however, that if Congress decided to exercise its power to direct sentencing policy by enacting mandatory minimum penalties, such penalties should: (1) not be excessively severe, (2) be narrowly tailored to apply only to those offenders who warrant such punishment, and (3) be applied consistently. 4.137 The Sentencing Commission observed that certain mandatory minimum provisions apply too broadly and/or are set too high to warrant the prescribed minimum penalty for the full range of offenders who could be prosecuted under the particular criminal statute. Different charging and plea practices have thus developed in various districts and resulted in the disparate application of certain mandatory minimum penalties. 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 §1651; §1652; §1653; §1655; §1658(b); and §1661. §1389. §1917. §2261(b)(6) and §2M1.1. §2381 and §2A6.2. §283 and §2T3.1. §212. §410 §411 and §2Q1.3. §441. §58109(a). §13. §1122. §414 §3559(c)(1). <strong>Report</strong> to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (United States Sentencing Commission, 2011). 159
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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
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2.208 Section 24 of the 2007 Bill p
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proportionality and judicial discre
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2.220 The Commission notes that an
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the Prison Rules 2007. 5 This mecha
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the case of a prisoner serving a ma
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Page 136 and 137: then adjusted to reflect the aggrav
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Page 140 and 141: (8) Summary 3.43 From this survey,
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Page 148 and 149: process. In particular, considerati
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Page 155 and 156: creates a risk of arbitrary and unj
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Page 159 and 160: should apply. Thus, it has been not
Page 161 and 162: injury. 66 An admission voluntarily
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Page 165 and 166: (4) Drug Mules 4.52 The Commission
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Page 179 and 180: 4.117 Minimum sentences are also pr
Page 181: identity theft; 257 (v) certain gan
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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
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Page 207: eneficial” response to other form
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Page 222 and 223: (iv) Federal Government 5.58 At fed
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Page 228 and 229: 5.79 Division 2A of the Criminal La
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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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