Report on Mandatory Sentences - Law Reform Commission

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4.138 The Sentencing Commission asserted that this disparity can largely be traced to the structure and severity of mandatory minimum penalties. It observed that mandatory minimum provisions typically use a limited number of aggravating factors to trigger the prescribed penalty, without regard to the possibility that mitigating circumstances surrounding the offence or the offender might justify a lower sentence. For such a sentence to be reasonable in every case, it observed, the factors triggering the mandatory minimum penalty must always warrant the prescribed mandatory minimum penalty, regardless of the individualised circumstances of the offence or the offender. It noted that this cannot be the situation for all cases and thus suggested that Congress should consider whether a statutory “safety valve” mechanism, similar to the one available for certain drug trafficking offenders, might be appropriately tailored for low-level, non-violent offenders convicted of other offences carrying mandatory minimum penalties. 4.139 By contrast with mandatory minimum penalties, the Sentencing Commission observed that sentencing guidelines prescribe proportional, individualised sentences, based on many factors relating to the seriousness of the offence and the criminal history and other characteristics of the offender. It concluded that this multi-dimensional approach to sentencing seeks to avoid the problems inherent in the structure of mandatory minimum penalties and, for this reason, best serves the purposes of the Sentencing Reform Act. (e) Canada 4.140 Under the first Canadian Criminal Code of 1892, mandatory minimum sentences applied in respect of six offences, most of which related to corruption. 296 In recent decades, however, Canada has witnessed a marked increase in the use of this mode of punishment. 297 Minimum sentences are now prescribed for certain drug offences, firearms offences, sexual offences committed against children, and serious fraud. In this section, the Commission considers the application of these sentencing regimes to offenders convicted for the first time of a specified offence. The enhanced minimum penalties applicable to repeat offenders are addressed in Chapter 5. (i) Drug Offences 4.141 Numerous drug offences attract a mandatory minimum sentence under the Controlled Drugs and Substances Act, as amended. 298 4.142 First, a minimum sentence of one year applies where the following offences are committed in prescribed circumstances: (i) trafficking in a substance listed in Schedule I or Schedule II to the Act or any substance represented or held out to be such a substance, 299 and (ii) possessing a substance listed 296 297 298 299 Crutcher “Mandatory Minimum Penalties of Imprisonment: An Historical Analysis” (2000-2001) 44 Crim. L.Q. 279 at 280. Ibid at 279. Section 39 - section 46 of the Safe Streets and Communities Act. Section 5(1) of the Controlled Drugs and Substances Act. Schedule I lists the following substances, as well as their preparations, derivatives, alkaloids and salts: (i) opium poppy; (ii) coca; (iii) phenylpiperidines; (iv) phenazepines; (v) amidones; (vi) methadols; (vii) phenalkoxams; (viii) thiambutenes; (ix) moramides; (x) morphinans; (xi) benzazocines; (xii) ampromides; (xiii) benzimidazoles; (xiv) phencyclidine; (xv) piritramide; (xvi) fentanyls; (xvii) tilidine; (xviii) methylenedioxypyrovalerone; and (xix) methamphetamine. The substance referred to in Schedule 2 to the Act is cannabis, including its preparations, derivatives and similar synthetic preparations. Not included are nonviable cannabis seed, with the exception of its derivatives, or mature cannabis stalks that do not include leaves, flowers, seeds or branches; and fiber derived from such stalks. Section 5(3)(a.1) of the Controlled Drugs and Substances Act, as inserted by section 39 of the Safe Streets and Communities Act, further specifies that this regime will not apply where the subject matter of the offence is a substance included in Schedule II in an amount not more than that set out for that substance in Schedule VII. 160
in Schedule I or Schedule II to the Act for the purpose of trafficking. 300 The minimum sentence must be imposed where: (a) the person committed the offence for the benefit of, at the direction of, or in association with, a criminal organization; (b) the person used, or threatened to use, violence in committing the offence; (c) the person carried, used, or threatened to use a weapon in committing the offence; or (d) the person was convicted of a designated substance offence, or served a prison sentence for a designated substance offence, within the previous 10 years. 301 These offences attract an enhanced minimum sentence of two years if one of the following aggravating factors is present: (a) the person committed the offence in or near a school, on or near school grounds, or in or near any other public place usually frequented by persons under the age of 18 years; (b) the person committed the offence in a prison or on its grounds; or (c) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence. 302 4.143 Second, a minimum sentence of one year also applies where the following offences are committed in specified circumstances: (i) importing and exporting a substance listed in Schedule I in an amount that is not more than one kilogram, or a substance listed in Schedule II, 303 and (ii) possessing, for the purpose of exportation, a substance listed in Schedule I in an amount that is not more than one kilogram, or a substance listed in Schedule II. 304 The court must impose the minimum sentence where: (a) the offence was committed for the purpose of trafficking; (b) the perpetrator, while committing the offence, abused a position of trust or authority; or (c) the person had access to an area that is restricted to authorised persons and used that access to commit the offence. 305 Where the subject matter of either offence is a substance listed in Schedule I, in an amount that is more than one kilogram, a minimum sentence of two years applies. 306 4.144 Third, the offence of producing a substance listed in Schedule I 307 ordinarily attracts a minimum sentence of two years. 308 However, if one of the following aggravating factors is present, the court is required to impose a minimum sentence of three years: (a) the person used real property belonging to a third party in committing the offence; (b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area; (c) the production constituted a potential public safety hazard in a residential area; or (d) the person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area. 309 300 301 302 303 304 305 306 307 308 309 Section 5(2) of the Controlled Drugs and Substances Act. Section 5(3)(a)(i) of the Controlled Drugs and Substances Act, as amended by section 39 of the Safe Streets and Communities Act. Section 5(3)(a)(ii) of the Controlled Drugs and Substances Act, as amended by section 39 of the Safe Streets and Communities Act. Section 6(1) of the Controlled Drugs and Substances Act. Section 6(2) of the Controlled Drugs and Substances Act. Section 6(3)(a) of the Controlled Drugs and Substances Act, as amended by section 40 of the Safe Streets and Communities Act. Section 6(3)(a.1) of the Controlled Drugs and Substances Act, as amended by section 40 of the Safe Streets and Communities Act. Section 7(1) of the Controlled Drugs and Substances Act. Section 7(2)(a) of the Controlled Drugs and Substances Act, inserted by section 41 of the Safe Streets and Communities Act. Section 7(3) of the Controlled Drugs and Substances Act, inserted by section 41 of the Safe Streets and Communities Act. 161
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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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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,
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Page 144 and 145: equirements of Article 5(1) were sa
Page 146 and 147: cannot reflect these variations in
Page 148 and 149: process. In particular, considerati
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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
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Page 179 and 180: 4.117 Minimum sentences are also pr
Page 181 and 182: identity theft; 257 (v) certain gan
Page 183: examinations; 282 (xv) stalking in
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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 214 and 215: institution. For the purposes of th
Page 216 and 217: 5.37 Subject to certain conditions,
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Page 220 and 221: the perpetrator has a previous conv
Page 222 and 223: (iv) Federal Government 5.58 At fed
Page 224 and 225: (f) Australia 5.65 Certain Australi
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Page 228 and 229: 5.79 Division 2A of the Criminal La
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Page 232 and 233: 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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