Report on Mandatory Sentences - Law Reform Commission

offences.
aims.
It is arguable, however, that these presumptive sentences are not adequately meeting these
(a) Misuse of Drugs Act 1977
4.192 The Commission observes that, for various reasons, the presumptive sentencing regime under
the Misuse of Drugs Act 1977 may not adequately meet the aim of deterrence. At one end of the scale,
there are the high-level offenders who, it would seem, shield themselves from detection and prosecution
by means of complex and constantly evolving networks of distributors. It is unlikely that many of these
high-level offenders would be deterred by the prospect of a presumptive 10-year sentence when they are
unlikely to be subjected to it.
4.193 At the other end of the scale, there are the low-level drug mules whose involvement in the drugs
trade is generally secured by means of exploitation and/or coercion. It is unlikely that these offenders
would be deterred by the prospect of a presumptive minimum sentence as many of them will not be in a
position (through incapacity, foreign nationality etc) to assess the legal consequences of their actions and
many others will be more afraid of the consequences of refusal. The Court of Criminal Appeal has
observed that in addition to these offenders who have been “exploited to work as drug couriers for a
pittance”, many of those appealing sentences imposed under this regime “are themselves drug addicts
struggling to escape from the terrors of their addiction.” 445 This is significant in so far as mandatory
sentences are understood to have a very limited deterrent impact on those who are seeking to support a
drug addiction through criminality. 446 In particular, Mascharka notes that as drug addicts are often
prepared to risk victimisation, overdose, the transmission of diseases, and toxicity and impurities in the
drug in order to feed their addiction, they are unlikely to be deterred by the prospect of lengthy
imprisonment. 447
4.194 Admittedly, it may be the case that having once served a sentence for their role as a drug mule,
some of these offenders will be less willing to perform that role again. Given that there is a virtually
limitless pool of vulnerable and desperate potential candidates, 448 however, it is unlikely that this would
have a significant impact on the overall rate of drug trafficking.
4.195 The Commission also observes that the presumptive sentencing regime under the Misuse of
Drugs Act 1977 may not adequately meet the aim of punishment. From a retributive perspective, it would
seem unjust that the range of actors involved in drug trafficking should be subject to the same
presumptive sentencing regime regardless of their level of moral culpability or involvement. This regime
creates a parallel system of sentencing whereby offenders who were in possession of controlled drugs
worth €13,000 or more are liable to be punished more severely than others involved in the illicit drugs
trade. The market value of the drugs is therefore prioritised at the expense of other factors relevant to
culpability, such as the role, motive and state of mind of the offender. 449 This regime would appear to
445
446
447
448
449
The People (DPP) v Byrne [2012] IECCA 72.
Mascharka “Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences” (2001)
28(4) Florida State University Law Review 935 at 948; Odeh “Emerging from the Haze of America’s War on
Drugs and Examining Canada’s New Half-Baked Laws” (2013) 36(1) Fordham International Law Journal 198
at 211-212.
Mascharka “Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences” (2001)
28(4) Florida State University Law Review 935 at 948.
Overview 3: Drugs and Crime in Ireland (Health Research Board, 2006) at 109. See also: Tonry Sentencing
Matters (Oxford University Press, 1996) at 141. Tonry observes that due to the economic deprivation of many
potential drug mules, practitioners and researchers consider this form of criminality to be “uniquely insensitive
to the deterrent effects of sanctions.” He notes that despite risks of arrest, imprisonment, injury and death,
drug trafficking is perceived to offer disadvantaged people economic and other rewards which far outweigh
any available in the legitimate economy.
See: Vincent and Hofer “The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent
Findings” (Federal Judicial Center, 1994) at 13.
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