Report on Mandatory Sentences - Law Reform Commission

create a risk that an individual offender may receive a level of punishment disproportionate to his or her
culpability. The courts are permitted to impose a sentence lower than the presumptive minimum
sentence where there are exceptional and specific circumstances. This goes some way towards ensuring
that offenders do not receive disproportionate sentences.
4.196 Similar observations may be made regarding the denunciatory aspect of this sentencing regime.
As this regime prioritises the market value of the drugs at the expense of other factors relevant to
culpability, it creates a risk that an individual offender may be denounced more forcefully than is
warranted by his or her culpability.
4.197 The Commission observes that rehabilitation is another aim that is built into the presumptive
sentencing regime under the Misuse of Drugs Act 1977. As discussed at paragraph 4.48, section 27(3J)
provides that the court may list a sentence for review after half of the term has expired. To list a sentence
for review, the court must be satisfied that the offender was addicted to drugs at the time of the offence
and that this was a substantial factor leading to the commission of the offence. It has been noted,
however, that this provision is limited to the extent that it only applies to offenders who have received the
minimum sentence of 10 years or more. 450
4.198 It is thus questionable whether the presumptive sentencing regime under the Misuse of Drugs Act
1977 is contributing to the overall aim of the criminal justice system, namely, the reduction of prohibited or
unwanted conduct. Indeed, while it is possible that offending rates might be higher in the absence of
these provisions, it has been noted that recorded levels of drug crime have increased greatly during the
period in which these presumptive sentences have been in force. 451 This tends to support the view that
the objective of reducing drug-related crime is unlikely to be achieved solely through criminal law
enforcement.
4.199 The Commission notes that in 2006 the Health Research Board (HRB) examined the nature of
the link between drugs and crime with a view to informing the development of effective policy
responses. 452 The study employed four explanatory models: (i) the psycho-pharmacological model; 453 (ii)
the economic-compulsive model; 454 (iii) the systemic model; 455 and (iv) the common-cause model. 456 This
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451
452
453
454
455
456
The People (DPP) v Dunne [2003] 4 IR 87; and O’Malley Sentencing Law and Practice (Thomson Round Hall,
2 nd ed, 2006) at 334.
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 103.
Overview 3: Drugs and Crime in Ireland (Health Research Board, 2006). Available at:
www.hrb.ie/uploads/tx_hrbpublications/Drugs_and_crime_in_Ireland-Overview_3.pdf. [Last accessed: 22 May
2013]
The psycho-pharmacological model proposes that the effects of intoxication cause criminal (especially
violent) behaviour or that aggression and crime can be caused, for example, by the effects of withdrawal or
sleep deprivation. In this regard, the HRB indicated that international evidence was inconclusive and Irish
research limited. (See: Overview 3: Drugs and Crime in Ireland (Health Research Board, 2006) at 12)
The economic-compulsive model assumes that drug users need to generate illicit income from crimes such as
robbery, burglary and prostitution to support their drug habit. In this regard, the HRB indicated that Irish
research supports the argument that there is an economic motivation to commit crime to purchase drugs.
(See: Overview 3: Drugs and Crime in Ireland (Health Research Board, 2006) at 12)
The systemic model explains drug-related crime as resulting from activities associated with the illegal drug
market. In this regard, the HRB indicated that local studies show that there is a connection between local drug
markets and significant levels of community disturbance and anti-social behaviour. (See: Overview 3: Drugs
and Crime in Ireland (Health Research Board, 2006) at 12)
The common-cause model suggests that there is no direct causal link between drugs and crime but that both
are related to other factors including socio-economic deprivation. In this regard, the HRB indicated that Irish
research has consistently revealed that underlying social factors, such as educational disadvantage, poverty
and inequality contributed to both problematic drug use and crime. (See: Overview 3: Drugs and Crime in
Ireland (Health Research Board, 2006) at 12)
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