Report on Mandatory Sentences - Law Reform Commission

presumptive minimum sentence on the basis of factors which constitute exceptional and specific
circumstances. This goes some way towards ensuring that offenders do not receive disproportionate
sentences.
4.204 Similar observations may be made regarding the denunciatory aspect of this sentencing regime.
As the Firearms Acts prioritise the existence of a prior relevant conviction at the expense of other factors
relevant to culpability, this regime creates a risk that an individual offender may be denounced more
forcefully than is warranted by his or her culpability.
(2) Presumptive Minimum Sentences and the Principles of Justice
4.205 The Commission has observed that sentencing must also comply with a number of external
constraints that emanate from fundamental principles of justice, namely, the principles of: (a)
consistency, and (b) proportionality. In this section, the Commission considers the presumptive
sentencing regimes under the Misuse of Drugs Act 1977 and the Firearms Acts against these principles.
(a)
The Principle of Consistency and Presumptive Minimum Sentences
4.206 The Commission has observed that the principle of consistency requires a consistent application
of the aims and principles of sentencing (consistency of approach) rather than uniformity of sentencing
outcomes (consistency of outcomes). Consistency of approach thus requires that like cases should be
treated alike and different cases should be treated differently. The corollary of this is that inconsistency
arises where like cases are treated differently and different cases are treated alike.
(i) Misuse of Drugs Act 1977
4.207 The Commission observes that there are a number of ways in which the presumptive sentencing
regime under the Misuse of Drugs Act 1977 may run the risk of being inconsistent.
4.208 First, as discussed in Chapter 2, the presumptive 10-year minimum sentence under the Misuse of
Drugs Act 1977 was introduced (against the backdrop of an escalating drugs problem) to address the
perceived leniency of the sentencing courts in drug trafficking cases. Thus, at the outset at least, the
primary focus of the presumptive sentencing regime for drug trafficking offences was the outcome of the
sentencing process rather than the approach to the sentencing process.
4.209 Second, the Commission considers that using the market value of the controlled drugs as the
triggering factor for the presumptive sentence, may have implications for consistency in sentencing. It
has been noted that the factor which engages a mandatory sentencing regime should be clearly defined
and unequivocal. 463 By contrast, it has been observed that:
“[The market value] was, and remains, an unacceptably casual and unscientific manner of
establishing the nature and quantity of drugs involved in any given case. By virtue of their
illegality and the clandestine manner in which they circulate, prohibited substances cannot be
valued, except in the crudest terms, like other commodities. Street value may vary over time
and, also, from one part of the country to another. There can be no guarantee that the amount
of drugs (or any particular kind of drug) that could be bought for £10,000 in 1999 would
approximate to what can now be bought for €13,000.” 464
There is therefore a risk that similarly situated offenders may be treated differently on the basis of an
unreliable evaluation of the controlled drugs they possessed. In addition, as the market value threshold
has not changed since 1999, there is a risk that if the market value of drugs inflates over time, which it is
likely to do, more and more lower-level offenders will be caught by the provision.
463
464
O’Malley “Further Observations on DPP v Connolly (Part 1 of 3)” 22 February 2011. Available at:
www.extempore.ie/2011/02/22/further-observations-on-dpp-v-connolly-part-1-of-3/ [Last accessed: 22 May
2013].
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 104. O’Malley suggests that this
may be grounds for a constitutional challenge to the Misuse of Drugs Act 1977. See: O’Malley Sentencing -
Towards a Coherent System (Round Hall, 2011) at 105.
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