Report on Mandatory Sentences - Law Reform Commission

4.210 Third, the Commission observes that aside from the unreliability of the “market value” threshold,
the fact that this threshold creates a “sentencing cliff” (whereby a small difference in facts may lead to a
significant difference in sentence 465 ) arguably requires the adoption of a different sentencing approach in
respect of similarly situated offenders. An offender convicted of a section 15A or section 15B offence
involving drugs worth at least €13,000, may expect to receive a minimum 10-year sentence save where
there are exceptional and specific circumstances. However, by contrast, where the drugs at issue were
worth even marginally less than €13,000, an offender may cite any mitigating factors and potentially
receive a reduction in sentence on the basis of these factors. This regime may thus require the courts to
adopt a different sentencing approach in respect of individuals whose conduct and level of culpability are
virtually identical. Indeed, the fact that mens rea regarding the value of the drugs is not an element of the
offence, arguably compounds the risk that similarly culpable offenders may be treated differently.
4.211 Fourth, at a broader level, inconsistency may result from the fact that judicial discretion is
constrained in the sentencing of certain drugs and firearms offences, while the sentencing of most other
offences, including more serious ones, is largely discretionary. 466
4.212 Fifth, the Commission observes that the courts’ power to list a sentence for review creates an
inconsistent system in so far as it only applies to offenders who have received the minimum sentence.
4.213 The Commission notes, however, that the presumptive sentencing regime under the Misuse of
Drugs Act 1977 permits the courts to take some account of distinguishing factors in individual cases, at
least in so far as they constitute exceptional and specific circumstances. This goes some way towards
ensuring that different cases are treated differently.
(ii)
Firearms Acts
4.214 The Commission observes that similar comments may be made in respect of the presumptive
sentencing regime under the Firearms Acts.
4.215 Like the regime under the Misuse of Drugs Act 1977, the presumptive sentencing regime under
the Firearms Acts was introduced in response to an apparent increase in firearms offences. Arguably,
the decision to address the issue by means of more severe sentencing suggests that, at the outset at
least, the primary focus of the regime was the outcome of the sentencing process rather than the
approach to the sentencing process. The Commission notes, however, that the presumptive sentencing
regime under the Firearms Acts permits the courts to take some account of distinguishing factors in
individual cases, at least in so far as they constitute exceptional and specific circumstances. As noted at
paragraph 4.213, this goes some way towards ensuring that different cases are treated differently.
4.216 As discussed at paragraph 4.211, however, it may be considered inconsistent that judicial
discretion should be constrained in the sentencing of certain drugs and firearms offences, while a largely
discretionary approach is permitted in the context of other offences of equal or greater gravity.
(b)
The Principle of Proportionality and Presumptive Minimum Sentences
4.217 The Commission has observed that the principle of proportionality comprises: (a) constitutional
proportionality, and (b) proportionality in sentencing.
465
466
See: Vincent and Hofer “The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent
Findings” (Federal Judicial Center, 1994) at 25.
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 66. The Sentencing Advisory
Council of Victoria makes a similar point, noting that:
“where mandatory sentencing is applied only to select offences (as is generally the case), it may
actually interfere with the hierarchy of sanctions. It may artificially increase the severity of
sanctions for some types of conduct while not doing so for conduct of similar blameworthiness that
is not targeted by the regime.”
[Sentencing Matters: Mandatory Sentencing (Sentencing Advisory Council of Victoria, 2008) at 12].
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