Report on Mandatory Sentences - Law Reform Commission

(i)
Constitutional Proportionality and Presumptive Minimum Sentences
4.218 As discussed in Chapter 3, the Supreme Court has ruled that the Oireachtas is entitled to
prescribe a mandatory sentence whenever it considers that a mandatory sentence is an appropriate
penalty. 467 It thus follows that the Oireachtas is entitled to prescribe a presumptive minimum sentence
whenever it considers that such a sentence is an appropriate penalty.
(ii)
Sentencing Proportionality and Presumptive Minimum Sentences
4.219 The Commission has observed that the principle of proportionality in sentencing requires an
individualised approach to sentencing whereby the court has regard to the circumstances of both the
offence and the offender.
(I) Misuse of Drugs Act 1977
4.220 The Commission observes that there are a number of ways in which the presumptive sentencing
regime under the Misuse of Drugs Act 1977 may give rise to disproportionate sentencing.
4.221 In the first instance, the Commission observes that the presumptive sentencing regime under the
Misuse of Drugs Act 1977 is a relatively severe system of sentencing. It creates a “one-strike rule” 468
whereby any offender who is found to have been in possession of controlled drugs worth €13,000 or
more, may expect to receive a sentence of 10 years to life save where there are exceptional and specific
circumstances. By international standards, this prescribed minimum term is very long. 469 Furthermore,
the severity of this system is compounded by the fact that the Misuse of Drugs Act 1977 limits the
circumstances in which such an offender may be granted early release.
4.222 Second, those who are in favour of mandatory sentences typically focus on the most serious
cases, with little regard to the less serious cases to which the sentences also apply. 470 By constraining
the ability of the courts to punish offenders on an individualised basis, these regimes create an increased
risk of disproportionate sentencing. 471 In particular, the regime under the Misuse of Drugs Act 1977
would appear to entail a danger that low-level offenders may be treated like high-level offenders. Indeed,
as they are easier to detect, it has been noted that the majority of those being sentenced under the
presumptive regime are low-level drug mules rather than high-level drug barons. 472
(II)
Firearms Acts
4.223 The Commission observes that similar comments may be made in respect of the presumptive
sentencing regime under the Firearms Acts. This regime also imposes a relatively severe “one-strike”
rule and, to the extent that it constrains judicial discretion, creates a risk of disproportionate sentencing.
(3) Discussion
467
468
469
470
471
472
Deaton v Attorney General [1963] IR 170, 181; and State (P Woods) v Attorney General [1969] IR 385, 403-
404.
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 340.
O’Malley “Time Served: The Impact of Sentencing and Parole Decisions on the Prison Population” at 4 (Paper
delivered to the Irish Penal Reform Trust, Morris Hotel, Dublin, 28 June 2010). Available at:
www.iprt.ie/files/Tom_OMalley_Presentation_IPRT_Open_Forum_28062010.pdf [Last accessed: 22 May
2013].
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 103.
This risk of disproportionality received judicial acknowledgement in The People (DPP) v Heffernan Court of
Criminal Appeal 10 October 2002. In that instance, the Court observed that:
“It has to be realised that the effect of the statute is to trammel judicial discretion in a case such as this
and that the Oireachtas have, for reasons that seem to them sufficient, indicated a minimum sentence of a
substantial nature in respect of these offences. They have presumably in doing so considered the fact that
such sentence might be regarded as harsh in certain circumstances and on certain individuals.” (own
emphasis).
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 103.
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