Report on Mandatory Sentences - Law Reform Commission

4.224 In Chapter 1, the Commission noted that drugs and firearms offences have a particularly
deleterious impact on society. It is therefore understandable that the Oireachtas should wish to increase
the severity of the sanctions applicable to these offences through the enactment of presumptive minimum
sentences. The Commission further recognised that the provision of presumptive minimum sentences
may be seen to afford individual members of society, who might otherwise feel victimised and powerless,
an opportunity to express their condemnation of such offences.
4.225 The Commission observes, however, that having regard to the aims and principles of
sentencing outlined in Chapter 1, there is a need to ensure that these provisions achieve their stated
objectives and that, as a result, they facilitate the reduction of crime (the paramount aim of the criminal
justice system). From the analysis undertaken in Part E, it would appear that this is not the case; the
Commission has identified seven problems which characterise the presumptive minimum sentencing
regimes applicable to drugs and firearms offences.
4.226 The first problem relates to the category of offenders that are being prosecuted and sentenced.
In relation to the Misuse of Drugs Act 1977, at least, it would appear that many of those coming before
the courts are low-level drug mules rather than high-level drug barons.
4.227 The second problem relates to the aims of sentencing, in particular, the aims of deterrence,
punishment and rehabilitation. In this regard, the Commission has observed that the presumptive
sentencing regimes under the Misuse of Drugs Act 1977 and the Firearms Acts may not adequately meet
these aims.
4.228 The third problem is a related problem. Where the presumptive sentencing regimes are not
meeting the aims of sentencing, it is questionable whether they are furthering the overall aim of the
criminal justice system, namely, to reduce prohibited or unwanted conduct.
4.229 The fourth problem relates to the principles of justice, namely, the principles of consistency and
proportionality. In this regard, the Commission has noted that the presumptive sentencing regimes under
the Misuse of Drugs Act 1977 and the Firearms Acts may give rise to inconsistent and disproportionate
sentencing.
4.230 The fifth problem relates to the argument that minimum sentences are not a cost-effective
response to crime. Regarding mandatory minimum sentences for drug offences, the Rand Corporation
has noted that for the same amount of money, a more effective method would be to strengthen
enforcement under the previous sentencing regime or to increase treatment for heavy drug-users. 473
4.231 The sixth problem relates to the argument that there is incongruence between the sentences
applicable to drugs offences and the sentences applicable to firearms offences. In this regard, Smith
observes:
“[A]s a sentencing procedure [sentencing section 15A offences] can lead to unfairness for those
who come before the courts. Whilst it is accepted that the dangers of drugs and their threat to
society can never be underestimated, it is unclear why those who are caught with firearms are
only subject to a presumptive mandatory sentence of five years. Whereas, those vulnerable
persons in society who are used as couriers are subject to the presumptive 10 year mandatory
minimum. It is accepted that exceptional and specific circumstances tend to guide judges away
from the 10 years in appropriate circumstances, but nonetheless the figure is constantly present
in [the] sentencing judge’s mind.” 474
473
474
Rand Corporation “Are Mandatory Minimum Drug Sentences Cost-Effective” 1997. See also: Irish Penal
Reform Trust Mandatory Sentencing (IPRT Position Paper 3, 2009).
Smith “Sentencing Section 15A Offences” (2010) 20(1) ICLJ 8. See also: O’Malley “Presumptive Minimum
Sentences for Assault Offences found Constitutional in France” (15 March 2011). Available at:
www.extempore.ie/2011/03/15/presumptive-minimum-sentences-for-assault-offences-found-constitutional-infrance/
[Last accessed: 22 May 2013].
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