Report on Mandatory Sentences - Law Reform Commission

In a broader sense, it would also appear to be inconsistent that certain drugs and firearms offences
attract a presumptive minimum sentence, whereas many other offences of equal or greater gravity attract
neither a presumptive nor mandatory sentencing regime.
4.232 The final problem relates to the argument that mandatory sentencing regimes are too rigid to
keep abreast of evolving penal philosophy. As discussed in the Consultation Paper, the views of
sentencers regarding matters such as the seriousness of a particular offence and the appropriateness of
various non-custodial and custodial sanctions may evolve over time. 475 Mandatory sentencing regimes
are incapable of keeping pace with these developments.
4.233 In light of this analysis, the Commission recommends that the existing presumptive sentencing
regimes applicable to drugs and firearms offences be repealed. In the Consultation Paper, the
Commission observed that it had not been established that presumptive minimum sentences for drugs
and firearms offences had succeeded in reducing criminality. The Commission affirms this view. As
these regimes do not appear to further the sentencing aims of deterrence, retribution and rehabilitation, it
is unlikely that they further the overarching goal of crime-reduction.
4.234 In addition to the apparent failure of these regimes to reduce criminality, the Commission notes
that these provisions have, in practice, produced a number of counter-productive results. First, having
expanded upon the analysis contained in the Consultation Paper, the Commission considers that these
sentencing regimes are not consistent with the fundamental principles of justice discussed in Chapter 1,
namely, the principles of consistency and proportionality in sentencing. As discussed in Part E, these
provisions appear to require an inconsistent approach to sentencing in so far as the courts are
constrained in their ability to treat like cases alike and different cases differently. Similarly, in constraining
the ability of the courts to take account of the individual circumstances of each offender, it would appear
that these regimes create a risk of disproportionate sentencing.
4.235 Second, in the context of drug trafficking offences, in particular, it would appear that the
introduction of presumptive minimum sentences has primarily affected low-level “drug mules” rather than
the most culpable participants in the illicit drugs industry. As discussed in Part B, during the public
consultation and roundtable discussion, practitioners stated that high-level offenders have adapted to this
sentencing scheme and are largely shielding themselves from prosecution through the use of low-level
offenders as couriers. This view is consistent with the Commission’s own review of the case law in this
area and, in particular, with the observations of the Court of Criminal Appeal in the case of The People
(DPP) v Byrne (see paragraph 4.193 above). It may have initially been thought that some “drug mules”
would have been in a position to provide valuable evidence in relation to those criminal actors higher up
the organisational structure. However, during the consultation process, practitioners stated that this has
occurred in very few, if any, instances. This is because drug mules tend not to be members of the
criminal organisation and are chosen for that very reason. Indeed, those closely involved with the
practical application of this sentencing regime noted that there was a strong incentive for drug mules to
plead guilty rather than run the risk of becoming witnesses for the prosecution. This is because the
legislation provides for the non-application of the presumptive minimum sentence where a person pleads
guilty. This further aspect of the regime also explains why the majority of those imprisoned under this
provision are low-level offenders as opposed to influential high-level participants in the illicit drugs trade.
4.236 In recommending the repeal of these presumptive sentencing regimes, the Commission proposes
that the development of a more structured, guidance-based sentencing system (as envisaged in the
recommendations made in Chapter 1) would provide an appropriate alternative to these provisions. In
the context of drug-related crime, in particular, the Commission also considers that law enforcement
efforts may be beneficially supplemented by other initiatives, such as those highlighted in the research
conducted by the Health Research Board and the Misuse of Drugs work sector of the British-Irish Council
(see paragraphs 4.199 and 4.200).
4.237 Having regard to this conclusion regarding the existing presumptive sentencing regimes for drugs
and firearms offences, the Commission agrees with the view, provisionally adopted in the Consultation
Paper, that the introduction of additional presumptive minimum sentences would not be an “appropriate or
475
Law Reform Commission Consultation Paper on Mandatory Sentences (LRC CP 66-2011) at paragraph 1.66.
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