Report on Mandatory Sentences - Law Reform Commission

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CHAPTER 5
MANDATORY SENTENCES FOR SECOND OR SUBSEQUENT
OFFENCES
A
Introduction
5.01 In the Consultation Paper, the Commission observed that in very select situations, legislation
provides guidance as to how repeat offenders should be sentenced for second or subsequent offences. 1
Section 11(1) of the Criminal Justice Act 1984, 2 for example, provides that any sentence imposed on a
person for an offence committed while he or she is on bail, must run consecutively to any sentence
passed on him or her for the prior offence. Section 13(1) of the Criminal Law Act 1976 also provides that
any sentence passed on a person for an offence committed while he or she is serving a sentence, must
run consecutively to the sentence that he or she is serving.
5.02 In this chapter, the Commission focuses on the imposition of presumptive or mandatory
sentences for second or subsequent offences. In Ireland, there are three examples of this type of
sentencing regime; these are prescribed by: (i) the Criminal Justice Act 2007; (ii) the Misuse of Drugs Act
1977; and (iii) the Firearms Acts. Part B to Part D of this chapter examines the practical operation of
these sentencing regimes. Part E considers the approaches adopted by other common law countries in
respect of the sentencing of repeat offenders. The Commission concludes in Part F by examining
presumptive and mandatory sentences for second or subsequent offences against the conceptual
framework for criminal sanctions and sentencing.
B
2007
Presumptive Sentence for a Second or Subsequent Offence under the Criminal Justice Act
5.03 Subject to specified conditions, section 25(1) of the Criminal Justice Act 2007 prescribes a
presumptive minimum sentence for the commission of a second or subsequent serious offence listed
under Schedule 2 to the Act. In this Part, the Commission considers the application of this regime by
examining: (1) the elements which trigger the presumptive minimum sentence, (2) the relevant penalty
provisions, and (3) the early release provisions.
(1) Elements which Trigger the Presumptive Minimum Sentence
5.04 In this section, the Commission is not concerned with the particular elements of the offences
listed in Schedule 2 to the Criminal Justice Act 2007. These offences are not relevant to the operation of
this presumptive sentencing regime except in so far as a second or subsequent conviction for any such
offence will trigger the regime. In this respect, section 25 of the 2007 Act differs from the presumptive
penalty provisions under the Misuse of Drugs Act 1977 and the Firearms Acts.
(i)
Age
5.05 Section 25(1) provides that the offender must be at least 18 years of age on the dates on which
he or she is convicted of the first and subsequent scheduled offences. Presumably, this subsection was
intended to ensure that the presumptive minimum sentence would not apply to juvenile offenders. 3 The
reference to the ‘date of conviction’ means, however, that an offender who commits a scheduled offence
1
2
3
Law Reform Commission Consultation Paper on Mandatory Sentences (LRC CP 66-2011) at paragraph 4.04.
As amended by section 22 of the Criminal Justice Act 2007.
Fitzgerald “Californication of Irish Sentencing Law” (2008) ICLJ 42 at 45.
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