Report on Mandatory Sentences - Law Reform Commission

If the subsequent scheduled offence is murder, or a drugs or firearms offence that attracts a presumptive
minimum sentence under the Misuse of Drugs Act 1977 or the Firearms Acts, section 25 will not apply. 11
5.10 The fact that section 25 refers to the date on which the offender was convicted of the prior
offence (as opposed to the date on which the offence was committed) reflects the rationale that the
offender should be addressed by reference to his or her previous interaction with the law. If reference
was made to the date of commission, the offender might not have had an interaction with the law and
therefore might not be expected to have learned from his or her punishment.
(v)
Within a Period of 7 Years
5.11 Section 25(1)(c)(ii) provides that the subsequent offence must be committed within 7 years of the
date of conviction for the first offence. This excludes any period of imprisonment in respect of the first or
subsequent offence. The period of 7 years thus appears to relate to the time during which the offender
was at liberty following the date of conviction.
5.12 Alternatively, section 25(1)(c)(ii) states that the offence may be committed during any period of
imprisonment in respect of the first or subsequent offence. It thus appears that, in such circumstances,
the subsequent offence may be committed during a period exceeding 7 years, depending on the length of
the term of imprisonment.
(2) Penalty for Subsequent Scheduled Offence
5.13 In the above circumstances, section 25(1) of the Criminal Justice Act 2007 prescribes a
presumptive minimum sentence of at least three quarters of the maximum term provided by law for the
subsequent offence. If the offence carries a maximum sentence of life imprisonment, a presumptive
minimum term of 10 years will apply. The severity of the presumptive penalty will therefore depend on
the nature of the subsequent offence.
5.14 Section 25(3) provides, however, that the minimum sentence need not be applied where the court
is satisfied that its imposition would be “disproportionate in all the circumstances of the case”. This
provision appears to impose a lower threshold than the “exceptional and specific circumstances” proviso
under the Misuse of Drugs Act 1977 and the Firearms Acts. As a result, it has been observed that this
aspect of the sentencing regime “will probably deprive [it] of much of [its] punitive bite” 12 and that section
25 is therefore “essentially discretionary”. 13
(3) Early Release
5.15 The power to grant early release to those convicted of a second or subsequent scheduled
offence under section 25 of the Criminal Justice Act 2007 has been restricted. Section 25(13) states that
the powers of commutation and remission granted to the Government by section 23 of the Criminal
Justice Act 1951 cannot be exercised in respect of an offender sentenced in accordance with section 25.
Section 25(13) does provide, however, that a sentence imposed under section 25 will remain subject to
ordinary remission for good behaviour which currently stands at one-quarter of the sentence. Section
25(15) states that the power to grant temporary release 14 may not be exercised until such time as the
power to grant commutation or remission has arisen, except “for grave reasons of a humanitarian nature”.
Where temporary release is granted, it will be for such limited period of time as is justified by those
reasons. It should also be noted that section 25 does not permit the court to list a sentence for review.
11
12
13
14
Section 25(2) of the Criminal Justice Act 2007.
O’Malley “Sentencing Recidivist Sex Offenders: A Challenge for Proportionality” (2008). Paper delivered at
Conference on Recent Developments in Criminal Law, Trinity College Dublin, December 2008 and
subsequently published in Bacik and Heffernan, eds, Criminal Law and Procedure: Current Issues and
Emerging Trends (Firstlaw, 2009) at 106-132.
Collins “And Throw Away the Key” (2007) 101(7) Law Society Gazette 36 at 38-39.
This power is granted by section 2 of the Criminal Justice Act 1960.
187