Report on Mandatory Sentences - Law Reform Commission

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C Mandatory Sentence for a Second or Subsequent Offence under the Misuse of Drugs Act 1977 5.16 Section 27(3F) of the Misuse of Drugs Act 1977, as amended, 15 states that where an adult offender is convicted of a second or subsequent offence under section 15A or section 15B of the 1977 Act, the court must specify a sentence of not less than the statutory minimum sentence. In this Part, the Commission considers the practical implications of this sentencing regime. (1) Operation of the Mandatory Sentencing Regime under section 27(3F) of the Misuse of Drugs Act 1977 5.17 The mandatory minimum sentence prescribed by section 27(3F) of the Misuse of Drugs Act 1977 applies where a person has been convicted of two or more offences under section 15A, two or more offences under section 15B, or two or more offences under section 15A and section 15B. This regime does not require that a sentence of at least the presumptive minimum term have been imposed for the initial offence. It is arguable therefore, that the prior crime could be relatively minor. Furthermore, this regime does not stipulate any particular time frame within which the second offence must be committed. Therefore a significant period of time could elapse between the first and second offence. 5.18 The presumptive minimum sentence must be imposed in the case of a second or subsequent section 15A or section 15B offence; no exception is permitted. 16 5.19 It appears that subsection (3G) to subsection (3K) (discussed at paragraphs 4.47 and 4.49) continue to apply in relation to persons convicted of a second or subsequent offence. While the power to grant early release is therefore restricted, the power to list a sentence for review is maintained. D Mandatory Sentence for a Second or Subsequent Offence under the Firearms Acts 5.20 The Firearms Acts, as amended, require the imposition of a mandatory minimum sentence upon an adult offender who is convicted of a second or subsequent specified firearms offence. 17 In this Part, the Commission considers the practical operation of this sentencing regime. (1) Operation of the Mandatory Sentencing Regime under the Firearms Acts 5.21 The mandatory minimum sentence prescribed under the Firearms Acts applies where a person is convicted on a subsequent occasion of a firearms offence which would, in the case of a first conviction, attract a presumptive minimum sentence. This regime does not require that a sentence of at least the presumptive minimum term have been imposed for the prior offence. The prior offence could be relatively minor. Furthermore, this regime does not stipulate a particular time frame within which the subsequent offence must be committed. Thus, in The People (DPP) v Clail, 18 the Court of Criminal Appeal observed that it was obliged to impose the prescribed minimum sentence in circumstances where the prior firearm offence had been committed in 1990. 5.22 The presumptive minimum sentence must be imposed in the case of a second or subsequent firearms offence; no exception is permitted. 19 5.23 It appears that section 27C 20 of the Firearms Act 1964 (discussed at paragraph 4.90) continues to apply in relation to persons convicted of second or subsequent offences. The power to grant early release is thus restricted. 15 16 17 18 19 Section 27(3F) was substituted by section 33 of the Criminal Justice Act 2007. Section 27(3E) of the Misuse of Drugs Act 1977 Section 15(8) of the Firearms Act 1925; section 26(8) of the Firearms Act 1964; section 27(8) of the Firearms Act 1964; section 27A(8) of the Firearms Act 1964; section 27B(8) of the Firearms Act 1964; and section 12A(13) of the Firearms and Offensive Weapons Act 1990, as inserted by section 42, section 57, section 58, section 59, section 60 and section 61 of the Criminal Justice Act 2006. The People (DPP) v Clail [2009] IECCA 13. Subsection (12) of section 12A of the Firearms and Offensive Weapons Act 1990. 188
E Comparative Analysis 5.24 In this Part, the Commission considers the use of mandatory (and presumptive) sentences for second or subsequent offences in other common law countries. (a) Northern Ireland 5.25 Although Northern Ireland applies a mandatory sentencing regime in respect of certain firearms offences and “serious offences”, it does not apply such a scheme in respect of second or subsequent offences. (b) England and Wales 5.26 In England and Wales, there are three examples of presumptive sentencing regimes applicable to repeat offenders. These sentencing regimes are prescribed for certain repeat drug offences, repeat domestic burglaries, and for the purposes of public protection. (i) Drugs Offences 5.27 Section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 prescribes a minimum sentence of 7 years’ imprisonment for an offender, aged at least 21 years, who is convicted of a third Class A drug trafficking offence, committed when he or she was at least 18 years of age. 21 Where an offender is under the age of 21 years and is convicted of a third class A drug trafficking offence, committed when he or she was at least 18 years of age, the court must impose a minimum sentence of 7 years’ detention in a young offender institution. For the purposes of this regime, one of the prior drug trafficking offences must have been committed by the offender after he or she was convicted of the other. 5.28 Under section 110(2), a sentence of less than 7 years may only be imposed where there are “specific circumstances” relating to the offences or the offender which would make it “unjust in all the circumstances” to apply the minimum sentence. While the 2000 Act does not define what is meant by “specific circumstances”, section 110(3) obliges the court, where it finds that such circumstances exist, to expressly state what these are. 5.29 Section 152(3) of the 2000 Act permits the court to impose a sentence of not less than 80 percent of the minimum term prescribed, where the accused has indicated an intention to plead guilty. 22 In determining whether to exercise this option, the court is required to take into account the stage at which the accused indicated this intention and the circumstances surrounding that indication. 23 It has been asserted, however, that the court is entitled to take advantage of section 152 whenever an offender has pleaded guilty, even in circumstances where the intention to plead guilty was not indicated in advance of the trial. 24 Where the court does rely on section 152 in imposing a sentence lower than the prescribed minimum, it must indicate how it arrived at that sentence and what allowance has been made for the plea. 25 (ii) Domestic Burglary 5.30 Section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 prescribes a minimum sentence of three years’ imprisonment for an offender, aged at least 21 years, who is convicted of a third domestic burglary, committed when he or she was at least 18 years of age. Where an offender under the age of 21 years is convicted of a third domestic burglary, committed when he or she was at least 18 years of age, the court must impose a minimum sentence of three years’ detention in a young offender 20 21 22 23 24 25 Section 27C was inserted by section 61 of the Criminal Justice Act 2006. Class A drugs are defined in Part 1 of Schedule 2 to the Misuse of Drugs Act 1971. The term “drug trafficking offence” is defined by section 1 of the Drug Trafficking Act 1994. See also section 144 of the Criminal Justice Act 2003. Section 152(1) of the Powers of Criminal Courts (Sentencing) Act 2000. Current Law Statutes (Sweet and Maxwell, 2000) at 6-105. Section 152(2) of the Powers of Criminal Courts (Sentencing) Act 2000. 189
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REPORT MANDATORY SENTENCES (LRC 108
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MEMBERSHIP The Law Reform Commissio
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ADMINISTRATION STAFF Head of Admini
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ACKNOWLEDGEMENTS The Commission wou
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TABLE OF CONTENTS TABLE OF LEGISLAT
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CHAPTER 5 (1) Presumptive Minimum S
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Pg N o . Criminal Code Act 1899 (Ql
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Pg N o . Misuse of Drugs Act 1971 c
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TABLE OF CASES Pg N o . Attorney Ge
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Pg N o . The People (DPP) v Barry T
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Pg N o . The People (DPP) v Kelly C
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INTRODUCTION A Background: Request
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sentences for offences committed wh
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1 CHAPTER 1 CONCEPTUAL FRAMEWORK FO
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from loss of liberty is clearly evi
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3. Criminal conduct will, in genera
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1.19 In the context of preventing f
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and vocational programmes. 39 Suppo
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standards, recognising that these m
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he lost his post, pension and pay-r
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(i) Identifying the range of applic
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1.58 In general, however, the court
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Thus, depending on the presence of
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matters. She lost interest in study
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of the person who must pay it. In t
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(9) Whether the offence was committ
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e put through the additional suffer
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(1) The Problem of a Lack of Struct
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conviction that restricted employme
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and to hold public seminars on matt
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A mechanism based on measures being
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since 1996; and (iii) information i
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which captured adverse public atten
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compromise which failed to achieve
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2.16 It may be recalled that the ma
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y law and applicable in all cases w
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ody under Article 5(4). As the Secr
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irrespective of whether the sentenc
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2.45 In Attorney General for Northe
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five years. This was made permanent
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penalty or suspending it for an exp
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protection from those with murderou
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an application for release under Ar
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2.87 The Supreme Court upheld the d
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independent judicial body which wou
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whether the life prisoner poses a c
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offences became extremely unpopular
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who rarely had large quantities of
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2.124 The Crime (Sentences) Act 199
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and suppliers. 300 It was proposed
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Bill which would, among other matte
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(2) Mandatory Sentences for Firearm
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(b) England and Wales 2.154 In 2002
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filtered into the public domain. Th
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now applied to a range of drug and
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D Historical Evolution of Mandatory
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supervision should be liable to one
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“These are unduly weak provisions
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offender is being sentenced for any
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2.208 Section 24 of the 2007 Bill p
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proportionality and judicial discre
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2.220 The Commission notes that an
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the Prison Rules 2007. 5 This mecha
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the case of a prisoner serving a ma
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e released. These recommendations w
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considers that the seriousness of t
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then adjusted to reflect the aggrav
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3.37 In three jurisdictions (the No
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(8) Summary 3.43 From this survey,
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(b) The Principle of Proportionalit
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equirements of Article 5(1) were sa
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cannot reflect these variations in
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process. In particular, considerati
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4 CHAPTER 4 PRESUMPTIVE MINIMUM SEN
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(b) Importation 4.08 The first elem
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creates a risk of arbitrary and unj
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This permits the court to presume,
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should apply. Thus, it has been not
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Page 228 and 229: 5.79 Division 2A of the Criminal La
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