Report on Mandatory Sentences - Law Reform Commission

deterrent effect of mandatory sentencing is questionable. In the specific context of drug trafficking,
however, the Commission notes that the effectiveness of such a regime appears particularly doubtful.
5.98 First, the Commission observes that the prospect of a mandatory sentence for a second or
subsequent offence is unlikely to deter high-level actors within the drug trafficking trade. As discussed at
paragraph 4.235, these offenders appear to have adapted to this penal approach by developing complex
distribution networks that enable them to evade detection and prosecution. As these high-level offenders
are rarely apprehended, it seems unlikely that either the prospect of a presumptive sentence for a first
offence, or a mandatory sentence for a subsequent offence, will deter them from engaging in this form of
criminality.
5.99 Second, as discussed at paragraph 4.194, the Commission observes that even if the prospect of
a mandatory sentence may deter some low-level offenders from risking a second or subsequent
conviction, this regime is unlikely to further the goal of general deterrence. As there will in all probability
remain a plentiful supply of willing replacements, this sentencing regime is unlikely to impact significantly
on the overall rate of drug-trafficking.
5.100 The Commission observes that the sentencing regime for repeat offenders under the Misuse of
Drugs Act 1977 may not appropriately pursue the aim of punishment. From a retributive perspective, this
regime restricts the ability of the courts to punish repeat drug trafficking offenders in accordance with their
level of culpability. The most culpable repeat offenders may be punished more heavily through the
imposition of a sentence greater than the mandatory minimum. However, by prioritising two aggravating
factors, namely, the existence of a prior conviction under section 15A or section 15B, and the value of the
drugs involved, at the expense of any factors which might justify a downward departure from the
prescribed minimum, this regime risks certain repeat offenders receiving a disproportionate sentence.
5.101 Similar observations may be made regarding the denunciatory aspect of this sentencing regime.
This regime prioritises two aggravating factors at the expense of any factors which might justify a
downward departure from the prescribed minimum sentence. This creates a risk that an individual
offender may be denounced more forcefully than is warranted in the circumstances.
5.102 The Commission observes that rehabilitation is another aim which is built into the mandatory
sentencing regime under the Misuse of Drugs Act 1977. As discussed at paragraph 4.48, section 27(3J)
provides that a sentencing court may list a sentence for review after half of the term has expired. To list a
sentence for review, the court must be satisfied that the offender was addicted to drugs at the time of the
offence and that this was a substantial factor leading to the commission of the offence. This provision
also stipulates that only an offender who has at least received the minimum 10-year sentence may have
his or her sentence listed for review. As the minimum sentence must be imposed in all cases in which an
offender receives a second or subsequent conviction under section 15A or section 15B, this criterion will
be fulfilled in every such instance. The Commission therefore observes that this sentencing regime may,
to some extent, further a rehabilitative aim.
(c)
Firearms Acts
5.103 The Commission considers that the mandatory sentence applicable to repeat offenders under the
Firearms Acts is unlikely to facilitate deterrence. It has been noted that in general the deterrent effect of
mandatory sentencing is questionable. In the specific context of firearms offences, however, the
Commission notes that the effectiveness of such a regime is open to particular doubt. As discussed at
paragraph 4.202, mandatory sentencing regimes operate on the premise that the decision to offend is
fully rational. In the context of firearms offences, however, this approach may be overly simplistic,
disregarding complex potential contributing factors such as expressions of masculinity and social
deprivation.
5.104 The Commission also observes that the sentencing regime for repeat offenders under the
Firearms Acts may not appropriately pursue the aim of punishment. From a retributive perspective, the
Firearms Acts prioritise one aggravating factor, namely, the existence of a prior relevant conviction under
the Acts, at the expense of any factors which might justify a downward departure from the prescribed
minimum sentence. This regime therefore risks certain repeat offenders being punished in a manner
disproportionate to their level of culpability.
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