Report on Mandatory Sentences - Law Reform Commission

5.105 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.
(2) Mandatory Sentences for Second or Subsequent Offences and the Principles of Justice
(a)
The Principle of Consistency and Mandatory and Presumptive Sentences for Second or
Subsequent Offences
5.106 The Commission has observed that the principle of consistency requires a consistent application
of the aims and principles of sentencing (consistency of approach) as opposed to uniformity of sentencing
outcomes (consistency of outcomes). Consistency of approach thus requires that like cases should be
treated alike and different cases should be treated differently. The corollary of this is that inconsistency
arises where like cases are treated differently and different cases are treated alike.
(i) Criminal Justice Act 2007
5.107 The Commission notes that, at first sight, the sentencing regime applicable to repeat offenders
under the Criminal Justice Act 2007 appears to adhere to the principle of consistency. First, although this
regime applies in respect of a broad range of scheduled offences, three specific elements must be
satisfied in order for the presumptive penalty to apply. As previously outlined, this regime requires that:
(i) both the initial and subsequent offence must have been committed by an offender aged at least 18
years; (ii) the initial offence must have attracted a sentence of at least five years’ imprisonment; and (iii)
the subsequent offence must have been committed within 7 years of the date of conviction for the initial
offence. The inclusion of these requirements goes some way towards ensuring that the regime only
applies in respect of similar cases. Second, the fact that a sentencing court may disregard the
presumptive penalty where its application would be “disproportionate in all the circumstances of the case”
appears to provide that different cases need not be treated uniformly. A less culpable repeat offender
need not be subjected to the same minimum penalty as a more serious offender. Instead, the court may
consider any mitigating factors that exist in his or her favour and impose a sentence that more
appropriately reflects his or her culpability.
5.108 Nonetheless, the Commission considers that the presumptive nature of this sentencing
regime conflicts with the principle of consistency. As discussed at paragraphs 2.209 and 2.210, section
25 was enacted with a view to punishing more severely those offences typically associated with gangland
criminality. It therefore prioritises the realisation of consistent sentencing outcomes at the expense of a
consistent sentencing approach. By introducing a specific statutory regime for this particular group of
offences, section 25 may divert the courts from the key objective of adopting a consistent sentencing
approach to all instances of repeat offending. Indeed, from its discussions with interested parties since
the publication of the Consultation Paper, the Commission is not aware that section 25 has been applied
in any case to date. Practitioners have, however, emphasised to the Commission that in accordance with
the aims and principles of sentencing discussed in Chapter 1, higher sentences are in any event imposed
on repeat offenders than would be imposed on first-time offenders. To that extent, section 25, if it were to
be applied, would arguably bring confusion and add little or nothing to established sentencing practice.
The Commission therefore considers that the structured, guidance-based sentencing system envisaged
in the recommendations made in Chapter 1, would provide a more consistent approach to the sentencing
of repeat offenders.
(ii) Misuse of Drugs Act 1977
5.109 The Commission considers that the mandatory sentence applicable to repeat offenders under the
Misuse of Drugs Act 1977 may conflict with the principle of consistency. As discussed at paragraph
2.204, this regime was introduced to ensure that offenders who avoided the prescribed minimum
sentence upon being convicted of a first section 15A or section 15B offence, would not evade this penalty
if subsequently convicted under either provision. It is clear therefore, that the focus of this regime was,
initially at least, the outcome of the sentencing process rather than the approach to this process. The
Commission observes, however, that unlike the presumptive regime under the Criminal Justice Act 2007,
the regime under the Misuse of Drugs Act 1977 does not temper this focus by permitting the courts to
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