Report on Mandatory Sentences - Law Reform Commission

treat dissimilar cases differently. Instead, there appear to be three ways in which this sentencing regime
may produce inconsistency.
5.110 First, this regime may require the courts to adopt an inconsistent approach to the sentencing of
similarly situated repeat drug offenders. This problem stems from the use of the “market value” criterion
as the triggering element for the regime. As discussed at paragraphs 4.12 to 4.15, evidence regarding
the market value of drugs is at best an estimate as the market value of any commodity may fluctuate
depending on when and where it is sold and how much of that commodity is already available.
Nonetheless, whether a repeat offender is considered to fall foul of this threshold will determine whether
the court is free to take into account any mitigating factors which may justify the imposition of a sentence
of less than 10 years. There is a risk therefore, that similarly situated repeat offenders may be treated
differently on the basis of an unreliable evaluation of the drugs in their possession.
5.111 Second, the Commission reiterates that in addition to the unreliability of this “market value”
threshold, it creates a “sentencing cliff” whereby a small difference in facts may lead to a significant
difference in sentence. Arguably, this mandates the adoption of a different sentencing approach in
respect of similarly situated repeat offenders. As previously outlined, a repeat offence involving drugs
worth at least €13,000 will attract a minimum sentence notwithstanding any mitigating factors. However,
by contrast, where the drugs at issue were worth even marginally less than €13,000, a repeat offender
may cite any relevant mitigating factors and potentially receive a lower sentence. This regime may thus
require the courts to adopt a different sentencing approach in respect of individuals whose conduct and
level of culpability are virtually identical. Indeed, the fact that mens rea regarding the value of the drugs is
not an element of the offence arguably compounds the risk that similarly culpable offenders may be
treated differently.
5.112 Third, the Commission notes that this regime may require the courts to adopt a sentencing
approach to certain repeat drug offenders, which is at odds with the approach adopted in respect of other
recidivist offenders. In particular, it has been noted that it would appear to be inconsistent that:
(iii)
“[t]he sentencing of virtually all other offences, including more serious ones, remains
discretionary. ... A person caught in possession of, say, €15,000 worth of cocaine who had
previously been convicted of a similar offence must now receive a prison sentence of 10 years or
longer. Yet, another person appearing in an adjoining court on the same day on a manslaughter,
rape or robbery charge might well receive a much shorter sentence, even though he had previous
convictions for similar offences. Violent offences of this nature usually attract heavy prison
sentences, but courts are always entitled to exercise leniency when there are clear and
exceptional mitigating factors. The repeat section 15A offender may also be able to point to
exceptional mitigating factors but, unlike the person convicted of a serious violent offence, he can
receive no leniency on that account... .” 158
Firearms Acts
5.113 The Commission observes that the regime applicable to repeat offenders under the Firearms
Acts was introduced to ensure that those who avoided the presumptive sentence when first convicted of a
specified offence would not evade this penalty if subsequently convicted of such an offence. It is thus
clear that the focus of this regime was, initially at least, the outcome of the sentencing process rather than
the approach to this process.
5.114 Furthermore, as previously discussed, it is arguably inconsistent that this regime requires the
courts to adopt a sentencing approach to repeat firearms offenders which is at odds with the approach
adopted in respect of other recidivist offenders.
(b)
The Principle of Proportionality and Mandatory and Presumptive Sentences for Second
or Subsequent Offences
5.115 The Commission has observed that the principle of proportionality comprises: (a) constitutional
proportionality, and (b) proportionality in sentencing.
158
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 66.
210