Report on Mandatory Sentences - Law Reform Commission

(i)
Constitutional Proportionality and Mandatory and Presumptive Sentences for Second or
Subsequent Offences
5.116 As discussed in Chapter 3, the Supreme Court has confirmed that the Oireachtas is entitled to
prescribe a mandatory sentence whenever it considers this to be an appropriate penalty. It follows
therefore, that mandatory or presumptive sentences for second or subsequent offences do not offend the
constitutional doctrine of proportionality.
(ii)
Sentencing Proportionality and Mandatory Sentences for Second or Subsequent
Offences
5.117 The Commission has observed that the principle of proportionality in sentencing requires an
individualised approach to sentencing whereby the court has regard to the circumstances of both the
offence and the offender.
(iii) Criminal Justice Act 2007
5.118 The Commission observes that the sentencing regime under section 25 of the Criminal Justice
Act 2007 does not conflict with the principle of proportionality in sentencing. This regime expressly
permits a sentencing court to disregard the presumptive minimum sentence where the application of this
penalty would be “disproportionate in all the circumstances of the case”.
(iv) Misuse of Drugs Act 1977
5.119 The Commission considers that the mandatory sentencing regime under section 27(3F) of the
Misuse of Drugs Act 1977 poses a particular risk of disproportionate sentencing. This risk stems from the
fact that the regime permits of no exceptions to the imposition of the minimum sentence. Instead, it
prioritises two aggravating factors, namely, the fact of a previous section 15A or section 15B conviction,
and the market value of the drugs involved, without regard to the possible presence of any mitigating
factors which might justify a downward departure from the prescribed minimum. For such a sentence to
be proportionate in every case, the aggravating factors which trigger the sentencing regime must always
warrant the application of the prescribed minimum penalty. 159 It cannot be guaranteed, however, that this
will be the case in every instance of repeat offending.
(v)
Firearms Acts
5.120 The Commission observes that similar comments may be made in respect of the mandatory
sentencing regime applicable to repeat offenders under the Firearms Acts. This regime prioritises one
aggravating factor, namely, the fact of a previous relevant conviction under the Acts, at the expense of
any mitigating factors which may justify a downward departure from the prescribed minimum sentence.
Accordingly, this sentencing regime creates a risk of disproportionate sentencing.
(3) Discussion
5.121 In Chapter 1, the Commission acknowledged that repeat offending has a particularly deleterious
impact on society. It is understandable therefore, that the Oireachtas should wish to increase the severity
of the sanctions applicable to these offences through the enactment of mandatory minimum sentences.
The Commission further recognised that the provision of mandatory sentences may be seen to afford
individual members of society, who might otherwise feel victimised and powerless, an opportunity to
express their condemnation of such offences.
5.122 The Commission reiterates, however, that having regard to the aims and principles of
sentencing outlined in Chapter 1, there is a need to ensure that these provisions achieve their stated
objectives and that, as a result, they facilitate the reduction of crime (the paramount aim of the criminal
justice system). From the analysis undertaken in Part F, it would appear that this is not the case; the
Commission has identified six problems which characterise the mandatory and presumptive minimum
sentencing regimes currently applicable to certain repeat offences. Many of these problems also arise,
159
See: <strong>Report</strong> to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 2011) at 346.
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