Report on Mandatory Sentences - Law Reform Commission

and have therefore been discussed, in the context of the presumptive minimum sentences applicable to
certain first-time drugs and firearms offences.
5.123 The first problem relates to the aims of sentencing, in particular, the aims of deterrence and
punishment. In this regard, the Commission has observed that the mandatory sentencing regimes under
the Misuse of Drugs Act 1977 and the Firearms Acts may not adequately meet these aims.
5.124 The second problem is a related problem. Where these mandatory sentencing regimes are not
meeting the aims of sentencing, it is questionable whether they are furthering the overall aim of the
criminal justice system, namely, the reduction of prohibited or unwanted conduct.
5.125 The third problem relates to the principles of justice, namely, the principles of consistency and
proportionality. In this regard, the Commission has noted that the mandatory sentencing regimes under
the Criminal Justice Act 2007, Misuse of Drugs Act 1977 and the Firearms Acts may give rise to
inconsistent sentencing. The provisions under the Misuse of Drugs Act 1977 and the Firearms Acts also
appear to create a particular risk of disproportionate sentencing.
5.126 The fourth problem relates to the argument that minimum sentences are not a cost-effective
response to crime. As discussed at paragraph 4.230, in the context of minimum sentences for drug
offences, the Rand Corporation has noted that for the same amount of money, a more effective method
would be to strengthen enforcement under the previous sentencing regime or to increase treatment for
heavy drug-users. 160
5.127 The fifth problem relates to the argument outlined at paragraph 4.231 that there is an
incongruence between the sentences applicable to drug offences and the sentences applicable to
firearms offences. In a broader sense, it would also appear to be inconsistent that certain repeat drug
and firearms offences attract a mandatory sentence, whereas many other repeat offences of equal or
greater gravity do not.
5.128 The final problem relates to the argument that mandatory sentencing regimes are too rigid to
keep abreast of evolving penal philosophy. As noted in the Consultation Paper, the views of sentencers
regarding matters such as the seriousness of a particular offence and the appropriateness of various noncustodial
and custodial sanctions may evolve over time. 161 Mandatory sentencing regimes are incapable
of keeping pace with these developments.
5.129 In light of this analysis, the Commission recommends that the existing mandatory and
presumptive sentencing regimes applicable to repeat offences be repealed. As discussed above, it has
not been established that these sentencing provisions have succeeded in reducing criminality.
5.130 In addition to the apparent failure of these regimes to reduce criminality, the Commission notes
that these provisions may, in practice, produce a number of counter-productive results. First, having
expanded upon the analysis contained in the Consultation Paper, the Commission considers that these
sentencing regimes are inconsistent with the fundamental principles of justice discussed in Chapter 1,
namely, the principles of consistency and proportionality in sentencing. As discussed in Part F, these
provisions appear to require an inconsistent approach to sentencing in so far as the courts are
constrained in their ability to treat like cases alike and different cases differently. Similarly, in restricting
the ability of the courts to take account of the individual circumstances of each offender, the regimes
under the Misuse of Drugs Act 1977 and the Firearms Acts appear to create a risk of disproportionate
sentencing.
5.131 In recommending the repeal of these mandatory and presumptive minimum sentencing regimes,
the Commission proposes that the development of a more structured, guidance-based sentencing system
(as envisaged in the recommendations made in Chapter 1) would facilitate an appropriate, alternative
response to the relevant offences. In the context of drug-related crime, in particular, the Commission also
considers that law enforcement efforts may be beneficially supplemented by alternative initiatives, such
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161
Rand Corporation “Are Mandatory Minimum Drug Sentences Cost-Effective” 1997. See also: Irish Penal
Reform Trust Mandatory Sentencing (IPRT Position Paper 3, 2009).
Law Reform Commission Consultation Paper on Mandatory Sentences (LRC CP 66-2011) at paragraph 1.66
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