Report on Mandatory Sentences - Law Reform Commission

sentences for offences committed while on bail; and mandatory sentences for second or subsequent
offences. In some jurisdictions, the term could include those provisions that indicate a defined “tariff” (the
minimum term of imprisonment that must be served before the prisoner can be considered for release)
based on binding sentencing guidelines, as had been the case at one time at federal level in the United
States of America.
9. The Commission has concluded that it should not confine its examination to “entirely” mandatory
sentences but should review legislative provisions that set down a fixed sentence, or a minimum
sentence, following conviction for a particular type of offence. Within that broad definition, a variety of
mandatory sentences are already in use in Ireland.
10. The first and clearest example of a mandatory sentence is the entirely mandatory life sentence
for murder (and treason). 7 In the case of a person convicted of “capital murder” (the form of murder for
which the death penalty formerly applied), a mandatory minimum sentence of 40 years’ imprisonment
applies. In the case of an attempt to commit capital murder, a minimum sentence of 25 years’
imprisonment applies. 8
11. A second type of mandatory sentence is probably more accurately described as a “presumptive”
minimum sentence. 9 This is the type that applies to certain drugs offences 10 and firearms offences. 11
These sentencing regimes require that a court must ordinarily impose a prescribed minimum term of
imprisonment. However, it allows the court to impose a sentence below the prescribed minimum term
where this is justified by exceptional and specific circumstances. Another example of a presumptive
minimum sentence is that which applies to an individual who commits a second or subsequent serious
offence within a prescribed period, having previously received a sentence of at least five years’
imprisonment for a first serious offence. 12
12. A third example of a mandatory sentence is the mandatory minimum sentence which applies
where an offender commits a second or subsequent specified drugs or firearms offence. 13 This
particularised treatment of recidivist offenders is also evident in the statutory provisions mandating
consecutive sentences for offenders who have, for instance, committed an offence while on bail.
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Outline of the <strong>Report</strong>
13. In Chapter 1, the Commission outlines a conceptual framework within which current Irish
mandatory sentencing regimes may be analysed. This chapter suggests that these regimes may be
evaluated by reference to three key concepts: 1) the overarching purpose of the criminal justice system
(the reduction of criminal conduct); 2) the specific aims of criminal sanctions (deterrence, punishment,
reform and rehabilitation, reparation, and incapacitation); and 3) the fundamental principles of justice (the
principles of consistency and proportionality). The chapter describes these concepts, and their
interaction, in detail. It emphasises, in relation to the two principles of justice, that the courts have sought
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Section 2 of the Criminal Justice Act 1990.
Section 4 of the Criminal Justice Act 1990.
The Irish Penal Reform Trust considers that these sentences are not strictly speaking mandatory sentences
but are a type of presumptive sentence, in that there is a presumption that these sentences would apply
unless the court considers that they should not apply in a given case: see Irish Penal Reform Trust, Position
Paper on Mandatory Sentencing (Position Paper 3, May 2009), available at www.iprt.ie. The Commission
considers, nonetheless, that such sentences come within the parameters of the Attorney General’s request.
Sections 15A, 15B and 27 of the Misuse of Drugs Act 1977, as inserted by sections 4 and 5 of the Criminal
Justice Act 1999 and further amended by section 33 of the Criminal Justice Act 2007.
Under the Firearms Act 1925, as amended by section 42 of the Criminal Justice Act 2006.
Section 25 of the Criminal Justice Act 2007.
Section 27(3CCCC) of the Misuse of Drugs Act 1977, as inserted by section 84 of the Criminal Justice Act
2006, and re-numbered by section 33 of the Criminal Justice Act 2007.
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