Report on Mandatory Sentences - Law Reform Commission

1.19 In the context of preventing future criminal conduct, mandatory sentencing provisions may also
be contrasted with other types of sentencing provision in so far as mandatory sentencing provisions tend
to rely more heavily on the severity of the sentence to dissuade future offending, rather than on other
mechanisms such as education, therapy or community service. Again, the extent to which the sentencing
system relies more heavily on the severity of the sentence to dissuade future offending depends on
whether the sentence is entirely mandatory or presumptive and subject to exceptions. As discussed in
detail in subsequent chapters, some presumptive sentencing provisions permit sentence reviews where,
for instance, the offender is addicted to drugs.
C
Aims of the Criminal Justice System and Sanctions
1.20 As noted at paragraphs 1.07 and 1.08, criminal sanctions pursue the following key aims:
deterrence, punishment, reformation and rehabilitation, reparation and incapacitation.
(1) Deterrence
1.21 Criminal sanctions are deterrent in so far as they seek to dissuade the particular offender from reoffending
(specific deterrence) and would-be offenders from offending in the first place (general
deterrence), by signalling the painful consequences that will otherwise result. 20 In this regard, it has been
asserted that there is a necessary link between punishment and deterrence in so far as you cannot have
the former without the latter. 21 In its 1993 Consultation Paper on Sentencing, 22 the Commission noted
that it was the certainty of punishment rather than the severity of punishment that gave rise to a deterrent
effect. 23 However, it has since been noted that there are other factors, such as the nature of the crime,
the target group of the particular sanction, the extent to which the offending behaviour attracts moral
condemnation, the extent to which the public has knowledge of the criminal sanction, and the swiftness of
the punishment, which may also affect the extent to which a particular criminal sanction deters. 24
1.22 The Commission observes that deterrence features strongly in the debate on mandatory and
presumptive sentences in so far as it is often advanced as a justification for the enactment of such
provisions. It is unclear, however, to what extent (if any) mandatory or presumptive sentences actually
deter. Some writers assert that entirely mandatory sentences are ineffective as deterrents. It has been
noted, for instance, that countries which retain the death penalty for murder often have high murder
rates. 25 Other writers note, however, that crimes like murder are exceptional in so far as they are often
committed in the heat of the moment when the perpetrators are in not in the frame of mind to contemplate
the legal consequences. 26 In its 1993 Consultation Paper on Sentencing, 27 the Commission stated that it
found no evidence to suggest that mandatory minimum sentences acted as a deterrent. 28 Tonry cites
research which, he asserts, establishes that mandatory sentences have either no demonstrable deterrent
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28
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 33ff; McAuley and
McCutcheon Criminal Liability (Round Hall, Sweet & Maxwell, 2000) at 104ff; and Department of Justice,
Equality and Law Reform White Paper on Crime, Discussion Document No.2: Criminal Sanctions (February
2010).
McAuley and McCutcheon Criminal Liability (Round Hall Sweet and Maxwell, 2000) at 104.
Law Reform Commission Consultation Paper on Sentencing (LRC CP 2-1993).
Ibid at paragraph 4.42.
Gabor and Crutcher “Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and
Justice System Expenditures” rr2002-1e (Research and Statistics Division, Canadian Department of Justice,
2002) at paragraph 4.3.1.
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 34.
Ibid at 34-35; Walker and Padfield Sentencing: Theory, Law and Practice (Butterworths, 2 nd ed, 1996) at 97.
Law Reform Commission Consultation Paper on Sentencing (LRC CP 2-1993).
Ibid. at paragraph 10.26.
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