Report on Mandatory Sentences - Law Reform Commission

and vocational programmes. 39 Support for the reformative and/or rehabilitative aspects of criminal
sanctions is not, however, universal. 40
1.26 The Commission observes that reform and rehabilitation are rarely, if ever, advanced as
justifications for mandatory or presumptive sentencing provisions. On the contrary, reform and
rehabilitation are often submitted as “exceptional and specific circumstances” justifying a sentence lower
than the sentence prescribed by presumptive sentencing provisions (such as those in the Misuse of
Drugs Act 1977 and the Firearms Acts).
(4) Reparation
1.27 Criminal sanctions may be reparative in so far as they require an offender to do something to
repair the damage that his or her wrong-doing has inflicted on society. 41 This may take the form of
directly or indirectly compensating the victim of the offence. Alternatively, if there is no individual or
identifiable victim or, indeed, if the victim is unwilling to accept it, reparation can be made to the
community as a whole, for example, through the performance of community service or the payment of a
fine into public funds. In this way, reparation may contribute to policies aimed at the reintegration of
offenders. It has been noted, however, that a sentencer who discriminates between an offender who can
afford to make monetary reparation and an offender who cannot, particularly where the alternative is
imprisonment, may be regarded as acting inequitably. 42
1.28 Reparation is rarely, if ever, asserted as a justification for mandatory or presumptive sentencing
provisions. This may be due to the fact that criminal sanctions which are predominantly reparative in
nature are usually proposed as an alternative to a sentence of imprisonment.
(5) Incapacitation
1.29 Criminal sanctions may be incapacitative in so far as they deprive the offender of the opportunity
to commit another offence. 43 While this may be the effect of certain criminal sanctions, the Commission
observes that there is a constitutional objection to introducing a criminal sanction in order to deprive an
offender of his or her liberty on the basis of anticipated rather than proven offending. 44 Aside from the
practical issues (including that it is notoriously difficult to make accurate predictions regarding future
behaviour 45 and that the incapacitative effects of imprisonment are, at best, modest 46 ) the courts have
clarified that an incapacitative rationale would run counter to the constitutionally protected right to
personal liberty and the presumption of innocence. 47 As will be discussed below, it would also run
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43
44
45
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MacKenzie “What Works. What doesn’t Work. What’s Promising” in Priestley and Vanstone, eds, Offenders or
Citizens Readings in Rehabilitation (Willan, 2010) at 245.
McAuley and McCutcheon Criminal Liability (Round Hall Sweet and Maxwell, 2000) at 102-103; Law Reform
Commission Consultation Paper on Sentencing (LRC CP 2-1993) at paragraph 10.26; and Priestley and
Vanstone Offenders or Citizens Readings in Rehabilitation (Willan, 2010) at 107.
Department of Justice, Equality and Law Reform White Paper on Crime, Discussion Document No.2: Criminal
Sanctions (February 2010); and Cavadino and Dignan The Penal System - An Introduction (Sage
Publications, 3 rd ed, 2002) at 44-45.
Walker and Padfield Sentencing: Theory, Law and Practice (Butterworths, 2 nd ed, 1996) at paragraph 9.38.
Department of Justice, Equality and Law Reform, White Paper on Crime, Discussion Document No.2: Criminal
Sanctions (February 2010); and Cavadino and Dignan The Penal System - An Introduction (Sage
Publications, 3 rd ed, 2002) at 44-45.
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 42.
Ibid; Ashworth Sentencing and Criminal Justice (Butterworths, 3 rd ed, 2000) at 69; and Law Reform
Commission Consultation Paper on Sentencing (LRC CP 2-1993) at paragraph 4.46.
Cavadino and Dignan The Penal System - An Introduction (Sage Publications, 3 rd ed, 2002) at 39.
The People (Attorney General) v O’Callaghan [1966] IR 501 at 508-509; The People (DPP) v Carmody [1988]
ILRM 370 at 372; The People (DPP) v Jackson Court of Criminal Appeal 26 April 1993; The People (DPP) v
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