Report on Mandatory Sentences - Law Reform Commission

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the resulting judgments may be internally consistent, yet inconsistent with each other. 218 The sentencing ranges specified for one offence may thus be higher than those specified for another offence that would usually be regarded as less grave. 219 Fourth, the Court of Criminal Appeal operates in an information vacuum 220 in so far as it is, by and large, dependent on the information submitted by counsel and any presentence reports. Finally, it is difficult to compile a comprehensive record of the guidance formulated by the Court of Criminal Appeal as the dissemination of appellate decisions is somewhat unstructured. 221 (b) Irish Sentencing Information System 1.114 In addition to the Court of Criminal Appeal, the Irish Sentencing Information System (ISIS) was established on a pilot basis. The results of the pilot project, which was completed in 2010, have been made available on a dedicated website (www.irishsentencing.ie). ISIS, which is broadly similar to information systems in New South Wales and Scotland, 222 is a searchable database of the sentencing decisions of the Dublin, Limerick, and Cork Circuit Criminal Courts. 223 It is hoped that ISIS will be established on a permanent basis, perhaps as part of a Judicial Council, 224 and that it will assist judges to form preliminary views as to appropriate sentences; to deal with unusual features of cases; and to locate offences on the spectrum of sentences. 225 At the moment, however, the potential of ISIS is limited in a number of respects. The database, which has not been updated since 2010, provides access to a limited selection of sentencing decisions from the Circuit Criminal Court in Dublin and, to a lesser extent, Cork and Limerick. 226 In addition, the database does not provide any formal analysis of the sentencing decisions. 1.115 The Commission notes, however, the announcement by the ISIS Committee, in January 2013, of three new initiatives designed to advance its work in providing sentencing information. 227 Firstly, the Committee has confirmed that ISIS has received the necessary resource support to recommence its work in gathering and providing sentencing information through its online database. Secondly, the Committee has signalled its intention to recommence providing sentencing information in relation to specific issues 218 219 220 221 222 223 O’Malley “Living Without Guidelines” in Ashworth and Roberts, eds, Sentencing Guidelines: Exploring the English Model” (Oxford University Press, 2013) [forthcoming] Ibid. Law Reform Commission Consultation Paper on Sentencing (LRC CP 2-1993) at paragraph 3.23. See also: Hammond “Intuitive Synthesis or Structured Discretion” (2007) NZLR 211 at 231-232 and Charleton and Scott “Throw Away the Key: Public and Judicial Approaches to Sentencing - Towards Reconciliation”, The Martin Tansey Memorial Lecture, the Criminal Courts of Justice, 10 April 2013 at 2-3. Available at: www.acjrd.ie/files/Throw_Away_the_Key._Public_and_Judicial_Approaches_to_Sentencing_- _Towards_Reconcilliation_3.pdf [Last accessed: 22 May 2013] O’Malley Sentencing -Towards a Coherent System (Round Hall, 2011) at 120ff; and Law Reform Commission Consultation Paper on Sentencing (LRC CP 2-1993) at paragraph 3.24. Conroy and Gunning “The Irish Sentencing Information System (ISIS): A Practical Guide to a Practical Tool” [2009] 1 JSIJ 37 at 38. Ibid. 224 O’Malley “Recent Developments in Sentencing”. Paper delivered at 13 th Conference, Dublin Castle,19 May 2012 at 3. Annual National Prosecutors’ 225 226 227 Conroy and Gunning “The Irish Sentencing Information System (ISIS): A Practical Guide to a Practical Tool” [2009] 1 JSIJ 37 at 53. The Thornton Hall Project Review Group indicated that it would be desirable to extend the collection of sentencing information through ISIS or a similarly structured system. See: <strong>Report</strong> of the Thornton Hall Project Review Group 2011 at 73. See: “New initiatives on Sentencing Information announced on 27 th January 2013” Press Release, 27 January 2013. Available at: www.irishsentencing.ie/en/ISIS/Pages/WP13000002 [Last accessed: 22 May 2013]. 36
and to hold public seminars on matters relevant to sentencing. 228 Thirdly, ISIS has also published three recent analyses, 229 prepared by the Judicial Researchers’ Office, of sentencing in cases of: (i) rape, (ii) manslaughter, and (iii) robbery. (c) Judicial Council 1.116 The Commission observes that a Judicial Council may now be added to this list. In 2011, the Chief Justice established a Judicial Council on an interim basis. 230 This followed the publication in 2010 of the Scheme of a Judicial Council Bill. 231 This was inspired by the 2000 <strong>Report</strong> of the Committee on Judicial Conduct and Ethics (the Keane Committee) which recommended the establishment of a Judicial Council which would have “functions similar in some respects to those of the judicial commission established in New South Wales.” 232 Head 4 of the Scheme of a Judicial Council Bill proposes that the members of the Judicial Council would be the Chief Justice, the President of the High Court, the President of the Circuit Court and the President of the District Court. Head 12 proposes the establishment of a Judicial Studies Institute as a committee of the Judicial Council. It also proposes that the functions of the Institute would include the preparation and distribution of Bench Books and the dissemination of information on sentencing. 233 1.117 By contrast with the courts and ISIS, it is likely that such a Judicial Studies Institute would be in a position to formulate guidance on a regular and on-going basis. This guidance could be informed by wide ranging research and made available to all the courts and the public. Furthermore, as a Judicial Council would be led by members of the judiciary, this process of developing guidance should not take away from the need to preserve judicial independence or judicial discretion. (d) Developments in Northern Ireland 1.118 The Commission observes that Ireland is somewhat behind the majority of its common law counterparts regarding the development of structured sentencing mechanisms which have, by and large, taken the form of statutory sentencing frameworks. 234 However, in respect of Northern Ireland (a legal jurisdiction which closely resembles our own), Ireland seems to have reached a similar stage in its consideration of how best to achieve a more structured sentencing system. 228 229 230 231 232 233 234 Ibid. See: www.irishsentencing.ie/en/ISIS/Pages/WP09000222 [Last accessed: 22 May 2013]. See “Work to establish an interim Judicial Council begins” Courts Service News Vol 13 Issue 3 (Winter 2011) at 15. Available at: www.justice.ie/en/JELR/General%20Scheme%20Judicial%20Bill.pdf/Files/General%20Scheme%20Judicial% 20Bill.pdf [Last accessed: 22 May 2013]. The Government Legislation Programme, Summer Session 2013 (April 2013), Section B, Item 49, available at www.taoiseach.ie, indicates that a Judicial Council Bill is expected to be published in late 2013 [Last accessed: 22 May 2013]. <strong>Report</strong> of the Committee on Judicial Conduct and Ethics (Government Publications, 2000) at 52. The Keane Committee was established on the basis of a recommendation in the <strong>Report</strong> of the Working Group on a Courts Commission 1998 (Government Publications, 1998) at 175-176. The Thornton Hall Project Review Group raised the possibility of “judicially framed guidelines” forming part of the programme for the proposed Judicial Council. See: <strong>Report</strong> of the Thornton Hall Project Review Group 2011 at 73. England and Wales (Criminal Justice Act 2003); Australia [New South Wales (Crimes (Sentencing Procedure) Act 1999); Northern Territory (Sentencing Act); Queensland (Penalties and Sentences Act 1992); South Australia (Criminal Law (Sentencing) Act 1988); Tasmania (Sentencing Act 1997); Victoria (Sentencing Act 1991); Western Australia (Sentencing Act 1995); Commonwealth of Australia (Crimes Act 1914)]; New Zealand (Sentencing Act 2002, as amended by the Sentencing (Amendment) Act 2007); and Canada (Canadian Criminal Code). 37
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REPORT MANDATORY SENTENCES (LRC 108
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MEMBERSHIP The Law Reform Commissio
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ADMINISTRATION STAFF Head of Admini
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ACKNOWLEDGEMENTS The Commission wou
Page 9 and 10: TABLE OF CONTENTS TABLE OF LEGISLAT
Page 11: CHAPTER 5 (1) Presumptive Minimum S
Page 14 and 15: Pg N o . Criminal Code Act 1899 (Ql
Page 16 and 17: Pg N o . Misuse of Drugs Act 1971 c
Page 19 and 20: TABLE OF CASES Pg N o . Attorney Ge
Page 21 and 22: Pg N o . The People (DPP) v Barry T
Page 23 and 24: Pg N o . The People (DPP) v Kelly C
Page 25 and 26: INTRODUCTION A Background: Request
Page 27 and 28: sentences for offences committed wh
Page 29 and 30: 1 CHAPTER 1 CONCEPTUAL FRAMEWORK FO
Page 31 and 32: from loss of liberty is clearly evi
Page 33 and 34: 3. Criminal conduct will, in genera
Page 35 and 36: 1.19 In the context of preventing f
Page 37 and 38: and vocational programmes. 39 Suppo
Page 39 and 40: standards, recognising that these m
Page 41 and 42: he lost his post, pension and pay-r
Page 43 and 44: (i) Identifying the range of applic
Page 45 and 46: 1.58 In general, however, the court
Page 47 and 48: Thus, depending on the presence of
Page 49 and 50: matters. She lost interest in study
Page 51 and 52: of the person who must pay it. In t
Page 53 and 54: (9) Whether the offence was committ
Page 55 and 56: e put through the additional suffer
Page 57 and 58: (1) The Problem of a Lack of Struct
Page 59: conviction that restricted employme
Page 63 and 64: A mechanism based on measures being
Page 65: since 1996; and (iii) information i
Page 68 and 69: which captured adverse public atten
Page 70 and 71: compromise which failed to achieve
Page 72 and 73: 2.16 It may be recalled that the ma
Page 74 and 75: y law and applicable in all cases w
Page 76 and 77: ody under Article 5(4). As the Secr
Page 78 and 79: irrespective of whether the sentenc
Page 80 and 81: 2.45 In Attorney General for Northe
Page 82 and 83: five years. This was made permanent
Page 84 and 85: penalty or suspending it for an exp
Page 86 and 87: protection from those with murderou
Page 88 and 89: an application for release under Ar
Page 90 and 91: 2.87 The Supreme Court upheld the d
Page 92 and 93: independent judicial body which wou
Page 94 and 95: whether the life prisoner poses a c
Page 96 and 97: offences became extremely unpopular
Page 98 and 99: who rarely had large quantities of
Page 100 and 101: 2.124 The Crime (Sentences) Act 199
Page 102 and 103: and suppliers. 300 It was proposed
Page 104 and 105: Bill which would, among other matte
Page 106 and 107: (2) Mandatory Sentences for Firearm
Page 108 and 109: (b) England and Wales 2.154 In 2002
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filtered into the public domain. Th
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now applied to a range of drug and
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D Historical Evolution of Mandatory
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supervision should be liable to one
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“These are unduly weak provisions
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offender is being sentenced for any
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2.208 Section 24 of the 2007 Bill p
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proportionality and judicial discre
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2.220 The Commission notes that an
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the Prison Rules 2007. 5 This mecha
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the case of a prisoner serving a ma
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e released. These recommendations w
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considers that the seriousness of t
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then adjusted to reflect the aggrav
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3.37 In three jurisdictions (the No
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(8) Summary 3.43 From this survey,
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(b) The Principle of Proportionalit
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equirements of Article 5(1) were sa
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cannot reflect these variations in
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process. In particular, considerati
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4 CHAPTER 4 PRESUMPTIVE MINIMUM SEN
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(b) Importation 4.08 The first elem
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creates a risk of arbitrary and unj
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This permits the court to presume,
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should apply. Thus, it has been not
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injury. 66 An admission voluntarily
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4.44 Section 27(3D)(c)(i) provides
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(4) Drug Mules 4.52 The Commission
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used, and (b) a vehicle the means o
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(i) Have 4.74 The meaning of the te
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Misuse of Drugs Act 1977, material
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endanger life or cause serious dama
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“appropriate custodial term”, w
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offensive weapon or an article with
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4.117 Minimum sentences are also pr
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identity theft; 257 (v) certain gan
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examinations; 282 (xv) stalking in
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in Schedule I or Schedule II to the
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possession of a weapon obtained by
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of age. 355 Second, the following o
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ecent years, it would appear that t
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custodial sentence in circumstances
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to commit an indictable offence. 41
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4.183 Section 297 of the Criminal C
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offences. aims. It is arguable, how
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analysis suggested, among other thi
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4.210 Third, the Commission observe
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4.224 In Chapter 1, the Commission
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eneficial” response to other form
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while under the age of 18 years, bu
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C Mandatory Sentence for a Second o
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institution. For the purposes of th
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5.37 Subject to certain conditions,
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operates retrospectively in so far
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the perpetrator has a previous conv
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(iv) Federal Government 5.58 At fed
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(f) Australia 5.65 Certain Australi
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coerced the offender to commit the
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5.79 Division 2A of the Criminal La
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would be manifestly unjust. If the
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deterrent effect of mandatory sente
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treat dissimilar cases differently.
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and have therefore been discussed,
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6 CHAPTER 6 SUMMARY OF RECOMMENDATI
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