Report on Mandatory Sentences - Law Reform Commission

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CONTACT DETAILS Further information can be obtained from: Head of Administration Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone: +353 1 637 7600 Fax: +353 1 637 7601 Email: info@lawreform.ie Website: www.lawreform.ie vi
ACKNOWLEDGEMENTS The Commission would like to thank the following people who provided valuable assistance: Ms Eileen Creedon, Chief State Solicitor Mr Brian Davison Ms Valerie Fallon, Department of Justice and Equality Ms Áine Flynn, KOD/Lyons Solicitors Ms Mary Rose Gearty, SC Mr Liam Herrick, Director of Irish Penal Reform Trust Ms Liz Howlin, Chief Prosecution Solicitor Mr Richard Humphreys, SC Ms Claire Loftus, Director of Public Prosecutions Mr Justice Patrick McCarthy, Judge of the High Court Mr Michael McDowell, SC Dr Anthony McGrath Ms Jane Mulcahy, Irish Penal Reform Trust Ms Úna Ní Raifeartaigh, SC Mr David O’Donovan Mr Robert Purcell, M E Hanahoe Solicitors Mr Luigi Rea, BL Mr Dara Robinson, Sheehan and Partners Solicitors Lord Justice Colman Treacy, Judge of the Court of Appeal of England and Wales and Member of the Sentencing Council for England and Wales Mr Justice Barry White, Judge of the High Court Full responsibility for this publication lies, however, with the Commission. vii
Page 1 and 2: REPORT MANDATORY SENTENCES (LRC 108
Page 3 and 4: MEMBERSHIP The Law Reform Commissio
Page 5: ADMINISTRATION STAFF Head of Admini
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 and 60:
conviction that restricted employme
Page 61 and 62:
and to hold public seminars on matt
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
Page 110 and 111:
filtered into the public domain. Th
Page 112 and 113:
now applied to a range of drug and
Page 114 and 115:
D Historical Evolution of Mandatory
Page 116 and 117:
supervision should be liable to one
Page 118 and 119:
“These are unduly weak provisions
Page 120 and 121:
offender is being sentenced for any
Page 122 and 123:
2.208 Section 24 of the 2007 Bill p
Page 124 and 125:
proportionality and judicial discre
Page 126 and 127:
2.220 The Commission notes that an
Page 128 and 129:
the Prison Rules 2007. 5 This mecha
Page 130 and 131:
the case of a prisoner serving a ma
Page 132 and 133:
e released. These recommendations w
Page 134 and 135:
considers that the seriousness of t
Page 136 and 137:
then adjusted to reflect the aggrav
Page 138 and 139:
3.37 In three jurisdictions (the No
Page 140 and 141:
(8) Summary 3.43 From this survey,
Page 142 and 143:
(b) The Principle of Proportionalit
Page 144 and 145:
equirements of Article 5(1) were sa
Page 146 and 147:
cannot reflect these variations in
Page 148 and 149:
process. In particular, considerati
Page 151 and 152:
4 CHAPTER 4 PRESUMPTIVE MINIMUM SEN
Page 153 and 154:
(b) Importation 4.08 The first elem
Page 155 and 156:
creates a risk of arbitrary and unj
Page 157 and 158:
This permits the court to presume,
Page 159 and 160:
should apply. Thus, it has been not
Page 161 and 162:
injury. 66 An admission voluntarily
Page 163 and 164:
4.44 Section 27(3D)(c)(i) provides
Page 165 and 166:
(4) Drug Mules 4.52 The Commission
Page 167 and 168:
used, and (b) a vehicle the means o
Page 169 and 170:
(i) Have 4.74 The meaning of the te
Page 171 and 172:
Misuse of Drugs Act 1977, material
Page 173 and 174:
endanger life or cause serious dama
Page 175 and 176:
“appropriate custodial term”, w
Page 177 and 178:
offensive weapon or an article with
Page 179 and 180:
4.117 Minimum sentences are also pr
Page 181 and 182:
identity theft; 257 (v) certain gan
Page 183 and 184:
examinations; 282 (xv) stalking in
Page 185 and 186:
in Schedule I or Schedule II to the
Page 187 and 188:
possession of a weapon obtained by
Page 189 and 190:
of age. 355 Second, the following o
Page 191 and 192:
ecent years, it would appear that t
Page 193 and 194:
custodial sentence in circumstances
Page 195 and 196:
to commit an indictable offence. 41
Page 197 and 198:
4.183 Section 297 of the Criminal C
Page 199 and 200:
offences. aims. It is arguable, how
Page 201 and 202:
analysis suggested, among other thi
Page 203 and 204:
4.210 Third, the Commission observe
Page 205 and 206:
4.224 In Chapter 1, the Commission
Page 207:
eneficial” response to other form
Page 210 and 211:
while under the age of 18 years, bu
Page 212 and 213:
C Mandatory Sentence for a Second o
Page 214 and 215:
institution. For the purposes of th
Page 216 and 217:
5.37 Subject to certain conditions,
Page 218 and 219:
operates retrospectively in so far
Page 220 and 221:
the perpetrator has a previous conv
Page 222 and 223:
(iv) Federal Government 5.58 At fed
Page 224 and 225:
(f) Australia 5.65 Certain Australi
Page 226 and 227:
coerced the offender to commit the
Page 228 and 229:
5.79 Division 2A of the Criminal La
Page 230 and 231:
would be manifestly unjust. If the
Page 232 and 233:
deterrent effect of mandatory sente
Page 234 and 235:
treat dissimilar cases differently.
Page 236 and 237:
and have therefore been discussed,
Page 239 and 240:
6 CHAPTER 6 SUMMARY OF RECOMMENDATI
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