REPORT
(LRC 108 - 2013)
© Copyright
Law Reform Commission
FIRST PUBLISHED
June 2013
ISSN 1393-3132
LAW REFORM COMMISSION’S ROLE
The Law Reform Commission is an independent
statutory body established by the Law Reform Commission Act 1975. The Commission’s principal role is
to keep the law under review and to make proposals for reform, in particular by
recommending the enactment of legislation to clarify and modernise the law.
Since it was established, the Commission has published over 180 documents
(Working Papers, Consultation Papers and Reports) containing proposals for law
reform and these are all available at www.lawreform.ie. Most of these proposals
have led to reforming legislation.
The Commission’s law reform role is carried out
primarily under a Programme of Law Reform. Its Third Programme
of Law Reform was
prepared by the Commission following broad consultation and discussion. In
accordance with the 1975 Act, it was approved by the Government in December
2007 and placed before both Houses of the Oireachtas. The Commission is
currently engaged in the preparation of a Fourth Programme of Law Reform. The
Commission also works on specific matters referred to it by the Attorney
General under the 1975 Act.
The Commission’s Access to Legislation
project makes legislation more accessible online to the public. This includes
the Legislation Directory (an electronically searchable index of amendments to
Acts and statutory instruments), a selection of Revised Acts (Acts in their
amended form rather than as enacted) and the Classified List of Legislation in
Ireland (a list of Acts in force organised under 36 subject-matter headings)
Membership
Law Reform
Commission consists of a President, one full-time Commissioner and three
part-time Commissioners.
The Commissioners at present are:
President:
Mr. Justice John Quirke, Former Judge of the
High Court
Full-time Commissioner:
Finola Flanagan, Barrister-at-Law
Part-time Commissioner:
Marie Baker, Senior Counsel
Part-time Commissioner:
Professor Donncha O’Connell
Part-time Commissioner:
Thomas O’Malley,
Barrister-at-Law
Law Reform Research Staff
Director
of Research:
Raymond
Byrne BCL, LLM (NUI), Barrister-at-Law
Legal
Researchers:
Joseph Harrington LLB (Ling Franc) (Dub), BCL
(Oxon), Barrister-at-Law
Colm Kitson BCL (NUI), LLM (QUB), Barrister-at-law
Kate McGovern LLB (Dub), LLM (Edin),
Barrister-at-Law
Emma
Roche-Cagney BCL (Clinical) (NUI), LLM (NUI)
Denise Roche BCL (Int.), Solicitor
ACCESS
TO LEGISLATION RESEARCH STAFF
Project
Manager:
Alma
Clissmann BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
Assistant
Project Manager:
[Vacant at time of writing]
Legal
Researchers:
Aileen O’Leary BCL (NUI), LLM (NUI), AITI, Solicitor
Morgan Harris LLB (UKC), Barrister-at-Law
Administration Staff
Ciara
Carberry
Executive
Officer:
Deirdre
Bell
Staff
Officer:
Annmarie
Cowley
Clerical Officers:
Ann Browne
Joe
Cooke
Liam
Dargan
Legal
Information Manager:
Órla Gillen, BA, MLIS
Principal legal researchers for this report
Tara Murphy BCL (Law with French Law), LLM (Essex), Barrister-at-Law
Emma
Roche-Cagney BCL (Clinical) (NUI), LLM (NUI)
The Commission also
wishes to thank legal research intern Lianne Meagher Reddy LLB, LLM (NUI) for
her contribution to this Report.
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
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.
A Background:
Request by the Attorney General on Mandatory Sentences
C Scope
of the Attorney General’s Request: “Mandatory Sentences”
CHAPTER 1
conceptual framework for criminal sanctions and sentencing
B Overview
of the Aims of the Criminal Justice System and Principles of Sentencing
C Aims
of the Criminal Justice System and Sanctions
(3) Reformation
and Rehabilitation
D Principles
of Sentencing and Justice
E Towards
a Principles-Based Structured Sentencing System
(1) The Problem
of a Lack of Structure and Inconsistent Approaches
(2) Improved
Structure and Greater Consistency in Sentencing
(3) Conclusions
and the Commission’s General Approach 40
(4) Structured
Sentencing in the Context of Mandatory and Presumptive Regimes
CHAPTER 2
historical evolution of mandatory sentences
B Historical
Evolution of Entirely Mandatory Sentences
C Historical
Evolution of Presumptive Minimum Sentences
(1) Mandatory
Sentences for Drugs Offences
(2) Mandatory
Sentences for Firearm Offences
D Historical
Evolution of Mandatory Sentences for Second or Subsequent Offences
CHAPTER 3
entirely mandatory sentences
B The
Mandatory Life Sentence for Murder
(1) The
Mandatory Life Sentence
(2) The
Mandatory Life Sentence and Temporary Release
D The
Mandatory Life Sentence and the Conceptual Framework
(1) The
Mandatory Life Sentence and the Aims of Sentencing
(2) The
Mandatory Life Sentence and the Principles of Justice
CHAPTER 4
Presumptive minimum sentences
B Presumptive
Minimum Sentences under the Misuse of Drugs Act 1977
C Presumptive
Minimum Sentences under the Firearms Acts
E Presumptive
Minimum Sentences an d the Conceptual Framework
(1) Presumptive
Minimum Sentences and the Aims of Sentencing
(2) Presumptive
Minimum Sentences and the Principles of Justice
CHAPTER 5
mandatory sentences for second or subsequent offences
B Presumptive
Sentence for a Second or Subsequent Offence under the Criminal Justice Act 2007
(1) Elements
which Trigger the Presumptive Minimum Sentence
(2) Penalty for
Subsequent Scheduled Offence
C Mandatory
Sentence for a Second or Subsequent Offence under the Misuse of Drugs Act 1977
D Mandatory
Sentence for a Second or Subsequent Offence under the Firearms Acts
(1) Operation
of the Mandatory Sentencing Regime under the Firearms Acts
F Mandatory
and Presumptive Sentences for Second or Subsequent Offences and the Conceptual
Framework
(1) Mandatory
and Presumptive Sentences for Second or Subsequent Offences and the Aims of
Sentencing
(2) Mandatory
Sentences for Second or Subsequent Offences and the Principles of Justice
CHAPTER 6
Summary of recommendations
|
|
Pg No. |
|
Pub. L. No. 99- 570 |
US |
72 |
|
Bail Act 1997 |
No 16 of 1997 |
Irl |
183 |
Baume's Law 1926 |
|
US |
89 |
Boggs Act 1951 |
Ch 66, 65 Stat 767 |
US |
70 |
Children and Young Persons Act 1908 |
c 67 |
UK |
42 |
Children and Young Persons Act 1933 |
c 12 |
Eng |
42 |
Competition Act 2002 |
No. 14 of 2002 |
Irl |
8 |
Comprehensive Drug Abuse Prevention and Control Act 1970 |
Pub. L. No. 91- 513 |
US |
71 |
Controlled Drugs and Substances Act |
SC 1996, c 19 |
Can |
158 |
Controlled Substances Act |
21 USC 841 |
US |
195 |
Controlled Substances Import and Export Act |
21 USC 960 |
US |
195 |
Convention Rights (Compliance) Scotland Act 2001 |
2001 asp 7 |
Scot |
57 |
Corrective Services Act 2006 (Qld) |
No. 29 of 2006 |
Aus |
114 |
Courts of Justice Act 1924 |
No 10 of 1924 |
Irl |
18 |
Courts of Justice Act 1929 |
No 37 of 1929 |
Irl |
129 |
Crime (Sentences) Act 1997 |
c 43 |
Eng |
49 |
Crime and Punishment (Scotland) Act 1997 |
c 48 |
Scot |
57 |
Crimes (Sentence Administration) Act 2005 (ACT) |
No. 59 of 2005 |
Aus |
113 |
Crimes (Sentencing Procedure) Act 1999 (NSW) |
No 92 of 1999 |
Aus |
37 |
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) |
No 90 of 2002 |
Aus |
165 |
Crimes (Sentencing) Act 2005 (ACT) |
No 58 of 2005 |
Aus |
113 |
Crimes Act 1900 (ACT) |
|
Aus |
112 |
Crimes Act 1900 (NSW) |
No 40 of 1900 |
Aus |
112 |
Crimes Act 1914 (CW) |
No 12 of 1914 |
Aus |
37 |
Crimes Act 1958 |
No. 6231 of 1958 |
Vic |
112 |
Crimes Amendment (Murder of Police Officers) Act 2011 (NSW) |
No 20 of 2011 |
Aus |
112 |
Criminal Appeal Act 1968 |
c 19 |
E,W,S |
48 |
Criminal Assets Bureau Act 1996 |
No 31 of 1996 |
Irl |
85 |
Criminal Code Act 1899 (Qld) |
|
Aus |
113 |
Criminal Code Act 1924 (Tas) |
No 69 of 1924 |
Aus |
112 |
Criminal Code Act 1995 (CW) |
No 12 of 1995 |
Aus |
112 |
Criminal Justice (Drug Trafficking) Act 1996 |
No 29 of 1996 |
Irl |
77 |
Criminal Justice (Northern Ireland) Order 2008 |
No 1216 of 2008 (NI 1) |
NI |
56 |
Criminal Justice (Public Order) Act 1994 |
No 2 of 1994 |
Irl |
88 |
Criminal Justice (Scotland) Act 2003 |
2003 asp 7 |
Scot |
57 |
Criminal Justice (Temporary Release of Prisoners) Act 2003 |
No 34 of 2003 |
Irl |
103 |
Criminal Justice (Theft and Fraud Offences) Act 2001 |
No 50 of 2001 |
Irl |
9 |
Criminal Justice Act (Northern Ireland) 1966 |
c 20 |
NI |
55 |
Criminal Justice Act 1948 |
c 58 |
Eng |
91 |
Criminal Justice Act 1951 |
No 2 of 1951 |
Irl |
103 |
Criminal Justice Act 1960 |
No 27 of 1960 |
Irl |
103 |
Criminal Justice Act 1964 |
No 5 of 1964 |
Irl |
59 |
Criminal Justice Act 1967 |
c 80 |
Eng |
91 |
Criminal Justice Act 1988 |
c 33 |
Eng |
150 |
Criminal Justice Act 1990 |
No 16 of 1990 |
Irl |
10 |
Criminal Justice Act 1991 |
c 53 |
Eng |
73 |
Criminal Justice Act 1999 |
No 10 of 1999 |
Irl |
30 |
Criminal Justice Act 2003 |
c 44 |
Eng |
51 |
Criminal Justice Act 2006 |
No 26 of 2006 |
Irl |
79 |
Criminal Justice Act 2007 |
No 29 of 2007 |
Irl |
80 |
Criminal Justice and Licensing (Scotland) Act 2010 |
asp 13 of 2010 |
Scot |
152 |
Criminal Law (Rape) (Amendment) Act 1990 |
No 32 of 1990 |
Irl |
9 |
Criminal Law (Sentencing) Act 1988 (SA) |
|
Aus |
201 |
Criminal Law Act 1997 |
c 14 |
Irl |
96 |
Criminal Law Amendment (Homicide) Act 2008 (WA) |
No 29 of 2008 |
Aus |
112 |
Criminal Law Consolidation Act 1935 (SA) |
No 2252 of 1935 |
Aus |
113 |
Criminal Procedure (Scotland) Act 1995 |
c 46 |
Scot |
57 |
Criminal Reform Amendment Act (No 2) 2006 (NT) |
No 34 of 2006 |
Aus |
113 |
Defence Act 1954 |
No 18 of 1954 |
Irl |
59 |
Domestic and Family Violence Act 2007 (NT) |
No 34 of 2007 |
Aus |
199 |
Drug Trafficking Act 1994 |
c 37 |
Eng |
75 |
Euro Changeover (Amounts) Act 2001 |
No 16 of 2001 |
Irl |
78 |
European Convention on Human Rights Act 2003 |
No 20 of 2003 |
Irl |
64 |
Fair Sentencing Act 2010 |
Pub. L. No. 111- 220 |
US |
73 |
Felony Firearm Law 1975 (Florida) |
|
US |
82 |
Felony Firearm Statute 1977 (Mich) |
|
US |
82 |
Firearms (Amendment) (Northern Ireland) Order 2005 |
No 1966 of 2005 (NI 16) |
NI |
146 |
Firearms (Northern Ireland) Order 1981 |
No 3267 of 1992 |
NI |
147 |
Firearms (Northern Ireland) Order 2004 |
No 702 of 2004 (NI 3) |
NI |
146 |
Firearms Act 1925 |
No. 17 of 1925 |
Irl |
3 |
Firearms Act 1964 |
No 1 of 1964 |
Irl |
86 |
Firearms Act 1968 |
c 27 |
UK |
84 |
Firearms and Offensive Weapons Act 1990 |
No 12 of 1990 |
Irl |
86 |
Gun Control Act 1968 |
Pub. L. No. 90- 618 |
US |
81 |
Habitual Criminals Act 1869 |
c 69 |
UK |
90 |
Habitual Felony Offender Act (Alabama) |
|
US |
153 |
Harrison Act 1914 |
Ch 1, 38 Stat 785 |
US |
70 |
Health and Safety etc at Work Act 1974 |
c 37 |
UK |
27 |
Homicide Act 1957 |
c 11 |
UK |
44 |
Human Rights Act 1998 |
c 42 |
UK |
55 |
Human Rights Commission Act 2000 |
No 9 of 2000 |
Irl |
98 |
Infanticide Act 1922 |
c 18 |
UK |
42 |
Infanticide Act 1938 |
c 36 |
Eng |
42 |
International Criminal Court Act 2006 |
No. 30 of 2006 |
Irl |
42 |
Legal Aid, Sentencing and Punishment of Offenders Act 2012 |
c 10 |
UK |
94 |
Life Sentences (Northern Ireland) Order 2001 |
No 2564 of 2001 (NI 2) |
NI |
55 |
Migration Act 1958 (CW) |
No. 62 of 1958 |
Aus |
165 |
Misuse of Drugs Act (NT) |
|
Aus |
168 |
Misuse of Drugs Act 1971 |
c 38 |
UK |
75 |
Misuse of Drugs Act 1977 |
No 12 of 1977 |
Irl |
10 |
Misuse of Drugs Act 1984 |
No 18 of 1984 |
Irl |
76 |
Murder (Abolition of Death Penalty) Act 1965 |
c 71 |
UK |
45 |
Narcotics Control Act 1956 |
Ch 629, s 103, 70 Stat 567 |
US |
70 |
Non-Fatal Offences Against the Person Act 1997 |
No 26 of 1997 |
Irl |
9 |
Northern Ireland (Emergency Provisions) Act 1973 |
c 53 |
NI |
55 |
Northern Ireland Act 1998 |
c 48 |
UK |
56 |
Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 |
No 976 of 2010 |
NI |
56 |
Offences Against the Person Act 1861 |
c 100 |
Irl |
9 |
Offences Against the State Act 1939 |
No 13 of 1939 |
Irl |
16 |
Omnibus Anti-Drug Abuse Act 1988 |
|
US |
72 |
Parole Act 2002 |
No 10 of 2002 |
NZ |
114 |
Penal Servitude Act 1857 |
c 3 |
UK |
90 |
Penal Servitude Act 1864 |
c 47 |
UK |
90 |
Penalties and Sentences Act 1992 (Qld) |
No 48 of 1992 |
Aus |
37 |
Persistent Offender Accountability Act 1994 |
c 1 |
US |
89 |
Powers of Criminal Courts (Sentencing) Act 2000 |
c 6 |
Eng |
75 |
Powers of Criminal Courts Act 1973 |
c 62 |
Eng |
92 |
Prevention of Crime Act 1908 |
c 59 |
UK |
91 |
Prevention of Crime Act 1953 |
c 14 |
E,W,S |
150 |
Prevention of Crimes Act 1871 |
c 112 |
UK |
91 |
Prevention of Crimes Act 1879 |
c 55 (42 & 43 Vict) |
UK |
90 |
Prisoners and Criminal Proceedings (Scotland) Act 1993 |
c 9 |
Scot |
57 |
Probation of Offenders Act 1907 |
7 Edw. 7. Ch.17 |
UK |
2 |
Proceeds of Crime Act 1996 |
No 30 of 1996 |
Irl |
77 |
Road Traffic Act 1961 |
No 24 of 1961 |
Irl |
140 |
Safe Streets and Communities Act |
SC 2012, c 1 |
Can |
158 |
Safety, Health and Welfare at Work Act 1989 |
No 7 of 1989 |
Irl |
26 |
Safety, Health and Welfare at Work Act 2005 |
No 10 of 2005 |
Irl |
26 |
Scotland Act 1998 |
c 46 |
Scot |
58 |
Sentencing (Amendment) Act 2007 |
No 27 of 2007 |
NZ |
37 |
Sentencing Act 1991 (Vic) |
No 49 of 1991 |
Aus |
201 |
Sentencing Act 1995 (NT) |
|
Aus |
37 |
Sentencing Act 1995 (WA) |
No 76 of 1995 |
Aus |
37 |
Sentencing Act 1997 (Tas) |
No 59 of 2007 |
Aus |
113 |
Sentencing Act 2002 |
No 9 of 2002 |
NZ |
37 |
Standing up for Victims of White Collar Crime Act |
SC 2011, c 6 |
Can |
164 |
Transfer of Sentenced Persons Act 1995 |
No 16 of 1995 |
Irl |
1 |
Treason Act 1939 |
No 10 of 1939 |
Irl |
59 |
Uniform Determinate Sentencing Act 1976 |
|
US |
82 |
Violent Crime Reduction Act 2006 |
c 38 |
UK |
146 |
TABLE OF CASES
|
|
Pg No. |
|
Ireland v Gallagher |
[1962] NI 122 |
NI |
55 |
Caffrey v Governor of Portlaoise Prison |
Irl |
63 |
|
Cox v Ireland |
[1992] 2 IR 503 |
Irl |
16 |
Deaton v Attorney General |
[1963] IR 170 |
Irl |
62 |
DPP v Smith |
[1961] AC 290 |
NI |
55 |
Dunne v Judge Coughlan |
High Court 25 April 2005 |
Irl |
21 |
Heaney v Ireland |
[1994] 3 IR 593 |
Irl |
16 |
HM Advocate v Al Megrahi |
High Court of Justiciary 24 November 2003 |
UK |
111 |
HM Advocate v Boyle and Others |
UK |
57 |
|
Hussain v United Kingdom |
ECHR |
48 |
|
In re the Employment Equality Bill 1996 |
Irl |
16 |
|
Kafkaris v Cyprus |
ECHR |
65 |
|
Locke v HM Advocate |
2008 SLT 159 |
UK |
111 |
Lockyer v Andrade |
583 US 63 (2003) |
US |
192 |
Minister for Justice and Equality v Nolan |
Irl |
13 |
|
Minister for Posts and Telegraphs v Campbell |
[1966] IR 69 |
Irl |
126 |
Nascimento v Minister for Justice, Equality and Law Reform |
[2011] 1 IR 1 |
Irl |
64 |
Practice Statement (Crime: Life Sentences) |
[2002] 3 All ER 412 |
UK |
56 |
Pudlizsewski v Judge Coughlan |
[2006] IEHC 304 |
Irl |
18 |
R (on the application of Westlake) v Criminal Cases Review Commission |
UK |
43 |
|
R (Smith) v Secretary of State for the Home Department |
UK |
49 |
|
R v Bieber |
UK |
52 |
|
R v Candless |
[2004] NI 269 |
NI |
56 |
R v Dalton |
[1995] 2 Cr App R 340 |
UK |
48 |
R v Dobson and Norris |
Central Criminal Court 4 January 2012 |
UK |
110 |
R v Ellis |
UK |
44 |
|
R v F Howe & Sons (Engineers) Ltd |
Eng |
27 |
|
R v Howell |
NI |
108 |
|
R v Howells |
UK |
19 |
|
R v Jones and Others |
UK |
53 |
|
R v Kelly |
UK |
109 |
|
R v King |
(1986) 82 Cr App R 120 |
Eng |
31 |
R v Latimer |
[2001] 1 SCR 3 |
Can |
12 |
R v M(CA) |
[1996] 1 SCR 500 |
Can |
12 |
R v Oliver |
(2003) 1 Cr App R 28 |
Eng |
28 |
R v Secretary of State for the Home Department ex parte Bentley |
[1993] EWHC QB 2 |
UK |
44 |
R v Stewart |
NI |
108 |
|
R v Veregrin |
[1933] 2 DLR 362 |
Can |
103 |
R v Walsh |
[2004] NI 269 |
NI |
108 |
Re Royal Prerogative of Mercy upon Deportation Proceedings |
[1933] SCR 269 |
Can |
103 |
Stafford v United Kingdom |
ECHR |
50 |
|
State (C) v Frawley |
[1976] IR 365 |
Irl |
7 |
State (Healy) v Donoghue |
[1976] IR 325 |
Irl |
61 |
State (P Woods) v Attorney General |
[1969] IR 385 |
Irl |
178 |
The People (AG) v O'Callaghan |
[1966] IR 501 |
Irl |
13 |
The People (Attorney General) v O’Driscoll |
(1972) 1 Frewen 351 |
Irl |
17 |
The People (Attorney General) v Poyning |
[1972] IR 402 |
Irl |
7 |
The People (DPP) v Alexiou |
[2003] 3 IR 513 |
Irl |
133 |
The People (DPP) v Anderson |
[2010] IECCA 46 |
Irl |
133 |
The People (DPP) v Barry |
Court of Criminal Appeal 23 June 2008 |
Irl |
142 |
The People (DPP) v Benjamin |
Court of Criminal Appeal 14 January 2002 |
Irl |
133 |
The People (DPP) v Black |
[2010] IECCA 91 |
Irl |
25 |
The People (DPP) v Botha |
Irl |
131 |
|
The People (DPP) v Brodigan |
Court of Criminal Appeal 13 October 2008 |
Irl |
133 |
The People (DPP) v Byrne |
Irl |
133 |
|
The People (DPP) v Carmody |
[1988] ILRM 370 |
Irl |
13 |
The People (DPP) v Charles |
Portlaoise Circuit Court 13 July 2004 |
Irl |
79 |
The People (DPP) v Clail |
[2009] IECCA 13 |
Irl |
141 |
The People (DPP) v Cleary and Brown |
[2012] IECCA 32 |
Irl |
134 |
The People (DPP) v Colclough |
Irl |
20 |
|
The People (DPP) v Coles |
[2009] IECCA 144 |
Irl |
133 |
The People (DPP) v Connolly |
Irl |
128 |
|
The People (DPP) v Costelloe |
Court of Criminal Appeal 2 April 2009 |
Irl |
132 |
The People (DPP) v Crowe |
Irl |
19 |
|
The People (DPP) v Curtin |
[2010] IECCA 54 |
Irl |
141 |
The People (DPP) v Davis |
[2008] IECCA 58 |
Irl |
134 |
The People (DPP) v Deans |
[2012] IECCA 11 |
Irl |
136 |
The People (DPP) v Delaney |
[2010] IECCA 57 |
Irl |
133 |
The People (DPP) v Delaney |
Court of Criminal Appeal 28 February 2000 |
Irl |
137 |
The People (DPP) v Dermody |
Irl |
133 |
|
The People (DPP) v Dillon |
Court of Criminal Appeal 17 December 2008 |
Irl |
21 |
The People (DPP) v Ducque |
Irl |
131 |
|
The People (DPP) v Duffy |
[2009] 3 IR 613 |
Irl |
8 |
The People (DPP) v Duffy |
Court of Criminal Appeal 21 December 2001 |
Irl |
131 |
The People (DPP) v Dunne |
[2003] 4 IR 87 |
Irl |
138 |
The People (DPP) v Dwyer |
Court of Criminal Appeal 9 February 2009 |
Irl |
142 |
The People (DPP) v Farrell |
Irl |
132 |
|
The People (DPP) v Finn |
Irl |
138 |
|
The People (DPP) v Finnamore |
Irl |
130 |
|
The People (DPP) v Fitzgerald |
[2010] IECCA 53 |
Irl |
142 |
The People (DPP) v Foley |
[1995] 1 IR 267 |
Irl |
126 |
The People (DPP) v Gallagher |
Irl |
126 |
|
The People (DPP) v Galligan |
Court of Criminal Appeal 23 July 2003 |
Irl |
132 |
The People (DPP) v Gilligan (No 2) |
[2004] 3 IR 87 |
Irl |
135 |
The People (DPP) v Gilloughly |
Court of Criminal Appeal 7 March 2005 |
Irl |
131 |
The People (DPP) v GK |
Irl |
13 |
|
The People (DPP) v Godspeed |
Court of Criminal Appeal 13 July 2009 |
Irl |
133 |
The People (DPP) v Goulding |
Irl |
126 |
|
The People (DPP) v H |
Irl |
18 |
|
The People (DPP) v Halligan |
Court of Criminal Appeal 15 February 2010 |
Irl |
19 |
The People (DPP) v Hanley |
[2010] IECCA 99 |
Irl |
127 |
The People (DPP) v Harding |
[2011] IECCA 20 |
Irl |
136 |
The People (DPP) v Harty |
Court of Criminal Appeal 19 February 2008 |
Irl |
18 |
The People (DPP) v Heelan |
[2008] IECCA 73 |
Irl |
142 |
The People (DPP) v Heffernan |
Court of Criminal Appeal 10 October 2002 |
Irl |
178 |
The People (DPP) v Henry |
Court of Criminal Appeal 15 May 2002 |
Irl |
132 |
The People (DPP) v Hogarty |
Court of Criminal Appeal 21 December 2001 |
Irl |
131 |
The People (DPP) v Howard and McGrath |
Court of Criminal Appeal 29 July 2005 |
Irl |
133 |
The People (DPP) v Jackson |
Court of Criminal Appeal 26 April 1993 |
Irl |
13 |
The People (DPP) v Keane |
Irl |
18 |
|
The People (DPP) v Kelly |
Irl |
18 |
|
The People (DPP) v Kelly |
Court of Criminal Appeal 28 June 2010 |
Irl |
142 |
The People (DPP) v Kelly |
Court of Criminal Appeal 9 November 2009 |
Irl |
142 |
The People (DPP) v Kelly |
Court of Criminal Appeal 24 November 2008 |
Irl |
143 |
The People (DPP) v Keogh |
[2009] IECCA 128 |
Irl |
133 |
The People (DPP) v Kinahan |
[2008] IECCA 5 |
Irl |
133 |
The People (DPP) v Kirwan |
[2010] IECCA 43 |
Irl |
135 |
The People (DPP) v Lernihan |
Irl |
133 |
|
The People (DPP) v Long |
Irl |
135 |
|
The People (DPP) v Long |
Irl |
135 |
|
The People (DPP) v Loving |
Irl |
19 |
|
The People (DPP) v M |
[1994] 3 IR 306 |
Irl |
12 |
The People (DPP) v Maguire |
[2008] IECCA 56 |
Irl |
19 |
The People (DPP) v Malric |
Irl |
133 |
|
The People (DPP) v McCann |
Irl |
143 |
|
The People (DPP) v McDonnell |
Irl |
137 |
|
The People (DPP) v McGinty |
[2007] IR 633 |
Irl |
137 |
The People (DPP) v McGrane |
[2010] IECCA 8 |
Irl |
133 |
The People (DPP) v McGrath |
[2008] IECCA 27 |
Irl |
20 |
The People (DPP) v McMahon |
Irl |
99 |
|
The People (DPP) v Murphy |
[2010] IECCA 44 |
Irl |
136 |
The People (DPP) v Murray |
Irl |
20 |
|
The People (DPP) v Nelson |
Court of Criminal Appeal 31 July 2008 |
Irl |
132 |
The People (DPP) v O’Dwyer |
[2005] 3 IR 134 |
Irl |
18 |
The People (DPP) v O'C |
Court of Criminal Appeal 15 November 2009 |
Irl |
18 |
The People (DPP) v Ormonde |
Irl |
133 |
|
The People (DPP) v Pakur Pakurian |
[2010] IECCA 48 |
Irl |
22 |
The People (DPP) v Power |
Irl |
79 |
|
The People (DPP) v Princs |
Irl |
19 |
|
The People (DPP) v Purcell |
[2010] IECCA 55 |
Irl |
136 |
The People (DPP) v Redmond |
[2001] 3 IR 390 |
Irl |
26 |
The People (DPP) v Renald |
Court of Criminal Appeal 23 November 2001 |
Irl |
131 |
The People (DPP) v Roseberry Construction Ltd and McIntyre |
[2003] 4 IR 338 |
Irl |
26 |
The People (DPP) v Rossi and Hellewell |
Court of Criminal Appeal 18 November 2002 |
Irl |
132 |
The People (DPP) v Ryan |
[2008] IECCA 63 |
Irl |
136 |
The People (DPP) v Sheedy |
[2000] 2 IR 184 |
Irl |
18 |
The People (DPP) v Shekale |
[2008] IECCA 28 |
Irl |
133 |
The People (DPP) v Spratt |
[2007] IECCA 123 |
Irl |
135 |
The People (DPP) v Sweeney |
Court of Criminal Appeal 12 March 2009 |
Irl |
134 |
The People (DPP) v Tiernan |
[1988] IR 251 |
Irl |
18 |
The People (DPP) v Vardacardis |
Court of Criminal Appeal 20 January 2003 |
Irl |
136 |
The People (DPP) v Wall |
Irl |
135 |
|
The People (DPP) v Walsh |
Court of Criminal Appeal 17 December 2009 |
Irl |
142 |
The People (DPP) v Ward |
Court of Criminal Appeal 16 January 2012 |
Irl |
100 |
The People (DPP) v WC |
[1994] 1 ILRM 321 |
Irl |
18 |
The People (DPP) v WD |
Irl |
21 |
|
The People (DPP) v Whitehead |
Irl |
135 |
|
The People (DPP) v Woods |
Court of Criminal Appeal 10 December 2010 |
Irl |
18 |
Thynne, Wilson and Gunnell v United Kingdom |
ECHR |
47 |
|
V and T v United Kingdom |
ECHR |
49 |
|
Vinter, Bamber and Moore v United Kingdom |
European Court of Human Rights 17 January 2012 (Application Nos 66069/09, 130/10 and 1396/10 |
ECHR |
51 |
Walker v HM Advocate |
2003 SLT 130 |
UK |
111 |
Weeks v United Kingdom |
ECHR |
47 |
|
Whelan and Lynch v Minister for Justice, Equality and Law Reform |
[2007] IEHC 374, [2008] 2 IR 142; [2010] IESC 34, [2012] 1 IR 1 |
Irl |
16 |
Wynne v United Kingdom |
(1995) 19 EHRR 333 |
ECHR |
47 |
1.
This Report, which follows the publication of the Commission’s Consultation Paper on Mandatory
Sentences,[1] arises from
a request made to the Commission by the then Attorney General under section
4(2)(c) of the Law Reform Commission Act 1975 which requested the
Commission:
“to examine and
conduct research and, if appropriate, recommend reforms in the law of the
State, in relation to the circumstances in which it may be appropriate or
beneficial to provide in legislation for mandatory sentences for offences.”
2.
As the Commission noted in the Consultation Paper, the Attorney
General’s request is clearly wide-ranging in scope. It requires the
Commission, firstly, to determine the scope of the term “mandatory sentences.”
In addition, the Commission is requested to consider mandatory sentences
in general terms, although the Commission notes that existing legislation that
already provides for mandatory sentences in connection with specific offences
provides a valuable reference point for the analysis required in response to
the request. The Commission’s third task is to assess whether provision
in legislation for such sentences is “appropriate and beneficial.” In
order to reach conclusions on that aspect of the Attorney General’s request,
the Commission has examined the aims of criminal sanctions and relevant
sentencing principles in the State. The Report therefore begins in
Chapter 1 with a discussion of those aims and objectives before progressing to
a detailed review of the existing legislation on mandatory sentences.
3.
The first matter addressed by the Commission in preparing this Report
was to determine the scope of the term “sentences” in the Attorney General’s
request. In this respect, the Commission considers that it is important
to note that the Oireachtas, the Judiciary and the Executive each play a role
in the sentencing process defined in a broad sense. The Oireachtas, which
has the sole and exclusive law-making authority in the State,[2]
is primarily responsible for the creation and definition of criminal offences
through enacted legislation. It also specifies the relevant sentence,
which usually consists of setting out a maximum sentence for an offence, but in
some instances it also sets out a mandatory sentence (notably, life
imprisonment for murder) or a presumptive sentence (that is, a mandatory
sentence to be applied save in exceptional circumstances). The Judiciary
is responsible for the determination, based on the aims of the criminal justice
system and relevant sentencing principles, of the specific sentence to be
imposed in a particular case, unless the offence carries a mandatory sentence.
The Executive is responsible for the implementation of sentences imposed
and this includes the exercise of statutory powers to commute or remit any
sentence imposed by the courts and to grant temporary release to prisoners
(which broadly corresponds to a parole system).
4.
The term “sentence” has also been given a narrow or a broad
interpretation in terms of the sanctioning outcome or outcomes envisaged.
Thus, section 1(1) of the Transfer of Sentenced Persons Act 1995 defines
“sentence” narrowly to mean “sentence of imprisonment.” This may be
contrasted with, for example, section 106 of the Criminal Justice Act 2006,
which defines “sentence” to include not just a sentence of imprisonment but
also other orders of the court made on conviction, such as a restriction on
movement order. This therefore envisages that a “sentence” covers both
custodial and non-custodial sanctions; indeed, it is notable that section 99 of
the Criminal Justice Act 2006 regulates the non-custodial suspended
sentence. Other important non-custodial sentences include community
service orders and fines. An even wider concept of “sentence” would
include a probation order made by the District Court under the Probation of
Offenders Act 1907 (one of the most commonly-used sanctions in the criminal
justice system in Ireland),
which can be made without recording a conviction.[3]
The Commission notes that this wide definition of “sentence”, covering
both custodial and non-custodial sanctions and including orders made even where
a conviction has not been recorded, is consistent with the general literature
on sentencing.[4]
5.
The Attorney General’s request refers to “offences” without any apparent
limitation. In the context of this Report and in particular the request
to consider whether mandatory sentences are “appropriate or beneficial”, the
Commission understands that the Attorney General was not requesting that this
be considered in relation to all criminal offences. The Commission notes
that various terms have been used to distinguish between the most significant
criminal offences and those which are less serious. Thus, the term
“arrestable offence” refers to offences punishable by a term of imprisonment of
5 years or more;[5] indictable
offences are those for which the accused is entitled as of right to a trial by
jury; and summary offences are those heard in the District Court, without a
jury, and for which the maximum term of imprisonment permissible is generally
12 months (and/or a fine).
6.
On the issue of the sentences and offences envisaged by the Attorney
General’s request, therefore, the Commission has concluded that it is required
to assess whether mandatory sentences “may be appropriate or beneficial” in
general terms and should not confine its review of the law to a very small
group of specific offences. At the same time, bearing in mind the very
wide potential scope of an examination of all “offences” and all “sentences”,
the Commission has also concluded that it should restrict the scope of its
review to offences at the higher end of the criminal calendar (such as murder),
or which by their nature pose major risks to society (such as organised drugs
offences or firearms offences), or which involve specific aspects that merit
special attention (for example, consecutive offences committed by the same
person). While the examples given here reflect the types of offences for
which mandatory sentences, as described below, are currently prescribed in
Ireland, the Commission has not confined its analysis to these examples.
7.
Indeed, the need to look beyond existing examples is directly connected
to the Commission’s conclusion, already mentioned, that it should examine and
review the general principles of sentencing. This involved the Commission
reviewing relevant developments in the literature on sentencing since its 1996
Report on Sentencing[6] in order to provide a framework for analysing a selection of
offences, including those for which mandatory sentences are currently
provided. This framework of principles would in turn allow it to
determine whether such mandatory sentencing provisions had been “appropriate or
beneficial” and, as a consequence, allow it determine whether such provisions
would be “appropriate or beneficial” in other settings.
8.
In addition to focusing on certain offences, the Commission also
considered that in preparing this Report it was necessary to determine the
scope of the term “mandatory sentences.” As with the other aspects of the
Attorney General’s request already mentioned, the term could be given a narrow
or a broad interpretation. It could be limited to “entirely” mandatory
sentences, such as the provision in Irish law of a mandatory life sentence for
murder. Alternatively, it could encompass provisions that impose significant
sentencing constraints in respect of certain offences or certain types of
offender behaviour. Thus, it may be taken to include current statutory
provisions that stipulate: presumptive minimum sentences subject to
specific exceptions (such as for certain drugs and firearms offences);
consecutive 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.
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 to enhance
consistency and proportionality in sentencing through the formulation of
general guidance regarding: (i) points of departure in the sentencing of
certain serious offences; (ii) sentencing ranges for serious offences; and
(iii) factors that aggravate and mitigate the gravity of an offence and
severity of a sentence. The Commission notes, however, that the Irish
sentencing system does not always adhere to a consistent approach in terms of
the application of key sentencing aims and principles. It observes that
improved structure and consistency in sentencing is desirable and, in turn,
assesses various potential options for realising this aim.
14.
In Chapter 2, the Commission outlines the historical evolution of the
three forms of mandatory sentence under review. As noted in Part C above,
these are the entirely mandatory life sentence for murder; minimum sentences
for drugs and firearms offences; and minimum sentences for repeat
offences. The chapter begins by tracing the historical development of the
mandatory life sentence in the United Kingdom, the United States of America,
and Ireland. It proceeds to describe the historical evolution of minimum
sentences for drugs offences in these countries, before addressing the
extension of these sentencing regimes to firearms offences. Chapter 2
then details the development of mandatory sentencing regimes for repeat
offences in the United States of America, England and Wales, and Ireland.
The chapter concludes by drawing a number of conclusions from the manner in
which these sentencing regimes have evolved. These conclusions provide
material relevant to the analysis contained in the remaining chapters.
15.
Chapter 3 assesses whether the mandatory life sentence for murder
complies with the conceptual framework outlined in Chapter 1. The
Commission begins by outlining the practical operation of this mandatory
sentencing regime. This discussion includes a description of the
applicable early release mechanisms and the roles played by the Minister for
Justice and the Parole Board in relation to these mechanisms. The
chapter then undertakes a comparative analysis of the sentencing regimes that
certain other common law countries apply in respect of murder. The
Commission concludes by evaluating the mandatory life sentence for murder
against the sentencing aims of deterrence and punishment (those which tend to
feature most heavily in the continued use of the mandatory life sentence), and
the two principles of justice, namely, the principles of proportionality and
consistency.
16.
Chapter 4 assesses whether presumptive minimum sentences for drugs and
firearms offences comply with the conceptual framework outlined in Chapter
1. The Commission begins by examining the practical operation of the
presumptive minimum sentencing regimes under: (i) section 15A and section 15B
of the Misuse of Drugs Act 1977, and (ii) the Firearms Acts. This
discussion details, among other things, the elements of these offences, the
relevant penalties and the applicable early release provisions. Chapter 4
then undertakes a comparative analysis of presumptive and mandatory minimum
sentencing regimes enacted in other common law countries. The Commission
concludes by evaluating presumptive minimum sentences for drugs and firearms
offences against the particular sentencing aims of deterrence, punishment and
rehabilitation (those most closely associated with these regimes), and the two
principles of justice.
17.
Chapter 5 assesses whether presumptive and mandatory sentences for
repeat offences comply with the conceptual framework outlined in Chapter
1. The Commission begins by examining the practical operation of: (i) the
presumptive minimum sentencing regime prescribed by section 25 of the Criminal
Justice Act 2007 for serious repeat offences; (ii) the mandatory sentencing
regime prescribed by section 27(3F) of the Misuse of Drugs Act 1977 for
repeat section 15A and section 15B offences; and the mandatory sentencing
regime prescribed for certain repeat firearms offences under the Firearms
Acts. This discussion details, among other things, the elements of
these provisions, the relevant penalties and the applicable early release
provisions. The chapter then undertakes a comparative analysis of
presumptive and mandatory minimum sentencing regimes prescribed in other common
law countries for repeat offences. The Commission concludes by evaluating
the Irish presumptive and mandatory sentencing regimes for repeat offences
against the aims and principles of sentencing outlined in Chapter 1.
Chapter 6
contains a summary of the recommendations made in this
Report.
1.01
In this chapter, the Commission outlines a
conceptual framework within which current Irish mandatory sentencing
regimes may be analysed. It suggests that these regimes may be evaluated by reference to three
key concepts: 1) the purpose of the criminal justice system; 2) the specific
aims of criminal sanctions; and 3) the fundamental principles of justice.
In Part B, the Commission begins by providing an overview of the general aims
of the criminal justice system. It identifies the reduction of crime as
the overarching aim of the justice system. It notes that each of the
component parts of this system, including the sentencing process, contributes
to this aim. In this Part, the Commission observes that the sentencing
process may have different attributes (discussed in the next Part), each of
which seeks to facilitate crime-reduction. It proceeds to discuss the
Court of Criminal Appeal decision in The People (Attorney General) v
Poyning[14] which illustrates how these attributes may feature in
the sentencing process.
1.02
In Part C, the Commission discusses in detail the following aims of the
criminal justice system: deterrence, punishment, reformation and
rehabilitation, reparation and incapacitation. It notes that while
crime-reduction (the core purpose of the justice system) is a constant concern,
the specific aims of criminal sanctions may be differently prioritised in
individual cases. This Part outlines what each of these aims entails and
notes that the extent to which mandatory sentencing regimes further these goals
requires consideration.
1.03
In Part D, the Commission discusses the key principles of
sentencing, namely that: (a) there should be a consistent approach to
sentencing so that like cases should be treated alike, and (b) the criminal
sanction should be proportionate to the circumstances of the particular offence
and the particular offender. This Part identifies as another key matter
that requires consideration, the extent to which mandatory sentencing regimes
comply with these principles.
1.04
In Part E, the Commission notes that while the Supreme Court and the
Court of Criminal Appeal have sought to increase consistency and
proportionality in sentencing, commentators and surveys of sentencing practice
call into question whether the aims and principles discussed in Parts C and D
are being realised. The Commission discusses proposals to develop a more
structured sentencing system in order to address this, including the
development of sentencing guidance or guidelines under the auspices of a
proposed Judicial Council. The discussion in this chapter thus provides
the conceptual framework against which the Commission examines the mandatory
and presumptive sentencing regimes that are analysed in Chapters 3 to 5 of the
Report. The Commission concludes the chapter by outlining the relevance
of the discussed aims and principles to the analysis contained in the remaining
chapters.
1.05
A key aim of the criminal justice system is to reduce crime, that is,
prohibited and unwanted conduct that is detrimental or harmful to society.[15]
The criminal justice system comprises several component parts, each of which
contributes to this aim. These parts include the substantive criminal
law, which contains a list of prohibited or unwanted conduct that is graded or
labelled according to the seriousness with which it is associated, including in
terms of the sanctions to be imposed on conviction. The other important
component parts of the criminal justice system include the relevant processes
and services connected with the system as a whole, notably the Garda Síochána
(who operate both as a peace-keeping prevention-based component of the system
and also as an investigative force), the prosecutorial process, the trial
process, and (in the event of a conviction) the sentencing process and the
probation and prisons service. While the system as a whole is intended to
reduce crime (including by clearly stating what constitutes criminal activity)
and to have in place mechanisms that are at least in part aimed at the
prevention of such conduct, many of the components listed operate as salutary
after-the-event processes where a crime has been committed.
1.06
The preventive aspect of the criminal justice system is that aspect
which seeks to prevent people from becoming offenders in the first
place.[16] The
extent to which the criminal justice system is succeeding in this aim is
difficult to establish in so far as statistics are more concerned with those
who come in contact with the criminal justice system than those who do
not. However, an examination of the numbers of people prosecuted in any
year suggests that the vast majority of the Irish population does not offend
the criminal law in a serious way.[17] This
suggests that the criminal justice system (in tandem with inherent and
cultivated values that influence human behaviour) is, for the most part,
working. While some people may be more influenced by the fact that
certain behaviour has been labelled “criminal”, others may be more influenced
by the fact that they feel that certain behaviour is morally wrong. Thus,
for instance, a person driving home late at night might stop for a red traffic
light even in the absence of any apparent risk of detection or punishment or,
indeed, of causing an accident. He or she may accept that this behaviour
is morally appropriate as well as being in compliance with the law.
1.07
In this Report, the primary focus of the Commission is on a specific
aspect of the criminal justice system, namely, the sentencing process and, in
particular, mandatory sentences. (As outlined above at paragraphs 8 to
11, a mandatory sentence is one which applies in all cases regardless of the
particular circumstances, whereas a presumptive sentence is one which applies
in all cases except where there are specific and exceptional circumstances).
The sentencing process is that aspect of the criminal justice system concerned
with the determination and application of criminal sanctions to those who have
been convicted of offending the substantive criminal law. In the context
of reducing prohibited or unwanted conduct, these sanctions are necessarily
endowed with deterrent and punitive attributes.[18]
1.08
Even taking what are regarded as low level sanctions, such as fines or
community service orders, it is clear that these are intended to have a
salutary effect and to bring home to the offender that harm has been done to
society. Of course, it is also clear that such sanctions are imposed as
an alternative to the other most common sanction, imprisonment, and that a
community service order is also intended to convey to the offender that he or
she is being “given a chance” because, for example, this was a first time
offence or was relatively minor in the scale of criminality. It is
therefore intended to mark the seriousness of the past behaviour but also to
reflect the expectation that future behaviour can be adjusted positively.
A sentence of imprisonment is clearly intended to be a more
punitive sanction. However, even so, there is a general expectation that
not all criminals convicted of the same offence will receive the same sentence
of imprisonment and that, for example, the experienced leader of a group of
robbers will receive a longer sentence than the young, first-time member of
that same group. While each might receive a custodial sentence, the
first-time offender may still be “given a chance” with a shorter term of
imprisonment (perhaps even suspended) while the leader may be given a lengthy
term. Thus, even when a sentence of imprisonment is imposed, many
different attributes are at play; the punitive element arising from loss of
liberty is clearly evident, but there are also reformative, rehabilitative,
reparative and incapacitative attributes involved.
1.09
In pursuing the general preventive aim of the criminal justice system,
the sentencing process must also comply with what can be described as external
constraints that emanate from fundamental principles of justice.[19]
Many of these constraints arise from national constitutional requirements and
international or regional human rights standards. Thus, as a member state
of the Council of Europe,[20] Ireland accepts
that the death penalty is forbidden as a sanction.[21]
Similarly, other former sanctions such as whipping have been abolished on
the basis that they would amount to torture or inhuman and degrading treatment.[22]
In addition, Article 15.5 of the Constitution provides that the Oireachtas is
prohibited from declaring acts to be infringements of the law which were not so
at the date of their commission. This reflects the fundamental principle
that a person must have done something wrong to warrant the imposition of a
sanction, and that the list of wrongs must have been signalled in advance to
the offender, not after the event.[23] Also
of importance in this respect is Article 40.1 of the Constitution, which
provides that all citizens shall, as human persons, be held equal before the
law. This equality principle requires that there should be a consistent
approach to sentencing so that like cases are treated alike, the corollary
being that different cases should be treated differently.[24]
In the literature on sentencing, there is also reference to the principle of
proportionality, ie. the requirement that “the punishment must fit the crime
and the criminal”.
1.10
The application of many of these features of the criminal justice system
and the sentencing process can be seen in one of the leading Irish cases on
sentencing, the 1972 decision of the Court of Criminal Appeal in The People
(Attorney General) v Poyning.[25]
In Poyning, the defendant was charged with a number of offences
related to a single incident, including armed robbery and taking a motor car
without authority. He pleaded guilty to both counts and was sentenced to
four years’ imprisonment for armed robbery and six months’ imprisonment for the
motor car offence. Along with the defendant, two other men were charged
in respect of the armed robbery. They also pleaded guilty but were
sentenced by a different judge. While that sentencing judge imposed a
sentence of six years’ imprisonment on the other two defendants, the sentence
of imprisonment was suspended on condition that the defendants enter into a bond
to keep the peace for five years. As both entered into this bond, they
were released. In those circumstances the defendant appealed against the
sentences imposed on him.
1.11
At the hearing of the appeal, counsel for the defendant argued that the
result was “a gross inequality of treatment for his client”. Giving its
judgment, the Court of Criminal Appeal stated:
“The law does not in these cases fix the sentence for any particular crime, but
it fixes a maximum sentence and leaves it to the court of trial to decide what
is, within the maximum, the appropriate sentence for each criminal in the
particular circumstances of each case. Not only in regard to each crime
but in regard to each criminal the court of trial has the right and the duty to
decide whether to be lenient or severe. It is for these reasons and with
these purposes in view that, before passing sentence, the court of trial hears
evidence of the antecedents and character of every convicted
person. It follows that when two persons are convicted together of a
crime or of a series of crimes in which they have been acting in concert, it
may be (and very often is) right to discriminate between the two and to be
lenient to the one and not to the other. The background, antecedents
and character of the one and his whole bearing in court may indicate a chance
of reform if leniency is extended; whereas it may seem that only a severe
sentence is likely to serve the public interest in the case of the other,
having regard both to the deterring effect and the inducement to turn from a
criminal to an honest life. When two prisoners have been jointly indicted
and convicted and one of them receives a light sentence, or none at all, it
does not follow that a severe sentence on the other must be justified.”[26]
(emphasis added)
The Court also added:
“Of course, in any particular case the Court must examine the disparity in
sentences where, if all other things were equal, the sentences should be the same;
it must examine whether the differentiation in treatment is justified.
The Court, in considering the principles which should inform a judge’s mind
when imposing sentence and having regard to the differences in the characters
and antecedents of the convicted person, will seek to discover whether the
discrimination was based on those differences.”[27]
The Court of Criminal Appeal held that while it appeared that
Poyning’s co-defendants had been treated more leniently, the sentence of penal
servitude was an appropriate one and should not be reduced.
1.12
Therefore, Poyning reflects the equality and proportionality
principles discussed above, which require sentencing to be individualised in so
far as the criminal sanction must be proportionate to the particular
circumstances of both the offence and the offender. Thus even where, as
in this case, each defendant has committed the same crime, the criminal
sanction for each may be different because the individual circumstances of each
defendant (“background, antecedents and character”) are different. Poyning
also illustrates that a number of the other factors discussed above are at
issue, including “the public interest,” “the deterring effect” and “a chance of
reform.” Thus, marking the seriousness of the offence is not simply a
matter of ensuring a proportionate sentence for the offender; it is also
required to serve the public interest by seeking to reduce prohibited and
unwanted conduct in society, as well as inducing the individual offender to
reform, whether by a relatively lenient sentence or a relatively severe
sentence. As a result, the courts will generally include as part of their
deliberations the possibility that through a combination of interventions such
as education, therapy and, in some instances, non-custodial sanctions such as
community service, the offender will be induced to refrain from committing
prohibited or unwanted conduct in the future. The sentencing process also
relies, as discussed, on the severity of the sanction imposed to dissuade the
particular offender from re-offending and other would-be offenders from
offending in the first place.
1.13
As illustrated by Poyning, the operation of the sentencing
process may therefore be described in the following terms:
1. Sentencing should mark the
seriousness of the criminal conduct that has occurred. In general
therefore, the more serious the criminal conduct, the more severe the sanction
that is likely to be imposed.
2. The seriousness of the conduct is
determined by reference to three interlinking factors: (a) the harm caused; (b)
the culpability of the offender; and (c) the behaviour of the offender in
relation to the offence. This reflects the proportionality requirement that
the punishment should fit the individual crime and the individual offender.
3. Criminal conduct will, in general,
be considered more serious in terms of harm caused where it has caused death or
serious injury and will, in general, be considered less serious where it has
caused property damage or financial loss. In general, physical harm to
other humans is ranked more seriously than property damage or financial
loss. Clearly, of course, there are cases where financial loss arising
from, for example, fraud may be on such a large scale that it will be regarded
as having caused more harm than, for example, a once-off assault.
4. Criminal conduct will be considered
more serious in terms of culpability where the offender intended to behave in a
particular way, and less serious where he or she was reckless or negligent.
5. Criminal conduct will be considered
more serious in terms of the offender’s behaviour where he or she has
aggravated the situation, for example, by using a weapon, targeting a
vulnerable person, breaching a position of trust or being involved in a group
or gang.
6. The absence of these aggravating
factors does not necessarily amount to a mitigating factor, but the sentencing
court may take into account, as mitigating factors, other individual offender
behaviour, whether before or after the offence itself, such as whether the case
involves a first-time offender (as part of their “background, antecedents and
character”) or whether the offender pleads guilty (thus avoiding, for example,
a potentially difficult cross-examination for the victim or the cost to the
public of a long trial).
7. In addition to ensuring a
proportionate sentence for the offence and the offender, the sentencing process
also involves the general public interest aim of reducing prohibited or
unwanted conduct in society. For the individual offender, the sentencing
court will consider (with the benefit of a probation report) whether
interventions such as education, therapy or non-custodial sanctions such as
community service will induce the offender to refrain from committing
prohibited or unwanted conduct in the future. The sentencing court will
also take into account whether the severity or leniency of the sanction imposed
will dissuade would-be offenders from offending in the first place.
1.14
This summary of the sentencing process, as illustrated in the Poyning
case, reflects the reality that, in respect of virtually all criminal
offences, the sentencing court has a wide discretion as to the sentence to be
imposed in a specific case. Thus, for most criminal offences, the
Oireachtas provides for a range of sentences, from zero to a maximum, leaving
to the sentencing judge the specific sentence to be imposed. Some
examples are:
·
Manslaughter: maximum sentence: life imprisonment (section 5 of
the Offences against the Person Act 1861)
·
Rape: maximum sentence: life imprisonment (section 4 of the Criminal
Law (Rape) (Amendment) Act 1990)
·
Assault causing serious harm: maximum sentence: life imprisonment
(section 4 of the Non-Fatal Offences against the Person Act 1997)
·
Assault causing harm: maximum sentence: five years’ imprisonment
(section 3 of the Non-Fatal Offences against the Person Act 1997)
·
Assault: maximum sentence: six months’ imprisonment (section 2 of
the Non-Fatal Offences against the Person Act 1997)
·
Robbery: maximum
sentence: life imprisonment (section 14 of the Criminal Justice (Theft
and Fraud Offences) Act 2001)
·
Theft: maximum sentence: 10 years’ imprisonment (section 4(6) of
the Criminal Justice (Theft and Fraud Offences) Act 2001)
1.15
In the case of each of these offences, which are clearly among the most
serious in the criminal calendar, the Oireachtas has legislated to set the
maximum sentence but it has left it to the trial judge to decide the actual
sentence to be imposed, applying the sentencing principles described above.
1.16
The Commission has been requested by the Attorney General to examine the
small number of instances in which the Oireachtas has prescribed mandatory or
presumptive sentences. These include:
· The mandatory life sentence for
murder (section 2 of the Criminal Justice Act 1990);
· The presumptive minimum sentence
of 10 years’ imprisonment for the possession or importation of drugs with a
certain market value, with intent to sell or supply (section 27 of the Misuse
of Drugs Act 1977, as amended);
· The presumptive minimum
sentences of five years’ imprisonment[28] or 10 years’
imprisonment[29] for certain
offences under the Firearms Acts;
· The mandatory minimum sentence
of 10 years’ imprisonment for a second or subsequent offence of possessing or
importing drugs with a certain market value, with intent to sell or supply
(section 27(3F) of the Misuse of Drugs Act 1977);
· The mandatory minimum sentences
of five years’ imprisonment[30] or 10 years’
imprisonment[31] for second
or subsequent specified offences under the Firearms Acts; and
· The presumptive minimum sentence
of three-quarters of the maximum term provided by law - or 10 years’
imprisonment where the maximum term is life imprisonment - for a second or
subsequent “serious” offence[32] under the Criminal
Justice Act 2007 (section 25 of the Criminal Justice Act 2007).
1.17
The key question addressed by the Commission in this Report, therefore,
is the extent to which mandatory or presumptive sentences contribute to a
general aim of the criminal justice system: that of reducing prohibited or
unwanted conduct. This in turn requires the Commission to examine to what
extent such mandatory or presumptive sentencing regimes are consistent with the
conceptual framework for criminal sanctions and sentencing, as described
already in general terms, and discussed in more detail below in this
chapter.
1.18
As a preliminary observation, the Commission notes that, unlike ordinary
sentencing provisions which require an examination of the culpability of the
offender, the harm caused, and the behaviour of the offender in relation to the
particular offence, mandatory and presumptive sentencing provisions tend to
focus primarily on the harm caused ahead of culpability and offender
behaviour. The extent to which the harm caused may take primacy over
other factors depends on whether the sentence is entirely mandatory or presumptive
and subject to exceptions. Where the sentence is presumptive, it is more
likely that the courts will be able to consider individual factors such as
culpability and behaviour.
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.
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.
1.21
Criminal sanctions are deterrent in so far as they seek to dissuade the
particular offender from re-offending (specific deterrence) and would-be
offenders from offending in the first place (general deterrence), by signalling
the painful consequences that will otherwise result.[33]
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.[34] In its
1993 Consultation Paper on Sentencing,[35]
the Commission noted that it was the certainty of punishment rather than
the severity of punishment that gave rise to a deterrent effect.[36]
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.[37]
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.[38] 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.[39]
In its 1993 Consultation Paper on Sentencing,[40]
the Commission stated that it found no evidence to suggest that mandatory
minimum sentences acted as a deterrent.[41]
Tonry cites research which, he asserts, establishes that mandatory sentences
have either no demonstrable deterrent effects or short-term effects that are
quickly extinguished.[42] He
further observes that there has been little impact on the crime rates in
American states in which mandatory sentences have been introduced.[43]
1.23
Criminal sanctions are also punitive in so far as they seek to punish
the offender for his or her wrong-doing (retribution)[44]
and give formal expression to society’s condemnation of his or her behaviour
(denunciation).[45] The
retributive aspect of punishment should be distinguished from vengeance in so
far as retribution relates to an action between the State and the offender,
rather than the victim and the offender, and is concerned with proportionate
punishment determined by reference to objective criteria, rather than emotion
or anger.[46] That the punishment should be
proportionate to the offence (and the offender) is often associated with “just
deserts” theory.[47] The
denunciatory aspect of punishment, on the other hand, may (as indicated by the
Commission in its 1996 Report on Sentencing[48])
be described as a “safety-valve” for victims who might otherwise be tempted
to take the law into their own hands.[49]
1.24
The Commission observes that punishment, comprising retribution and
denunciation, is an important aspect of the debate on mandatory and presumptive
sentences. The offences
for which mandatory sentencing provisions have been enacted tend to be those
offences which have a particularly deleterious impact on society, such as
murder, drug trafficking, firearms offences and certain repeat offences.
It is thus understandable that the Oireachtas should wish to increase the
severity of the applicable sanctions through the enactment of mandatory and
presumptive sentencing provisions. It is equally understandable that this
might also serve a denunciatory aim by affording individual members of society,
who might otherwise feel victimised and powerless, an opportunity to express
their condemnation of such offences.
1.25
Criminal sanctions may seek to reform and/or rehabilitate an offender
with a view to re-integrating him or her into society.[50]
Indeed, it has been noted that rehabilitation is an “essential ingredient for
consideration in the sentencing of a person”[51]
and may justify the imposition of a lighter sentence where this would, for
instance, facilitate the offender’s participation in a rehabilitative
programme. Reformative and rehabilitative programmes seek to address
factors which may have contributed to the offender’s criminal behaviour and
include programmes such as alcohol and drug treatment programmes, counselling
and vocational programmes.[52]
Support for the reformative and/or rehabilitative aspects of criminal sanctions
is not, however, universal.[53]
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).
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.[54] 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.[55]
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.
1.29
Criminal sanctions may be incapacitative in so far as they deprive the
offender of the opportunity to commit another offence.[56]
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.[57] Aside from the practical issues (including that it is
notoriously difficult to make accurate predictions regarding future behaviour[58]
and that the incapacitative effects of imprisonment are, at best, modest[59])
the courts have clarified that an incapacitative rationale would run counter to
the constitutionally protected right to personal liberty and the presumption of
innocence.[60] As will be discussed below, it would also run
counter to the principle that a criminal sanction should be proportionate to
the circumstances of the particular offence and the particular offender.
1.30 The Commission observes that the
issue of incapacitation carries some weight in the debate on mandatory and
presumptive sentences. The need to take and keep certain offenders off
the streets is often cited in support of these sentencing provisions.
While such an argument may carry political weight, it would appear, in light of
the foregoing analysis, to be unconstitutional.
1.31 It is thus clear that criminal
sanctions and sentencing are motivated by a number of factors including the
overarching aim of the criminal justice system (the reduction of prohibited or
unwanted conduct) and the various aims of criminal sanctions (deterrence,
punishment, reform and rehabilitation, reparation and incapacitation).
Whereas the overarching aim of the criminal justice system will remain the same
in every case, sentencing courts may give priority to one or more of the aims
of criminal sanctions depending on the particular circumstances of the
individual case. Thus, for instance, the aims of deterrence, punishment
and incapacitation will generally feature in cases involving more serious
offences which attract more severe sanctions such as a term of
imprisonment. As discussed, these aims are therefore often raised as
justifications for mandatory and presumptive sentencing provisions which are
generally enacted to deal with offences which have a particularly harmful
effect on society. By contrast, the aims of reform and rehabilitation and
reparation usually feature in cases involving less serious offences which
attract less severe sanctions such as a non-custodial sentence. As
discussed therefore, these aims are not usually raised in favour of mandatory
or presumptive sentencing provisions.
1.32
As noted at paragraph 1.09, in pursuing the general aim of the criminal
justice system, the sentencing process must comply with external constraints
that emanate from fundamental principles of justice. To begin with, the
use of certain criminal sanctions is prohibited because the sanctions are considered
to be inhumane under current constitutional and international human rights
standards. Likewise, the use of certain other criminal sanctions is not
feasible because they would be too costly. The remaining criminal
sanctions (in other words, those criminal sanctions which are not considered to
be inhumane or too costly) must comply with the two fundamental principles of
justice. These are that: (a) there should be a consistent approach to
sentencing so that like cases are treated alike, and (b) the criminal sanction
should be proportionate to the particular offence (and the particular
offender). These principles of consistency and proportionality are
closely connected in so far as a consistent approach to sentencing is necessary
to ensure that proportionate sentences are imposed in all cases.
1.33 The principle of consistency has
traditionally been explained in terms of like cases being treated alike and
different cases being treated differently.[61]
The corollary of this is that inconsistency arises where like cases are treated
differently and different cases are treated alike. It should be
reiterated, however, that when we refer to consistency, we are referring to
consistency of approach rather than consistency of outcomes.[62]
In the Halliday Report, it was observed that consistency could be viewed
as like cases resulting in like outcomes but:
“The variety of circumstances in criminal
cases... makes this an incomplete definition, and one which can result in
undesirable priority being given to apparently uniform outcomes, regardless of
the circumstances. A better approach is to seek consistent application of
explicit principles and standards, recognising that these may result in
justifiably disparate outcomes.”[63]
[Emphasis added]
In this regard, it has been observed that the
challenge posed by the principle of consistency is “to eliminate undue
disparity without replacing it with excessive uniformity.”[64]
1.34 In its 2004 Consultation Paper on
Prosecution Appeals from Unduly Lenient Sentences in the District Court,[65] the Commission took a similar approach by distinguishing between
sentencing disparity and sentencing inconsistency:
“While sentencing disparity may be justified, given the nature of
the offence and the individual circumstances of the offender, sentencing inconsistency
is not acceptable, such as where individual judges may differ widely in
dealing with similar offenders for similar offences.”[66]
1.35 The need for a consistent approach
becomes obvious when one considers the numerous factors which may influence
sentencers.[67]
Ashworth asserts that these factors fall into four broad categories. The
first category relates to the views that sentencers may have regarding the
facts of the case. The second category relates to the views that
sentencers may have regarding the principles of sentencing. In this
category, Ashworth includes views regarding the gravity of offences; the aims,
effectiveness and relative severity of the available types of sentence; the
general principles of sentencing; and the relative weight of aggravating and
mitigating factors. The third category relates to views regarding crime
and punishment. In this category, Ashworth includes views regarding the
aims of sentencing; the causes of crime; and the function of courts passing
sentence. The final category relates to the demographic features of
sentencers. In this category, Ashworth lists age, social class,
occupation, urban or rural background, race, gender, religion, and political
allegiance. While sentencers are expected to have developed a high level
of resistance to outside influences, the Commission observes that no-one can be
entirely immune.
1.36 It has been observed that sentencing
is not an exact science so the principle of consistency cannot be applied in
absolute terms and some degree of variation is inevitable.[68]
It has been argued that this is a small price to pay for a justice system which
guarantees individualised punishment.[69]
However, this argument should not be taken too far as a system which tolerates
gross inconsistency is manifestly unfair and risks losing public confidence.[70]
Whereas the normal approach of the Oireachtas to ensuring consistency is to
prescribe a maximum sentence only, it might, in such circumstances, feel
compelled to circumscribe judicial discretion further by establishing mandatory
sentences or rigid sentencing guidelines.[71]
1.37 In Whelan and Lynch v Minister
for Justice, Equality and Law Reform,[72] the High Court (Irvine J) distinguished between
two types of proportionality: (a) constitutional proportionality, and (b)
proportionality in the context of sentencing. On appeal, this distinction
was upheld by the Supreme Court.[73] Citing
the judgment of Costello J in Heaney v Ireland,[74]
Murray CJ observed in Whelan and Lynch that the constitutional doctrine
of proportionality:
“...is a public law doctrine with specified criteria, according to which
decisions or acts of the State, and in particular legislation, which encroach
on the exercise of constitutional rights which citizens are otherwise entitled
freely to enjoy, are scrutinised with regard to their compatibility with the
Constitution or the law.”
By contrast,
“proportionality” in the context of sentencing is a term which is descriptive
of the manner in which judicial discretion should, as a matter of principle, be
exercised within particular proceedings.
1.38 Constitutional proportionality is
thus applicable to Acts of the Oireachtas. In the decision of the High
Court in Heaney v Ireland,[75] Costello J pronounced
the test for constitutional proportionality as follows:
“The objective of the impugned provision must be of sufficient
importance to warrant overriding a constitutionally protected right. It
must relate to concerns pressing and substantial in a free and democratic
society. The means chosen must pass a proportionality test. They
must:-
(a) Be rationally connected to the objective and not be arbitrary,
unfair or based on irrational considerations,
(b) Impair the right as little as possible, and
(c) Be such that their effects on rights are proportional to the
objective... .”[76]
1.39 The Supreme Court adopted a similar
test in In re the Employment Equality Bill 1996:[77]
“In effect a form of proportionality test must be applied to the
proposed section. (a) Is it rationally designed to meet the objective of
the legislation? (b) Does it intrude into constitutional rights as little
as is reasonably possible? (c) Is there a proportionality between the
section and the right to trial in due course of law and the objective of the
legislation?”[78]
1.40 Heaney and In re the Employment Equality Bill 1996 were
preceded by the Supreme Court decision in Cox v Ireland.[79]
Cox v Ireland has been identified as an important landmark
in modern judicial thinking on mandatory sentences.[80]
The plaintiff challenged section 34 of the Offences Against the State Act
1939, which
provided that any person convicted by the Special Criminal Court of a scheduled
offence would forfeit any office or employment remunerated from public funds
and be disqualified from holding any such office or employment for a period of
7 years from the date of conviction. The plaintiff, a teacher at a
community school, was convicted by the Special Criminal Court of a scheduled
offence. As a result, he lost his post, pension and pay-related social
insurance rights and became ineligible to work in a similar post for a period
of 7 years.
1.41 Both the High Court and the Supreme
Court found section 34 to be unconstitutional. The High Court (Barr J)
held that the penalties imposed by section 34 were patently unfair and
capricious in nature and that they amounted to an unreasonable and unjustified
interference with the personal rights of the plaintiff. The Supreme Court
observed that the State was entitled to impose onerous and far-reaching
penalties for offences threatening the peace and security of the State but that
it must, as far as practicable, protect the constitutional rights of the
citizen. It found that the State had failed in this regard as the
provisions of section 34 were “impermissibly wide and indiscriminate”.
The mandatory penalties contained in section 34 applied to all scheduled
offences which included less serious offences and offences of the utmost
gravity. Furthermore, there was no way to escape the mandatory penalties
even if a person could show that his or her intention or motive in committing
the offence bore no relation to considerations of the peace and security of the
State.
1.42 More recently, in Whelan and
Lynch v Minister for Justice, Equality and Law Reform,[81]
the Supreme Court applied the Heaney proportionality test to section 2
of the Criminal Justice Act 1990 which imposes a mandatory life sentence
for murder. Confirming that the Oireachtas was empowered to enact
legislation setting mandatory penalties, Murray CJ observed that such
legislation might be unconstitutional if “there was no rational relationship
between the penalty and the requirements of justice with regard to the
punishment of the offence specified”.
1.43 The decision in Cox may,
however, be contrasted with the decision in Whelan and Lynch. In Cox,
the Supreme Court found that the mandatory provision concerned was
impermissibly wide and indiscriminate in so far as it applied to all scheduled
offences without distinction as to their gravity. In Whelan and Lynch,
however, the Supreme Court rejected the appellants’ argument that the mandatory
provision concerned was unconstitutional in so far as it prevented the judge
from exercising his or her discretion to treat differently, different types of
murder case. The unique nature of murder was found to justify treating
all cases of murder, irrespective of the degree of moral blameworthiness, in
the same way.
1.44 As mandatory sentencing provisions
have the potential to infringe the rights of the accused to a greater extent
than discretionary sentencing provisions, the Commission observes that the
doctrine of constitutional proportionality should be stringently applied to all
mandatory sentencing provisions. The doctrine of constitutional
proportionality thus requires, first, that the mandatory sentencing provision
should be rationally connected to the objective it seeks to achieve and should
not be arbitrary, unfair or based on irrational considerations. Second,
the mandatory provision should impair the rights of the accused as little as
possible. Third, there should be proportionality between the mandatory
provision and the right to trial in due course of law and the objective of the
legislation.
1.45 Proportionality in the context of
sentencing operates quite differently from constitutional
proportionality. Here, proportionality requires that a sentence be
proportionate to the gravity of the offence and (as is generally accepted) the
circumstances of the offender.[82] The
Irish courts have reaffirmed this aspect of proportionality on numerous
occasions, including, as already discussed, in the leading case on sentencing
in Ireland, The People (Attorney General) v Poyning.[83]
In The People (Attorney General) v O’Driscoll,[84] for
instance, the Court of Criminal Appeal stated:
“It is… the duty of the Courts to pass what are the appropriate
sentences in each case having regard to the particular circumstances of that
case – not only in regard to the particular crime but in regard to the
particular criminal.”[85]
1.46 To the same effect, in The People
(DPP) v Tiernan,[86]
the Supreme Court was asked to consider a point of law of exceptional public
importance,[87]
namely, the guidelines applicable to sentences for the crime of rape.
While the Supreme Court refrained from formulating any such guidelines, Finlay
CJ observed that “in every criminal case a judge must impose a sentence
which in his opinion meets the particular circumstances of the case and of the
accused person before him.”[88]
1.47 In The People (DPP) v M,[89]
the Supreme Court considered the severity of sentences imposed for a number of
counts of buggery, indecent assault and sexual assault. During the course
of its consideration, Denham J indicated that sentences should be proportionate
in two respects:
“Firstly, they should be proportionate to the crime. Thus, a grave
offence is reflected by a severe sentence...
However, sentences must also be proportionate to the personal
circumstances of the appellant. The essence of the discretionary nature
of sentencing is that the personal situation of the appellant must be taken
into consideration by the court.”[90]
1.48 There are numerous other examples
where this principle is applied by the Irish courts.[91]
1.49 For the purpose of formulating
proportionate sentences, the courts have adopted a three-tiered approach by
which they first identify the range of applicable penalties. Then they
locate where on the range of applicable penalties a particular case should lie
and finally, they consider the factors which aggravate and mitigate the
sentence.[92] Thus,
in the Supreme Court decision in The People (DPP) v M,[93]
Egan J stated:
“It must be remembered also that a reduction in mitigation is not always
to be calculated in direct regard to the maximum sentence applicable. One
should look first at the range of penalties applicable to the offence and then
decide whereabouts on the range the particular case should lie. The
mitigating circumstances should then be looked at and an appropriate reduction
made.”[94]
Egan J
considered the following mitigating factors: (i) the appellant’s guilty plea,
(ii) the likelihood of him reoffending, (iii) the appellant’s age, and (iv) the
possibility of rehabilitation. It is clear that “mitigating
circumstances”, in this regard, is a reference to circumstances which would
mitigate a sentence rather than circumstances which would mitigate the
seriousness of an offence.[95]
1.50 The Commission notes therefore, that
Egan J’s approach involves three inter-related steps:[96]
(i) Identifying the range of applicable penalties;
(ii) Locating the particular case on that range; and
(iii) Applying any factors which mitigate or aggravate the sentence.
Each of these
steps will be considered in turn.
1.51 To determine the range of penalties
applicable to the particular offence, the courts consider whether the
Oireachtas has provided any guidance by means of, for instance, a statutory maximum
or minimum sentence.[97]
Thus, for example, section 14 of the Criminal Justice (Theft and Fraud
Offences) Act 2001 provides that robbery is subject to a maximum penalty of
life imprisonment. As a result, a person convicted of robbery may expect
to receive a sentence ranging from zero years to life imprisonment, depending
on the circumstances of the case and the offender. The fact that robbery
is subject to a maximum sentence of life imprisonment also indicates how
seriously robbery should be considered, as does the statutory direction that an
accused charged with robbery should be tried on indictment.[98] It is
thus fair to assume that robbery, for which an offender is “liable on
conviction on indictment to imprisonment for life”,[99]
is a serious offence.
1.52 For some serious offences, excluding
those to which entirely mandatory and mandatory minimum sentences apply, the
courts have established points of departure regarding the sentence to be
imposed. Thus, in the Supreme Court decision in The People (DPP) v
Tiernan,[100] Finlay CJ
made the following remark regarding the sentence for rape:
“Whilst in every criminal case a judge must impose a sentence which in
his opinion meets the particular circumstances of the case and of the accused
person before him, it is not easy to imagine the circumstances which would
justify departure from a substantial immediate custodial sentence for
rape and I can only express the view that they would probably be wholly
exceptional.”[101] [emphasis
added]
Thus a person
convicted of rape would ordinarily expect to receive a substantial custodial
sentence save where it is shown that there are “wholly exceptional”
circumstances.
1.53 Similarly, in the Court of Criminal
Appeal decision in The People (DPP) v Princs[102] regarding
the sentence for manslaughter, the Court observed:
“[T]he offence of manslaughter, particularly voluntary manslaughter
where an unlawful act of violence is involved, should normally involve a substantial
term of imprisonment because a person has been killed. Only where
there are special circumstances and context will a moderate sentence or in
wholly exceptional circumstances, a non-custodial sentence, be warranted.
Those circumstances are more likely to arise in cases [of] involuntary manslaughter...
.” (emphasis added)
Thus a person
convicted of manslaughter would ordinarily expect to receive a substantial
custodial sentence save where “special circumstances” would justify a moderate
sentence or “wholly exceptional circumstances” would justify a non-custodial
sentence.
1.54
In considering the
range of penalties applicable in manslaughter cases, the Court of Criminal
Appeal has, on occasion, had regard to statistical information concerning
sentences previously imposed for this offence.[103]
In The People (DPP) v Kelly,[104]
the Director of Public Prosecutions provided the Court with two lists
detailing 50 recent sentences specified on foot of pleas to, or convictions
for, manslaughter. The Court confirmed that “a trial judge is
entitled to request information of this sort and we are glad to have it”.[105]
It also emphasised, however, that such statistical information “is of limited value because
it does not give information on the individual crimes or what aggravating or
mitigating factors there may have been in any case.”[106]
The Court further noted that these particular lists related only to cases tried
in the Central Criminal Court and, as such, concerned instances where the
accused was originally charged with murder and either a plea to manslaughter
was accepted by the Director of Public Prosecutions or the accused was acquitted
of murder but convicted of manslaughter. The Court acknowledged,
therefore, that the statistics supplied were not “a guide to the practice in the Circuit
Court where it may be that the manslaughter cases
are of a less aggravated kind.”[107]
This statistical information was also taken into account by the Court of
Criminal Appeal in The People (DPP) v Colclough.[108]
1.55 In The People (DPP) v Murray,[109]
the Court of Criminal Appeal considered an appeal against the severity of a
sentence of 12 and a half years’ imprisonment for 25 counts of social welfare
fraud. Observing that social welfare fraud should not be considered a
victimless crime, the Court stated:
“Quite the contrary: offences of this kind strike at the heart of the
principles of equity, equality of treatment and social solidarity on which the
entire edifice of the taxation and social security systems lean. This is
especially so at a time of emergency so far as the public finances are
concerned.”
1.56
Emphasising the
particular importance of maintaining social solidarity through deterrent
measures, the Court indicated that:
“We
therefore suggest for the future guidance of sentencing courts that significant
and systematic frauds directed upon the public revenue - whether illegal tax
evasion on the one hand or social security fraud on the other - should
generally meet with an immediate and appreciable custodial sentence,
although naturally the sentence to be imposed in any given case must have
appropriate regard to the individual circumstances of each accused.” (emphasis
added)
1.57
Noting, however, that
the sentence of 12 years’ imprisonment for the particular offences would
infringe the totality principle,[110]
the
Court substituted a sentence of 9 years’ imprisonment with the final year
suspended. Nevertheless, the message of the Court of Criminal Appeal is
clear in so far as it states that a person convicted of an offence against the
public purse, in the current economic climate at least, may expect to receive
“an immediate and appreciable custodial sentence”.
1.58 In general, however, the courts have
emphasised that they should not constrain their discretion in sentencing by
following a fixed policy where none has been prescribed by law. In The
People (DPP) v WC,[111] the
Central Criminal Court indicated that:
“It is not open to a judge in a criminal case when imposing sentence,
whether for a particular type of offence, or in respect of a particular class
of offender, to fetter the exercise of his judicial discretion through the
operation of a fixed policy, or to otherwise pre-determine the issue.”[112]
1.59 Thus, in The People (DPP) v Kelly,[113]
where the trial judge had indicated that on the basis of a policy of deterrence
he would impose a sentence of 20 years’ imprisonment in cases involving death
and serious injury caused by the use of knives, the Court of Criminal Appeal
found that he had erred in principle.[114]
1.60 In some cases, the courts have gone
further than establishing points of departure by formulating the ranges of
penalties applicable to various combinations of facts. In The People
(DPP) v WD,[115]
for instance, the Central Criminal Court considered cases of rape over a
three-year period in which lenient, ordinary, severe and condign punishments
had been imposed.[116]
1.61 In the category of lenient
punishments, the Court considered cases in which a suspended sentence had been
imposed.[117] It
noted that a suspended sentence could only be contemplated where the
circumstances of the case were “so completely exceptional as to allow the court
to approach sentencing for an offence of rape in a way that deviates so
completely from the norm established by law.”[118]
1.62 In the category of ordinary punishments,
the Court considered cases in which a sentence range of three to 8 years had
been applied.[119] It
noted that a sentence at the upper end of the scale, a sentence of 8 years or
more, for which the courts took into account aggravating factors, could be
imposed even on a plea of guilty. An offender could expect a sentence at
the upper end of the scale where there had been “a worse than usual effect on
the victim, where particular violence has been used or where there are relevant
previous convictions, such as convictions for violence of some kind.”[120]
An offender could expect a sentence of five years’ imprisonment where he or she
had pleaded “guilty to rape in circumstances which involve no additional
gratuitous humiliation or violence beyond those ordinarily involved in the
offence,”[121] whereas he
or she could expect a sentence of six or 7 years’ imprisonment where there was
no early admission, remorse or early guilty plea.[122]
1.63 In the category of severe
punishments, the Court considered cases in which a sentence range of 9 to 14
years’ imprisonment had been applied.[123]
The Court observed that five of the cases involved individual offences of a
single count of rape; 9 involved a single attack that generated more than one
conviction; and four involved multiple counts.[124]
It noted that previous convictions for a sexual offence were an aggravating
factor which would normally result in the imposition of a severe sentence.[125]
A sentence of 10 or 11 years’ imprisonment was unusual, even after a plea of
not guilty, unless there were circumstances of unusual violence or
premeditation.[126] A
sentence range of 9 to 14 years’ imprisonment was more likely where the degree
to which the offender chose to violate and humiliate the victim warranted it.[127]
1.64 In the category of condign
punishments,[128] the Court considered
cases in which a sentence range of 15 years’ imprisonment to life imprisonment
had been imposed.[129] The
Court observed that 9 involved a single incident that lasted for a considerable
number of hours; two involved gang rape; and 11 involved multiple incidents or
multiple victims or both.[130] It
noted that factors such as the nature of the victim (being very young or very
old), the effect of the attack and the especial nature of the violence or
degradation were characteristic of sentences within this most serious category.[131]
A life sentence had been imposed where there had been a need to protect the
community and where very serious, vicious and degrading sexual crimes had been
committed against a victim over a period of years.[132]
An abuse of trust[133] and the
pursuit of a campaign of rape against prostitutes,[134]
for instance, were also seen as aggravating factors.
1.65 In The People (DPP) v H,[135]
the Court of Criminal Appeal considered the more significant cases in which lenient,
ordinary and serious sentences had been imposed for sexual offences which had
been committed between 10 and 40 years before prosecution.
1.66 In The People (DPP) v Pakur
Pakurian,[136]
the Court of Criminal Appeal considered the range of punishments that might
apply to robbery:
“...[I]n a very well planned commercial robbery one might be looking at
eighteen years for the most culpable people, or twelve years for those less
culpable, and one might also find that there are cases where because of the
particular circumstances such as a mugging which was caused by heroin addiction
which has been cured or where the person has entered rehabilitation, or matters
of those nature, that the sentence might be significantly less than the seven
years sentence, even perhaps a suspended sentence. But in between one
finds a range of sentences and the Court is sure there are even ones of more
than eighteen years, but a range of sentences which are appropriate.”[137]
Thus, depending
on the presence of various factors, a person convicted of robbery might expect
to receive a sentence in one of the ranges outlined above up to the statutory
maximum sentence of life imprisonment.[138]
1.67 The Commission notes that these
decisions support the view that it is appropriate that certain offences at the
highest end of the scale of gravity should attract an immediate, substantial
custodial sentence, save in exceptional circumstances.
1.68 Having identified the range of
applicable penalties, the courts must then locate the particular case on that
range. In order to do this, the courts must first determine the
seriousness or gravity of the particular case. In The People (DPP) v
GK,[139] the Court
of Criminal Appeal attempted to identify the factors that must be considered in
order to assess the gravity of a particular case:
“Having regard to the jurisprudence of this Court and of the Supreme
Court the matters which determine the gravity of a particular offence are the culpability
of the offender, the harm caused and the behaviour of the
offender in relation to the particular offence.”[140]
[emphasis added]
1.69 Regarding culpability, it is
useful to have regard to the nature of the mental element or mens rea
which the offender is found, or appears, to have had when committing the
offence:[141]
“Intention to cause harm clearly represents the highest level of
culpability and the more harm intended, the greater the blameworthiness.
Recklessness, in the sense of a conscious disregard of an unjustifiable risk,
comes next, and again the greater and more dangerous the risk, the greater the
culpability. Negligence would rank as the lowest form of culpability,
which is not to say that it should be met with impunity if it has produced
serious harm.”[142]
Thus, on a scale
of culpability, intention ranks highest, negligence ranks lowest and recklessness
ranks somewhere in between.
1.70 In The People (DPP) v O’Dwyer,[143]
for example, which concerned careless driving, the Court of Criminal
Appeal made the following observation regarding culpability:
“The concept of careless driving covers a wide spectrum of culpability
ranging from the less serious to the more serious. It covers a mere
momentary inattention, a more obvious carelessness, a more positive
carelessness, bad cases of very careless driving falling below the standard of
the reasonably competent driver and cases of repeat offending. However,
since even a mere momentary inattention in the driving of a mechanically
propelled vehicle can give rise to a wholly unexpected death, the court has always
to define the degree of carelessness and therefore culpability of the driving.”[144]
Thus, for any
given offence, the sentencing court must look at the particular circumstances
of the case (and the offender) to determine the level of culpability.
1.71 In the same case, the Court
considered whether the fact that a death had occurred as a result of the
careless driving could be considered an aggravating factor. In this
regard, it distinguished between cases in which death had been an unfortunate
consequence and cases in which there had been a high risk of death:
“[T]here is a world of difference between a mere momentary inattention
in the driving of a mechanical (sic) propelled vehicle, which
unexpectedly and tragically causes a loss of a life, and grossly careless
driving, which, though still short of dangerous driving, hardly surprisingly
results in a fatal collision. A rigid adherence in sentencing to an
approach which excludes any reference to the death in itself as an aggravating
factor, despite the many and various differences in the degrees of careless
driving, would not be proportionate.
While the fact of death occurring may be a separate factor in itself, it
should not be so in every case where there is a death. The occasions on
which it becomes a factor must depend upon the finding of the court on the
primary issue of the degree of carelessness and therefore of the culpability of
driving.”[145]
In the
particular circumstances of the case, where the primary issue of carelessness
revolved around the fact that the applicant had driven with bald tyres, the
Court found that it would be disproportionate to regard the death as an
aggravating factor in itself. Nevertheless, this case clearly highlights
the close connection between: (a) the culpability of the offender, and (b) the
harm caused (which will be considered in the next section) in determining the
seriousness of the offence.
1.72 Regarding harm, the greater
the harm caused, the more serious the offence is likely to be considered.[146]
However, harm alone would be an unreliable indicator of seriousness.[147]
An offender might cause more harm than he or she intended or, through some form
of diminished capacity, might not have fully appreciated the likely
consequences of his or her actions. Equally, a person might cause less
harm than he or she intended or risked. It has thus been asserted that
the test should be the harm that the offender intended to cause or risked
causing where the harm is a reasonably foreseeable consequence.[148]
Thus, as noted at paragraph 1.71, “harm and culpability are inextricably
linked”.[149]
1.73 In The People (DPP) v WD,[150]
the Central Criminal Court considered the harm caused by a rape in terms of its
effect on the victim (which was “somewhat worse than is usual”) in concluding
that a sentence at the upper end of the normal range would be appropriate:[151]
“[T]he victim impact statement indicates that the victim had difficulty
sleeping at first and suffered panic attacks. Her concentration went as
to her studies and she began to panic about all matters. She lost
interest in study and almost dropped out and left her part time job. She
suffered a big character change from being outgoing into being closed with
family and friends. Now she is uncomfortable in the presence of men and
wary while out particularly at night and looking over her shoulder.”[152]
1.74 In The People (DPP) v GK,[153]
the Court of Criminal Appeal referred to the “serious harm” done to the victim
in concluding that the particular aggravated sexual assault lay in “the mid to
upper range of seriousness on the scale of gravity of such assaults”:
“Though the victim did not receive any psychological or psychiatric
treatment, it is clear from the Victim Impact Statement that the effect of this
sexual assault on her was very grave. She was unable to work for four
weeks. The cost of treatment to her damaged teeth is €2,900. Her
enjoyment of life has been permanently impaired in that her sense of security
in society has been lost and she has become overcautious in moving about during
daylight hours and is afraid to go out at night unaccompanied. This is a
very great imposition in the case of a single lady of twenty five years of
age.”
1.75 There are a number of general
propositions that may be of assistance in determining the extent of the harm
caused in a particular case.[154] On
any hierarchy of protected rights and interests, life and bodily integrity
should rank highest. In addition, personal dignity and autonomy are
increasingly recognised as important interests that merit strong legal
protection. Similarly, personal liberty should also rank highly.[155]
While private property ordinarily ranks next after life, liberty and bodily
integrity, for sentencing purposes the important question is not whether the
law should protect private property as an institution, but rather the degree of
hardship or harm caused by the offence. In other words, the seriousness
of a property offence should not be assessed solely by reference to the amount
taken but also by reference to the suffering or hardship which the offence
caused to the victim. Serious offences involving the violation of
fundamental rights may carry a broad presumption in favour of a custodial
sentence, but no more than that as mitigating factors may justify the imposition
of a more lenient sentence.[156]
1.76 Regarding offender behaviour,
an offence will be considered more serious where there are aggravating factors
arising from the offender’s behaviour when committing the offence.[157]
These include the use of a weapon (and the more dangerous the weapon, the more
serious the factor);[158]
the deliberate procurement of a weapon to commit the offence;[159]
the targeting of vulnerable victims;[160]
intrusion into a victim’s home;[161]
premeditation and planning;[162]
participation in a criminal gang;[163]
abuse of trust or power;[164] infliction
of deliberate and gratuitous violence or degradation over and above that needed
to commit the offence;[165] commission
of the offence for profit or other personal gain; or evidence of hostility
towards the victim on racial, religious or other grounds.
1.77 Thus, for example, in The People
(DPP) v Tiernan[166] (a
case concerning sentencing for rape) the Supreme Court identified the following
aggravating factors:
“(1) It was a gang rape, having been carried out by three men.
(2) The victim was raped on more than one occasion.
(3) The rape was accompanied by acts of sexual perversion.
(4) Violence was used on the victim in addition to the sexual acts
committed against her.
(5) The rape was performed by an act of abduction in that the victim was
forcibly removed from a car where she was in company with her boyfriend, and
her boyfriend was imprisoned by being forcibly detained in the boot of the car
so as to prevent him assisting her in defending herself.
(6) It was established that as a consequence of the physical trauma
involved in the rape the victim suffered from a serious nervous disorder which
lasted for at least six months and rendered her for that period unfit to work.
(7) The appellant had four previous convictions, being:-
(a) for
assault occasioning actual bodily harm,
(b) for
aggravated burglary associated with a wounding,
(c) for
gross indecency, and
(d) for
burglary.
Of this criminal record, particularly relevant as an aggravating
circumstance to a conviction for rape are the crimes involving violence and the
crime involving indecency.”[167]
In light of
these factors, the Supreme Court concluded that this was a particularly serious
case of rape.
1.78 This approach was applied by the
Court of Criminal Appeal in The People (DPP) v Roseberry Construction Ltd
and McIntyre,[168]
in which the first defendant was a building company and the second defendant
was its managing director. The defendants pleaded guilty to charges under
the Safety, Health and Welfare at Work Act 1989 (since replaced
by the Safety, Health and Welfare at Work Act 2005) related to the death of two persons on
the building site for which the company had overall responsibility as main
contractor. The defendant company was fined €254,000 (Ł200,000) for
failure to have a safety statement under section 12 of the 1989 Act (since
replaced by section 20 of the 2005 Act) and the managing director was fined
€50,800 (Ł40,000) for managerial neglect under section 48(19) of the 1989 Act
(since replaced by section 80(1) of the 2005 Act).
1.79 The company appealed against the
severity of the fines imposed on it, but the Court of Criminal Appeal dismissed
the appeal. The Court applied the general sentencing principle set out in
The People (DPP) v Redmond[169]
that a fine is neither lenient nor harsh in itself but only in regard to
the circumstances of the person who must pay it. In this case, the Court
noted that the somewhat unusual approach had been taken of stating that the
company could pay the fine (it was not going to drive it out of business or
anything of that sort) without giving any indication of the level of business
which the company conducted. The information which the Court had was the
same as the trial judge, namely that it was a medium to large company and that
at the time of the fatality it was conducting the building of 90 houses at the
building site. The Court concluded that the company “was a substantial,
relatively complex and profitable enterprise.”
1.80
The Court of Criminal
Appeal then went on to consider the detailed principles it should apply.
It approved of the list of aggravating and mitigating factors set out by the
English Court of Appeal in R v F Howe & Son (Engineers) Ltd,[170]
to be taken into account in considering the level of fines to be imposed in
prosecutions under the equivalent British Health and Safety at Work Act 1974.[171] The
aggravating factors included: death resulting from a breach of the Act or
Regulations; failure to heed warnings; and risks run specifically to save
money.[172]
The mitigating factors included: prompt admission of responsibility and a
timely plea of guilty; steps to remedy the deficiencies; and a good safety
record.[173]
1.81 The Court in Roseberry also
quoted the following comment of the English Court of Appeal in the Howe case:[174]
“Next it is often a matter of chance that death or serious injury
results from even a serious breach. Generally where death is the
consequence of a criminal act it is regarded as an aggravating feature of the
offence, the penalty should reflect public disquiet at the unnecessary loss of
life.”[175]
1.82 The Court in the Roseberry case
commented that what had occurred at the building site “undoubtedly was an
unnecessary loss of life.” The Court also rejected the suggestion that
the company could in any substantial way mitigate its liability by saying, in
effect, “[w]ell the sub-contractor and not myself and not my company, was
directly in charge of digging the trench where the fatality occurred.” On
this aspect, the Court concluded that it was “perfectly plain… that control of
the site had been retained by Roseberry Construction Ltd.” The Court
added that its failure to have a Safety Statement and the other failures
significantly contributed to what occurred; if the Safety Statement had been
prepared, the risk would have been formally considered and no doubt something
done about it. The Court added:
“It was the failure of any party to take the simple remedial measures
that gave rise to the substantial legal and moral guilt which must be regarded
as attaching in the circumstances of this case.”[176]
1.83 On this basis, the Court concluded
that there had been no error in the fine which had been imposed in the Circuit
Criminal Court and that, since the defendant was a successful company, the
penalty was not excessive in the circumstances. A significant feature of
the decision in the Roseberry case was the reference to the specific
aggravating and mitigating factors identified in the English Howe case.
1.84 Similarly, in The People (DPP) v
Loving,[177]
a child pornography case, the Court of Criminal Appeal referred approvingly to
the categorisation of child pornography by the English Court of Appeal in R
v Oliver.[178] In that case, the court
suggested the following graduated levels of seriousness in respect of images of
child pornography:
1. Images depicting erotic posing with no sexual activity;
2. Sexual activity between children solo or masturbation as a child;
3. Non-penetrative sexual activity between adults and children;
4. Penetrative sexual activity between children and adults;
5. Sadism or bestiality.[179]
1.85 The Court in Loving also
cited with approval the following comments of Rose LJ in the Oliver case,[180]
where he suggested the following elements as being relevant to the offender's
proximity to, and responsibility for, the original abuse:
“Any element of commercial gain will place an offence at a high level of
seriousness. In our judgment, swapping of images can properly be regarded
as a commercial activity, albeit without financial gain, because it fuels
demand for such material. Wide-scale distribution, even without financial
profit, is intrinsically more harmful than a transaction limited to two or
three individuals, both by reference to the potential use of the images by
active paedophiles and by reference to the shame and degradation to the
original victims.
Merely locating an image on the internet will generally be less serious
than down-loading it. Down-loading will generally be less serious than
taking an original film or photograph of indecent posing or activity ...”[181]
These examples
indicate the influence of developments in other jurisdictions concerning
sentencing principles and the appropriate grading of sentences within an
offence.
1.86 In its 1996 Report on Sentencing,[182] the Commission identified a number of
factors which would aggravate the seriousness of an offence:[183]
“Aggravating factors
(1) Whether the offence was planned
or premeditated;
(2)
Whether the offender committed the offence
as a member of a group organised for crime;
(3) Whether the offence formed part
of a campaign of offences;
(4)
Whether the offender exploited the position of a weak or defenceless victim or
exploited the knowledge that the victim's access to justice might have been
impeded;
(5)
Whether the offender exploited a position
of confidence or trust, including offences committed by law enforcement
officers;
(6)
Whether the offender threatened to use or
actually used violence, or used, threatened to use, or carried, a weapon;
(7)
Whether the offender caused, threatened to
cause, or risked the death or serious injury of another person, or used or
threatened to use excessive cruelty;
(8)
Whether the offender caused or risked
substantial economic loss to the victim of the offence;
(9) Whether the offence was
committed for pleasure or excitement;
(10)
Whether the offender played a leading role in the commission of the offence, or
induced others to participate in the commission of the offence;
(11) Whether the offence was committed on a law
enforcement officer;
(12) Any other circumstances which:
(a) increase the harm caused or risked by the offender, or
(b) increase the culpability of the offender for the offence.”
1.87 The Commission also identified a
number of factors which would mitigate the seriousness of an offence:[184]
“Mitigating factors
(1)
Whether the offence was committed under
circumstances of duress not amounting to a defence to criminal liability;
(2) Whether the offender was
provoked;
(3)
Whether the offence was committed on
impulse, or the offender showed no sustained motivation to break the law;
(4)
Whether the offender, through age or
ill-health or otherwise, was of reduced mental capacity when committing the
offence;
(5)
Whether the offence was occasioned as a
result of strong temptation;
(6)
Whether the offender was motivated by
strong compassion or human sympathy;
(7)
Whether the offender played only a minor
role in the commission of the offence;
(8) Whether no serious injury
resulted nor was intended;
(9)
Whether the offender made voluntary
attempts to prevent the effects of the offence;
(10)
Whether there exist excusing circumstances which, although not amounting to a
defence to criminal liability, tend to extenuate the offender's culpability,
such as ignorance of the law, mistake of fact, or necessity;
(11) Any other circumstances which:
(a) reduce the harm caused or risked by the offender, or
(b) reduce the culpability of the offender for the offence.”
1.88
The Commission is of the view that it would be useful to set out the
factors which aggravate and mitigate the seriousness of an offence for the
purposes of any arrangements that may be put in place to develop sentencing
guidance and guidelines, such as those discussed in more detail below in this
Chapter.
1.89
The factors which aggravate or mitigate the severity of a sentence, as
opposed to the seriousness of an offence, are those factors which are likely to
affect an otherwise proportionate sentence. In its 1996 Report on Sentencing,[185] the Commission explained, and
underlined the importance of, the distinction:
“The most important distinction drawn is that between factors which
mitigate offence seriousness and factors which mitigate sentence.
Factors which aggravate or mitigate the offence arise for consideration
when the sentencer is deciding the seriousness of the offending conduct for
which the offender is to be held responsible. Although this may include a
consideration of the state of mind or the culpability of the offender during
the commission of the offence, the sentencer is, at this stage, primarily
concerned with the offending behaviour rather than with the offender
personally.
Factors which mitigate sentence arise later. When the sentencer
considers these factors, he or she has decided the seriousness of the offending
conduct for which the offender is responsible, but now asks if there is any
reason why the offender should not suffer the full punishment which should
attach to such responsibility or blameworthiness. Mitigation of sentence
is the making of a concession: the sentencer is saying: ‘although you are
undoubtedly responsible for the offending conduct and should be punished for
it, I am letting you off a little because of your personal circumstances.’
If there is confusion between the two types of factors a problem
arises. If the confused sentencer takes factors which mitigate sentence
into account at the ‘determination of seriousness’ stage then the offender will
be found to be less responsible or blameworthy than he or she actually is and
the sentence may well give rise to controversy.”[186]
1.90
The Commission identified four factors which would ordinarily mitigate
the severity of a sentence:
“1. The offender has pleaded guilty to the offence;
2. The offender has assisted in the investigation of the offence or in
the investigation of other offences;
3. The offender has attempted to remedy the harmful consequences of the
offence;
4. The sentence, whether by reason of severe personal injury suffered by
the offender in consequence of the offence, age, ill-health, or otherwise,
would result in manifest hardship or injustice to the offender or his or her
dependents.”[187]
To this list could be added factors such as “previous good character”
and “the possibility of rehabilitation”.
1.91
The Oireachtas has
provided limited guidance regarding the effect of a guilty plea and cooperation
with law enforcement authorities. Section 29 of the Criminal Justice Act
1999 provides that
the courts may take a guilty plea into account when sentencing. In this
regard, the courts should consider: (a) the stage at which the person
indicated an intention to plead guilty, and (b) the circumstances in which this
indication was given. Notwithstanding a guilty plea, however, the courts
may, in exceptional circumstances, impose the maximum sentence prescribed by
law. In Chapter 4, the Commission will consider in greater detail the
provisions of the Misuse of Drugs Act 1977 and the Firearms Acts which
provide that the courts may have regard to: (i) whether the person pleaded
guilty, and (ii) whether the person materially assisted in the investigation of
the offence in determining whether to impose a presumptive minimum sentence.
1.92
The courts have provided more detailed guidance regarding the factors
which mitigate the severity of a sentence. In The People (DPP) v
Tiernan,[188] for
instance, the Supreme Court indicated that the stage at which a plea of
guilty was entered was a relevant consideration:
“[I]n the case of rape an admission of
guilt made at an early stage in the investigation of the crime which is
followed by a subsequent plea of guilty can be a significant mitigating factor.
I emphasise the admission of guilt at an early stage because if that is
followed with a plea of guilty it necessarily makes it possible for the
unfortunate victim to have early assurance that she will not be put through the
additional suffering of having to describe in detail her rape and face the
ordeal of cross-examination.”[189]
1.93
In the English case R
v King,[190]
Lord Lane CJ indicated that the extent to which cooperation with law
enforcement authorities may mitigate the severity of a sentence will depend
on a number of factors:
“The quality and quantity of the material disclosed by the informer is
one of the things to be considered, as well as the accuracy and the willingness
or otherwise of the informer to give evidence against them in due course if
required by the court. Another aspect to consider is the degree to which
he has put himself and his family at risk by reason of the information he has
given; in other words the risk of reprisal. No doubt there will be other
matters as well. The reason behind this practice is expediency.”[191]
1.94
The extent to which an attempt
to remedy the harmful consequences of an offence may mitigate the severity
of a sentence will also depend on the circumstances of the case.[192]
In The People (DPP) v Princs,[193]
a case concerning the sentence for manslaughter, it was argued in mitigation of
the sentence that the respondent had attempted to save the deceased by stemming
the flow of blood with towels or bandages. The Court of Criminal Appeal
indicated that this merited limited credit as the respondent “never called for
outside medical assistance even though he told the Gardaí that the deceased was
alive after the stabbing for ten or fifteen minutes.”
1.95
In the same case, the
Court of Criminal Appeal indicated that the trial judge had been right to taken
into account the fact that imprisonment would be particularly difficult
for the offender, who was a foreign national.[194]
Similarly, in The People (DPP) v H,[195]
a case concerning the sentence for sexual offences which had been committed 30
years before, the Court of Criminal Appeal indicated:
“The age and health of the offender should be looked at. If the
offender is so elderly, or so unwell, then prison will be a special burden to
bear, the sentence should reflect how a particular term may punish him as much
[as] a longer term for a younger offender in reasonable health.”
1.96
In The People (DPP)
v GK,[196] the
Court of Criminal Appeal distinguished between the effect of “previous good
character” and the effect of previous convictions:
“This court is satisfied that while previous good character is relevant
to the character and circumstances of the accused which may be mitigating
factors in terms of sentence previous convictions are relevant not in relation
to mitigation of sentence but in aggravation of offence.”
1.97
In The People (DPP) v Kelly,[197] a case concerning the sentence for manslaughter, the Court
of Criminal Appeal indicated that it would have to “give considerable weight to
the absence of previous convictions.”[198]
However, in The People (DPP) v Duffy,[199]
the Central Criminal Court emphasised that the weight to be attached to an
absence of previous convictions, and to other potential mitigating factors,
must relate not only to the person convicted but to the offence at issue.
Thus, McKechnie J observed that in the context of competition law
infringements arising from the operation of a price cartel, an absence of
previous convictions would “in general have less weight because of the type of
individual likely to be involved and the type of conduct maintained.”[200]
In more specific terms, the Court explained that the “generally
pernicious nature [of these offences], the fact that the perpetrators knew that
their conduct was illegal, and the level of detailed planning and concealment
involved in both the network and the activity” meant that an absence of
previous convictions would be “of limited application”.[201]
1.98
Regarding the possibility
of rehabilitation, the Supreme Court in The People (DPP) v M[202]
stated:
“As was stated in the judgments of the Court of Criminal Appeal... an
essential ingredient for consideration in the sentencing of a person upon
conviction, in any case in which it is reasonably possible is the chance of
rehabilitating such person so as to re-enter society after a period of
imprisonment...”[203]
Having regard to
the accused’s age, the stage at which he would re-enter society, the age he
would be at that time and the period of life remaining to him, the Court thus
concluded that an overall sentence of 18 years’ imprisonment should be reduced
to 12 years’ imprisonment.
1.99
It is thus clear that in addition to the aims of sentencing, criminal
sanctions and sentencing are also framed by the justice principles of
consistency and proportionality. It is also clear that the courts have
been striving to improve consistency in sentencing by formulating general
guidance regarding: (i) points of departure for certain serious offences such
as manslaughter (Princs), rape (Tiernan) and social welfare fraud
(Murray); (ii) sentencing ranges for offences such as rape (WD), sexual
offences (H) and robbery (Pakur Pakurian); (iii) the factors
relevant to the determination of the seriousness of an offence (GK); and
(iv) the factors that are likely to aggravate or mitigate the seriousness of an
offence and the severity of a sentence. This is a significant development
because, as noted at paragraph 1.32, a consistent approach to sentencing is
necessary to ensure that a sentence that is proportionate to the circumstances
of the particular offence and the particular offender is imposed in all cases.
1.100
On the basis of this analysis, the Commission considers that a
principles-based sentencing system which reflects the importance of consistency
and proportionality would lead to sentencing outcomes in which: (1) the
most severe sanctions, including lengthy prison sentences, are reserved for the
most serious crimes; (2) less severe sanctions, including medium range prison
sentences, are reserved for less serious crimes; and (3) the least severe
sanctions including fines, probation orders and community service orders are
reserved for the least serious crimes.
1.101 In
the next Part of this Chapter, the Commission notes, however, that the current
Irish sentencing system does not always, in practice, lead to the sentencing
outcomes that might be expected in light of the described principles-based
approach.
1.102
In Parts B to D, the Commission summarised the key elements of the
sentencing system. In this Part, the Commission notes that while the
Supreme Court and the Court of Criminal Appeal have been striving to improve
the level of consistency and proportionality in sentencing, commentators and
surveys of sentencing practice call into question whether these key elements
are, in fact, being realised. The Commission also notes that significant
proposals to develop a more structured sentencing system have been put forward
in order to address this issue, including the development of sentencing guidance
or guidelines under the auspices of a proposed Judicial Council. The
Commission discusses to what extent such proposals would be of benefit in the
context of mandatory and presumptive sentences.
1.103 It has been noted that Ireland, by
contrast with most common law jurisdictions, has a largely unstructured
sentencing system[204] in which
the courts exercise a relatively broad sentencing discretion.[205]
Commentators have also referred to the “regional organisation of the lower
courts, the dearth of formal contact between them and the undoubted duty of all
judges to act independently”[206] and to the
individualised sentencing system, the multiplicity of sentencing aims, and
judicial variability.[207] While it
has been correctly noted that “[a]vailable data are insufficient to support any
reliable conclusion on the existence or extent of sentencing disparity in
Ireland”,[208] two
studies appear to support the view that this lack of structure may lead to
inconsistency in the sentencing process.
1.104 In a 2007 study,[209]
a number of District Court judges were interviewed and asked to respond to
several sentencing vignettes.[210]
The purpose of the study was to explore: (i) judicial views on sentencing and
consistency in sentencing; (ii) the degree of consistency in sentencing between
individual judges; and (iii) the reasons for inconsistency, if any, in
sentencing practices of individual judges.
1.105 The study made several findings
regarding judicial views on sentencing. The judges’ descriptions of
sentencing appeared to correspond with the “instinctive synthesis” approach to
sentencing.[211]
While most judges indicated that there was no tariff or “going rate”,[212]
some indicated that judges developed their own views of things or their own
particular approaches to certain types of cases and penalties.[213]
Some judges rejected the idea that consistency in sentencing was possible in an
individualised system.[214] It
would appear, however, that “consistency” in this context referred to
consistency of outcomes rather than consistency of approach.
1.106 The study also made several findings
regarding the degree of consistency in sentencing between individual
judges. Overall, there were high levels of inconsistency when the sentencing
outcomes of the different District Court judges were compared.[215]
The degree of inconsistency in sentencing outcomes varied according to the
seriousness of the offence.[216] The
sentencing outcomes were most consistent for the most serious case whereas they
were least consistent for the least serious case. Inconsistency was most
pronounced in relation to the type of penalty judges would impose, and was
particularly apparent in relation to the choice between different non-custodial
sanctions.[217] The
less serious the case the more likely the judges were to agree that it warranted
a non-custodial sanction, and the more likely they were to disagree about which
non-custodial sanction to impose. The more serious the case the more
likely the judges were to impose a custodial sanction and the more likely they
were to agree about the type of custodial sanction. Even when judges
agreed about the type of penalty to impose in a particular case, they
disagreed, in some cases quite significantly, about the quantum of penalty to
impose.
1.107 At the same time, several general patterns
in sentencing were identified.[218]
In relation to the assault vignette, for instance, one group comprised those
who would impose some form of financial penalty; a second group comprised those
who would either impose a financial penalty or a more severe penalty such as
community service, prison or a suspended sentence; and a third group comprised
those who would impose either a community service order, prison sentence or
suspended sentence. A general pattern also emerged in respect of
sentencing heroin-addicted offenders.[219]
Most judges indicated that they would offer the offender an opportunity to get
drug treatment in order to avoid a prison sentence. In general, if the offender
was successful and complied with all the requirements the court had imposed,
the judges indicated that he or she should face a non-custodial penalty.
However, if the offender was unwilling to engage in drug treatment, the
majority of judges indicated that they would impose a prison sentence.[220]
In addition, a uniform rationale emerged in respect of the imprisonment of
persistent offenders.[221] Many
judges indicated that they would impose an immediate prison sentence
principally because the offender had had previous chances yet had refused to
change.
1.108 The study concluded that
inconsistencies in the sentencing outcomes could be traced back to several
discrete factors, all of which related to inconsistency in approach.
These included differences in how judges interpreted the facts of the case,
especially the seriousness of the offence; differences in the weight they
attached to certain factors, in particular aggravating and mitigating factors;
differences in judicial views regarding the appropriateness of different
penalties for certain offenders and offences; and differences in the sentencing
objectives prioritised.[222]
Maguire thus asserts that reducing inconsistency in Ireland will require
“addressing the incoherency of current sentencing policy and law, as well as
trying to mitigate the worst effects of judicial variability”.[223]
1.109 In 2003, the Irish Penal Reform
Trust undertook a study into sentencing patterns in the Dublin District Court.[224]
The study was carried out over an 8-week period by two IPRT researchers who
observed proceedings in the Dublin District Court. The purpose of the
study was to: (i) identify how judges use the sentencing options open to them
and the patterns, if any, in their choices; and (ii) determine how often
reasons are given for sentences. The study found that judges rarely made
explicit connections between custodial sanctions and rationales for
imprisonment. When they did speak of rationales, however, they
demonstrated no coherent policy. Thus there was little consistency in
approach. Researchers also witnessed very different outcomes for cases
with very similar factual matrices. For the same minor offence, the
penalty ranged from a simple reprimand to a fine to a recorded conviction that
restricted employment opportunities and might expose an impecunious offender to
the risk of imprisonment. Thus, there was little consistency in outcomes.
1.110 As noted at paragraph 1.36, there
are certain important advantages to the current system of sentencing, in particular,
judicial independence and discretion. Without these vital aspects there
would be little justice in sentencing and the Commission thus observes that
they should be preserved. The studies discussed, however, suggest that
the unstructured nature of the current sentencing system may (in spite of
guidance provided by the Oireachtas, the Supreme Court and the Court of
Criminal Appeal) give rise to a degree of inconsistency in the application of
sentencing aims and principles. This may suggest that the guidance
provided is not taking hold and/or is not transmitting down to the lower
courts, such as the Dublin and Cork District Courts surveyed in those
studies. In addition, it suggests that the reasons for the apparent
inconsistencies may not be dealt with either on a once-off basis, such as where
the Oireachtas prescribes a mandatory, presumptive or maximum sentence, or on
an ad-hoc basis, such as where the Supreme Court or the Court of Criminal
Appeal formulates guidance in specific cases. For these reasons, the
Commission next considers the option of building on the existing level of
structure to improve consistency in sentencing.
1.111 The Commission acknowledges the
progress that has been made by the courts and the Irish Sentencing Information
System (ISIS) with regard to improving the structure of sentencing. Given
the level of inconsistency which remains in the system, however, the Commission
observes that the work undertaken by the courts and ISIS might be usefully
supplemented and/or supported by a dedicated body, such as a Judicial Council,
empowered to formulate sentencing guidance on an ongoing basis.
1.112 Regarding the courts, the Commission
observes that the courts have developed their thinking since the decision of The
People (DPP) v Tiernan,[225] in which
the Supreme Court showed an initial reluctance towards sentencing guidance, at least
in respect of the rigidity that sentencing standards or tariffs might
entail. As illustrated in Part D above, the Supreme Court and the Court
of Criminal Appeal are responsible for much of the judicial guidance on
sentencing today. In particular, the Court of Criminal Appeal, through
its appellate review power, is uniquely situated to offer effective guidance on
many key aspects of sentencing.[226]
1.113 Despite its advantageous
position, however, the reach of the Court of Criminal Appeal is limited in a
number of respects. First, the capacity of the Court to formulate
sentencing principles is restricted by the range of offences within its
jurisdiction.[227]
Typically, it is confined to dealing with appeals against sentence for serious
offences and will have little opportunity to consider sentencing practice in
the courts of summary jurisdiction.[228]
Second, the Court lacks a sufficient volume of sentencing appeals from which to
develop considered and principled sentencing guidance.[229]
Third, even when the opportunity does arise to develop sentencing guidance, it
is limited to a case-by-case consideration.[230]
Where guidance is delivered on this basis, sometimes over many years by
differently constituted courts, there is a risk that the resulting judgments
may be internally consistent, yet inconsistent with each other.[231]
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.[232]
Fourth, the Court of Criminal Appeal operates in an information vacuum[233]
in so far as it is, by and large, dependent on the information submitted by
counsel and any pre-sentence 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.[234]
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,[235] is a
searchable database of the sentencing decisions of the Dublin, Limerick, and
Cork Circuit Criminal Courts.[236]
It is hoped that ISIS will be established on a permanent basis, perhaps as part
of a Judicial Council,[237] 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.[238] 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.[239]
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.[240]
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 and to hold public seminars on matters relevant
to sentencing.[241]
Thirdly, ISIS has also published three recent analyses,[242]
prepared by the Judicial Researchers’ Office, of sentencing in cases of:
(i) rape, (ii) manslaughter, and (iii) robbery.
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.[243]
This followed the publication in 2010 of the Scheme of a Judicial
Council Bill.[244] This
was inspired by the 2000 Report 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.”[245]
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.[246]
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.
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.[247]
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.
1.119 Traditionally, the courts of
Northern Ireland have been guided by the guideline sentencing judgments of the
Northern Ireland Court of Appeal and, to a lesser extent, by comparable
guidelines from England and Wales. In 2010, the Hillsborough Agreement,[248]
which provided for the devolution of justice matters to the Northern Ireland
Executive and Northern Ireland Assembly, contained a proposal to establish a
sentencing guidelines council. This followed the establishment in 2009 by the
Northern Ireland Lord Chief Justice of a Sentencing Working Group, which
reported in June 2010.[249] In
its report, the Working Group recommended the establishment of a Sentencing Group
which would be chaired by a Lord Justice of Appeal and would comprise
representatives of the judiciary. The functions of the Working Group
would be to: (a) take views on priority areas in which sentencing guidelines
were needed, (b) put arrangements in place for guidance to be delivered in
those areas, and (c) consider Court of Appeal and first instance sentencing
cases which might merit inclusion in the Northern Ireland Sentencing Guidelines
and Guidance Case Compendium on the Judicial Studies Board website.[250]
Following this, the Lord Chief Justice launched a public consultation on what
should be included in a priority list of areas for which sentencing guidelines
were needed.[251] As a
result of this consultation process, a First Programme of Action on Sentencing
was developed. This set out the following categories of offence:
· Domestic violence;
· Serious sexual offences;
· Human trafficking;
· Attacks on public workers, including
police officers;
· Attacks on vulnerable people,
including the elderly;
· Duty evasion and smuggling;
· Environmental crime in the Crown
Court;
· Honour-based crime;
· Tiger kidnapping;
· Intellectual property crime;
· Road traffic offences;
· Hate crime;
· Health and safety offences causing
death;
· Manslaughter; and
· Child cruelty and neglect and
serious assaults on children.
1.120 Parallel to this, the Northern
Ireland Minister for Justice published a Consultation Document on a
Sentencing Guidelines Mechanism in 2010.[252]
This set out three options for a sentencing guidelines mechanism:
· A Sentencing Guidelines Council with
responsibility for producing guidelines;
· A Sentencing Advisory Panel with responsibility
for drafting guidelines for the approval of the Court of Appeal; and
· A mechanism based on measures being introduced
by the Lord Chief Justice to enhance procedures for monitoring and developing
sentencing practice.
The results of
the consultation process seemed to suggest that amongst those who responded the
first option was the preferred option, the second option was the second most
popular and the third option was the least favoured option.[253]
1.121 The issue of structured sentencing
(and, more particularly, the issue of mandatory sentencing) has arisen on a
number of occasions in the Northern Ireland Assembly. In November 2011, a
private member’s motion, which called for the introduction of mandatory minimum
prison sentences for those convicted of violent crimes against older or
vulnerable people, was introduced.[254]
In response, the Northern Ireland Minister for Justice expressed the view that
sentencing in individual cases was a matter for judicial discretion guided by
sentencing guidelines.[255]
Those guidelines indicated that the courts should include issues such as the vulnerability
of the victim as a factor which aggravated the sentence to be imposed. By
contrast, mandatory minimum sentences left no room for discretion and thus no
allowance for the exceptional case. The Minister also referred to the
work being undertaken by the Northern Ireland Department of Justice and the
Lord Chief Justice regarding the development of a sentencing guidelines
mechanism.
1.122 In June 2012, following the
sentencing of those who had been convicted of the murder of Police Constable
Stephen Carroll, a private member’s motion, which called for the introduction
of a 30-year minimum sentence for the murder of PSNI officers, was introduced.[256]
In addition, a proposed amendment to the motion called for the establishment of
an independent sentencing guidelines council for Northern Ireland.[257]
In response, the Northern Ireland Minister for Justice indicated that once the
Court of Appeal had time to consider an appeal against the sentence imposed on
one of the accused, the Department of Justice would launch a review of the
legislation governing the determination of tariffs where the court has passed a
life sentence.[258] Regarding
the establishment of an independent sentencing guidelines council, the Minister
responded that such a model would be too costly to establish and too costly to
maintain in the current economic climate.[259]
He indicated that, instead, the Lord Chief Justice’s initiative would deliver
everything a formal sentencing guidelines council could without the unnecessary
expenditure.[260] In
addition, he noted that the Lord Chief Justice, in the interest of community
engagement, had agreed to include two lay members in the Sentencing Group.[261]
He also stated that he would be developing a community engagement strategy to
ensure a two-way flow of information on sentencing issues.[262]
He concluded by indicating that these mechanisms would be reviewed within two
years to assess their effectiveness and that if a case existed for a formal
sentencing guidance council, he would be prepared to reconsider it at that
point.[263]
1.123 In this Chapter, the Commission has
considered the general aim of the criminal justice system (namely, the
reduction of prohibited or unwanted conduct) as well as the attributes of
criminal sanctions and the principles of justice, in order to provide a
conceptual framework for the analysis of the different forms of mandatory
sentences to be reviewed in Chapters 3 to 5. In this regard, the
Commission identified four main aims of criminal sanctions, namely: (a)
deterrence, (b) punishment, (c) reform and rehabilitation, and (d)
reparation. The Commission also identified two key aspects of the justice
principle, namely: (a) consistency, and (b) proportionality (including
constitutional and sentencing proportionality).
1.124 The Commission notes the particular
importance of proportionality which requires an individualised approach to
sentencing whereby the court has regard to the circumstances of both the
offence and the offender. In this context, the Commission fully
appreciates (based on the review of the relevant case law in this Chapter) that
the Supreme Court and the Court of Criminal Appeal have developed general
guidance and, in some instances, specific guidelines, such as the strong
presumption in favour of a custodial sentence on conviction for manslaughter,
rape and social welfare fraud. These are clearly intended to provide
principle-based clarity around likely sentencing outcomes and to reflect
comparable developments in many other jurisdictions. The Commission notes
the importance of such guidance and guidelines, bearing in mind that the
Oireachtas has provided for a very wide discretion as to the actual sentence to
be imposed for the majority of criminal offences, including some of the most
serious offences, such as manslaughter, rape and fraud, for which the sentence
can range from no custodial sentence to a maximum of life imprisonment.
1.125 The Commission has also discussed in
this Chapter, the extensive case law in Ireland which indicates that sentencing
courts are also conscious of the need to consider a wide range of aggravating
and mitigating factors, set out in the Commission’s 1996 Report on
Sentencing,[264] as well as
the individual circumstances of the offender. It is equally clear that since
1996, the courts have also had regard to comparable case law and developments
in other jurisdictions concerning the ongoing development of such factors.
1.126 The Commission also notes, however,
that in spite of the development and recognition of the general aim of the
criminal justice system and the principles of justice, there remain
deficiencies in the sentencing system in Ireland. The Commission has
discussed the recommendations made in 2000, and reiterated in 2011, that
sentencing guidance and guidelines should be developed in an even more
structured manner by a proposed Judicial Council. The Commission fully
supports those recommendations and notes that such guidance and guidelines
could build on the framework provided by the general aims of criminal
sanctions, and principles of sentencing, discussed in this Chapter. They
would also have the benefit of the guidance and guidelines available from
decisions of the Supreme Court and the Court of Criminal Appeal, including
those discussed in this Chapter. Such guidance could also build on the
growing importance of the Irish Sentencing Information System (ISIS) which, as
already discussed, has the potential to provide a significant database of
sentencing information for the courts. In this respect, the Commission
agrees with the view that ISIS could in time be regarded as a leading model of
its type.[265]
1.127 In conclusion therefore, the
Commission supports the recommendations made in 2000, and reiterated in 2011,
that a Judicial Council be empowered to develop and publish suitable guidance
or guidelines on sentencing, which would reflect the general aim of the
criminal justice system and the principles of sentencing discussed in this
Report. The Commission has also concluded, and recommends, that such
guidance or guidelines should have regard to: (i) the sentencing guidance and
guidelines available from decisions of the Supreme Court and the Court of
Criminal Appeal (including those discussed in this Report); (ii) the
aggravating and mitigating factors, and individual offender characteristics,
identified in the Commission’s 1996 Report on Sentencing and developed
by the courts since 1996; and (iii) information in relevant databases
including, in particular, the Irish Sentencing Information System (ISIS).
1.128 The Commission supports the
recommendations made in 2000, and reiterated in 2011, that a Judicial Council
be empowered to develop and publish suitable guidance or guidelines on
sentencing, which would reflect the general aims of criminal sanctions and the
principles of sentencing discussed in this Report. The Commission also
recommends that such guidance or guidelines should have regard to: (i) the
sentencing guidance and guidelines available from decisions of the Supreme
Court and the Court of Criminal Appeal (including those discussed in this
Report); (ii) the aggravating and mitigating factors, and individual offender
characteristics, identified in the Commission’s 1996 Report on Sentencing and
developed by the courts since 1996; and (iii) information in relevant databases
including, in particular, the Irish Sentencing Information System (ISIS).
1.129 The Commission acknowledges the
importance of a structured sentencing system because, in general terms, such a
system is more likely to lead to outcomes that reduce the risk of an
inconsistent application of key principles. In particular, a structured system
would be more likely to ensure that the principles-based appellate guidance
discussed above would be applied in practice. This is important in the
context of the general discretion that the Oireachtas has conferred on the
courts in respect of such serious offences as manslaughter, rape and fraud, and
which the appellate courts have recognised (in the discussed Princs, Tiernan
and Murray cases) should be reflected in the general approach to be
taken in determining individual sentencing outcomes.
1.130 In Chapter 2, the Commission
discusses in detail the history of the development of mandatory and presumptive
sentences. This Chapter notes that the development of the mandatory life
sentence for murder evolved as a replacement for the death penalty and thus has
a very different narrative and can be considered sui generis.
Bearing in mind that unique history, the Commission makes specific proposals in
Chapter 3 in connection with the sentencing regime for murder, which are
informed by the principles discussed in this Chapter and the proposed
development of a more structured sentencing system.
1.131 The Commission also notes in Chapter
2 that the development of presumptive sentences, notably for certain drugs and
firearms offences, differed from that of the mandatory life sentence for
murder. The Commission notes that, both internationally and nationally,
these sentences were introduced against specific backgrounds, notably the
emergence of organised crime. The Commission acknowledges that, to some
extent, these sentencing regimes emerged in Ireland against the backdrop of a
growing recognition of the significant harm caused to society by such offences,
and a wish on the part of the Oireachtas to mark the gravity of these offences
by placing severe constraints on sentencing discretion.
1.132 The Commission considers that, in
these contexts, the nature of the constraints imposed on sentencing discretion
may also have been influenced by the relatively unstructured nature of the
sentencing system and the resulting risk of inconsistency identified in the
surveys discussed above. In that respect, the Commission considers that
the proposals for a principles-based structured sentencing system (as outlined
in this Chapter and supported by the Commission) would assist in ensuring that,
in practice, there is an appropriate application of relevant sentencing
principles. In that respect also, the specific recommendations in Chapter
4 regarding drugs and firearms offences have been influenced by these proposed
developments.
1.133 As to mandatory and presumptive
sentencing regimes for habitual offenders, the Commission acknowledges in
Chapter 2 the much longer history of these statutory interventions. The
Commission’s specific recommendations in Chapter 5 regarding repeat offences
have also been influenced by the discussion of sentencing principles in this
Chapter, and by the proposals for a more structured sentencing regime.
2.01
In this Chapter, the Commission traces the historical evolution of the
three types of mandatory sentence discussed in this Report. Part B
outlines the historical evolution of entirely mandatory sentences
(specifically, the mandatory life sentence for murder) in the United Kingdom
and Ireland. In Part C, the Commission discusses the development of
presumptive and mandatory minimum sentences for drugs and firearms offences in
the United States of America, the United Kingdom and Ireland. Part D
considers the evolution of mandatory sentences for repeat offenders in the
United States of America, England and Wales, and Ireland. In Part E, the
Commission draws a number of conclusions from the manner in which these
sentencing regimes developed.
2.02 An entirely mandatory sentence is a
mandatory sentence that permits of no exceptions. In Ireland, an entirely
mandatory life sentence is prescribed for the offences of: (a) murder;[266]
(b) the murder of a
designated person such as a member of An Garda Síochána;[267]
and (c) treason. In this section, the Commission considers the historical
evolution of the mandatory life sentence for murder in Ireland in comparison to
contemporaneous developments in England and Wales.
2.03 While capital punishment had been
progressively abolished throughout the first half of the 19th
century, section 2 of the Offences Against the Person Act 1861 retained
the death penalty as the penalty for murder.[268]
Section 2 provided that “Upon every Conviction for Murder the Court shall
pronounce the Sentence of Death”. The provision applied to all persons
convicted of murder but, in reality, the death penalty was commuted to
imprisonment or some other form of detention in most cases.
2.04 During the first half of the 20th
century, several statutes were enacted which further reduced the circumstances
in which the death penalty applied.[269]
In 1908, the death penalty was abolished in respect of children under 16 years
of age[270]
and in 1933 the statutory age limit was raised to 18 years.[271]
In 1922, the death penalty was abolished in respect of the killing of a baby by
its mother[272]
and in 1938 it was abolished in respect of the killing of a one-year-old child.[273]
There were also a number of high-profile cases which captured adverse public
attention,[274]
including the case of Edith Thompson and her lover, Frederick Bywaters, in 1923[275]
and the case of George Stoner and his lover, Alma Rattenbury, in 1935.[276]
2.05 A number of attempts were made to
abolish the death penalty. In 1929, a Select Committee on Capital
Punishment recommended the suspension of the death penalty for a trial period
of five years.[277]
In 1938, the House of Commons carried an amendment to the abortive Criminal
Justice Bill 1938 which sought to abolish the death penalty entirely.[278]
In 1948, the House of Commons carried an amendment to the Criminal Justice
Bill 1948 which again sought to suspend the death penalty for a period of
five years.[279]
This was reversed by the House of Lords and, at report stage, a back-bencher,
Sydney Silverman, tabled an amendment to the same effect.[280]
Each attempt failed.
2.06 In 1949, a Royal Commission on
Capital Punishment, the Gowers Commission, was established to consider whether
liability to suffer capital punishment for murder should be limited or modified
and, if so, to what extent or by what means.[281]
In its 1953 Report,[282]
the Gowers Commission made a number of recommendations including that the
statutory age limit for the death penalty should be raised from 18 to 21 years;
that discretion should be given to the jury to decide whether to impose the
death penalty or a life sentence; that degrees of murder should not be
established; and that the M’Naghten rules governing the insanity defence should
be reformed.[283]
It has been asserted that the report had a limited impact on policy-makers as
its most significant recommendations were subsequently rejected by the
government.[284]
2.07 In spite of this setback, those in
favour of abolition continued to campaign. They were spurred on not least
by three controversial cases which raised considerable doubt about the fairness
and infallibility of the law relating to murder.[285]
The first case was that of Timothy Evans who was hanged in 1950 for the murder
of his baby daughter, Geraldine, while a count relating to the murder of his
wife, Beryl, was left on file.[286]
It later transpired that a neighbour turned Crown Prosecution witness, John
Christie, was responsible for the deaths. The second case was that of
Derek Bentley who was sentenced to death in 1952 for the murder of Police
Constable Sidney Miles during a robbery.[287]
Bentley was 19 years of age at the time but had the mental capacity of an
11-year-old. His co-accused, 16-year-old Christopher Craig, who had fired
the fatal shot, was sentenced to detention during Her Majesty’s pleasure.
Notwithstanding a jury recommendation for mercy, Bentley was hanged in 1953.[288]
The third case was that of Ruth Ellis who was hanged in 1955 for the murder of
her former lover, David Blakely.[289]
Ellis was a young mother of two, who led a “life that left much to be desired
by suburban standards of morality”.[290]
While she did not deny the killing, it was argued on her behalf that she had
shot Blakely after he had caused her to miscarry their baby by punching her
repeatedly in the abdomen. This did not, however, persuade the court to
amend the charge to one of manslaughter.
2.08 In 1956, a motion to retain the
death penalty but change the law on murder was defeated in the House of Lords,
as was a Death Penalty (Abolition) Bill introduced by Sydney Silverman.[291]
As a compromise, the government introduced a Homicide Bill which was
later enacted as the Homicide Act 1957.[292]
2.09 The Homicide Act 1957
implemented some of the recommendations made by the Gowers Commission.[293]
It limited the scope of murder by abolishing the doctrine of “constructive
malice” and extending the defence of provocation to cover words as well as
deeds. The Act also provided that in cases involving suicide pacts, a
surviving party should be liable only for the manslaughter (as opposed to
murder) of the victim. While it did not extend the defence of insanity
under the 1843 M’Naghten Rules, the Act did introduce the concept of
“diminished responsibility”. Furthermore, contrary to the recommendation
of the Gowers Commission, it introduced degrees of murder. Certain types
of murder, designated “capital murder,” would continue to attract the death
penalty[294] while
other types of murder would in future attract a mandatory life sentence.
It has been noted that this proved to be an unstable compromise which failed to
achieve the support of the senior judiciary and did little to diminish
anxieties about the possibility of mistake in capital cases.[295]
2.10 In 1964, Peter Anthony Allen and
Gwynne Owen Evans,[296] who were
hanged for the murder of John West during a robbery, became the last people to
suffer the death penalty before abolition in 1965.[297]
2.11 In 1965, Sydney Silverman introduced
the Murder (Abolition of Death Penalty) Bill as a private member’s Bill.[298]
The Bill completed its passage through Committee Stage in the House
of Commons with one amendment that limited its period of operation to five
years, unless Parliament by affirmative resolution of both Houses determined
otherwise.[299] At
Committee Stage in the House of Lords, Lord Parker proposed an amendment to the
Bill that would replace the mandatory life sentence with a discretionary life
sentence.[300]
While this proposal received some support, it was ultimately defeated.
Lord Parker proposed a further amendment that would enable the court to
recommend a minimum period which should elapse before the Secretary of State
ordered the release of the prisoner on licence.[301]
This proposal met with greater success.
2.12 The Bill was enacted as the Murder
(Abolition of Death Penalty) Act 1965. Section 1(1) provided that persons convicted
of murder who were aged 18 years or more at the time of the offence would
receive an automatic life sentence whereas persons aged less than 18 years
would continue to be detained at Her Majesty’s Pleasure. Section 1(2)
provided that the court could, in imposing a life sentence for murder, recommend
a minimum period which should elapse before the Secretary of State ordered the
release of the offender on licence. In 1969, Parliament, by affirmative
resolution of both Houses, determined that the Murder (Abolition of Death
Penalty) Act 1965 should remain in force without time limit.[302]
2.13 While the mandatory life sentence
remains the penalty for murder in England and Wales, the enactment of the Murder
(Abolition of Death Penalty) Act 1965 did not mark the end of the debate.
Over time, public dissatisfaction with the life sentence grew as it came to
be understood that those who received a life sentence would, in fact, serve a
much shorter period in prison, specifically, in the region of 9 years.[303]
This led to a reference to the Criminal Law Revision Committee in England
and Wales to review the penalty for homicide.[304]
In its 1973 Report,[305] the
Committee recommended the retention of the mandatory life sentence for murder
and a number of procedural clarifications. It expressed the view that the
courts should not be required to recommend a minimum term in every case;[306]
that any recommendation should not be binding;[307]
that any recommendation should be considered part of the sentence and,
therefore, appealable;[308] and that
the court should not be required to give reasons for its recommendation.[309]
It also expressed the view that the deterrent value of the life sentence
would be enhanced and a number of misunderstandings removed if the pronouncement
of the court were to reflect the fact that the prisoner sentenced to life
imprisonment might be released but would remain liable to imprisonment for the
rest of his or her life.[310]
2.14 Subsequently, the Butler Committee
on Mentally Abnormal Offenders[311]
and the Advisory Council on the Penal System[312]
recommended, for different reasons, the abolition of the mandatory life sentence
and its replacement with a maximum sentence of life imprisonment.[313]
The Advisory Council disliked the life sentence because it was wholly
indeterminate. This, it asserted, would have a detrimental effect on the
prisoner and place a severe burden on an already pressurised prison
system. The Butler Committee, on the other hand, was dissatisfied with
the operation of the defence of “diminished responsibility” which, it thought,
would be rendered obsolete if the mandatory life sentence was abolished.
The Criminal Law Revision Committee returned to consider the mandatory life
sentence in its Report on Offences against the Person in 1980.[314]
This time, however, the Committee members were almost equally divided between
those who favoured the mandatory sentence and those who preferred a
discretionary sentence.
2.15
The life sentence for
murder in England and Wales has been considered on numerous occasions by the
European Court of Human Rights. These cases are primarily
concerned with Article 5(1) and Article 5(4) of the European Convention on
Human Rights. Two key principles regarding Article 5 have been extracted
from the resultant jurisprudence:
“First, the underlying purpose of
Article 5 is to protect individuals from being deprived of their liberty
arbitrarily: in the context of life sentence prisoners a decision to continue
their detention should not be taken arbitrarily. The required protection
is achieved through the review mechanism prescribed by Article 5(4).
Second, it may be inferred from the jurisprudence that prolonged detention can
be justified on the limited grounds of risk and dangerousness.”[315]
[Emphasis added.]
2.16
It may be recalled that the mandatory life sentence in the United
Kingdom is composed of two parts: a punitive part and a preventative
part. (This may be contrasted with the Irish sentencing system which
considers life sentences to be wholly punitive.) Once the punitive part
of a sentence is served, the continued detention of a prisoner under the
preventative part can only be justified on the ground that the prisoner
continues to represent a risk or danger to the public. Thus, while the imposition
of a life sentence may be lawful under Article 5(1), the continued detention of
a prisoner may become unlawful where the punitive part of the sentence has been
served and the prisoner no longer represents a risk or danger to the
public.
2.17
Thus, the European Court of Human Rights established the principle that
the continued detention of a prisoner under the preventative part of a life
sentence must be periodically reviewed in accordance with Article 5(4) of the
European Convention on Human Rights. In Weeks v United Kingdom,[316] the
applicant had received a discretionary life sentence for armed robbery on the
basis that he was a dangerous offender. He had been subsequently released
on licence which was revoked when he committed a further offence. The
applicant contended that his detention subsequent to the revocation of his
licence was contrary to Article 5(1) and that he had not been able to have his
continued detention reviewed in accordance with Article 5(4).[317]
The Court acknowledged that the freedom enjoyed by a prisoner on licence was
“more circumscribed in law and more precarious than the freedom enjoyed by the
ordinary citizen” but held that it qualified as “freedom” for the purpose of
Article 5(1).[318] The
applicant was thus entitled to invoke Article 5(1). Referring to the
disturbed and aggressive behaviour of the applicant, the Court found, however,
that the decision to revoke his licence and re-detain him had been neither
arbitrary nor unreasonable and was, therefore, compatible with Article 5(1).[319]
Once returned to custody and at reasonable intervals thereafter, however, the
Court ruled that the applicant was entitled to have his continued detention
reviewed in accordance with Article 5(4).[320]
2.18
The European Court of Human Rights initially drew a distinction between
discretionary life sentences and mandatory life sentences.[321]
Whereas the discretionary life sentence was composed of both a punitive and a
preventative part, the mandatory life sentence was wholly punitive. Thus,
periodic review of detention under a mandatory life sentence was not
required. In Wynne v United Kingdom,[322]
the applicant had received a mandatory life sentence for murder. He had
been subsequently released on a life licence during which time he killed a
woman. The applicant was convicted of manslaughter and the domestic court
imposed a discretionary life sentence and revoked his life licence. Once
the punitive part of the discretionary life sentence was served, the applicant
contended that he was entitled to have his continued detention reviewed.[323]
The European Court of Human Rights dismissed his claim, holding that his
conviction for manslaughter did not affect the continued validity of the
mandatory life sentence or its reactivation on his recall. The conviction
or, more particularly, the discretionary life sentence merely provided a supplementary
legal basis for his detention. Citing Thynne, Wilson and Gunnell v
United Kingdom,[324]
the Court held that in the context of mandatory life sentences, the guarantee
of Article 5(4) was satisfied by the original trial and appeal proceedings.[325]
It thus conferred no additional right to challenge the lawfulness of continuing
detention or re-detention following the revocation of a licence. In the
course of its judgment, the Court distinguished between discretionary life
sentences and mandatory life sentences:
“[T]he fact remains that the mandatory
sentence belongs to a different category from the discretionary sentence in the
sense that it is imposed automatically as the punishment for the offence of
murder irrespective of considerations pertaining to the dangerousness of the
offender... . That mandatory life prisoners do not actually spend the
rest of their lives in prison and that a notional tariff period is also
established in such cases ... does not alter this essential distinction between
the two types of life sentence.”[326]
2.19
In Thynne, Wilson and Gunnell v United Kingdom,[327]
the applicants were convicted sex offenders who had been sentenced to
discretionary terms of life imprisonment. Having served the punitive
parts of their sentences, the applicants complained that they had not been able
to have their continued detention periodically reviewed in accordance with
Article 5(4).[328] Each
of the applicants had been found to be suffering from a mental or personality
disorder and to be dangerous and in need of treatment. Since the factors
of mental instability and dangerousness were susceptible to change over the
passage of time, the Court found that new issues of lawfulness could arise
during the course of their detention.[329]
Thus, the applicants were entitled to have their continued detention reviewed
by a court-like body.
2.20
As a result of this decision, section 34 of the Criminal Justice Act
1991 introduced a procedure to review the preventive part of a
discretionary life sentence.[330] It
also formalised the sentencing procedure so that a judge imposing a
discretionary life sentence was now required to specify in open court the
punitive part of the sentence. In the 2002 Practice Direction
(Criminal Proceedings: Consolidation),[331]
it is indicated that it is only in very exceptional circumstances that a judge
would be justified in not specifying a tariff. This might occur where the
judge considers that the offence is so serious that detention for life is
justified by the gravity of the offence alone, irrespective of any risk to the
public. In such a case, the judge should state this when imposing the
sentence. The tariff is a sentence for the purposes of the Criminal
Appeal Act 1968 and
may thus be subject to appeal.[332]
2.21
Over time, the European Court of Human Rights began to question the
distinction between discretionary life sentences and mandatory life sentences.[333]
This initially occurred in several cases concerned with juvenile offenders who
had been convicted of murder and sentenced to detention during Her Majesty’s
Pleasure. In Hussain v United Kingdom,[334]
the applicant contended that he was entitled to have his continued detention
periodically reviewed under Article 5(4).[335]
The Court considered whether a sentence of detention during Her Majesty’s
Pleasure was more akin to a discretionary life sentence or a mandatory life
sentence.[336] The
Court observed that the sentence was mandatory in terms of being fixed by law
and applicable in all cases where persons under the age of 18 years were
convicted of murder.[337] The
Court stated, however, that the decisive issue was whether the nature and
purpose of the sentence were such as to require the lawfulness of the detention
to be periodically reviewed in accordance with Article 5(4).[338]
The Court considered that an indeterminate term of detention for a convicted
young person, which might be as long as that person’s life, could only be
justified by considerations based on the need to protect the public.[339]
The Court thus concluded that the applicant’s sentence, after the expiration of
his tariff, was more comparable to a discretionary life sentence.[340]
The decisive ground for the applicant’s detention had been and continued to be
his dangerousness to society.[341]
As this was a characteristic which could change over time, the Court held that
the applicant was entitled to have his continued detention periodically
reviewed by a court-like body in accordance with Article 5(4).[342]
2.22
As a result of this decision, section 28 of the Crime (Sentences) Act
1997 extended
to juvenile offenders sentenced to detention at Her Majesty’s Pleasure, the
same right as offenders sentenced to discretionary life imprisonment, to have
the preventive part of their sentences periodically reviewed by the Parole
Board.[343]
2.23
The European Court of Human Rights also began to question the role of
the Home Secretary in setting the tariff for sentences such as detention at Her
Majesty’s Pleasure.[344] In V
and T v United Kingdom,[345] the Court ruled that
the fixing of a tariff was a sentencing exercise and that the applicants were thus
entitled to the safeguards of Article 6(1) of the European Convention on Human
Rights,[346] which
required that the determination of civil rights and obligations be conducted by
an “independent and impartial tribunal”.[347]
As the Home Secretary could not be considered “independent” of the Executive,
the Court found that there had been a violation of Article 6(1).[348]
2.24
As a result of this decision, the Home Secretary relinquished his power
to set the tariff for sentences of detention at Her Majesty’s Pleasure and this
is now set by the trial judge.[349]
The Lord Chief Justice issued a Practice Direction[350]
setting out the various factors which judges should take into account when
setting tariff periods for murder by offenders of all ages. It is
interesting to note, however, that the Home Secretary retains a duty to keep
the minimum term of every child detained during Her Majesty’s Pleasure under
review, and may still use the prerogative of mercy to shorten it.[351]
2.25
The distinction between discretionary life sentences and mandatory life
sentences finally collapsed in Stafford v United Kingdom[352], when the
European Court of Human Rights assimilated the various regimes applicable to
discretionary life sentences, mandatory life sentences and sentences of
detention during Her Majesty’s Pleasure.[353]
The applicant had received a mandatory life sentence for murder. He had
been subsequently released on licence and this was revoked when he was convicted
of a number of fraud offences. Having served his sentence for the fraud
offences, the Parole Board recommended that the applicant be released on
licence but this was rejected by the Secretary of State on the ground that
there was a risk that the applicant would commit further fraud offences.
2.26
The applicant contended that his continued detention was in breach of
Article 5(1).[354] In
this regard, he argued that it was arbitrary to justify indefinite imprisonment
by reference to a risk of future non-violent offending, which involved no
physical harm to others and bore no relationship to the criminal conduct which
had resulted in the mandatory life sentence.[355]
For its part, the Government contended that the mandatory life sentence for
murder satisfied Article 5(1) and continued to provide a lawful basis for the
applicant’s detention.[356] It
argued that the mandatory life sentence could be distinguished from the
discretionary life sentence as it was imposed as punishment for the seriousness
of the offence and was not governed by factors, such as risk and dangerousness,
which could change over time.[357]
The applicant further contended that as the basis for his continued detention
was the risk of future offending, he was entitled to have his detention
reviewed under Article 5(4).[358] He
argued that, since Wynne, the courts in the United Kingdom had so
altered their approach to, and understanding of, the mandatory life sentence,
that it was no longer possible to argue that the requirements of Article 5(4)
were satisfied by the original trial.[359]
The Government, on the other hand, insisted that where mandatory life sentences
were concerned, the requirements of Article 5(4) were met by the original trial
and appeal proceedings and that no new issues of lawfulness could arise
requiring review.[360]
2.27
The Court held that there was no causal connection between the risk of
future non-violent offending and the original mandatory life sentence for
murder.[361] The
applicant’s re-detention was thus in breach of Article 5(1). The Court
referred to legal developments in the United Kingdom and concluded that it
could no longer be maintained that where mandatory life sentences were
concerned, the requirements of Article 5(4) were satisfied by the original
trial and appeal proceedings.[362]
Thus, detention beyond the expiry of the tariff period could only be justified
by considerations of risk and dangerousness associated with the objectives of
the original sentence for murder.[363]
As these elements could change over time, the Court held that the applicant was
entitled to have his detention reviewed by a court-like body under Article
5(4). As the Secretary of State was not a court-like body, his exclusive
power to grant release violated Article 5(4).
2.28
In Stafford, the European Court of Human Rights was influenced by
legal developments in the United Kingdom regarding life sentences. Having
regard to these legal developments, the Court came to the conclusion that the
distinction between discretionary life sentences, mandatory life sentences and
sentences of detention during Her Majesty’s Pleasure could no longer be maintained
in respect of tariff-fixing:
“The Court considers that it may now
be regarded as established in domestic law that there is no distinction between
mandatory life prisoners, discretionary life prisoners and juvenile murderers
as regards the nature of tariff-fixing. It is a sentencing
exercise. The mandatory life sentence does not impose imprisonment for
life as a punishment. The tariff, which reflects the individual
circumstances of the offence and the offender, represents the punishment.
The Court concludes that the finding in Wynne that the mandatory life
sentence constituted punishment for life can no longer be regarded as
reflecting the real position in the domestic criminal justice system of the
mandatory life prisoner.”[364]
While the Court did not expressly confine this statement to the
situation pertaining to the United Kingdom, the fact that it followed its
consideration of the legal developments in the United Kingdom suggests that
this was the intention. It is thus arguable that Stafford is not
(as some might suggest) an authority for imposing review requirements on
mandatory life sentences in countries, such as Ireland, which do not have a
tariff system. This argument gains support in the decision of Kafkaris
v Cyprus,[365] which will
be discussed at paragraph 2.96ff.
2.29
The European Court of Human Rights did not have to consider whether the
setting of the tariff by the Home Secretary was compatible with Article 6 of
the Convention but did note that the role of the Home Secretary had “become
increasingly difficult to reconcile with the notion of the separation of powers
between the executive and the judiciary.”[366]
In R v Secretary of State for the Home Department, ex parte Anderson,[367]
however, the House of Lords ruled that Article 6(1) required the tariff to be
fixed by an independent and impartial tribunal. As the Home Secretary was
not an independent and impartial tribunal, he should not fix the tariff of the
mandatory life sentence for murder.
2.30
The life sentence was again considered in Vinter, Bamber and Moore v
United Kingdom.[368] In
that case, the applicants were British nationals who had each received a “whole
life” order in respect of a mandatory life sentence for murder. The
applicants had been sentenced prior to the entry into force of the Criminal
Justice Act 2003 when
the practice had been for the Secretary of State, having received
recommendations from the trial judge and Lord Chief Justice, to determine the
minimum term to be served by a life sentence prisoner. The fact that a
whole life order had been imposed meant that the applicants could not expect to
be released other than at the discretion of the Secretary of State on
compassionate grounds. In general, however, the Secretary of State would
review a whole life order once the prisoner had served 25 years’
imprisonment. The Criminal Justice Act 2003 was introduced to
implement a finding by the House of Lords that it was contrary to Article 6 of
the European Convention on Human Rights for the Secretary of State to determine
minimum terms.[369]
Under section 269 of the 2003 Act, it became the responsibility of the trial
judge, in accordance with Schedule 21, to determine the minimum term to be
served by life sentence prisoners. Under section 276 and Schedule 22,
persons serving mandatory life sentences, who had received minimum terms under
the old system, were entitled to apply to the High Court to have their
sentences reviewed. The practice whereby whole life orders were reviewed
after 25 years was discontinued.
2.31
The applicants’ whole life orders were upheld by the High Court and they
applied to the European Court of Human Rights, alleging violations of Article
3, Article 5(4) and Article 7 of the Convention. Regarding Article 3, the
applicants made a number of submissions. First, citing Kafkaris v
Cyprus,[370] they
argued that it was clear that the European Court of Human Rights considered
that an irreducible life sentence would not merely raise an issue under Article
3, but would in fact violate Article 3. Second, they argued that the
English Court of Appeal had erred in R v Bieber[371] by
distinguishing between irreducible mandatory life sentences and irreducible
discretionary life sentences. There was no proper basis in Kafkaris
for the Court of Appeal to conclude that only an irreducible mandatory life
sentence could raise an issue under Article 3. Such a conclusion would,
in any case, lead to inconsistent findings where some irreducible life
sentences would violate Article 3 because they were mandatory, whereas others
would not violate Article 3 because they were discretionary, even though both
types of sentence would entail the same hopelessness regarding release.
Third, they argued that the Court of Appeal had erred in finding that a
violation of Article 3 could not arise at the moment of the imposition of a
sentence. They submitted that a violation arose because of the imposition
of hopelessness that came with such a sentence. Finally, they argued that
the Secretary of State’s power of compassionate release was not sufficient to
make a life sentence reducible. The second applicant further relied on
the fact that he had been promised reviews at various stages of his sentence,
and that an irreducible sentence imposed on a young man was very different to
one imposed on a much older man, which served to underline the inequality,
cruelty and illogicality of irreducible life sentences.
2.32
The Court stated that it was first necessary to consider whether a
grossly disproportionate sentence would violate Article 3 and, second, at what
point in the course of a life sentence or other very long sentence an Article 3
issue might arise. In relation to the first issue, the Court stated that
it was prepared to accept that a grossly disproportionate sentence could amount
to ill-treatment contrary to Article 3 at the moment of its imposition.
It observed, however, that “gross disproportionality” was a strict test and
that it would only be on “rare and unique occasions” that the test would be
met.[372]
2.33
In relation to the second issue, the Court indicated that, subject to
the general requirement that a sentence should not be grossly disproportionate,
it was necessary to distinguish between three types of life sentence: (i) a
life sentence with eligibility for release after a minimum period has been
served; (ii) a discretionary sentence of life imprisonment without the
possibility of parole; and (iii) a mandatory sentence of life
imprisonment. The Court indicated that the first type of sentence was
clearly reducible and thus no issue could arise under Article 3.
2.34
Regarding the second type of sentence, the Court indicated that if a
discretionary life sentence was imposed by a court after due consideration of
all relevant mitigating and aggravating factors, an Article 3 issue could not
arise at the moment it was imposed. Rather, it would only arise when it could
be shown that: (i) the applicant’s continued imprisonment could no longer be
justified on any legitimate penological grounds (such as punishment,
deterrence, public protection or rehabilitation); and (ii) the sentence was
irreducible de facto and de iure.
2.35
Regarding the third type of sentence, the Court indicated that a
mandatory sentence of life imprisonment without the possibility of parole would
require greater scrutiny. The Court observed that the “vice of any
mandatory sentence is that it deprives the defendant of any possibility to put
any mitigating factors or special circumstances before the sentencing
court”. This was especially true in respect of a mandatory life sentence
without the possibility of parole, a sentence which, in effect, condemned a
defendant to spend the rest of his or her days in prison, irrespective of his
or her level of culpability and irrespective of whether the sentencing court
considered the sentence to be justified. These considerations did not
mean that a mandatory life sentence without the possibility of parole was per
se incompatible with the Convention, although the trend in Europe was
clearly against such sentences, but that such a sentence was much more likely
to be grossly disproportionate than any other type of life sentence. In
the absence of any such gross disproportionality, an Article 3 issue would
arise for a mandatory life sentence without the possibility of parole in the
same way as for a discretionary life sentence, that is when it could be shown that:
(i) the continued imprisonment of the applicant could no longer be justified on
any legitimate penological grounds; and (ii) the sentence was irreducible de
facto and de iure.
2.36
The Court observed that in the present cases, the whole life orders
were, in effect, discretionary life sentences without parole. Regarding de
iure reducibility, the Court noted that once imposed, such sentences were
not subject to later review and release could only be obtained from the
Secretary of State on compassionate grounds. The policy of the Secretary
of State regarding compassionate release appeared to be much narrower than the
Cypriot policy on release, which had been considered in Kafkaris.
First, the policy could conceivably mean that a prisoner would remain in prison
even if his continued imprisonment could not be justified on any legitimate
penological grounds, as long as he or she did not become terminally ill or
physically incapacitated. Second, it was of some relevance that the
practice of a 25-year review, which existed prior to the introduction of the Criminal
Justice Act 2003, had not been included in the reforms introduced by the
2003 Act. No clear explanation had been given for the omission, even
though it appeared that a 25-year review, supplemented by regular reviews
thereafter, would be one means by which the Secretary of State could satisfy
himself that the prisoner’s imprisonment continued to be justified on
legitimate penological grounds. Third, the Court stated that it doubted
whether compassionate release for the terminally ill or physically
incapacitated could really be considered release at all, if all that it meant
was that a prisoner died at home or in a hospice rather than behind prison
walls.
2.37
However, the Court considered that the issue of de facto
reducibility did not arise for examination in the present cases. First,
the applicants had not sought to argue that their whole life orders were
grossly disproportionate. Given the gravity of the murders of which they
had been convicted, the Court was satisfied that the whole life orders were not
grossly disproportionate. Second, none of the applicants had demonstrated
that their continued incarceration served no legitimate penological
purpose. For each case, the Court was satisfied that detention served the
legitimate purposes of punishment and deterrence. The Court thus
concluded that there had been no violation of Article 3.
2.38
Regarding Article 5(4), the applicants submitted that the imposition of
whole life orders without the possibility of regular review by the courts
violated Article 5(4) of the Convention.
2.39
The Court indicated that while continued detention might violate Article
3 if it was no longer justified on legitimate penological grounds and the
sentence was irreducible de facto and de iure, it did not follow
that the applicants’ detention had to be reviewed regularly in order for it to
comply with the provisions of Article 5. Moreover, it was clear from the
remarks of the trial judge in respect of the first applicant and the remarks of
the High Court in respect of the second and third applicants, that whole life
orders had been imposed on them to meet the requirements of punishment and
deterrence. Citing a decision of the English Court of Appeal,[373] the Court observed
that the practice in England was to impose a whole life order where the offence
was so exceptionally serious that just punishment required the offender to be
kept in prison for the rest of his or her life. The present applicants’
sentences were thus different from the life sentence considered in Stafford
v United Kingdom,[374] which the
Court found was divided into a tariff period (imposed for the purpose of
punishment) and the remainder of the sentence (under which continued detention
was determined by considerations of risk and dangerousness).
Consequently, the Court was satisfied that the lawfulness of the applicants’
detention was incorporated in the whole life orders imposed by the domestic
courts and no further review was required by Article 5(4). The Court thus
found that the applicants’ complaints were manifestly ill-founded.
2.40
Regarding Article 7,[375] the second
applicant submitted that the trial judge had recommended a minimum term of 25
years but had been overruled by the Secretary of State in 1988. This was
incompatible with Article 6 of the Convention and should have played no part in
the sentencing process. The High Court review, which confirmed the whole
life order, thus imposed a more severe penalty than the sentence which had been
passed at the time of the offence. The applicant also asserted that it
was clear that, in the High Court review, Schedule 21 of the Criminal
Justice Act 2003 (which sets out the means by which a minimum term is to be
calculated) had been relied on, even though it established a harsher sentencing
regime than that which was applicable when the applicant had been convicted.
In order to be compatible with Article 7, the applicant asserted that Schedule
22 of the Criminal Justice Act 2003, which provides for the High Court
review, should have prohibited the imposition of a minimum term that was higher
than the trial judge’s recommendation rather than that imposed by the Secretary
of State.
2.41
The third applicant conceded that the whole life term was technically
available in 1996 when his offences were committed. However, it was very
exceptional for whole life orders to be imposed at the time. The whole
life order for the murder of two or more persons involving premeditation and/or
sexual or sadistic conduct had effectively been introduced by Schedule
21. The High Court had specifically rejected the trial judge’s
recommendation of 30 years because of Schedule 21. Therefore, he asserted
that he too had been sentenced under a harsher statutory framework than existed
at the time of the offences.
2.42
The Court observed that the setting of a minimum term was a sentencing
exercise and thus attracted the protection of Article 7. However, the
Court indicated that it was unable to accept that the process by which the
second and third applicants’ current whole life orders were imposed had
infringed Article 7. First, paragraph 3(1)(a) of Schedule 22 expressly
protected against the imposition of a longer minimum term than was initially
imposed. Second, there was no evidence that, in practice, this statutory
protection had been circumvented by the need to consider the principles in
Schedule 21. Schedule 21 might well reflect a stricter sentencing regime
than was previously applied for the crime of murder and, if it were
determinative of the minimum term to be imposed for offences committed prior to
its enactment, might well have violated Article 7. However, this was not
the case. In conducting its review under Schedule 22, the High Court was
to have regard to both Schedule 21 and the previous recommendations made in
respect of a life sentence prisoner by the trial judge and the Lord Chief
Justice. The Court indicated that there was nothing objectionable in
directing the High Court in this way.
2.43
In a joint partly dissenting opinion, however, three of the judges
concluded that there had been a procedural infringement of Article 3 of the
European Convention on Human Rights. This was by reason of the absence of
some mechanism that would remove the hopelessness inherent in a life sentence,
from which there was no possibility of release while the prisoner was still
well enough to have any sort of life outside prison.
2.44
It has been noted that until the enactment of the Homicide Act 1957
in England and Wales, which did not extend to Northern Ireland, the law on
murder had been the same in Northern Ireland as in England and Wales.[376]
As there were few murder cases, there was little public demand for the law in
Northern Ireland to be changed along the lines of the 1957 Act.[377]
However, this changed in the 1960s when there were two hangings in
circumstances which, it has been asserted, would not have resulted in the death
penalty had the offences been committed in England.[378]
2.45
In Attorney General for Northern Ireland v Gallagher,[379]
the defendant was convicted of the murder of his wife. A plea of insanity
failed where there was evidence that he suffered from a psychopathic condition;
that he was liable to explosive outbursts which could be induced by drink; and
that he had been drunk at the time of committing the offence. The
Northern Ireland Court of Criminal Appeal referred a point of general public
importance to the House of Lords which ruled that a psychopath who goes out to
kill knowing that it is wrong, and does kill, cannot escape the consequences by
making himself drunk before carrying out the killing.
2.46
In DPP v Smith,[380] the House
of Lords decided that murder could be committed even though the defendant had
not possessed the actual intent to kill. It was enough that grievous
bodily harm was the natural and probable result of the defendant’s actions and
that the ordinary, responsible man would have known that. By contrast to
the limiting effect of the Homicide Act 1957 in England, the effect of
the Smith decision was to expand the concept of murder.[381]
2.47
Following a campaign by the Northern Ireland Association for the Reform
of the Law on Capital Punishment, a private member’s bill was introduced into
the Stormont Parliament.[382] The Homicide
and Criminal Responsibility Bill proposed a number of reforms, including
the abolition of capital punishment. The Bill did not receive a second
reading.[383]
2.48
In 1963, a Bill was introduced to abolish the death penalty in its
entirety.[384] The
1963 Bill was later enacted as the Criminal Justice Act (Northern Ireland)
1966. In
its final form, however, the 1966 Act followed the Homicide Act 1957 in
drawing a distinction between capital and non-capital murder.[385]
This was subsequently repealed by the Northern Ireland (Emergency
Provisions) Act 1973.[386]
2.49
Section 1(1) of the Northern Ireland (Emergency Provisions) Act 1973 abolished
the death penalty for murder and replaced it with a mandatory life
sentence. Article 5 of the Life Sentences (Northern Ireland) Order
2001 provides that where a court imposes a life
sentence, it must specify the minimum period that must be served by the
offender “to satisfy the requirements of retribution and deterrence”, before he
or she becomes eligible for parole.[387]
Where the offence warranting the life sentence is particularly serious, the
court may order a “whole life tariff” if it considers that the offender should
be detained for the remainder of his or her natural life.[388]
2.50 A review of Northern Ireland’s
criminal justice system was conducted[389]
prior to the commencement of the United Kingdom Human Rights Act 1998, and
a review of Northern Ireland’s sentencing framework was conducted[390]
following the enactment of the United Kingdom Criminal Justice Act 2003
in England and Wales. As a result of the recommendations contained in
these reviews,[391] the Life
Sentences (Northern Ireland) Order 2001 was adopted to ensure that the punitive
or tariff period of life sentences was judicially determined[392]
and that the suitability of prisoners for release was assessed by an independent
body of judicial character. For this purpose, Part II of the Life
Sentences (Northern Ireland) Order 2001 established the “Life Sentence
Review Commissioners”, which were renamed the “Parole Commissioners for
Northern Ireland” in 2008.[393]
2.51 Article 5 of the Life Sentences
(Northern Ireland) Order 2001 provides that where a court passes a life
sentence it must specify a period to be served by the offender “to satisfy the
requirements of retribution and deterrence”. Once this period has been
served, the offender may be considered for release by the Parole
Commissioners. The Parole Commissioners may only direct the release of
the prisoner if the prisoner’s case has been referred to them by the Secretary
of State and if they are satisfied that the prisoner’s continued detention is
not necessary for the protection of the public from serious harm.[394]
Release is “on licence” and may be revoked by the Secretary of State where this
has been recommended by the Parole Commissioners or where the Secretary of
State considers it expedient in the public interest to do so.[395]
2.52
As to how to calculate a minimum term, the Northern Ireland Court of
Appeal, in R v Candless,[396]
directed the courts to have regard to the guidance provided by Lord Woolf CJ in
his 2002 Practice Statement (Crime: Life Sentences).[397]
The Practice Statement sets out the starting points and the circumstances in
which each starting point applies. The starting points range from the
“normal starting point” of 12 years’ imprisonment, through the “higher starting
point” of 15-16 years, up to 30 years.[398]
It also sets out the factors which tend to aggravate or mitigate the duration
of the minimum term.[399]
2.53 Section 23 of the Northern
Ireland Act 1998, as amended,[400]
provides that the royal prerogative of mercy is exercisable on the Queen’s
behalf by the Northern Ireland Minister for Justice. The royal
prerogative of mercy has been mostly superseded by statutory provisions.[401]
2.54 The Murder
(Abolition of the Death Penalty) Act 1965 also applied to Scotland.[402]
Section 1(1) of the 1965 Act abolished the death penalty and replaced it with
the mandatory life sentence, for a period of five years. This was made
permanent by a resolution of the UK Parliament on 31 December 1969.
Section 205 of the Criminal Procedure (Scotland) Act 1995 provides
that a person convicted of murder must be sentenced to life imprisonment.
2.55 As
in England and Wales, the sentencing court must specify a minimum term to be
served by the offender before he or she may be considered for release. Section 3 of the Prisoners and
Criminal Proceedings (Scotland) Act 1993, as amended,[403]
provides that the sentencing court must specify a “punishment part” to be
served by the offender “to satisfy the requirements of retribution and deterrence”.[404]
Once this punishment part has been served, the offender may be considered for
release by the Parole Board. The Parole Board may only direct the release of the prisoner if the
prisoner’s case has been referred to it by the Secretary of State and if it is
satisfied that the prisoner’s continued detention is not necessary for the
protection of the public.[405] If the Parole Board considers this to be the case,
the Secretary of State must release the prisoner on licence.[406]
2.56 It
is interesting to note that the earliest precursor to section 3 of the 1993 Act
was also section 1(2) of the Murder (Abolition of the Death Penalty) Act
1965. In 1972, prior to the publication of the report of the Criminal
Law Revision Committee in England and Wales, the Lord Emslie Committee
published a report in which it reviewed section 1(2) and made a number of
recommendations.[407] It
concluded that the courts should be required, save in exceptional
circumstances, to declare a minimum term;[408]
that any recommendation should be appealable;[409]
and that the courts should be required to provide reasons for a particular
recommendation or for refraining from making a recommendation.[410]
2.57 The
superior courts in Scotland have provided guidance regarding the calculation of
the punishment part of a life sentence.[411]
In HM Advocate v Boyle and Others,[412]
for instance, the High Court rejected the suggestion made by earlier case law
that the “virtual maximum” duration of the punishment part was 30 years.[413]
It noted that some cases, for example “mass murders by terrorist action,” might
warrant a punishment part of more than 30 years.[414]
The High Court agreed with earlier case law, however, in so far as it indicated
that certain murder cases might be of such gravity (such as where the victim
was a child or a police officer acting in the course of his or her duty, or
where a firearm was used) that the punishment part should be approximately 20
years.[415] The
High Court rejected the suggestion that the starting point for the punishment
part in most murder cases was 12 years.[416]
In cases where the offender had armed himself or herself with a sharp weapon,
the High Court indicated that, in the absence of exceptional circumstances, a
starting point of 16 years would be more appropriate.[417]
2.58 In
Scotland, the responsibility for recommending the exercise of the royal prerogative of mercy is
devolved to Scottish Ministers by virtue of section 53 of the Scotland Act
1998.[418]
The royal prerogative of mercy
has been superseded in many instances by statutory provisions.[419]
The effect of a pardon is to free the convicted person from the effects of the
conviction, but it does not quash the conviction.[420]
Pardons are only granted in exceptional circumstances where no other remedy is
open to the convicted person.
2.59 Section 2 of the Offences Against
the Person Act 1861 applied in Ireland when it was enacted and was carried
over into Irish law on the establishment of the State in 1922. As in
England and Wales, the death penalty applied to all persons convicted of murder
but was commuted to imprisonment or some other form of detention in many
cases. In 1925, Annie Walsh became the last woman to be executed when she
and her nephew, Michael Talbot, were hanged for the murder of her elderly
husband, Edward Walsh.[421]
2.60 From the 1930s onwards, mounting
concern regarding the continued presence of the death penalty on the statute
books became evident in both Houses of the Oireachtas.[422]
The 1937 Constitution of Ireland, however, clearly envisaged the retention of
the death penalty as it vested the power to commute a sentence in the
President, subject to the advice and consent of the Government.[423]
In 1951, Seán MacBride tabled a motion in the Dáil proposing that a Select
Committee be appointed to examine the desirability of abolishing the death
penalty.[424] The
motion was defeated.[425] In
1956, Professor Stanford tabled a motion in the Seanad proposing that the
Government consider abolishing the death penalty or suspending it for an experimental
period.[426] The
motion does not appear to have instigated further action.
2.61 In 1954, Michael Manning became the
last man to be executed, when he was hanged for the murder of Catherine Cooper.[427]
Some months later, Brendan Behan’s “The Quare Fellow”, a play based on Behan’s
experience in Mountjoy Prison, opened at the Pike Theatre Club in Dublin.[428]
The “quare fellow” of the title is believed to represent a former prison mate
of Behan’s, Bernard Kirwan, who was awaiting execution for the murder of his
brother. Subsequently, the play was performed at the Theatre Royal
Stratford East in 1956. The play has since been described as “an
overwhelming indictment of capital punishment”[429]
and been credited with contributing to the international debate on capital
punishment.[430]
2.62 In 1963, the Minister for Justice
introduced in the Dáil a Criminal Justice Bill which proposed to abolish
the death penalty for all crimes except treason, certain military offences and
capital murders.[431] In
support of the Bill, the Minister referred to international research which had
shown that the death penalty was not a strong deterrent in respect of ordinary
murder. He observed that many other European countries had already
abolished or virtually abolished the death penalty. He indicated that the
Government considered that it would be undesirable to retain the death penalty
when it was so frequently commuted. In this regard, he observed that
there had not been an execution since the execution of Michael Manning in 1954.
He noted, however, that these considerations were “not fully valid” in respect
of certain political murders as politically motivated offenders would not be
deterred by the prospect of imprisonment. The death penalty would thus be
retained for this category of murder. The Bill was enacted as the Criminal
Justice Act 1964.
2.63 Section 1 of the Criminal Justice
Act 1964 abolished the death penalty for all crimes except treason,[432]
“capital murder”, and certain offences subject to military law.[433] Capital murder consisted of: (i) murder of
a member of An Garda Síochána acting in the course of his duty; (ii) murder of
a prison officer acting in the course of his duty; (iii) murder done in the
course or furtherance of an offence under section 6, 7, 8 or 9 of the Offences
Against the State Act 1939 or in the course or furtherance of the
activities of an unlawful organisation within the meaning of section 18 (other
than paragraph (f)) of that Act; and (iv) murder, committed within the State
for a political motive, of the head of a foreign State or of a member of the
government of, or a diplomatic officer of, a foreign State. In respect of
non-capital murder, section 2 of the Criminal Justice Act 1964 imposed a
mandatory sentence of penal servitude for life.
2.64 During the 1980s, there were a
number of unsuccessful attempts to remove the remaining traces of capital
punishment. In May 1981, a Criminal Justice Bill was introduced in
the Dáil, which sought to abolish the death penalty for all crimes.[434]
The Government opposed the Bill on the grounds that it was not an appropriate
time to abolish the death penalty given that there had been much violence
directed at members of An Garda Síochána and prison officers in recent years
and that it would increase pressure to arm the Gardaí.[435]
The Bill was ultimately defeated. Subsequently, in October 1981, the Minister
for Justice introduced a Criminal Justice Bill in the Seanad, which
sought to replace the death penalty with a life sentence and introduce a
minimum term of 40 years’ imprisonment for treason and capital murder.[436]
The Bill was passed by the Seanad but before it could get to the Dáil, the
Government fell.[437] In
1984, an identical Bill, the Criminal Justice (Abolition of Death Penalty)
Bill, was introduced in the Seanad.[438]
The Bill was passed in the Seanad but does not appear to have proceeded any
further.
2.65 In 1990, the Minister for Justice
moved a motion that a similar Bill, the Criminal Justice (No 2) Bill, be
read a second time.[439] The
Minister prefaced the debate by observing that the death penalty had been all
but abolished in Ireland and that even though it had been retained for treason
and capital murder under the Criminal Justice Act 1964, it had not been
used since 1954.[440] He
thus argued that it could no longer be maintained that the death penalty had a
deterrent effect or that in the “unique security situation which has prevailed
in this country for the last 20 years”, it protected the unarmed members of An
Garda Síochána from violence.[441]
He also noted that, by abolishing the death penalty, Ireland would be joining
the vast majority of “western developed nations” which had already done so.[442]
The Criminal Justice (No 2) Bill was enacted as the Criminal Justice
Act 1990.
2.66 Section 1 of the Criminal Justice
Act 1990 abolished the death penalty for all crimes, while section 2
replaced it with a mandatory life sentence.[443]
While the 1990 Act abandoned the classification of “capital murder”, it
continues to distinguish certain types of murder, including the murder of a designated
person such as a member of An Garda Síochána.[444]
In this regard, section 4 provides that such murders are punishable by a
mandatory life sentence and minimum term of 40 years’ imprisonment or, in the
case of an attempt, a mandatory life sentence and minimum term of 20 years’
imprisonment. The rationale for the Oireachtas selecting a period of 40
years as the minimum term of imprisonment was explained by the then Minister
for Justice as follows:
“In deciding what penalty to propose in the Bill to replace the death
penalty I was guided by a number of concerns. One, by the fact that the
offences in question represent... an attack on the institutions of the
State. Two, that we have a largely unarmed Garda Force whose only
protection from those with murderous intent is the statutory protection we can
afford them by way of a penalty with deterrent effect. Three, the
security situation which exists in this country where there are armed
subversive groups operating which represent a particular threat to our
democratic institutions. Four, very heavy maximum penalties are already
prescribed for the types of crimes which might give rise to the circumstances
where a Garda’s life is put in danger. For example, the maximum penalty
for armed robbery is life imprisonment. An ordinary sentence of life
imprisonment for the murder of a Garda is very unlikely, therefore, to have any
deterrent effect on an armed robber who is trying to evade capture. Five,
what has for many years past been effectively the penalty for capital offences,
namely, 40 years imprisonment.”[445]
2.67 In addition, the Criminal Justice
Act 1990 limits the power to grant early release to offenders convicted of
such murders. It precludes the possibility of commuting or remitting the
sentence until the minimum period has expired.[446]
However, it permits the grant of standard remission for good behaviour under
the Prison Rules.[447]
Thus, the minimum period ordered to be served might be reduced by
one-fourth. It also permits a limited form of temporary release for
“grave reasons of a humanitarian nature”.[448]
2.68 The enactment of the 1990 Act “was
widely viewed as having brought the debate on sentencing for murder to a
satisfactory conclusion”.[449]
However, it was inevitable in some ways that there would be some public
disquiet surrounding the fact that the penalty for murder would no longer be
equal to the offence in fact or in effect. As Hardiman J noted in The
People (DPP) v Kelly,[450] a
manslaughter case:
“In cases where there has been a death and especially a death caused by
an intentional as opposed to negligent act, unhappiness with the sentence is
often expressed in the reflection that even the longest sentence will end at
some point, probably while the defendant is still quite young, whereas the
suffering and deprivation of the deceased person’s family will be
permanent. This is very sadly true. But it ignores the fact that
under our present sentencing regime, sentences must be proportionate not
only to the crime but to the individual offender.”[451]
In its 1996
Report,[452] the
Constitution Review Group recommended that the Constitution should be amended
so as to preclude the possibility of the death penalty ever being
re-introduced. In 2001 the Constitution was amended at Article 15.5.2 to
impose a constitutional ban on the death penalty.[453]
2.69
The constitutionality of section 2 of the Criminal Justice Act 1990 was
upheld by the Supreme Court in Whelan and Lynch v Minister for Justice,
Equality and Law Reform.[454] The
appellants argued that section 2 offended the constitutional doctrine of the
separation of powers as it amounted to a sentencing exercise on the part of
the Oireachtas in so far as it mandated that a life sentence be imposed for
murder. In addition they argued that the imposition of a mandatory life
sentence in every murder case offended the constitutional principle of
proportionality as it deprived the trial judge of discretion as to the
sentence to be imposed.
2.70
Addressing the separation of powers argument, the Supreme Court
upheld the decision of the High Court that it was constitutionally permissible
for the Oireachtas to specify the maximum, minimum or mandatory sentence to be
imposed following conviction. Citing Deaton v Attorney General,[455]
the Supreme Court held that:
“[T]he Oireachtas in the exercise of
its legislative powers may choose in particular cases to impose a fixed or
mandatory penalty for a particular offence. That is not to say that
legislation which imposed a fixed penalty could not have its compatibility with
the Constitution called in question if there was no rational relationship
between the penalty and the requirements of justice with regard to the
punishment of the offence specified.”[456]
[Emphasis added.]
2.71
Regarding the proportionality argument, the Supreme Court
conceded that the crime of murder could be committed in a “myriad of
circumstances” and that the “degree of blameworthiness [would] vary
accordingly”. It nevertheless upheld the decision of the High Court that
the Oireachtas was entitled to promote respect for life by concluding that any
murder, even at the lowest end of the scale, was so abhorrent and offensive to
society that it merited a mandatory life sentence. In this regard, the
Supreme Court observed that the “sanctity of human life and its protection
[was] fundamental to the rule of law in any society”. Murder was thus a
crime of profound and exceptional gravity:
“In committing the crime of murder the
perpetrator deprives the victim, finally and irrevocably, of that most
fundamental of rights, the right ‘to be’ and at the same time extinguishes the
enjoyment of all other rights inherent in that person as a human being.
By its very nature it has been regarded as the ultimate crime against society
as a whole. It is also a crime which may have exceptional irrevocable
consequences of a devastating nature for the family of the victim.”[457]
2.72
As an alternative to the constitutionality argument, the appellants
argued that section 2 of the 1990 Act should be given an interpretation that
would accord with the Constitution. They asserted that such an
interpretation would require the sentencing court to make a non-binding
recommendation as to the minimum term to be served by the offender before he or
she would become eligible for temporary release.
2.73
The Supreme Court rejected this argument to the extent that it was
asserted that such an interpretation was required by the Constitution.
However, it did not reject outright the potential benefits and possibility of
introducing such a system:
“Whether the making of any such
recommendation would have some advantages from a policy point of view is not
obviously a matter for the Court but such a process would not change the
existing position in principle.”[458]
2.74 Thus,
while it might be outside the jurisdiction of the Supreme Court to introduce a
system whereby the sentencing court would be encouraged or required to
recommend a minimum term to be served by an offender convicted of murder, it
would not, it seems, be outside the jurisdiction of the Oireachtas.
2.75 The
view of the Supreme Court was supported by two recent decisions. In Caffrey
v Governor of Portlaoise Prison,[459]
the Supreme Court considered an appeal against a High Court decision[460]
to refuse an application for release under Article 40.4.4° of the
Constitution. In 2005, the appellant had been transferred to Ireland to
serve the remainder of a mandatory life sentence for murder which had been
imposed on him in England in 1999. The trial judge had recommended that
the appellant should serve a minimum term of 12 years for the purposes of
punishment and deterrence, before being considered for parole. The position
in England was that imprisonment beyond the point at which the minimum term
expired could only be justified if it was preventative detention. As the
minimum term had expired in March 2010, the appellant argued that his continued
detention in Ireland had no legal basis as preventative detention was not
permitted in Ireland.
2.76 The
Supreme Court began by considering section 7 of the Transfer of Sentenced
Persons (Amendment) Act 1997 and, in particular, what was meant by the
“legal nature” of a sentence. Section 7(1) stated that a reference to the
legal nature of a sentence did not include a reference to the duration of such
a sentence. The Supreme Court thus observed that it was necessary to
consider the nature of a sentence and not merely its duration.
2.77 The
Supreme Court stated that the nature of the sentence in issue was imprisonment
for life, which meant that even when a person was released from prison the
sentence continued to exist. It indicated that the English system of
setting tariffs related to the management of life sentences and thus did not
affect the nature of the life sentence. Once the appellant was
transferred to Ireland, the management of his sentence became the
responsibility of the Irish authorities and was governed by Irish law. As
a result, the English system of setting tariffs and the 12-year tariff in the
particular case were no longer relevant.
2.78 In a
dissenting judgment,[461] Fennelly J
formulated the core legal issue as being whether the “legal nature” of the life
sentence was confined to its duration or whether it extended to include the
fact that the trial judge had imposed a minimum tariff of 12 years, the balance
of the sentence being justified solely by preventative considerations relating
to public protection. Fennelly J observed that:
“The expression legal nature is one of the [sic] broad import. It is
clear and is common case that it is distinct from the duration of the
sentence. The fact that it is a life sentence relates to its duration,
not its nature. It seems clear, beyond any doubt or argument, that the
sentence of life imprisonment which was imposed on the appellant is comprised
of two distinct elements well-established and recognised in English law.
There is a first period, 12 years in this case, called the tariff, which was
imposed by way of retribution and general deterrence. That is the
punitive element of the sentence. Following the expiry of the tariff
period, a prisoner such as the appellant is, when detained in England, serving
a part of the sentence which is justified exclusively on grounds of public
protection, i.e. to prevent him from committing further crimes during the
period of detention.
That, it
seems to me, relates to the ‘legal nature’ of the sentence...”
He thus concluded that there was no legal
basis for the appellant’s continued imprisonment, which was justified by
reference to preventative considerations which were not recognised by Irish
law.
2.79
In Nascimento v Minister for Justice, Equality and Law Reform,[462]
the High Court considered an application for judicial review. The
applicant, a Portuguese national, had been convicted of murder and received a
mandatory life sentence under section 2 of the Criminal Justice Act 1990.
He had then applied to the Minister to be transferred to Portugal, under the
provisions of the Transfer of Sentenced Persons Acts 1995 to 2006.
There was no equivalent of a life sentence in Portugal and the Portuguese
authorities, in converting the sentence, proposed a sentence of 25 years’
imprisonment, the maximum sentence permissible in Portugal. Following the
expiry of this sentence, the applicant would be subject to no further
conditions in respect of his release. The Minister refused the
applicant’s transfer request on the ground that the 25-year sentence was not
appropriate given the gravity of the crime.
2.80
The applicant sought an order of certiorari quashing the
Minister’s decision to refuse his transfer request and a declaration that the
refusal was ultra vires. He argued that once the conditions set
out in section 4(3) of the Transfer of Sentenced Persons Act 1995 were
met, the Minister was obliged to effect a transfer. He further argued
that the effect of the Minister’s decision was to prevent any transfer, unless
there was equivalence of sentence, and this was ultra vires his powers
under section 4. The applicant also sought declarations that the decision
regarding the length of sentence required was properly a judicial decision, and
that section 2 of the Criminal Justice Act 1990 was unconstitutional, in
that it contravened the doctrine of proportionality, and (or alternatively)
that it was incompatible with section 5 of the European Convention on Human
Rights Act 2003. Furthermore, the applicant submitted that the
Minister’s decision was unreasonable, given that 25 years was the maximum
sentence under Portuguese law and was longer than the sentence that would be
served by most prisoners convicted of murder in Ireland. He also argued
that a more rigorous test of anxious scrutiny should apply because of the human
rights issues involved, including the applicant’s right of access to his
family.
2.81
In refusing the reliefs sought, the High Court (Dunne J) made a number
of findings which are relevant to the issue of sentencing. First, it held
that the power to release a prisoner through a system of temporary or early
release was an executive function that did not involve the determination of
sentence. The exercise of this power was subject to supervision by the
courts, which would only intervene if it could be established that it was being
exercised in a capricious, arbitrary or unjust manner.
2.82
Second, the Minister’s discretion under section 4 of the 1995 Act could
not be exercised without regard to the function of the executive to give effect
to sentences imposed by the judiciary. In considering the converted
sentence, the Minister could look to its effect to see if it met that
obligation and, in doing so, he was not determining sentence contrary to the
doctrine of separation of powers as he was not making a decision in relation to
the length of time to be served by the applicant in custody.
2.83
Third, section 2 of the Criminal Justice Act 1990 was not
unconstitutional. The doctrine of proportionality did not curtail the
right of the Oireachtas to prescribe a mandatory sentence in respect of the
offence of murder, which was of the utmost gravity. It was open to the
Oireachtas to prescribe a sentence that recognised the gravity of the offence
and in doing so, the Oireachtas properly balanced the competing rights
involved, namely, the right to life of the victim, society’s need for a
sentence that reflected that murder was the gravest crime, and the rights of
the person convicted. Due regard was had by the Oireachtas to the
doctrine of proportionality in only prescribing a mandatory sentence in the
most serious case of wrongful killing.
2.84
Fourth, the concept of a mandatory life sentence was not incompatible
with the European Convention on Human Rights. A life sentence imposed on
a person convicted of murder in Ireland was one imposed by the court and
prescribed by the Oireachtas and was not a sentence determined by the
Minister. The sentence did not comprise a punishment part and a
preventative part which would operate after the expiry of a fixed tariff.
2.85
Finally, a challenge to the regime by which temporary release was
granted to those serving life sentences did not come within the scope of
section 5 of the European Convention on Human Rights Act 2003 as what was at issue
was the exercise of a discretion, not a statutory provision or rule of law.
2.86
In Whelan and Lynch v Minister for Justice, Equality and Law Reform,[463] the appellants challenged the constitutionality of the
Executive’s power to grant temporary release. They argued that the
Minister’s power to grant temporary release to prisoners serving life sentences
amounted to a sentencing exercise as it determined the actual length of imprisonment.
This, they asserted, was incompatible with the constitutional doctrine of
the separation of powers.
2.87
The Supreme Court upheld the decision of the High Court that the
Minister’s power to grant temporary release did not offend the Constitution.
Citing a number of precedents, the Supreme Court confirmed that the power to
grant temporary release rested exclusively with the Executive. It
emphasised that the grant of temporary release was not an indication that the
punitive part of the life sentence had been served. It was, instead, the
grant of a privilege which was subject to conditions such as an obligation to
keep the peace and observe the law. As the mandatory life sentence
subsisted for life, temporary release could be terminated at any stage of the
prisoner’s life for good and sufficient reason, such as a breach of the
temporary release conditions. The Supreme Court thus concluded:
“In all these circumstances the Court
does not consider that there is anything in the system of temporary release
which affects the punitive nature or character of a life sentence imposed
pursuant to s. 2. In particular a decision to grant discretionary
temporary release does not constitute a termination let alone a determination
of the sentence judicially imposed. Any release of a prisoner pursuant to
the temporary release rules is, both in substance and form, the grant of a
privilege in the exercise of an autonomous discretionary power vested in the
executive exclusively in accordance with the constitutional doctrine of the
separation of powers.”[464]
2.88
In Whelan and Lynch v Minister for Justice, Equality and Law Reform,[465] the plaintiffs also sought a declaration[466]
that the Irish system of imposing mandatory life sentences for murder was
incompatible with the European Convention on Human Rights on three
grounds.
2.89
Their first submission relied on Article 3 of the European Convention on
Human Rights which provides that no one shall be
subjected to torture or to inhuman or degrading treatment or punishment.
They argued that section 2 of the 1990 Act was incompatible with Article 3 in
so far as it imposed a mandatory life sentence for all murder
convictions. They further argued that they had been subjected to inhuman
and degrading treatment in so far as they knew that they would probably be
released at some point during their lives but had no way of assessing how or
when that release would occur.
2.90
In response, the Supreme Court cited the European Court of Human Rights
decision of Kafkaris v Cyprus[467] and
observed that:
“(a) a mandatory life sentence imposed
in accordance with law as punishment for an offence is not in itself prohibited
by or incompatible with any Article of the Convention and,
(b) will not offend against Article 3
of the Convention ‘when national law affords the possibility of review of a
life sentence with a view to its commutation, remission, termination or
conditional release of the prisoner’ and,
(c) this requirement may be met even
if that prospect of release is limited to the exercise of an executive
discretion.”[468]
Since the Irish system of imposing mandatory life sentences
carried with it a prospect of release in the form of an executive discretion,
namely, temporary release, the Supreme Court dismissed the appellants’ Article
3 submission.
2.91
The applicants’ second submission relied on Article 5 of the European
Convention on Human Rights. The appellants asserted that the role of the
Parole Board and the exercise of the Minister of his power to commute or remit
sentence or to direct the temporary release of prisoners serving mandatory life
sentences was incompatible with Article 5(1)[469]
and Article 5(4).[470]
They argued that the manner in which the Minister, on the advice of the Parole
Board, could grant temporary release amounted to a sentencing exercise on the
part of the Executive contrary to Article 5(1). They further argued that
they had been denied an appropriate mechanism to have their continued detention
reviewed on a regular and frequent periodic basis in breach of Article 5(4).[471]
2.92
Addressing the Article 5(1) submission, the Supreme Court reiterated
that the power of the Minister to grant temporary release was an executive
function rather than a sentencing exercise. The life sentence subsisted
notwithstanding the grant of temporary release which was, in any case, subject
to conditions. Thus, the prisoner might be required to continue serving
the life sentence if good and sufficient reason, such as a breach of the
temporary release conditions, was found to exist. Citing the European Court
of Human Rights decision in Kafkaris v Cyprus,[472]
the Supreme Court observed that for detention to be lawful, Article 5(1)
required that there be a causal connection between the conviction and the
deprivation of liberty. In Kafkaris, the European Court had found
that a causal connection existed between a conviction for murder and a
mandatory life sentence which was wholly punitive.[473]
Such a connection would not exist where the punitive part of a life sentence
which was comprised of both a punitive part and a preventative
part had been served, and the prisoner remained in custody under the
preventative part. As life sentences in Ireland were wholly punitive, the
Supreme Court ruled that a causal connection existed between a conviction for
murder and the mandatory life sentence. The Supreme Court thus dismissed
the appellants’ Article 5(1) submission.
2.93
Regarding Article 5(4), the Supreme Court accepted that the European
Court of Human Rights had ruled that in certain circumstances persons in
custody and serving life sentences were entitled to regular reviews of their
sentences by a court-like body. It observed, however, that much of the
case law of the European Court of Human Rights related to the United Kingdom
system of sentencing which was different to the Irish system. In the
United Kingdom, life sentences contained two parts. The first part of the
sentence, the punitive or tariff part, was fixed to reflect the punishment
of the offender for the offence. The second part of the sentence, the
preventative part (which was served after the first part had been served)
was calculated having regard to the risk that an offender might pose to the
public if released. The European Court of Human Rights had held that
under Article 5(4), a prisoner was entitled to have the preventative part of
his or her detention regularly reviewed to assess whether he or she posed (or
continued to pose) such a risk. As life sentences in Ireland were “wholly
punitive”, the Supreme Court held that Article 5(4) was not applicable to
prisoners serving life sentences in Ireland. The Supreme Court thus
dismissed the appellants’ Article 5(4) submission.
2.94
The applicants’ third submission relied on Article 6 of the European
Convention on Human Rights. The appellants asserted that the role of the
Parole Board and the process whereby the Minister considered the continued
detention of an offender serving a mandatory life sentence contravened their
rights under Article 6(1).[474] They
argued that such continued detention should only be decided by an independent
judicial body which would conduct a hearing in public and at which hearing the
plaintiffs would be afforded (among other things) adversarial rights.
2.95
Regarding Article 6(1), the Supreme Court observed that no issue had
been taken with the procedures before the trial court which had originally
sentenced the appellants to life imprisonment. It stated that since the
subsequent detention of the appellants was at all times referable to, and a
consequence of, the punitive sentence so imposed, no issue arose concerning the
compatibility of section 2 of the Criminal Justice Act 1990 with Article
6 of the European Convention on Human Rights. The Supreme Court thus
dismissed the appellants’ Article 6(1) submission.
2.96
The mandatory life sentence for murder under Irish law has not been
considered by the European Court of Human Rights. However, in Kafkaris
v Cyprus,[475] the
European Court of Human Rights considered the Cypriot sentencing system which,
like Ireland, does not employ a tariff system. The applicant had received
a mandatory life sentence for murder. The domestic courts had ruled that
a “life sentence” subsisted for the natural life of the prisoner and not 20
years as had been provided by prison regulations. The applicant argued
that his rights had been breached under Article 3 and Article 5.
2.97
Regarding Article 3, the applicant contended that his detention after
the date at which he would have qualified for ordinary remission had the
sentence been one of 20 years, violated Article 3.[476]
In this regard, the applicant argued that the punitive purpose of the life
sentence coupled with its mandatory nature constituted inhuman and degrading
treatment. He also argued that his detention beyond the date at which he
would have otherwise qualified for ordinary remission had left him in a state
of distress and uncertainty over his future. For its part, the Government
contended that there had been no violation of Article 3 as the applicant had
sufficient hope of release having regard to the President’s power to remit,
suspend or commute sentences and to order conditional release.[477]
2.98
The Court emphasised that treatment must attain a minimum level of
severity if it was to fall within the scope of Article 3.[478]
In this regard, it noted that any suffering or humiliation must exceed the
level of suffering and humiliation inherent in legitimate punishment.[479]
The Court stated that while the imposition of a life sentence was not in itself
contrary to Article 3, the imposition of an irreducible life sentence might be.[480]
Thus, a life sentence would not be considered irreducible where national law
afforded the possibility of review with a view to commuting, remitting or
terminating the sentence or ordering conditional release.[481]
The Court thus ruled that while a life sentence without a minimum term would
entail anxiety and uncertainty regarding prison life these were inherent in the
nature of the sentence imposed.[482]
Furthermore, while there was no parole board, the President could suspend,
remit or commute any sentence and order conditional release.[483]
As these constituted prospects for release, the Court found that there had been
no inhuman or degrading treatment contrary to Article 3.[484]
2.99
Regarding Article 5(1), the applicant contended that he had exhausted
the punitive part of his sentence on the date at which he would otherwise have
qualified for ordinary remission.[485]
His detention beyond that date was thus arbitrary and disproportionate as there
was no evidence to suggest that he represented a danger to the public.
The Government submitted that as the mandatory life sentence in Cyprus was not
composed of a punitive part and a preventative part, detention was not subject
to factors such as risk and dangerousness to the public.[486]
2.100
The Court accepted that the mandatory life sentence had been imposed “as
the punishment for the offence of premeditated murder irrespective of
considerations pertaining to the dangerousness of the offender”.[487]
It thus held that there was a clear and sufficient causal connection between
the conviction and the applicant’s continuing detention.[488]
There was thus no breach of Article 5(1).
2.101
Regarding Article 5(4), the applicant contended that the mandatory
nature of life imprisonment coupled with the absence of a parole system
violated Article 5(4).[489] The
Government submitted that the requirements of Article 5(4) had been incorporated
in the original sentence.[490]
2.102
The Court found that the Article 5(4) complaint was inadmissible and
thus refrained from ruling on the matter.[491]
This is unfortunate as it would have been a useful opportunity for the Court to
clarify whether the judicial statements in Wynne or Stafford
should apply in countries which do not have a tariff system. It will be
recalled that, in Wynne, the Court indicated that where a mandatory life
sentence was concerned, the requirements of Article 5(1) were satisfied by the
original trial and appeal proceedings whereas, in Stafford, the Court
indicated that this could no longer be considered the case.
2.103
The Court emphasised that in the absence of “a clear and commonly
accepted standard amongst the member States”,[492]
it is within the margin of appreciation of each Member State to choose its own
“criminal justice system, including sentence review and release arrangements”.[493]
However, Judge Bratza, in a concurring opinion, expressed the view that the
principles outlined in Stafford should apply to all Member States,
regardless of whether or not they had a tariff system:
“[E]ven in the absence of a tariff
system, it appears to me that the Court’s reasoning in the Stafford case may
not be without relevance to a system such as exists in Cyprus where there is an
express power of conditional release which is applicable even in the case of a
mandatory life prisoner. The question whether conditional release should
be granted in any individual case must ... principally depend on an element of
punishment for the particular offence and, if so, whether the life prisoner
poses a continuing danger to society. As the Stafford judgment makes
clear, the determination of both questions should in principle be in the hands
of an independent body, following procedures containing the necessary judicial
safeguards, and not of an executive authority.”[494]
2.104
In sum, therefore, it would appear from Kafkaris that the Irish
approach to the life sentence is broadly consonant with the principles of the
European Convention on Human Rights. Like the Supreme Court, the European
Court of Human Rights distinguished between countries, such as the United
Kingdom, which had a tariff system and countries, such as Cyprus and Ireland,
which did not. It emphasised that in the absence of a discernible trend
amongst Member States, it was still within the margin of appreciation of each
Member State to decide on the system to be adopted in respect of life
sentences. This system must still be within the bounds of the Convention,
however. The Court stated that a mandatory life sentence would not in
itself give rise to issues under Article 3, provided that there was a de
facto and de jure possibility of release. And, in respect of
Article 5(1), it stated that where a mandatory life sentence was concerned,
there was a sufficient causal connection between the conviction for murder and
the continued detention. The position regarding Article 5(4) is, however,
less clear.
2.105 Even
in the absence of a definitive ruling regarding Article 5(4), a number of
observations may be made. As noted at paragraph 2.15, the general purpose
of Article 5 is to prevent arbitrariness. In this regard, the position of
the European Court of Human Rights is to query the absence of: (i) any judicial
involvement in determining the actual length of the term to be served in
prison; and (ii) any involvement by a body independent of the Executive in the
release decision.
2.106 Certain sentencing provisions
prescribe a minimum sentence subject to exceptions in specified
circumstances. In Ireland, there are two examples of this type of
provision. One provides the penalty for certain offences under the Misuse
of Drugs Act 1977 and the other provides the penalty for certain offences
under the Firearms Acts. In this section, the Commission considers
the historical evolution of this type of mandatory sentence, primarily, as it
applies to drugs and firearms offences. It would appear that the modern
practice of prescribing mandatory sentences for drugs and firearms offences
originated in the United States of America and, in turn, influenced sentencing
practices in England and Wales, and Ireland.
2.107
Drug addiction became a significant issue for legislative consideration
in the United States of America at the turn of the 20th century.[495]
There were a number of reasons for this. First, as morphine had been
freely dispensed to the wounded during the Civil War, there were now thousands
of veterans, along with members of their families and friends, who had become
addicted to the drug. Second, the practice of smoking opium, which had
been popular among Chinese immigrants who had been employed to help build the
American railroads, had spread beyond the Chinese population. Third, it
had been discovered that heroin, which had been introduced as a cure for
morphine addiction in 1898, caused even greater problems than morphine.
Fourth, opium and cocaine had been common ingredients in many patented
medicines and sodas which were marketed widely throughout the United States
prior to the 1900s.
2.108
By the early 20th
century, drug addiction had become a widespread problem.[496]
This led to the enactment of federal laws aimed at controlling the drug problem.
Over time, the federal response to the worsening drug problem became more
repressive.[497] This
began with the imposition of ever-increasing taxes on imported opium, followed
by an outright ban on imported opium not required for medical use, and
culminated in the enactment of the Harrison Act 1914.
2.109 The Harrison
Act sought to control domestic traffic in narcotics regulating the legal
traffic in narcotics and providing criminal sanctions for any illegal
trafficking.[498]
It has been noted, however, that an unintended consequence of the Harrison
Act was the closure of legitimate sources of supply to the addict and a
consequential growth in the black market.[499]
With the repeal of Prohibition, organised criminal gangs became more involved
in the illegal distribution of drugs. The result was an expanding drug
problem between 1946 and 1960. In particular, a dramatic increase in drug use amongst minors
was a major inspiration for the enactment of the Boggs Act 1951.[500]
2.110
The Boggs Act 1951 changed the penalty structure in two ways.[501]
First, it made penalties for all drugs offences uniform, no matter how trivial
or serious the offence. Second, it made the penalties more severe by
introducing mandatory minimum prison sentences and increasing the maximum
sentences. A first offence became punishable by a sentence of not less
than two or more than five years and a maximum fine of $2,000. A second
offence became punishable by a sentence of not less than five or more than 10
years and a maximum fine of $2,000. A third or subsequent offence became
punishable by a sentence of not less than 10 or more than 20 years. In
addition, the Act denied suspension of sentence and any form of probation to a
second or subsequent offender.
2.111
In 1956, Congress passed the Narcotics Control Act 1956 which further modified
the sentencing regime for drugs offences. It increased the severity of
the sentences applicable to drugs offences[502]
but, unlike the Boggs Act 1951, it distinguished between serious and
less serious offences.[503] In
addition, it provided for enhanced penalties for offences exhibiting certain
characteristics.[504]
Thus, for example, the sale of narcotics to a person under 18 years of age
became punishable by a minimum sentence of 10 years and a maximum sentence of
life imprisonment or death. Furthermore, it provided that suspension of
sentence, probation and parole would be denied to even the first-time offender
convicted of a serious drugs offence.[505]
2.112
During the 1960s, high levels of drug use and experimentation led to
large numbers of people being imprisoned for long periods of time.[506]
As a result, mandatory minimum sentences for drugs offences became extremely
unpopular.[507] In
response, Congress passed the Comprehensive Drug Abuse Prevention and
Control Act 1970 which
repealed virtually all of the mandatory sentencing provisions applicable to
drugs offences.[508]
2.113
It has been noted, however, that this did not reflect a general policy
disfavouring mandatory sentencing as, in the same year, mandatory sentencing
provisions were enacted for certain offences involving firearms and explosives.[509]
This might have been due to the fact that the late 1960s and early 1970s bore
witness to diminishing support for the rehabilitative model of imprisonment and
a corresponding renewal of interest in mandatory sentences.[510] Under the rehabilitative model, the Parole
Board, on the basis of an assessment of the offender’s level of rehabilitation,
had ultimate discretion regarding the grant of release. Critics observed
that, as a consequence, many offenders deemed not to have been sufficiently
rehabilitated, served sentences that were disproportionately long and/or
disparate by comparison to the sentences served by others convicted of the same
or similar offences. In addition, they observed that the efficacy of
rehabilitative treatments was in doubt and that it was thus unfair to make
release dependent on rehabilitation. In an effort to address these
issues, legislators sought to make sentencing more structured by means of
mandatory sentencing provisions, among other initiatives.[511]
2.114
On the state level,
this trend began in New York with the enactment of the Rockefeller Drug Laws
in 1973. This legislation prescribed a mandatory life sentence for the
sale or possession of small amounts of narcotic drugs along with mandatory
minimum terms of imprisonment ranging from one to 25 years.[512] In 1978, Michigan enacted
harsh mandatory sentences for drugs offences, including the notorious “650
Lifer Law”.[513] This
law prescribed a mandatory life sentence without parole for offenders convicted
of delivering over 650 grammes of heroin or cocaine.[514]
By 1983, 49 out of 50 states
had enacted similar mandatory sentencing provisions.
2.115
In 1986, following public outcry regarding the crack cocaine epidemic
and, in particular, the spread of AIDS through drug use, Congress passed the Anti-Drug
Abuse Act 1986.[515]
Congress expedited the passage of the Act in response to a number of events,
including the highly publicized death of the Boston Celtics’ player, Len Bias,
in 1986.[516]
2.116
The Anti-Drug Abuse Act 1986 established a new regime of
non-parolable, mandatory minimum sentences for drug trafficking offences that linked
the minimum penalty to the quantity of drugs involved in the offence.[517]
The 1986 Act sought to subject larger drug dealers to a 10-year mandatory
minimum sentence for a first offence and a 20-year mandatory minimum sentence
for a subsequent conviction of the same offence. One kilogramme or more
of a mixture or substance containing heroin triggered a 10-year sentence, as
did five kilogrammes or more of a mixture or substance containing
cocaine. The Act also sought to cover mid-level players by providing for
a mandatory minimum sentence of five years which was triggered by weights such
as 100 grammes or more of a mixture or substance containing heroin and 500
grammes or more of a mixture or substance containing cocaine. A second
conviction for these offences carried a 10-year minimum sentence.
2.117
Controversially, the 1986 Act distinguished between powder cocaine and
cocaine base, commonly known as “crack” cocaine, by treating quantities of
cocaine base differently to similar quantities of powder cocaine.[518]
At the time, crack cocaine was considered to be more dangerous than powder
cocaine due to its especially harmful effects on communities where its use had
become increasingly prevalent. Thus, for example, under the so-called
“100-to-1” ratio, five grammes of crack cocaine triggered a mandatory minimum
sentence of five years while 500 grammes of powder cocaine were required to
trigger the same sentence. In addition, the 1986 Act increased the
penalty enhancements applicable to offenders who sold drugs to persons under 21
years; who employed persons under 18 years; and who possessed certain weapons.[519]
2.118
In 1988, Congress passed the Omnibus Anti-Drug Abuse Act 1988.[520]
The 1988 Act introduced a mandatory minimum sentence of five years’
imprisonment for simple possession of more than five grammes of crack
cocaine. In addition, the Act doubled the existing 10-year mandatory
minimum sentence to a 20-year mandatory minimum sentence for engaging in a
continuing drug enterprise. The Act also extended the mandatory minimum
sentences applicable to completed distribution and importation/exportation
offences to conspiracies to commit those offences, regardless of the particular
offender’s level of culpability.[521]
It has been noted that this measure (designed to catch drug kingpins, who
rarely had large quantities of drugs in their possession) was more routinely
used against low-level drug dealers, look-outs and peripheral conspirators.[522]
2.119
In 2010, Congress passed the Fair Sentencing Act 2010.[523] This
altered the mandatory minimum sentencing regime applicable to offences
involving crack cocaine. It repealed the mandatory minimum sentence for
possession of crack cocaine and increased the quantities required to trigger
the five-year and 10-year mandatory minimum sentences, from five to 28 grammes
and 50 to 280 grammes respectively. The Act also directs the United
States Sentencing Commission to provide for higher guideline sentences where
certain aggravating factors, such as bribing a law enforcement official, are
present. In addition, the Act directs the Sentencing Commission to
provide for lower guideline sentences for certain offenders who receive a
guideline adjustment for a minimum role.
2.120
It would appear, however, that mandatory sentences for drugs offences
are now falling out of favour with many state legislators in the United
States. Since 1998, a number of states have either relaxed or repealed
their mandatory sentencing provisions.[524]
In 1998, Michigan abolished the mandatory life sentence for those sentenced
after 1998 under the “650 lifer” law and restored parole eligibility for
offenders sentenced before 1998.[525]
Since then, Michigan has repealed almost all of its mandatory minimum sentences
for drugs offences.[526] In
2009, New York amended the Rockefeller Drug Laws by repealing most of
its mandatory minimum sentences for drug offences and expanding the treatment
options for drug offenders.[527] Some
other states have also expressed support for alternatives to mandatory
sentences for drug offences.[528]
2.121 The modern history of mandatory
sentences for drug offences, as it relates to the United Kingdom, probably
starts with the Criminal Justice Act 1991. The Criminal
Justice Act 1991 sought to implement proposals contained in the
Government’s 1990 White Paper on Crime.[529]
A broad aim of the 1991 Act had been to promote the principle of
proportionality and, through this, achieve greater consistency in sentencing.[530]
Ashworth notes that while this objective was set out clearly in the 1990 White
Paper, the provisions of the 1991 Act were less clear.[531]
Within months of its introduction, parts of the 1991 Act had been dismantled
and over the years, its provisions, having been rarely cited in judgments,
faded into the background.
2.122 In 1993, there was a dramatic change
in the penal climate following the murder of James Bulger.[532]
In 1996, the Government published another White Paper on Crime[533]
in which it: (i) indicated that it would be taking a punitive approach to
tackling crime;[534] (ii)
expressed the view that prison worked;[535]
and (iii) sought to introduce mandatory sentencing in respect of a number of
offences. In particular, it indicated that it was necessary to impose
“severe deterrent sentences” on persistent dealers in hard drugs[536]
and thus recommended that the courts be required to impose a minimum sentence
of 7 years on those convicted of a third Class A drug trafficking offence.[537]
The fact that this was a significant departure from the prevailing penal
philosophy can be illustrated by the fact that the same Government had, in
1990, stated that prison was just “an expensive way of making bad people
worse”.[538] The
1996 White Paper was criticised as reflecting the “increasing managerialism and
politicisation of sentencing policy”.[539]
2.123 The Crime (Sentences) Bill 1996,
which sought to implement the recommendations contained in the 1996 White
Paper, was introduced in the dying months of the Conservative Government.[540]
The Bill was severely criticised by the House of Lords on the ground that its
provisions were unwarranted and unjustified.[541]
Thomas notes, for instance, the view of Lord Taylor of Gosforth that “never in
the history of our criminal law have such far-reaching proposals been put forward
on the strength of such flimsy evidence”.[542]
In March 1996, a General Election was announced. On the one hand, this
eased the passage of the 1996 Bill through Parliament by putting the Government
under pressure to complete or abandon any bills that were before it while, at
the same time, the Opposition did not want to be seen as “soft on crime” in the
run up to an election. On the other hand, it gave the House of Lords
leverage to force the outgoing Government to accept certain amendments.[543]
As a result, the Home Secretary agreed to retain a House of Lords’ amendment,
which gave the sentencing court discretion not to impose the mandatory minimum
sentence on Class A drug traffickers in specified circumstances,[544]
in return for the Opposition’s agreement to support 17 Government Bills.
2.124 The Crime (Sentences) Act 1997
received the Royal Assent on 21st March 1997, the day the UK
Parliament was prorogued prior to the General Election on 1st May.[545]
Its enactment was to mark an evolutionary step in sentencing both in terms of
its practical and its symbolic effects. In relation to drugs offences,
its practical effect comprised a presumptive ‘three-strikes’ rule that required
the imposition of a 7-year sentence - except in specific circumstances - on
offenders convicted of a third Class A drug trafficking offence.[546]
2.125 Thomas asserts, however, that the
real significance of the 1997 Act was in what it symbolised.[547]
In his view, it indicated that the Home Secretary, Michael Howard, had little
regard for the opinions of the senior judiciary and was more interested in the
political impact rather than the practical effect of the legislation.
Above all, he asserted that the legislation set “a precedent for the
introduction of mandatory minimum sentences for just about any crime.”
2.126 The Powers of Criminal Courts
(Sentencing) Act 2000 replaced the Crime (Sentences) Act 1997
but, as it was a consolidation Act,[548]
made no changes to the substantive law.[549]
Thus, section 110 of the 2000
Act now governs the presumptive minimum 7-year sentence which applies in
respect of a third Class A drug trafficking conviction.[550]
The practical operation of
this sentencing regime will be discussed in greater detail in Chapter 5.
2.127 In January 2012,
the Sentencing Council for England and Wales published a new sentencing
guideline on drug offences, which will be used by both the Crown Court and the
magistrates’ courts.[551] The
guideline covers the most commonly sentenced offences including importation,
production, supply, permitting premises to be used for drug offences, and
possession. The Sentencing Council has indicated that, under the new
guideline, there are likely to be increased sentence lengths for those guilty
of large scale production offences and reduced sentence lengths for so-called
drug mules. Sentences for drug mules - “who are usually vulnerable and
exploited by organised criminals” - will have a starting point of six years’
imprisonment. The guideline also recognises a new aggravating factor in
the context of supply offences, namely, the dealing of drugs to those under the
age of 18 years.
2.128
The publication of the guideline followed a public consultation on
the Sentencing Council’s draft proposals.[552]
It was also informed by research into a number of areas including the effects
of the draft drug offences guideline,[553]
public attitudes to the sentencing of drug offences,[554]
drug offences[555] and cases
involving drug mules.[556]
2.129 Drug misuse and drug trafficking
have been longstanding and persistent problems in Ireland.[557]
It has been noted, however, that the situation deteriorated with the advent of
intravenous heroin use in the early 1980s. In addition to the problem of
substance addiction, this gave rise to increased criminality and a greater
incidence of HIV/AIDS and Hepatitis B and C.[558]
2.130 Initially, the Misuse of Drugs
Act 1977 provided for the sole offence of possessing a controlled drug for
the purpose of sale or supply,[559]
for which it prescribed a fine and/or a maximum sentence of 14 years’
imprisonment.[560] In
an effort to combat the worsening drug problem,[561]
the Oireachtas enacted the Misuse of Drugs Act 1984 which, among other
matters, increased the maximum sentence to life imprisonment.[562]
2.131 In spite of this, vast quantities of
illicit drugs continued to be intercepted at Ireland’s frontiers. In
November 1995, An Garda Síochána made a record seizure of cannabis at
Urlingford, County Kilkenny.[563]
Despite the size of the seizure and a number of arrests, there were no prosecutions.
The Government and, indeed, several community groups made numerous attempts to
combat the growing drugs problem but to no apparent avail.[564]
2.132 In 1995, the Opposition moved a
motion requesting the Government to respond to the “drug emergency” by
introducing legislation to strengthen the law and penalties for drug importers,
distributors and suppliers.[565] It
was proposed that the law should reflect a minimum sentence of 10 years for an
offence by an importer or pusher.[566]
However, an amended version of the motion proposed by the Minister for Justice,
which excluded this provision, was adopted.
2.133 In 1996, the Oireachtas enacted the Criminal
Justice (Drug Trafficking) Act 1996 which sought to
respond to the issue of drug trafficking by increasing Garda powers.
During the Oireachtas debates, the Opposition proposed that the Bill be amended
to provide for a minimum sentence of 10 years for drug dealers convicted of
possessing, for sale or supply, drugs with a street value of Ł10,000 or more.[567]
It was asserted that this would address a perceived problem of the courts
imposing sentences that were more lenient than intended by the Oireachtas under
the Misuse of Drugs Act 1977.[568]
It was observed that in 1993, out of 71 convictions, three of the sentences
were for less than three months; 20 of the sentences were between six and 12
months; 29 of the sentences were between one and two years; four of the
sentences were between three and five years; three of the sentences were
between five and 10 years; and only one sentence was for more than 10 years.[569]
The proposed amendment was nevertheless defeated.
2.134 In June 1996, Veronica Guerin, an
investigative journalist who had written extensively about the criminal figures
involved in the drug trade, was assassinated.[570]
It was believed that one of the people being investigated by Ms Guerin was
responsible. In the period that followed the murder, the Government came
under increased pressure to tackle the drugs problem.[571]
While not everyone was agreed as to the appropriate course of action,[572]
the Oireachtas responded by enacting the Proceeds of Crime Act 1996, following
which the Criminal Assets Bureau was established on a statutory basis.[573]
2.135 In 1997, the Criminal Justice (No
2) Bill 1997 was introduced.[574]
The Bill proposed to amend the Misuse of Drugs Act 1977 by creating a
presumptive sentencing regime for a new offence of possessing drugs with a
value of Ł10,000 or more with intent to supply.[575]
Elaborating on his rationale for introducing the new offence, the Minister
highlighted the “unique nature” of the drugs trade and indicated that the
“harsh punishment” would “send an unequivocal message to those engaged in the
illegal drugs trade, and to those who might be tempted to engage in it, that we
are serious and doing all that we can to eradicate this blight.”[576]
2.136 The 1997 Bill was later enacted as
the Criminal Justice Act 1999. This inserted section 15A[577]
and amended section 27[578] of the Misuse
of Drugs Act 1977. The effect was to create a new offence of
possessing controlled drugs having a value of Ł10,000 or more,[579]
for
sale or supply, which was punishable by a presumptive sentence of 10 years.[580]
Section 27(3C) provided that the presumptive sentence would not apply where:
“...
the court is satisfied that there are exceptional and specific circumstances
relating to the offence, or the person convicted of the offence, which would
make a sentence of not less than 10 years (sic) imprisonment unjust in
all the circumstances...”
2.137 It is clear that this language was
influenced to a great extent by the language used in the Crime (Sentences)
Act 1997 in the United Kingdom. Section 3 of the 1997 Act, which
prescribes a presumptive minimum sentence for a third class A drug trafficking
offence, provides:
“The
court shall impose a custodial sentence for a term of at least seven years
except where the court is of the opinion that there are specific circumstances
which -
relate to
any of the offences or to the offender; and
would
make the prescribed custodial sentence unjust in all the circumstances.”[581]
It will be recalled that there was a parallel
debate regarding the use of mandatory minimum sentences taking place in the
United Kingdom at the time the Criminal Justice (No 2) Bill 1997
(enacted as the Criminal Justice Act 1999) was first proposed in
Ireland.
2.138 In 2001, the Department of Justice
commissioned a report on the criteria applied by the courts in sentencing
offenders under section 15A of the Misuse of Drugs Act 1977.[582]
The report concluded that the courts showed a marked reluctance to impose the
mandatory minimum sentence of 10 years for fear that it would result in a disproportionate
sentence in individual cases. The report, which examined the period
between November 1999 and May 2001, observed that a sentence of 10 years or
more had been imposed in only three out of 55 cases.
2.139 In 2004, the Government introduced
the Criminal Justice Bill 2004.[583]
During the second stage of debates, the Government announced that it would be
making a series of substantial amendments to the Bill which would, among other
matters, strengthen the presumptive sentencing provisions for drug offences.[584]
The amendments were finalised in the wake of the fatal shooting of Donna Cleary
in March 2006. The shooting had led to public outcry not only because of
the senselessness of the act but also because it transpired that one of those
suspected to have been involved had been convicted of an offence under section
15A of the Misuse of Drugs Act 1997 in 1999.[585]
Had he been sentenced to the “mandatory” term of 10 years rather than a term of
six years, he would have continued to serve his sentence in 2006. The
amended Bill thus proposed a number of changes to the law regarding drug
offences,[586] two of
which are relevant to this Report. First, it proposed to create a new
offence of importing drugs with a value of €13,000 or more, which would be
punishable by a minimum sentence of 10 years. Second, it proposed to
strengthen the existing mandatory sentencing provisions for certain drug
trafficking offences by obliging the sentencing court to consider evidence of
previous drug trafficking convictions. In its final form, the Criminal
Justice Act 2006 made these and other amendments to the Misuse
of Drugs Act 1977.
2.140 First, section 81 of the Criminal
Justice Act 2006 amended section 15A by inserting subsection (3A).
Section 15A(3A) clarified that mens rea regarding the value of the drugs
involved was not an element of the offence. Thus, the prosecution needed
only to establish that the accused knew that he or she was in possession of
drugs with intent to sell or supply and not that he or she knew the value of
the drugs involved.[587]
2.141 Second, section 82 of the Criminal
Justice Act 2006 inserted section 15B and section 84 amended section
27. The effect was to create a new offence of importing controlled drugs
with a value of €13,000 or more, which would be subject to the same penalty
provisions as applicable to offences under section 15A. Previously, the
offence of importing controlled drugs had attracted a maximum sentence of 14
years’ imprisonment.[588] The
Minister indicated that it would be strange for this to continue to be the case
when an offence under section 15A now attracted a mandatory minimum sentence of
10 years’ imprisonment and a maximum of life imprisonment.[589]
2.142 Third, section 84 of the Criminal
Justice Act 2006 inserted subsection (3CC) into section 27. Section
27(3CC)[590] provided
that the court, when deciding whether or not the 10-year minimum would be
appropriate in a given case, could have regard to: (a) any previous drug
trafficking convictions, and (b) the public interest in preventing drug
trafficking. While there remained judicial discretion to determine
whether regard should, in actual fact, be had to these factors and the weight
to be attributed to them, the intention of the Oireachtas to narrow the
aperture through which the judiciary could justify the imposition of more
lenient sentences was clear.[591] In
this regard, the Minister observed that in the first five years of the
operation of the mandatory sentencing provision, the mandatory minimum sentence
had only been applied in 6 percent of convictions although this figure had
increased to 21 percent in 2004. The Minister asserted that subsection
(3CC) would act as a “counterweight” to the mitigating factors, which included
guilty pleas and cooperation, of which the court could take account.[592]
He indicated that this sentencing regime would differ from the regular sentencing
regime in so far as it would be less bound to the policy of individualised
sentencing.[593] A
court, when deciding whether or not to impose a 10-year minimum sentence in a
given case, should have at the forefront of its consideration the social impact
of drug trafficking and view factors, such as the nature of the drugs and the
circumstances of the offender, as being of lesser importance.[594]
2.143 In 2007, the Government introduced
the Criminal Justice Bill 2007 which made amendments of a technical
nature. Section 33 of the Criminal Justice Act 2007 consolidated the
numbering of the subsections of section 27 and inserted subsection (3D)(a)
which emphasised the social harm caused by drug trafficking. During the
second stage of debates, the Minister reiterated the need for consistency in
sentencing and indicated that since “the policy laid out in 1997 has not been
adhered to”, there was a need to make this policy more explicit by means of
legislation.[595] It
is arguable that this approach did not adequately respond to the issue of the
minimum term not being applied. At the end of 2007, it was reported that
the minimum sentence had been imposed in only three out of 57 cases.[596]
2.144 These amendments, particularly those
introduced by the Criminal Justice Act 1999 and the Criminal Justice
Act 2006, marked an important turning point in the Irish sentencing regime
which had until 1999 (with the exception of the sentences for murder, capital
murder and treason) accorded primacy to judicial discretion in the
determination of sentences. Against the backdrop of an escalating drugs problem
and a growing realisation that Ireland had become a portal not only to the
Irish drugs market but also to the British and European drugs markets,[597]
the Oireachtas introduced the presumptive minimum sentences to address an
apparent rift which had developed between legislative intent and judicial
execution.
2.145 It will be recalled that this move
towards a more punitive system of sentencing corresponded to a similar move in
the United Kingdom at the same time.[598]
2.146
The practice of prescribing mandatory sentences for firearms offences
appears to have originated in the United States. The constitutional right
to bear arms in the United States, however, distinguishes the relationship
which the United States has with firearms, from that of other common law
countries. Perhaps owing to the constitutional status of this right, it
would appear that for many years the primary focus of legislative attention in
the United States was on the control of firearms (in terms of licensing
manufacture, trade, ownership and possession) rather than on criminal sanctions
for offences involving firearms.[599]
2.147
In the late 1960s, there appears to have been a shift in legislative
focus but the reason for this shift has not been documented in detail.
There are, however, a number of possible options. As observed at
paragraph 2.113, during the late 1960s and early 1970s, mandatory sentences in
general became more popular as support for the rehabilitative model of
imprisonment waned.[600]
In addition, the 1960s bore witness to a number of high-profile and, indeed,
historically significant assassinations. In 1963, President John F
Kennedy was shot dead and in 1968, Martin Luther King and Senator Robert F
Kennedy were shot dead. It has been asserted, nonetheless, that these
events did not inspire the legislative change which occurred but rather put
pressure on Congress at crucial points of the process.[601]
2.148
In 1968 Congress passed the Gun Control Act 1968.[602] The
main objectives of the Act were threefold: (i) to eliminate the illicit
interstate traffic in firearms and ammunition; (ii) to deny access to firearms
to certain groups including minors and convicted felons; and (iii) to end the
illicit importation of surplus military firearms and other guns not certified
as suitable for sporting uses.[603]
During the debates, however, an alternative to stricter controls on firearms
was proposed, namely, mandatory sentences for violent crimes committed with
guns.[604] This
was reflected in the provision of the Act which mandated additional penalties
for persons convicted of committing federal crimes with firearms.[605]
2.149
In 1970 Congress amended the provision to require a mandatory minimum
sentence of not less than one year for using or carrying a firearm during the
commission of a felony and a mandatory consecutive sentence of two years for a
second or subsequent offence.[606]
In addition, Congress introduced a mandatory minimum sentence of one year for
using or carrying explosives during the commission of certain other crimes.[607]
2.150
In 1984 Congress amended the provision to require a mandatory minimum
sentence of five years for using or carrying a firearm during a “crime of
violence”.[608] It
also established mandatory sentencing enhancements for possessing dangerous
ammunition during drug and violent crimes.
2.151
In 1986 Congress expanded the scope of the provision to include using or
carrying a firearm during the commission of a drug trafficking crime.[609]
In addition, Congress expanded the scope of another provision[610]
which prescribes a mandatory minimum sentence of 15 years for armed career
criminals, to cover firearms possession offences committed by persons who have
three convictions for crimes broadly defined as violent felonies and serious
drug offences.
2.152
In 1998 Congress amended the provision in three ways.[611]
First, it amended the statute to require a mandatory minimum sentence of five
years if the offender possessed a firearm in furtherance of a crime of violence
or drug trafficking crime. Second, it established more severe mandatory
minimum sentences for certain offenders depending on whether, in violating the
provision, a firearm was “brandished” or “discharged”, requiring mandatory
minimum sentences of 7 years and 10 years of imprisonment respectively.
Finally, it increased the mandatory minimum sentence for second or subsequent
convictions under the provision from 20 years to 25 years, to ensure that more
serious offenders were punishable by progressively higher mandatory minimum
sentences.
2.153
During the 1970s a number of states also introduced mandatory sentencing
provisions for firearms offences. In 1975 Massachusetts passed the Bartley
Fox Amendment which prescribed a mandatory minimum sentence of one year for
the offence of carrying a firearm without the appropriate permit.[612]
In the same year Florida passed the Felony Firearm Law 1975 which
prescribed a mandatory minimum sentence of three years for possessing a firearm
during the commission of 11 specified felonies.[613]
In 1976 California passed the Uniform Determinate Sentencing Act 1976 which
prescribes certain sentence enhancements of one or two years for possession or
use of a firearm, respectively, during the commission of an offence.[614]
In 1977 Michigan passed the Felony Firearm Statute 1977 which prescribes an additional
two-year sentence for those who possess a firearm while committing a felony.[615]
A number of other states, including Missouri, Connecticut and Nebraska, also
enacted some variant of mandatory sentences for offences involving firearms
during this time.[616]
2.154 In 2002 the Government published a
White Paper entitled Justice for All.[617]
The purpose of the White Paper was to “send the clearest possible message to
those committing offences that the criminal justice system is united in
ensuring their detection, conviction and punishment.”[618]
It incorporated many of the recommendations contained in the 2001 Halliday
Report,[619] which had
examined whether the sentencing framework in England and Wales could be changed
to improve results, especially by reducing crime, at justifiable expense.
While neither the 2002 White Paper nor the 2001 Halliday Report referred
to mandatory sentencing for firearm offences, there was a sense that a public
appetite for a stricter approach to sentencing existed.[620]
2.155 During a House
of Commons debate in late 2002,[621]
the then Home Secretary was asked whether he was aware of the aim of the London
Metropolitan Police to get the minimum sentence for carrying a weapon raised to
five years. He responded that he was aware of representations having been
made and commented that “[t]here is good reason for treating the issue
seriously and considering whether we should add it to the Criminal Justice
and Sentencing Bill.”[622] He
was later to rely on this statement as having been an indication of his
intention to introduce minimum sentences for gun crime from December 2002.[623]
2.156 In the United Kingdom, however,
firearms legislation has, for the most part, resulted from reactionary
responses to specific tragic events. In a 2006 Home Office Report, for
instance, it was noted that:
“Since the mid-1980s, a number of significant changes have occurred to the
legislative and public policy responses to gun crime and firearms more
generally. Automatic weapons having been banned by the Firearms Act 1937,
semi-automatic rifles were banned by the Firearms (Amendment) Act 1988 after
the massacre of 16 people in Hungerford in 1987. Then a ban on handguns
was introduced by the Firearms (Amendment) Act 1997. This followed the
Cullen Inquiry … into the 1996 school massacre in Dunblane, Scotland, in which
16 children and a teacher were shot and killed. Both the Hungerford and
Dunblane massacres were committed by lone gunmen with legally owned
firearms. The UK now has some of the most restrictive firearm laws in
Europe ...”[624]
2.157
In January 2003 two
teenage girls, Charlene Ellis and Latisha Shakespear, were shot dead as they
stood outside a New Year’s party in Aston, Birmingham.[625]
The incident was considered to be indicative of a rising gun culture in England
and Wales.[626] This
was confirmed by Home Office figures released shortly afterward, which showed
that there had been a 35 percent increase in gun crime in England and Wales
during the 12 months up to April 2002.[627]
In advance of these figures being released, the Home Secretary confirmed that
he would be introducing a mandatory minimum five-year sentence for illegal
possession and use of firearms.[628]
The announcement met with widespread criticism from the judiciary, who argued that
they should be allowed to use their discretion in sentencing offenders, and
opposition parties, who argued that the Home Secretary was engaging in
“knee-jerk” politics.[629]
Within a day of his initial announcement, the Home Secretary announced that the
proposed legislation would be modified to permit the judiciary to depart from
the minimum sentence where there were exceptional circumstances.[630]
2.158 In 2003 Parliament passed the Criminal
Justice Act 2003. Arguably, the 2003 Act had been inspired by the
proposals contained in the Government’s 2002 White Paper Justice for All
and the intervening events.[631]
Section 287 of the Criminal Justice Act 2003 inserted section 51A of the
Firearms Act 1968. As detailed at paragraph 4.105, section 51A of
the Firearms Act 1968, as amended,[632]
provides for a presumptive minimum sentence of five years for certain firearms
offences.
2.159 In Ireland, there had long been
calls to introduce mandatory sentencing for firearms offences. Calls for
“mandatory minimum” sentences for firearms offences were first heard by the
Dáil in 1986[633] but were
dismissed by the Minister for Justice on the basis of possible constitutional
problems and the lack of public appetite. A general call for more robust
measures against firearms offences was also rejected the following year.[634]
2.160 In July 1996,
following the shooting dead of Garda Jerry McCabe and Veronica Guerin, the
Opposition moved a private members’ motion in which they called on the
Government to consider, among other matters, the introduction of mandatory
minimum sentences for the use of illegal firearms.[635] At that time, it was suspected
that these offences had been committed by members of subversive and criminal
organisations.[636]
The notoriety of these
criminal organisations had grown as details of their exploits filtered into the
public domain. Their revenue was derived primarily from drug trafficking
- a territorial business which was guarded both jealously and ruthlessly.
The link between the drugs trade and firearms had become evident as a
proliferation of illegal firearms meant that tales of a lethal turf-war were
never far from the headlines. Competitors, traitors, potential threats
and people in the wrong place at the wrong time were casually and frequently
eliminated.[637]
While the identities of the criminal bosses were known or, at very least,
suspected, the sophisticated level at which they operated made detection and
prosecution almost impossible. The fact that representatives of two
democratic institutions (An Garda Síochána and the Press) should be targeted
within such a short space of time was considered by some to be an “attack on
democracy” and proof that the crime situation now required a declaration of a
“state of emergency”.[638] The
climate seemed right to come down heavily on the activities of these
organisations. The Government declined, however, to introduce mandatory
sentencing in respect of either drug trafficking or firearms offences,
preferring instead to focus on the causes of crime, Garda powers and the
proceeds of crime.[639]
2.161 In October 2003, a newly appointed
Garda Commissioner, Noel Conroy, addressed the Joint Committee on Justice,
Equality, Defence and Women’s Rights and explained the extent of the perceived
problem of offences involving firearms:
“I am
concerned at the number of homicides and other instances involving the use of
firearms. Of the 42 deaths this year, 19 involved the use of
firearms. This compares to ten in the year 2002 and nine in the year
2001. There are a number of factors which explain this increase.
Some former paramilitary weapons have found their way into the hands of
criminal organisations and this has contributed to the general increase in the
use of firearms in recent times, in particular in so-called gangland style
murders and shootings. There have also been cases where former
paramilitaries have turned to crime. Criminal gangs are also known to
import firearms with their consignments of drugs and cigarettes and so on.”[640]
Shortly
afterwards, the Department of Justice released figures to the Labour Party
Spokesperson on Justice which indicated that there had been a 500 percent
increase in murders involving firearms since 1998.[641]
2.162 In April 2004, the then Minister for
Justice announced to the Association of Garda Sergeants and Inspectors that the
laws relating to drugs and firearms offences would be strengthened.[642]
Shortly after the Minister’s announcement, two reports were published which
lent credence to popular fears. On 16th April 2004, the
Department of Justice released Garda figures which indicated that there had
been a substantial increase in firearms offences for the first three months of
2004.[643] This
was followed by the publication, on 19th April 2004, of an
all-Ireland survey commissioned by the National Advisory Committee on Drugs
(NACD) in Ireland and the Drug and Alcohol Information and Research Unit
(DAIRU) in Northern Ireland, which illustrated the extent to which drug misuse
had become a serious problem in Ireland.[644]
Commenting on the all-Ireland survey, the Minister for Justice stated that the
courts “must adopt a tough approach to criminals convicted of drugs or firearms
offences, the two of which were inextricably linked.”[645]
In an apparent reference to the presumptive sentence for offences under section
15A of the Misuse of Drugs Act 1977, he commented:
“Our
judiciary must understand when the Oireachtas put in place guidelines for the
sentencing of people convicted for the commercial distribution of drugs that
the parliament was serious and required deterrent sentences in that area, and
did not expect that the system of penalties provided was to be regarded as the
exception rather than the rule.”[646]
2.163 In 2004, the Government introduced
the Criminal Justice Bill 2004.[647]
As noted at paragraph 2.139, during the Second Stage debates, the Government
announced that it would be introducing a number of substantial amendments which
would, among other matters, provide presumptive sentences for certain firearms
offences.[648] The
amendments were finalised following the fatal shooting of Donna Cleary in March
2006[649] and the Criminal
Justice Bill was enacted as the Criminal Justice Act 2006.
2.164 At the same time, the idea that
presumptive sentencing could be used to tackle firearms offences had gained
momentum in the United Kingdom which had introduced similar sentencing
provisions in the Criminal Justice Act 2003.
2.165 The Criminal Justice Act 2006
amended the Firearms Acts with the result that many firearms offences now carry
a presumptive sentence of five or 10 years. The offences which attract a
five-year sentence are possession of a firearm while taking a vehicle without
authority;[650]
possession of a firearm or ammunition in suspicious circumstances;[651]
carrying a firearm or imitation firearm with intent to commit an indictable
offence or resist arrest;[652] and
shortening the barrel of a shotgun or rifle.[653] The
offences which attract a 10-year sentence are possession of firearms with
intent to endanger life;[654] and using
a firearm to assist or aid in an escape.[655]
2.166 The Criminal Justice Act 2006,
in so far as it continued the trend started by the Criminal Justice Act
1999, marked an important development in the evolution of sentencing.
Whereas presumptive sentencing had previously been limited to the offence of
possessing drugs with intent to sell or supply, it now applied to a range of
drug and firearms offences. As a result, there were now 8 types of
offence for which judicial discretion regarding sentencing would be
constrained. The Commission observes, however, that the fact that
presumptive sentencing was limited to such a specific range of offences gives
rise to the inference that: (a) presumptive sentencing was intended to apply in
the relatively narrow circumstances of addressing a major challenge to society
(such as in the case of certain drugs and firearms offences), and (b) general
judicial sentencing discretion was accepted as suitable in other cases.
2.167 In 2007 the Criminal Justice Act
2007 inserted a subsection[656]
emphasising the social harm caused by the unlawful possession and use of
firearms into the sections[657] of the
Firearms Acts which had created the offences to which the presumptive sentences
applied. It has been noted that the purpose of this provision was to
reduce the number of situations in which the courts could impose sentences
below the presumptive minimum by making clear the intention of the Oireachtas
that the presumptive minimum sentence was to be imposed in all but the most
exceptional cases.[658]
(3)
Proposals to Extend the Use of Presumptive Minimum Sentences in Ireland
2.168
The Commission notes that in Ireland recent legislative proposals have
sought to extend the use of presumptive minimum sentences beyond specified
drugs and firearms offences.
2.169 In
January 2012 Fianna Fáil published the Criminal Justice (Aggravated False
Imprisonment) Bill,[659] the provisions of which are clearly influenced by the presumptive sentencing regimes under the Misuse of Drugs Act
1977 and the Firearms Acts. The Bill would, if enacted, create
a statutory offence of “aggravated false imprisonment” (otherwise known as “tiger
kidnapping”) which would attract a presumptive minimum sentence of 10 years.[660]
The presumptive sentence would not apply where there were “exceptional
and specific circumstances.” Exceptional and specific circumstances would
include: (a) whether the person had pleaded guilty and, if so, the stage at
which he or she had indicated the intention to plead guilty and the
circumstances in which the indication had been given, and (b) whether the
person had materially assisted in the investigation of the offence including by
an admission that a criminal organisation existed and the identification of
other members of the criminal organisation.[661]
The presumptive sentence would become a mandatory sentence where the
person was convicted of a second or subsequent offence of aggravated false
imprisonment.[662]
2.170
In October 2012, Fianna Fáil published the Assaults on Emergency
Workers Bill 2012. This Private Members’ Bill sought the introduction
of a presumptive minimum sentence of five years’ imprisonment for those who:
(i) commit an assault causing serious harm to an on-duty emergency worker; (ii)
threaten to kill or cause serious harm to an on-duty emergency worker; or (iii)
injure an on-duty emergency worker by piercing his or her skin with a syringe.[663]
2.171
In certain respects, it is again clear that this proposal was influenced
by the presumptive sentencing regimes under the Misuse of Drugs Act 1977 and
the Firearms Acts. Notably, the Bill provided that a sentencing
court would not be required to impose the prescribed minimum penalty where it
was satisfied that there were exceptional and specific circumstances relating
to the offence or the offender which would make the application of this penalty
unjust in all the circumstances.[664]
In determining whether such circumstances existed, the court would be permitted
to take into account any matters which it considered appropriate, including:
(a) whether the person pleaded guilty and, if so, the stage at which he or she
indicated the intention to plead guilty, and the circumstances in which the
indication was given, and (b) whether the person materially assisted in the
investigation of the offence.[665]
The proposed sentencing regime did differ from existing presumptive
sentencing provisions in so far as it would apply to offenders aged at least 16
years, as opposed to those aged 18 years or over.[666]
2.172
During the Dáil debates, the Government opposed the Bill on three
grounds. First, it asserted that there was “already legislation in place
which is more appropriate and comprehensive”[667]
in its provision of protection to emergency workers. Specifically,
reference was made to the provisions of the Non-Fatal Offences Against the
Person Act 1997 which criminalise various forms of assault, threats to
kill, and attacks involving syringes.[668]
The Government also observed that section 19 of the Criminal Justice (Public
Order) Act 1994, as
amended,[669] affords
express statutory protection to emergency workers in the context of offences
involving assault or threatened assault.[670]
2.173
Second, the Government acknowledged that the Commission was, at this
time, examining the issue of mandatory sentencing and noted that it did not
wish to pre-empt the recommendations contained in this Report.[671]
Third, the Government contended that there were a number of technical
difficulties with the proposed Bill. These related to: (i) the proposed
application of the regime to offenders under the age of 18 years; (ii) the
definition of an “emergency worker” for the purposes of the Bill; and (iii) the
absence of prescribed maximum penalties under the Bill.[672]
The Assaults on Emergency Workers Bill 2012 was ultimately rejected by a
margin of 91 votes to 42.
2.174
The Commission notes that in addition to the legislative proposals
discussed above, there have, in recent years, been calls to introduce mandatory
minimum sentences for various other crimes, including assaults against the
elderly;[673] burglary;[674]
car hijacking;[675] child sex
abuse;[676] dangerous
driving;[677] gangland
murder;[678] possession
of child pornography;[679] rape;[680]
and violent assault.[681]
2.175 The use of mandatory sentences for
second or subsequent offences has a much longer pedigree than the use of
mandatory sentences for drugs and firearms offences. Indeed, there
are examples of habitual offender laws dating back to 16th century
England and colonial America.[682]
That said, the modern practice of using mandatory sentences to deal with repeat
offenders seems to originate in the United States.
2.176
It has been observed that habitual offender legislation flourished in
the United States in the 1920s.[683]
In 1926, for instance, New York state enacted Baume's Law 1926 which prescribed a
mandatory life sentence for a third felony conviction. Six other states
passed habitual offender legislation in the 1920s. By 1968 23 states had
enacted legislation that permitted or mandated life sentences for habitual
offenders; 9 states prescribed mandatory minimum sentences ranging from five to
20 years for habitual felons; and each of the remaining states enacted
legislative provisions that permitted habitual offenders to be sentenced to
extended prison terms.
2.177
It would appear, however, that the modern “three-strikes” movement began
in Washington state.[684]
Following the murder of Diane Ballasiotes by a convicted rapist who had been
released from prison, Washington state enacted the Persistent Offender Accountability Act 1994. This provides that any person convicted
for the third time of a specified offence must receive a mandatory life
sentence without the possibility of parole.[685]
2.178
It was not long before California became the second state to adopt
three-strikes legislation.[686] The
campaign was led by Mike Reynolds, whose daughter, Kimber Reynolds, had been
murdered in 1992 by an offender with previous convictions.[687]
The reform campaign might not have succeeded had it not been for the murder of
Polly Klass in 1993 by an offender who had an extensive prior record of
violence.[688] The
public outcry that followed the event galvanized the Reynolds campaign.
2.179 In November 1994, voters in Georgia
passed a ballot measure amending the state’s sentencing laws to prescribe a
mandatory life sentence without parole for a second conviction of an offence
specified in the measure.[689] The
law supplemented an existing law which permitted the courts to impose the maximum
sentence for a second felony conviction and required the courts to impose the
maximum sentence for a fourth felony conviction.
2.180
By 1997, 24 states and the Federal government had enacted three-strikes
legislation.[690]
2.181 It was not until transportation was
abolished in 1857 that recidivism arose as a significant issue for legislative
consideration in the United Kingdom.[691] In
1863 the Royal Commission on Penal Servitude concluded that imprisonment was
not a sufficient deterrent.[692] The
reason for this, it asserted, was that the minimum term of three years’ penal
servitude, which had replaced the minimum term of 7 years for transportation,[693]
was too short. This led to the enactment of the Penal Servitude Act
1864 which made five years the new minimum for penal
servitude and, under pressure, the Government made 7 years’ penal servitude the
minimum term for anyone with a previous felony conviction.[694]
The 1864 Act was criticised as the mandatory minimum terms only applied to
those sentenced to penal servitude.[695]
If the courts considered it to be too severe a punishment, they were free to
impose a sentence of ordinary imprisonment, the maximum term of which was two
years. Given the enormous gap between the two alternatives, the result
was widespread disparity in sentencing by different courts. In 1879 the
minimum sentence of 7 years’ penal servitude for a second felony conviction was
repealed.[696]
2.182 In an effort to respond to this
loophole, the Habitual Criminals Act 1869 was enacted.[697]
The Bill initially included a clause making 7 years’ penal servitude mandatory
on a third felony conviction.[698]
This was withdrawn when it was conceded that designating the number of
convictions as the factor which triggered the mandatory sentence could lead to
great hardship. Instead, the 1869 Act provided that all those convicted
for a second time of a felony or certain misdemeanours be subject to police
supervision for 7 years after they had served their sentences. It further
provided that those subject to such supervision should be liable to one year’s
imprisonment when it was proved summarily before magistrates that they had been
acting suspiciously or when they were unable to prove that they had been
earning their livelihood by honest means.[699]
This soon became unworkable.[700]
2.183 The Prevention of Crimes Act 1871 was
thus enacted.[701] This
gave the courts discretion to decide whether to make a habitual offender
subject to supervision or not. It provided that a twice-convicted
offender would be liable, at any time within 7 years of release from prison, to
one year’s imprisonment if proved to be earning his or her livelihood by
dishonest means or acting in certain suspicious circumstances. He or she would
not, however, be subject to supervision. The 1871 Act also provided that
a twice-convicted offender might be placed under police supervision for 7 years
or for any shorter period subject to the same conditions of good behaviour.[702]
2.184
In 1895, the Gladstone Committee argued in favour of a special
sentencing provision to deal with persistent thieves and robbers, who would
otherwise serve a succession of short sentences only to be released into the
community to re-offend.[703] The
Committee’s proposals led to the enactment of the Prevention of Crime Act
1908.[704]
Section 10 of the Prevention of Crime Act 1908 empowered the court to impose
on an offender with three previous felony convictions, a sentence of preventive
detention of not less than five or more than 10 years in addition to the normal
sentence for the crime. The practical focus of the 1908 Act changed when
the then Home Secretary issued a circular stating that preventive detention
should not be imposed for merely repetitive offending but for repetitive
offending that is a serious danger to society.[705]
2.185
In 1932, the Dove-Wilson Committee proposed a new type of preventive
detention for professional criminals.[706]
This led to the enactment of the Criminal Justice Act 1948.
Section 21 of the Criminal Justice Act 1948 prescribed for persistent
offenders a sentence of not less than five or more than 14 years instead of,
rather than in addition to, the normal sentence. Over time, however, the
courts found that preventive detention was being imposed for relatively minor offences.
In 1962, the Lord Chief Justice issued a Practice Direction to restrict the use
of preventive detention.[707]
Following a critical report from the Advisory Council on the Treatment of
Offenders in 1963, and a number of other reports which highlighted the minor
nature of many of the offences which had attracted a sentence of preventive
detention, the sentence fell into disuse.
2.186
In 1965, a White Paper[708]
proposed the introduction of an extended sentence to deal with persistent
offenders who constituted a menace to society.[709]
This led to the enactment of the Criminal Justice Act 1967.
Section 37 of the Criminal Justice Act 1967 empowered the courts to
extend a sentence beyond the normal length or, in limited circumstances, beyond
the statutory maximum where, having regard to the defendant’s record, it was
considered that this was necessary to protect the public. However, the courts
soon found that the extended sentence was being imposed for relatively minor
offences. In addition, it has been noted that at no time did the extended
sentence play a significant role in sentencing.[710]
2.187
Section 37 of the Criminal Justice Act 1967 was replaced by
section 28 of the Powers of Criminal Courts Act 1973,
a statute which consolidated the law on sentencing.[711]
This, in turn, was repealed by the
Powers of Criminal Courts (Sentencing) Act 2000.
2.188
In 1997, the Crimes
(Sentences) Act 1997 was enacted. Section 2 of the 1997 Act, a
provision which was severely criticised during its life,[712]
required the imposition of a life sentence, except in exceptional
circumstances, on offenders who had been convicted of a second serious
offence. Section 2 was replaced by section 109 of the Powers of
Criminal Courts (Sentencing) Act 2000, a statute which consolidated the law
on sentencing.[713] In
2000, the Court of Appeal effectively neutralised the “two strikes” rule when
it ruled that only in exceptional circumstances could judges take into account
whether the offender presented a danger to the public.[714]
2.189
In the 2001 Halliday
Report, it was observed that the public were frustrated by a criminal
justice system which it perceived to be treating “dangerous, violent, sexual
and other serious offenders” leniently.[715]
As noted at paragraph 2.154, the Government’s 2002 White Paper Justice for All[716]
incorporated many of the recommendations contained in the 2001 Halliday
Report.[717]
This, in turn, inspired the Criminal Justice Act 2003.
2.190
Section 303 of the Criminal
Justice Act 2003 repealed 109 of the Powers of Criminal Courts (Sentencing)
Act 2000.[718]
However, the 2003 Act also established a new sentencing provision for public
protection. Section 225 of the 2003 Act required the courts to
impose a life sentence for a serious offence[719]
where they were of the opinion that there was a significant risk that the
offender would commit further offences causing serious harm to members of the
public if released. If the offence was one in respect of which the offender
would, apart from section 225, be liable to life imprisonment, and the court
considered that the seriousness of the offence, or the offence and one or more
offences associated with it, was such as to justify the imposition of a
sentence of life imprisonment, the court was required to impose a sentence of
life imprisonment. Where an offence was serious but did not attract a
life sentence or the current offence was not sufficiently serious, the court
was required to impose an indeterminate sentence of imprisonment for public
protection (IPP sentence). Section 226 created a similar sentence for
offenders under 18 years of age.
2.191
Ashworth and Player were highly critical of section 225 and its
neighbouring provisions:
“These are unduly weak provisions to support the severely restrictive sentences
that follow. There is no hint of recognition of the well-known
fallibility of judgments of dangerousness. There is no requirement on
courts to obtain relevant reports on the offender: a requirement to consult a
report if there is one is inadequate. Moreover, the presumption applies
where there is just one previous conviction of any of more than 150 specified
offences, which vary considerably in their seriousness. It is doubtful whether
the presumption is compatible with Article 5 of the Convention, insofar as it
requires the courts to assume significant risk without investigating the
particular facts and reports, and (effectively) places the burden on the
defence to negative this.”[720]
2.192
In 2008, the Chief Inspector of Prisons and the Chief Inspector of
Probation conducted a review of the IPP sentence.[721]
They observed that section 225 and section 226 had given rise to a large number
of new and resource-intensive prisoners being fed into a prison system that was
already under strain.[722]
This, they noted, had not only “increased pressure, and reduced
manoeuvrability, within the prison system” but had also stretched the Probation
Service.[723] The
consequence of this was:
“...IPP prisoners languishing in local prisons for months and years, unable to
access the interventions they would need before the expiry of their often short
tariff periods. A belated decision to move them to training prisons,
without any additional resources and sometimes to one which did not offer
relevant programmes, merely transferred the problem. By December 2007,
when there were 3,700 IPP prisoners, it was estimated that 13% were over
tariff. As a consequence, the Court of Appeal found that the Secretary of
State had acted unlawfully, and that there had been ‘systematic failure to put
in place the resources necessary to implement the scheme of rehabilitation
necessary to enable the relevant provisions of the 2003 Act to function as
intended.”[724]
This was by no means
a new revelation. Similar comments had been made by the media in the
years preceding the publication of the report.[725]
2.193
In 2008, section 225 was amended by section 13 of the Criminal
Justice and Immigration Act 2008. The amendments provided that the
courts would have a power, rather than a duty, to impose an IPP sentence.
They further provided that this power may only be exercised where either of two
conditions is met, namely, the immediate offence would attract a notional minimum
term of at least two years, or the offender had on a previous occasion been
convicted of one of the offences listed in the new Schedule 15A to the 2003
Act.[726]
Section 14 made similar amendments to section 226.
2.194
In December 2010, the Government published a Green Paper on sentencing
titled Breaking the Cycle: Effective Punishment, Rehabilitation and
Sentencing of Offenders.[727] This
consultation paper acknowledged that there remained a range of problems with
the IPP sentencing regime. Among other things, it observed that: (i) the
regime had come to be applied on a much wider basis than had originally been
anticipated; (ii) the release rate was very low because offenders were required
to satisfy the Parole Board that they did not pose an unmanageable risk to the
community and, in practice, this negative criterion was difficult to prove;
(iii) the ability to predict future serious offending is limited, thus calling
into question the entire basis upon which these sentences were imposed;
(iv) the regime confused the sentencing framework and may have undermined
public confidence in so far as the court, the victim and the public had little
means of knowing how long an offender would remain in custody; and (v) the
larger the number of prisoners subject to these sentences, the more difficult
it had become to facilitate their rehabilitation.[728]
2.195
On the basis of these deficiencies, the Green Paper proposed the
restriction of IPP sentences to exceptionally serious cases, specifically,
those which would otherwise have merited a sentence of at least 10 years.[729]
Upon publishing the outcome of the consultation process in June 2011, however,
the Government went beyond these initial proposals and signalled its intention
to urgently review the IPP regime with a view to replacing it with a
determinate sentencing framework.[730]
2.196
In December 2012, section 225 and section 226 of the Criminal Justice
Act 2003 were repealed by section 123 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2012. In place of the IPP sentence, the 2012 Act
introduced a framework which, according to the former Secretary of State for
Justice, Kenneth Clarke, was intended to “replace a regime that did not work as
it was intended to with one that gives the public the fullest possible
protection from serious, violent and sexual crime.”[731]
Broadly speaking, this new regime has three main strands. First, section
122 of the 2012 Act introduced a presumptive life sentence for those described
by the then Secretary of State for Justice as “the very serious offenders, the
ones who are among the worst of the likely inhabitants of Her Majesty’s
prisons.”[732] As
outlined in greater detail at paragraph 5.33, this sentencing regime applies in
circumstances where an offender has committed on two separate occasions, two
prescribed serious sexual or violent offences, each of which was serious enough
to merit a determinate sentence of at least 10 years.
2.197
Second, the then Secretary of State for Justice acknowledged that,
following the abolition of the IPP sentence, the penalty most relevant to
serious offenders would again be the discretionary life sentence.[733]
He observed that this indeterminate sentence had long been available under the
British justice system and that it was the appropriate penalty where the
maximum penalty for an offence is life imprisonment and where the offence is
sufficiently serious.[734]
2.198
Third, any offender who would previously have received an IPP sentence
is eligible to receive an extended determinate sentence where he or she has not
received either the presumptive life sentence or the discretionary life
sentence. As detailed at paragraph 5.37, this extended sentence, which is
“broadly similar”[735] to that
formerly provided by section 227 of the Criminal Justice Act 2003 was
introduced by section 124 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012, and consists of a custodial sentence plus a further
extended licence period set by the court. The main change effected by
this reform is that an offender must now serve at least two-thirds of
the determinate sentence imposed under this regime or, in some particularly
serious cases, must apply to the Parole Board for release and may be detained
in prison until the end of the determinate sentence. This provision may
apply where the offender is being sentenced for any serious sexual or violent
offence, provided that the court considers that he or she presents a risk of
causing serious harm through future reoffending.
2.199
Mandatory sentencing regimes have also been established in England and
Wales to deal with repeat offenders convicted of drugs offences or domestic
burglary. As discussed in detail at paragraph 5.27ff, section 110 of the Powers
of Criminal Courts (Sentencing) Act 2000 obliges the courts to impose a
minimum sentence of 7 years where the offender has been convicted of a third
Class A drug trafficking offence.
2.200 The modern history of mandatory
sentences for domestic burglary probably starts with the Government’s 1996
White Paper.[736] One
of the proposals in the White Paper concerned the imposition of a mandatory
minimum sentence of three years on offenders convicted of a third domestic
burglary.[737] In
the White Paper, the Government observed that burglary, which was a “pernicious
and predatory” crime which could have particularly disastrous effects for
elderly people, was one of the most commonly occurring offences.[738]
It noted, however, that in a substantial portion of cases, the courts did not
impose a custodial sentence:
“Severe penalties are available for burglary. The maximum sentence
is 14 years for burglary of a dwelling, and 10 years in other cases. In
cases of aggravated burglary - where the offender has a weapon - the maximum
penalty is life imprisonment. But in a substantial proportion of cases,
the courts do not impose a custodial sentence on convicted burglars even if
they have numerous previous convictions... . The average sentence length imposed
on a sample of offenders convicted for the first time of domestic burglary in
1993 and 1994 and given a custodial sentence was only 16.2 months in the Crown
Court and 3.7 months in magistrates’ courts. Even after 3 or more
convictions, the average sentence imposed on conviction in the Crown Court was
only 18.9 months; and after 7 or more convictions, 19.4 months. And 28%
of offenders convicted in the Crown Court with 7 or more convictions for
domestic burglary were not sent to prison at all. At magistrates’ courts,
61% of offenders with 7 or more domestic burglary convictions were given a
non-custodial sentence in 1993 and 1994.”[739]
2.201
As noted at paragraphs
2.123 and 2.124, the Crime (Sentences) Act 1997 was enacted to implement
the proposals contained in the 1996 White Paper.[740]
Section 4 of the Crime (Sentences) Act 1997 required the imposition of a
three-year sentence, except in specific circumstances, on offenders who had
been convicted of a third domestic burglary. Section 4 was replaced by
section 111 of the Powers of Criminal Courts (Sentencing) Act 2000
which, as it was a consolidation act,[741]
made no changes to the substantive law.
2.202 There are a number of examples of
legislative provisions in Irish law which establish a mandatory sentencing
regime for repeat offenders. These include provisions in the Misuse of
Drugs Act 1977, the Firearms Acts and the Criminal Justice Act
2007.
2.203 The Prevention of Crime Act 1908
in England and Wales, which provided that a habitual offender should serve no
less than five and no more than 10 years in prison, also applied to
Ireland. In The People (DPP) v Carmody,[742]
however, the Court of Criminal Appeal ruled that in the absence of appropriate
facilities in the State for providing such detention, the Act could not be
applied in practice.[743] The
1908 Act was subsequently repealed by the Criminal Law Act 1997.[744]
2.204 It was not until 2004 that the
option of imposing mandatory sentences on repeat offenders arose again as a
significant issue for legislative consideration. During the 2004 Dáil
debates on the Criminal Justice Bill 2004,[745]
the Opposition proposed an amendment in respect of the provisions dealing with
drugs and firearms offences which would remove the power of the judiciary to
impose a sentence of less than the statutory minimum where the offender had
been convicted of a second or subsequent offence. It was stated that the
“get-out clause where a person is convicted of a first offence... should not be
applied in the case of a second offence.” During Report Stage, this was
elaborated on in respect of firearms offences:
“A
person who got away with it, so to speak, under the exceptional circumstances
on a first offence would have received sufficient warning that he or she was
teetering on the edge of a minimum mandatory sentence if he or she again had
anything to do with firearms”.[746]
No doubt, this
rationale equally applied to drugs offences. Having consulted the
Attorney General, the Minister for Justice accepted the amendment.[747]
2.205 As a result, section 27(3F) was
inserted into the Misuse of Drugs Act 1977. Section 27(3F)
provides that where a person, aged 18 years or over, is convicted of a second
or subsequent offence under section 15A or section 15B, the court must impose a
sentence of not less than the statutory minimum sentence.
2.206 Similar provisions were also
inserted into the Firearms Acts. These also prescribe a mandatory
minimum sentence for persons, aged 18 years or over, convicted for a second or
subsequent time of a firearms offence which attracts a presumptive minimum
sentence.[748]
2.207 In 2007, the Criminal Justice
Bill 2007 was presented to the Dáil. The purpose of the Bill, as
indicated by the Minister for Justice, was to “send a clear and unambiguous
message” that society was “not prepared to allow organised criminal gangs set
about the destruction of families and communities.”[749]
The Minister acknowledged that the Bill contained tough measures but indicated
that the measures were “both necessary and proportionate to the threat [of]
organised crime.”[750]
McIntyre observes that, at the time, there was also a perception that the
criminal justice system had become “unbalanced” in favour of the criminal.[751]
2.208 Section 24 of the 2007 Bill provided
that a person who committed any one of a list of scheduled offences and, within
7 years, committed another of those offences would be subject to a penalty of
imprisonment equal to at least three quarters of the maximum term laid down by
law for that second offence.[752]
Where the second offence carried a potential maximum term of life imprisonment,
a sentence of at least 10 years was mandated. This provision was enacted
as section 25 of the Criminal Justice Act 2007.
2.209
Regarding the scheduled offences, the Minister for Justice indicated
that these were “among the most serious known in criminal law” and included
“offences typically associated with gangland crime, including, of course,
drug-trafficking and firearms offences.”[753] The Minister stated that, in broad terms, these
were racketeering offences and that the inspiration for the inclusion of
these provisions was the “Racketeer Influenced and Corrupt Organization, RICO,
legislation in the USA”.[754] He remarked that
“these provisions on sentencing are innovative in Irish terms and reflect the
need to find new ways to meet the challenge that we face from organised crime.”[755]
2.210 There were a number of events which
prompted the introduction of the Criminal Justice Bill in 2007. In
December 2006, there had been a spate of murders which, the Minister for
Justice stated, indicated that “some criminal gangs believed they could act
with impunity.”[756] In
addition, the Balance in the Criminal Law Review Group, which had been
established by the Minister in 2006 to examine a wide range of criminal justice
areas,[757] had just
published its interim report.[758]
The Opposition also referred to two recent reports which had ranked Ireland
unfavourably in terms of criminal statistics.[759]
In February 2007, the EU International Crime Survey had published its 2005
report, The Burden of Crime in the EU,[760]
which found that Ireland ranked highest with regard to the risk of crime,
assaults with force, sexual assaults and robberies.[761]
At around the same time, the Economic and Social Research Institute of Ireland
had published crime figures in its 2007 report, The Best of Times? The
Social Impact of the Celtic Tiger,[762]
which suggested that while the rate of lethal violence in Dublin was not out of
line with other European capital cities, it had “increased dramatically when
the international trend [was] downward.”[763]
Arguably, also, the enactment of the Criminal Justice Act 2006 had
exposed a number of criminal justice areas which would require further
examination.
2.211 The passage of the 2007 Bill was not
without controversy. Due to the fact that the Government had imposed a
guillotine on the Dáil debate, the Bill passed through the Dáil and the Seanad
by 27th April 2007.[764]
This, it was argued, did not allow sufficient time for the Bill to be debated.[765]
In particular, it was observed that the Irish Human Rights Commission had not
had time to examine the Bill,[766]
as it was empowered to do by law.[767]
2.212 In addition, McIntyre notes that the
final version of section 25 is a “somewhat watered down” version of that
originally proposed.[768] In
its original form, section 25 did not permit of any exception to the mandatory
minimum sentence. It was felt, however, that this might lead to
disproportionate sentencing. As a result, section 25 was amended so as to
permit the court to disregard the prescribed minimum sentence where it would be
disproportionate in all the circumstances of the case.[769]
Furthermore, the original version of section 25 became operable if a prison
term of 12 months or more had been imposed for a first offence. It was
felt, however, that this was too low a threshold to trigger the minimum
sentence. As a result, section 25 was amended so as to raise the
threshold to five years’ imprisonment for the first offence. Finally, the
original version of section 25 applied to a broader range of scheduled offences,
which included both burglary and robbery. It was observed, however, that
the range of scheduled offences went beyond what might be committed by persons
engaged in “gangland activities.”[770]
As a result, section 25 and Schedule 2 were amended so as to remove burglary
and robbery from the list of scheduled offences.[771]
2.213 These amendments were due in no
small part to the fact that the Bill had been widely criticised.[772]
The Irish Human Rights Commission, for instance, was of the opinion that the
“principles of proportionality and judicial discretion cast some shadow over
the constitutionality of section 24”.[773]
In a similar vein, the Irish Council for Civil Liberties asserted that section
24 might “impinge upon the constitutional duty of judges to ensure that
sentences are proportionate to both the gravity of the crime and the personal
circumstances of the offender.”[774]
The Law Society[775] and some
prominent criminal law practitioners were also quick to voice their concerns
regarding proportionality and the separation of powers.[776]
Having consulted the Council of State, the President decided not to refer the
Bill to the Supreme Court and signed the Bill into law.[777]
2.214 Mandatory sentences for repeat
offenders have been considered in a number of recent decisions. In
The People (DPP) v McMahon,[778]
the Court of Criminal Appeal considered an appeal by the DPP against the
leniency of a 10-year sentence. The respondent, a psychiatric patient who
had stabbed a doctor, had been convicted of assault causing serious harm,
contrary to section 4 of the Non Fatal Offences Against the Person Act 1997,
an offence which carries a maximum life sentence. The respondent had a
previous conviction for manslaughter for which he had been sentenced to 10
years’ imprisonment, which had been reduced to 7 years on appeal. The
respondent had been released approximately 8 months before committing the
section 4 offence. The DPP argued that the maximum sentence of life
imprisonment should have been imposed as the respondent presented a clear
danger to others.
2.215 The Court of
Criminal Appeal indicated that the case raised an important issue, namely, whether
sentencing courts were obliged to impose the maximum life sentence where there
was evidence that the respondent presented a clear danger to others.
While that could “justify a sentence towards the highest end of the appropriate
scale”, the Court observed that it was quite a different thing to argue that a
court “must, go beyond any sentence however severe which might be considered
normally appropriate to the crime (and the criminal) and impose a life
sentence, if it is available”. The argument had not been supported by any
Irish case or any jurisdiction in which, in the absence of statutory provision,
such orders could be made. In any case, the argument was subject to a
number of inherent weaknesses. First, it depended “on the happenstance
that the offence before the Court is one which carries a possible life
sentence”. Second, a sentence of imprisonment appeared to be an
“inappropriately indirect and crude way of dealing with [an] offender suffering
from a serious psychiatric illness”. Third, detention of persons on the
ground that they posed a threat to the public raised issues of
constitutionality and compatibility with the European Convention on Human
Rights. In particular, the Court noted:
“The protection of the public is an appropriate factor in the exercise of the
sentencing function, but it cannot be extracted from that function to create a
self-standing judicially created jurisdiction to impose a form of preventive
detention. Whether sentencing courts should have the power to order the
detention of individuals deemed to pose an immediate threat to the public, over
and beyond any appropriate sentence for the crime committed, is a matter which
should be addressed in the first place by detailed legislation by the
Oireachtas after appropriate research and debate, and subject to Constitutional
and Convention review if appropriate.”
The Court of Criminal Appeal thus
dismissed the appeal.
2.216
In The People (DPP) v Ward[779] the
appellant appealed against the imposition of two life sentences, to be served
concurrently. The appellant had been convicted of five offences, namely,
assault causing harm, possession of a firearm with intent to cause an
indictable offence, robbery and two counts of possession of a firearm with
intent to resist arrest on two separate occasions. He had been sentenced
to life imprisonment for counts one and two, and to 12 years’ imprisonment for
counts three, four and five. The Court of Criminal Appeal indicated that
there had been an element of preventative sentencing evident in the decision of
the trial judge, which amounted to an error of principle. The trial judge
had stated that the imposition of a life sentence was to ensure that the defendant
would not be released from prison until the authorities were satisfied that he
no longer posed a threat to the community. The Court found that the
appellant’s offending warranted a serious but determinative sentence and thus
substituted a sentence of 20 years.
E
Concluding Observations Regarding the Historical Evolution of Mandatory
Sentences
2.217
Parts B to D of this Chapter detailed the historical evolution of
the three forms of mandatory sentence under review. The Commission
considers that a number of conclusions may be drawn from the manner in which
these sentencing regimes developed.
2.218
First, the Commission notes that the mandatory life sentence may be
regarded as an evolutionary anomaly. This penalty was specifically introduced
to replace the death sentence as the most severe sanction available for the
most serious offences. The mandatory life sentence was selected for this
purpose as its imposition ensures that those who commit murder continue (in a
symbolic sense at least) to pay for the crime with their lives. The
mandatory life sentence is therefore an exceptional penalty and one that, in
effect, is reserved exclusively for murder.
2.219
Second, the Commission considers that the historical evolution of
presumptive minimum sentences may be viewed in two ways. One view is that
these regimes are a relatively recent innovation and have largely emerged in
response to perceived increases in criminality and particularly egregious
incidents. As discussed above, perceived surges in drug-related crime,
firearms offences and gangland criminality, in particular, as well as
individual high-profile offences have often preceded the introduction of these
measures. In this light, the enactment of presumptive minimum sentences
may be interpreted as a relatively contemporary development.
2.220
The Commission notes that an alternative view is that these sentencing
regimes are, when considered in a broader historical context, the product of a
long-standing policy approach. As outlined above, presumptive minimum
sentences are typically directed at high-risk forms of criminality that have a
particularly grave societal impact. In modern times, drugs offences,
firearms offences and gangland crime fit this mould. Historically, however,
a similar threat was perceived to derive from ‘habitual offenders’ - career
criminals who specialised in particular forms of crime. In the 19th
century, such offenders attracted mandatory sentences under the Habitual
Offender Acts. These regimes were essentially the precursors to
contemporary ‘three strike laws’ and other sentencing practices directed at
those considered to be a particular threat to public safety. In this
light, presumptive and mandatory minimum sentences for first-time and repeat offenders
may be viewed as the continuation of a long-standing penal policy.
2.221
The Commission observes that although the policy underlying these
sentencing regimes is not new, the popularity of this penal approach tends to
fluctuate. As discussed in Chapter 1, mandatory sentencing regimes appear
to correspond most closely to the aims of deterrence, punishment and
incapacitation. Accordingly, these measures generally find favour in a
more punitive penal climate in which these objectives receive particular
legislative emphasis. It is clear therefore that the various aims of
sentencing may be differently prioritised at different times and that the
challenge for the Oireachtas is to determine which goal merits immediate
emphasis. The Commission observes that prioritising one aim over another
will, in general, lead to specific consequences. For example, greater
emphasis on deterrence, punishment and incapacitation, rather than
rehabilitation, may facilitate problems such as prison over-crowding and may
also impair the ability of the justice system to enhance public safety.
2.222
The Commission notes that this issue was highlighted, in 2013, by
the Sub-Committee on Penal Reform, established by the Joint Oireachtas
Committee on Justice, Defence and Equality. In its Report on Penal
Reform,[780] the
Sub-Committee observed that effective rehabilitative programmes cannot work in
over-crowded prison environments.[781]
It therefore endorsed the view “that a more effective and genuinely rehabilitative penal policy could be
developed if the prison population were reduced by one-third over a reasonable
period of perhaps ten years… .”[782] The Sub-Committee observed that this “would mean a return to
levels of imprisonment in the mid-1990s, before the change in policy which has
been identified as increasingly punitive during the 1990s, when mandatory
minimum sentences were introduced for a range of offences, and a
prison-building regime was embarked upon”.[783]
2.223
The Commission
also observes that where an emphasis on deterrence, punishment and
incapacitation leads to problems such as prison overcrowding, this may produce
a reaction against the cost entailed by a higher rate of incarceration. A
return to a rehabilitative model may in turn coincide with an economic cycle
that is focused on ensuring the most effective and efficient allocation of
resources within the general criminal justice system. This may include a
consideration of the manner in which limited resources are allocated between,
on the one hand, the prison service (which has a more punitive purpose) and, on
the other hand, the probation service (which has a more rehabilitative
purpose).[784]
3
3.01
In this chapter, the Commission considers the first type of mandatory
sentence identified in the Introduction to the Report, namely, the entirely
mandatory sentence. In
Ireland, the only entirely mandatory sentence is the mandatory life sentence
prescribed for the offences of: (a) murder;[785]
(b) the murder of a designated person such as a member of An Garda Síochána;[786]
and (c) treason.[787] In
Part B, the Commission begins with an examination of how the mandatory life
sentence for murder, in conjunction with the Executive power to grant early
release, operates in practice. In Part C, the Commission compares the
mandatory life sentence in Ireland with similar provisions in other common law
countries. In Part D, the Commission concludes by examining the mandatory
life sentence against the conceptual framework for criminal sanctions and
sentencing.
3.02 Section 2 of the Criminal Justice
Act 1990 prescribes a mandatory life sentence for murder. Thus, the
court must impose a life sentence in every case in which it is proved beyond a
reasonable doubt that the defendant, with an intention to kill or cause serious
injury, has unlawfully killed another.[788]
Section 4 specifies, however, that if the victim is a designated person under
section 3, such as a member of An Garda Síochána, the perpetrator must serve a
minimum term of 40 years’ imprisonment or 20 years’ imprisonment for an
attempted murder. This means that every person convicted of murder will
receive a mandatory life sentence but only those who have murdered a designated
person will be required to spend a minimum term in prison.
3.03 Not every person convicted of murder
will spend the rest of his or her life in prison. Indeed, a person
convicted of murder may expect to be released before his or her “life” sentence
expires because the Executive has at its disposal two mechanisms by which it
may grant early release to prisoners serving mandatory life sentences.
Thus, in order to fully understand the mandatory life sentence, its examination
must take place alongside an examination of these early release mechanisms.
3.04 Before considering the mechanisms by
which the Executive may grant a prisoner serving a mandatory life sentence
early release, it should first be noted that most prisoners, other than those
sentenced to life imprisonment, are granted early release under the “standard
remission” mechanism in the Prison Rules 2007.[789]
This mechanism provides that all prisoners, excluding prisoners serving life
sentences,[790] are
entitled to earn remission of up to one fourth of their sentences for good
behaviour[791] or up to
one third of the sentence by engaging in authorised structured activity,
such as training or counselling.[792] The effect of standard remission is to cause this portion of the
sentence to expire.[793]
3.05 As standard remission is not
available to prisoners serving mandatory life sentences, it is thus necessary
to consider the two other mechanisms by which the Executive may grant early
release. The first mechanism (which, in practice, is rarely used) is the
power to grant “special remission”. This power is vested in the Executive
by Article 13.6 of the Constitution and section 23 of the Criminal Justice
Act 1951, as amended.[794]
The power to grant special remission (which has been described as the
modern equivalent of the royal prerogative of mercy[795])
is the power to commute or remit any sentence. Special remission may be
granted at any time at the discretion of the Executive and prisoners have no
legal entitlement to it.[796] The
effect of special remission is that the offender is no longer subject to
punishment for the offence in respect of which he or she was serving the
sentence.[797]
3.06 The second (most frequently used)
mechanism is the power to grant “temporary release”. This power is vested
in the Executive by section 2 of the Criminal Justice Act 1960, as amended.[798]
The
power to grant temporary release, which is broadly equivalent to parole regimes
in other jurisdictions, is a discretionary power which may be exercised in
favour of prisoners at any time before they qualify for standard remission and
prisoners serving life sentences (who, as noted at paragraph 3.05, are not
eligible for standard remission). Although it was originally envisaged
that temporary release would be granted for short periods for compassionate
reasons or to facilitate integration, temporary release also came to function
as an early release mechanism for those serving life sentences.[799]
Prisoners serving life sentences who are granted temporary release are released
for a certain number of years and, unless they breach their release conditions
or commit a further offence, can expect to remain at large indefinitely.[800]
3.07 There is thus an important
distinction to be drawn between early release prisoners who are serving life
sentences and early release prisoners who are serving determinate
sentences. Prisoners serving life sentences are generally considered for
early release under the “temporary release” mechanism. As a result, a
life sentence prisoner who has been granted early release may expect to be
recalled to prison if he or she breaches the conditions of the release or
commits a further offence. By contrast, prisoners serving determinate
sentences are generally considered for release under the “standard remission”
mechanism which causes the final fourth of the sentence (or, as the case may
be, the final third of the sentence) to expire. As a result, a
determinate sentence prisoner who has been granted early release is free from
recall.
3.08
In 2001 the Minister
for Justice, Equality and Law Reform established the non-statutory Parole Board
to review the cases of prisoners serving long-term sentences and to provide
advice in relation to the administration of those sentences.[801]
The Parole Board may only review cases which have been referred to it by the
Minister and which generally concern prisoners serving sentences of 8 years or
more. Prisoners serving mandatory life sentences for ordinary murder may
be referred to the Parole Board but not prisoners serving sentences for certain
offences such as murder contrary to section 3 of the Criminal Justice Act
1990.[802]
3.09
The Parole Board
advises the Minister for Justice by way of recommendation as to whether the
prisoner should be released.[803]
These recommendations may be accepted or rejected in whole or in part by the
Minister for Justice with whom the final decision regarding release lies.[804]
As discussed at paragraphs 2.101 to 2.104, it is uncertain whether this
arrangement is compatible with Article 5(4) of the European Convention on Human
Rights. In the absence of a relevant decision of the European Court of
Human Rights or the Irish High Court or Supreme Court (who interpret the law in
light of the European Convention on Human Rights), it remains unclear whether
Article 5(4) entitles those serving wholly punitive life sentences to regular
reviews of their detention by an independent, court-like body. If such a
review is required, it would appear that the operation of the Parole Board does
not satisfy this requirement because it is not independent of the
Executive.
3.10 In general, cases are reviewed at
the half-way stage of the sentence or after 7 years, whichever comes
first. The Commission notes, however, that while the Parole Board has
formally indicated that it will review detention after 7 years, in 2004 the
then Minister for Justice stated that he would not consider the case of a
prisoner serving a mandatory life sentence until he or she had served 12 to 15
years.[805] It
would appear that the average time spent in custody by prisoners serving a life
sentence more than doubled since the 1970s. In 2010, the then Minister
for Justice indicated that the average time spent in custody was 17 years for
the period 2004 to 2010.[806] This
compared with an average of 14 years for the period 1995 to 2004; 12 years for
the period 1985 to 1994; and just over 7 ˝ years for the period 1975 to 1984.[807]
3.11
While it is not
required to take any specific criteria into account when formulating its
recommendations, the Parole Board has adopted the following list of factors:[808]
·
Nature and gravity of
the offence;
·
Sentence being served
and any recommendations by the judge;[809]
·
Period of the sentence
served at the time of the review;
·
Threat to safety of
members of the community from release;
·
Risk of further
offences being committed while on temporary release;
·
Risk of the prisoner
failing to return to custody from any period of temporary release;
·
Conduct while in
custody;
·
Extent of engagement
with the therapeutic services; and
·
Likelihood of period of
temporary release enhancing reintegration.
3.12 These factors are broadly similar to
those considered by the Minister for Justice in relation to the granting of
temporary release under section 2 of the Criminal Justice Act 1960,
as amended by section 1 of the Criminal Justice (Temporary Release of
Prisoners) Act 2003.
These are:
·
The nature and gravity
of the offence to which the sentence of imprisonment being served by the
person relates;
·
The sentence of
imprisonment concerned and any recommendations of the sentencing court in
relation to it;[810]
·
The period of the
sentence of imprisonment served by the person;
·
The potential threat to
the safety and security of members of the public (including the victim of the
offence to which the sentence of imprisonment being served by that person
relates) should the person be released from prison;
·
Any offence of which
the person was convicted before being convicted of the offence to which the
sentence of imprisonment being served relates;
·
The risk of the person
failing to return to prison upon expiration of any period of temporary release;
·
The conduct of the
person while in custody or while previously on temporary release (whether under
the system operated before or after the coming into force of the 2003 Act);
·
Any report of, or
recommendation made by -
(i) a prison governor or person for the time being performing the
functions of governor,
(ii) the Garda Síochána,
(iii) a probation and welfare officer, or
(iv) any other person whom the Minister considers would be of
assistance in enabling the Minister to make a decision as to whether to grant
temporary release to the person concerned;
·
The risk of the person
committing an offence during any period of temporary release;
·
The risk of the
person failing to comply with any conditions attaching to his temporary
release; and
·
The likelihood that any
period of temporary release might accelerate the person’s reintegration into
society or improve his prospects of obtaining employment.
3.13 It can be seen that the Parole Board
and the Minister for Justice both take into account a number of factors that
are similar, though not identical, to those considered by the judge in the
sentencing process. In particular, consideration by the Parole Board and
the Minister of the nature and gravity of the offence resemble factors at issue
in the sentencing process.[811]
While the objective of their analysis is to determine whether and when it would
be appropriate to release a particular prisoner, where a mandatory life
sentence is concerned a consequence of that analysis is that the Minister
determines how long that prisoner should remain in prison. This is an
unavoidable consequence because the Parole Board and the Minister for Justice
should not be blind in their analysis to the seriousness of the particular
offender’s offence or to the severity of the sentence that he or she is
serving. The concerns that this overlaps with considerations that are
more appropriate to the judicial sentencing process will be addressed at
paragraphs 3.77 to 3.84 below.
3.14
In this section, the Commission considers how the mandatory life
sentence in Ireland compares with the approach taken by other common law
countries. As a preliminary observation, it may be noted that in each of
these countries there is some version of the prerogative of mercy whereby the
Executive, in rare circumstances, may grant the prisoner early release.
3.15
As discussed in Chapter 2, section 1(1) of the Northern Ireland
(Emergency Provisions) Act 1973 provides for a mandatory life sentence for
murder. The 2000 Report on the Review of the Criminal Justice System
in Northern Ireland[812]
recommended that, in relation to all indeterminate sentence cases, including
mandatory life sentence cases, sentencing judges should be required to set a
period for retribution and deterrence (along the lines already in place in
England and Wales, discussed below). The Report considered that in most
cases the period would be a fixed term of years, although it also envisaged
that some offences might be so serious that a whole life period would be
appropriate. The Report recommended that the period would be announced in
court and would be subject to appeal in the usual way. The Report also
recommended that once this period had been served, it would be the
responsibility of an independent body to determine, primarily on grounds of
risk, when the prisoner should be released. These recommendations were
implemented in the Life Sentences (Northern Ireland) Order 2001. In
the parliamentary debates on the 2001 Order,[813] it was noted that in this respect the
2000 Report endorsed the conclusions of a review of Northern Ireland prisons
legislation conducted by the UK Government in anticipation of the coming into
effect of the UK Human Rights Act 1998. The review concluded that the
existing procedures for discretionary life sentence prisoners and those
sentenced to detention at the Secretary of State’s pleasure could be deemed
inconsistent with the requirements of the European Convention on Human Rights
(ECHR). The procedures were based on advice on the suitability of the
prisoner for release being given to the Secretary of State by the Life Sentence
Review Board, a non-statutory body consisting largely of senior officials of
the Northern Ireland Office (NIO). It was considered that compliance with
the ECHR would require that, once the punitive element of the sentence had been
completed, each prisoner should have his or her case reviewed periodically by a
judicial body. To have judicial character, the body would need to be
independent of the Executive (and of the parties concerned); impartial; and
able to give a legally binding direction regarding the prisoner’s
release. These considerations are reflected in the 2001 Order.
3.16
Article 5(1) of the Life Sentences (Northern Ireland) Order 2001
provides that where a court imposes a life sentence, it must, unless the case
falls within Article 5(3), specify the minimum period that must be served by
the offender before he or she becomes eligible for parole. Article 5(2)
provides that the minimum period specified under Article 5(1) is intended “to
satisfy the requirements of retribution and deterrence having regard to the
seriousness of the offence, or of the combination of the offence and one or
more offences associated with it.” Article 5(3) of the 2001 Order
provides that where the offence warranting the life sentence is particularly
serious, the court may order that no minimum period is specified at
sentencing. The effect of an order under Article 5(3) is that the
offender is subject to a “whole life tariff” and is ordered to be detained for
the remainder of his or her natural life. Such whole life tariffs are rare.[814]
3.17
Where a minimum period is specified, since 2001 the question as to
whether the offender is to be released on parole is a matter for the Parole Commissioners for Northern Ireland, who are an
independent body appointed by the Northern Ireland Department of Justice.[815] Where the Parole Commissioners determine that
the offender may be released on licence, they must make an order to that effect
subject to such conditions as they deem appropriate. These conditions
attach to the offender for the rest of his or her life, and the offender may be
recalled to prison where the conditions are breached. While the formal
order of release is made by the Northern Ireland Department of Justice,[816]
the decision of the Parole Commissioners to release an offender on licence must
be complied with by the Department.
3.18
As to how a sentencing judge is to calculate a minimum term under
Article 5(1) of the 2001 Order, the Northern Ireland Court of Appeal in R v
Candless[817] held that
the courts are to have regard to the guidance provided in the English 2002
Practice Statement (Crime: Life Sentences).[818]
The 2002 Practice Statement issued by the English Lord Chief Justice sets out
the starting points and the circumstances in which each starting point applies.
The starting points range from the “normal starting point” of 12 years, through
the “higher starting point” of 15 to 16 years, up to 30 years.[819]
It also sets out the factors which tend to aggravate or mitigate the duration
of the minimum term.[820]
3.19
For the purpose of illustration, it is worth referring to a number of
recent sentencing decisions in Northern Ireland. In R v Howell,[821] Hart J ordered the defendant to serve a minimum term of
21 years in prison for the double murder of the defendant’s wife and the
husband of Hazel Stewart, the defendant’s co-accused (see R v Stewart,
below). Hart J indicated that the defendant had committed a
“cold-blooded, carefully planned and ruthlessly executed double-murder” of two
people he saw as standing in the way of his “desire” to be with his co-accused,
with whom he was involved at that time in an intimate relationship.[822]
Hart J indicated, however, that the defendant’s sentence had been
reduced by 7 years from 28 years because he had confessed to the murders
and had agreed to give evidence against his co-accused.
3.20
In R v Stewart,[823]
Hart J ordered the defendant, who had been sentenced to life imprisonment for
the same double-murder dealt with in R v Howell (above), to serve a
minimum term of 18 years. He indicated that the defendant was
entitled to some reduction in sentence to reflect the fact that her co-accused,
the defendant in R v Howell, had masterminded the plot and carried out
the killings after persuading her to take part. He noted, however, that
Howell had admitted his role, confessed and given evidence against Stewart
during her trial. He indicated that Stewart’s plea of not guilty was
relevant, as were her repeated attempts to hide from responsibility. He
also indicated that Stewart had expressed little remorse for what she had done.
3.21
In R v Walsh,[824]
a life sentence was imposed on the defendant for the murder of her elderly
neighbour, Maire Rankin, in 2008.[825]
Hart J ordered the defendant to serve a minimum term of 20 years in prison,
highlighting the sexual maltreatment and degradation of Mrs Rankin’s body after
the killing as aggravating factors which would require the court to increase
the minimum term to a figure substantially above (the “higher starting point”
of) 15 or 16 years.
3.22
As discussed in Chapter 2, section 1(1) of the Murder (Abolition of
the Death Penalty) Act 1965 provides for a mandatory life sentence for
murder. The 2002 Practice Statement (Crime: Life Sentences)
discussed in the Northern Ireland decision R v Candless[826] (see paragraph 3.18) has been replaced by section 269 of
the English Criminal Justice Act 2003. This provides that where a
court imposes a life sentence, it must make an order regarding the minimum term
to be served by the offender before he or she may be considered for release by
the Parole Board.[827]
Where the court is of the opinion that, because of the seriousness of the
offence, no such order should be made, it must order that the early release
provisions are not to apply to the offender.[828]
3.23
As to how to calculate a minimum term, Schedule 21 of the Criminal
Justice Act 2003 sets out the starting points and the circumstances which
dictate which starting point applies. Thus, if the court considers that
the seriousness of the offence is “exceptionally high”, the starting point is a
“whole life tariff”.[829] This
starting point may only apply in respect of an offender who was at least 21
years of age when he or she committed the offence.[830]
3.24
If the court considers that the seriousness of the offence is
“particularly high”, the starting point is 30 years.[831]
This starting point may only apply where the offender was at least 18 years of
age when he or she committed the offence. If the case does not fall
within either of the preceding provisions, paragraph 5A of Schedule 21
(discussed below in R v Kelly) provides that the starting point is 25
years if the offender took a knife or other weapon to the scene intending to
commit any offence (or to have it available to use as a weapon) and then used
that knife or other weapon in committing the murder. This starting point
only applies, however, where the offender was at least 18 years of age when he
or she committed the offence.[832] For every other
case, where the offender was aged 18 years or over at the time of the offence,
the starting point is 15 years.[833]
Where the offender is under 18 years of age, the starting point is 12 years.[834]
Schedule 21 also sets out the factors which tend to aggravate or mitigate the
duration of the minimum term.[835]
3.25
Paragraph 5A of Schedule 21 of the 2003 Act was considered in R v
Kelly,[836]
in which the English Court of Appeal heard 7 cases where all of the defendants
had been convicted of murder involving a knife. The primary issue in the
cases was whether the offender “took the knife or other weapon to the scene”
within the meaning of paragraph 5A.
3.26
The defendants in the first three cases and the first defendant in
the fourth case contended that paragraph 5A should not have been applied.
In the first case, K took a knife from the kitchen, went upstairs to the
bathroom and broke down the door to get to the victim. He then stabbed
him. In the second case, the victim banged on B’s front door and
threatened him. B picked up two knives, went out of the house and stabbed
the victim who was standing on the pavement. S, the defendant in the
third case (the appeal), lived in a bedsit above a factory. He took a
knife from the upstairs kitchen in his own premises and went downstairs into
the working area of the factory. He walked through an open door, a
distance of some 50 metres, and killed the victim. In the fourth case, to
the knowledge of all, one knife was taken to the scene by R and a second knife,
which was also used, was taken by H from a kitchen drawer and carried to where
the victim lay in a bedroom, where he was killed. The Crown accepted that
the second knife had not been “taken to the scene”. H submitted that it
was unfair to infer from the evidence that he was party to a joint enterprise
whereby someone else had brought the first knife to the house and that taking a
knife from one part of the house to the bedroom was not, of itself, sufficient
to bring the conduct within paragraph 5A.
3.27
The English Court of Appeal held that the seriousness of an offence
falling within paragraph 5A was “normally” marginally lower than “particularly
high”. Paragraph 5A thus required flexibility of approach. Schedule
21 did not create a stepped sentencing regime with fixed dividing lines between
the specified categories. Paragraphs 4(1) and 5(1) identified not the
ultimate decision but the “appropriate starting point”, and paragraphs 4(2) and
5(2) specified the cases of murder which would “normally,” but not inevitably,
trigger a finding of exceptional or particularly high seriousness. It was
also plain from the structure of paragraph 5A, particularly by reference to
paragraph 5(2)(b) (“a murder involving the use of a firearm or explosive”),
that it was not the legislative intention that every murder involving the use
of a knife or other weapon to inflict fatal injury should normally fall within
the 25-year starting point. Thus, paragraph 5A did not provide an
entirely comprehensive framework to govern the starting point for assessment of
the determinate term for murders committed with a knife or other weapon.
Paragraph 5A was not confined to murders committed with the use of a knife
which had been taken out on to, and used on, the streets. Paragraph 5A
would also apply to a case where a man walked home, bought a knife on the way
and killed his partner in the kitchen. It did not follow that a murder
committed with a knife in the offender’s home, or in the victim’s house, automatically
fell outside the ambit of paragraph 5A.
3.28
The Court indicated that a knife taken from the kitchen of a home to
another room in the same home was not “taken to the scene” for the purposes of
paragraph 5A, even if a locked door was forced open. Accordingly, the
first case did not fall within paragraph 5A, since the knife had not been taken
to the scene. However, in the circumstances, it did not make a difference
to the eventual determination of the minimum term. In the second case,
the knife had been taken to the scene and the judge had been correct to choose
a starting point of 25 years for the minimum term. In the third case, S
had taken the knife to the scene and the judge had been right to find that
paragraph 5A applied.
3.29
The fourth case demonstrated the kind of problems that would arise in
the context of murders committed with a knife taken to the scene where two or
more offenders were convicted of murder on the basis of joint enterprise.
Given some of the difficulties which could arise in joint enterprise murders
where a weapon was used by one, but only one, of the murderers, the
difficulties for sentencing judges were likely to multiply. There would
continue to be convictions for multi-handed murders where one or more of the
defendants were not aware that a knife or knives were being taken to the scene
but, once violence erupted, participated in it and were well aware that the
knife would be or was being used with murderous intent. Although guilty
of murder, they were not party to the taking of the fatal weapon to the
scene. Their offence would be aggravated by the fact that they
participated in a knife murder but paragraph 5A would not provide the starting
point in the sentencing decision. For those who did take part or were
party to the taking of a knife to the scene, then paragraph 5A would not
provide the starting point in the sentencing decision. For those who did
take part, or who were party to the taking of a knife to the scene, then
paragraph 5A would provide the starting point but care had to be taken not to
double count the fact that they participated in a knife murder which has
already been factored into the normal paragraph 5A starting point. The
judge would therefore be required to make the necessary findings of fact to
identify the appropriate starting point and thereafter to reach the sentencing
decision required by the justice of the case. As to the applicability of
paragraph 5A in respect of H in the fourth case, there had been ample evidence
of planning for the attack. Furthermore, paragraph 5A was not to be
analysed by reference only to the distance that a knife was carried prior to
its lethal use. Taking a weapon to the scene, and the implications of
such conduct on the sentence for murder, required a broader consideration than
whether the attack took place in the kitchen or the bedroom. In the
fourth case, H had known that the knife was in R’s possession; it was
irrelevant that it was H who had used the knife, rather than R. That was
the very essence of joint enterprise. Accordingly, the applications for
leave to appeal were refused, and the appeal was dismissed.
3.30
In R v Dobson and Norris,[837]
the defendants were sentenced for the racially motivated murder of Stephen
Lawrence in 1993.[838] As
the defendants had been less than 18 years of age at the time of the offence,
the court (Treacy J) was obliged to sentence them as juvenile offenders and
thus impose a sentence of detention at Her Majesty’s pleasure. Given
their juvenile status, Treacy J observed that an appropriate starting point for
the minimum term to be served by each offender was 12 years, which was then
adjusted to reflect the aggravating and mitigating factors of the case.[839]
In this regard, Treacy J indicated that:
“The gravity of this case is... of a different order from, for example, a
murder committed by one individual upon another as a result of some sudden quarrel.
There was a degree of general premeditation; it was a racist crime driven by
hatred; it involved a gang of like-minded attackers; a lethal weapon was
employed and known in advance to be carried; the victim was completely
blameless and helpless.”[840]
3.31
The first defendant was thus ordered to serve a minimum term of 15 years
and two months and the second defendant was ordered to serve a minimum term of
14 years and three months.
3.32
As discussed in Chapter 2, section 1(1) of the Murder (Abolition of
the Death Penalty) Act 1965 provides for a mandatory life sentence for
murder. Section 2 of the Prisoners and Criminal Proceedings (Scotland)
Act 1993, as amended, provides that the sentencing court must specify a
“punishment part” to be served by the offender “to satisfy the requirements of
retribution and deterrence”.[841]
Section 2 provides that the punishment part may be any period of years and
months even if it is likely that the period will exceed the remainder of the
prisoner’s life.[842]
3.33
In HM Advocate v Boyle and Others,[843]
the Scottish Court of Appeal rejected the suggestion made in previous Scottish
case law[844] that the
“virtual maximum” duration of the punishment part was 30 years.[845]
It noted that some cases, for example, “mass murders by terrorist action”,
might warrant a punishment part of more than 30 years.[846]
The Court agreed with the previous case law, however, in so far as it indicated
that certain murder cases might be of such gravity that the punishment part
should be approximately 20 years, such as where the victim was a child or a
police officer acting in the course of his or her duty, or where a firearm was
used.[847] The
Court rejected the suggestion that the starting point for the punishment part
in most murder cases was 12 years.[848]
In cases where the offender had armed himself or herself with a sharp weapon,
the Court indicated that, in the absence of exceptional circumstances, a
starting point of 16 years would be more appropriate.[849]
3.34
In Canada, section 235(1) of the Criminal Code provides for a
mandatory life sentence for murder. Section 745 of the Criminal Code
sets out, in some detail, the periods that persons sentenced to life
imprisonment must serve before they become eligible for parole. In the case of first degree murder,
there is an automatic 25-year period of parole ineligibility.[850]
In the case of second degree murder, the minimum period of parole ineligibility
is 10 years while the maximum is 25 years.[851]
The period of ineligibility is determined by the trial judge[852]
who may take into account any jury recommendations on the appropriate length.[853]
An offender sentenced to life imprisonment may apply to have the minimum
term reduced after serving 15 years.[854]
Once the prisoner serves the
period of parole ineligibility, he or she may apply to the Parole Board for
parole. The Parole Board will consider whether there are any risks to the
public in releasing the prisoner. If released, the prisoner is subject to
parole conditions and parole may be revoked if he or she violates those
conditions or commits a new offence.
3.35
In Australia, the penalty for murder varies from jurisdiction to
jurisdiction.[855] In
five jurisdictions (the Commonwealth of Australia;[856]
the
Australian Capital Territory;[857]
New
South Wales;[858] Tasmania,[859]
and
Victoria[860]) the life sentence is a discretionary maximum
rather than a mandatory penalty. New South Wales recognises a limited
exception in this regard, prescribing a mandatory life sentence for the murder
of a police officer, committed while the officer is acting in the course of his
or her duty or as a consequence of, or in retaliation for, the execution of
that duty.[861]
3.36
In Western Australia, the life sentence is a presumptive penalty for
murder. Under this regime, a life sentence need not be applied by the
court where: (a) it would be clearly
unjust given the circumstances of the offence and the offender; and
(b) the offender is unlikely to be a threat to the safety of the community
when released from prison.[862] Where these criteria
are fulfilled, the offender will instead be liable to 20 years’ imprisonment.[863] A sentencing court which
declines to impose a life sentence for murder must provide written reasons for
this decision.[864]
3.37
In three jurisdictions
(the Northern Territory;[865] Queensland;[866] and
South Australia[867])
the life sentence is a mandatory penalty for murder. In all
jurisdictions, the sentencing court is permitted or required to set a
non-parole period that will in normal circumstances result in release before
the entire sentence is served.[868]
3.38
The applicable parole system varies from state to state. In the
Commonwealth of Australia, the court must fix a non-parole period or make a
recognizance release order when it imposes a federal life sentence, unless,
having regard to the “nature and circumstances of the offence” and the
antecedents of the offender, it considers that neither is appropriate.[869]
In the Australian Capital Territory, the court must set a non-parole
period when it imposes a sentence of one year or more, excluding life
sentences, unless, having regard to the nature of the offence and the
antecedents of the offender, it considers this to be inappropriate.[870]
An
offender serving a life sentence may apply for parole after serving 10 years of
his or her sentence.[871] In
New South Wales, the standard non-parole period for murder is 20 years, and 25
years where the victim is a designated person.[872]
Where the victim is a police officer, however, an offender must serve the
mandatory life sentence “for the term of the person’s natural life.”[873]
In Tasmania, the court must order that an offender sentenced to life
imprisonment shall either be ineligible for parole in respect of that sentence
or ineligible for parole before the expiration of such a period as is specified
in the order.[874] In Victoria, the court must set a non-parole
period where it imposes a life sentence or a sentence of two or more years.[875]
3.39
The system also varies among those states which impose a mandatory life
sentence. In the Northern Territory, the court must set a standard
non-parole period of 20 years when it imposes a life sentence for murder, or 25
years where certain factors are present in the case.[876]
The court may impose a longer non-parole period if that is warranted by the
seriousness of the offence or a shorter non-parole period if there are
exceptional circumstances. The court may refuse to fix a non-parole
period if it considers that the level of culpability is so extreme that the
community interest in retribution, punishment, protection and deterrence can
only be met if the offender is imprisoned for his or her natural life. In
Queensland, the court must set a standard non-parole period of 20 years when it
imposes a life sentence for murder and 30 years if the offender has a previous
conviction for murder.[877]
However, if the victim is a police officer performing his or her duty, or if
the offender commits the relevant act or omission in retaliation for actions
taken by the victim or another police officer in the performance of his or her
duty, a minimum non-parole period of 25 years will apply (unless the individual
is granted ‘exceptional circumstances parole’ under the Corrective Services
Act 2006).[878]
In South Australia, the court must set a standard non-parole period of 20 years
when it imposes a life sentence for murder.[879]
The court may decline to set a non-parole period if, having regard to the
gravity of the offence, the criminal record and behaviour of the offender, and
any other circumstances, it considers that it would be inappropriate. In
Western Australia, the court must set a standard non-parole period of 10 years
where the offender has been sentenced to life imprisonment for murder.[880]
3.40
In New Zealand, section 102 of the Sentencing Act 2002 provides
that life imprisonment is the presumptive penalty for murder. Thus, a
person convicted of murder must be sentenced to life imprisonment unless the
circumstances of the offence and the offender would render such a sentence
“manifestly unjust”.[881]
Section 86E(2) of the 2002 Act provides that the court must impose a life
sentence where the murder is a stage-2 or stage-3 offence[882]
and must order that the life sentence be served without parole unless the
circumstances of the offence and the offender would render such a sentence
“manifestly unjust”.
3.41
Section 84 of the Parole Act 2002 provides that
offenders serving life sentences will become eligible for parole once they have
served 10 years’ imprisonment, unless the sentencing court has ordered a
“non-parole period”.[883] If a non-parole period has been
ordered, offenders become eligible for parole once they have served that
period. Section 60 of the Parole Act 2002 provides that an
application may be made to the Parole Board to recall an offender who is on
parole or compassionate release. This may be done where the offender
poses “an undue risk” to the community, has breached a condition of release or
has committed an offence punishable by imprisonment.[884]
In addition to parole, section 41 of the Parole Act 2002 provides that
the Parole Board may grant compassionate release to any prisoner who has just
given birth or is seriously ill and unlikely to recover.[885]
3.42 In the United States of America, the
majority of states have retained the death penalty for either first degree
murder or “capital murder”. All of these states require the jury to find
that any mitigating factors are outweighed by certain aggravating factors.[886]
In the event that this is not the case or, indeed, the death penalty is not
sought by the prosecution, these states provide for less severe sanctions such
as life imprisonment with or without parole. The few remaining states
have abolished the death penalty and instead require the imposition of
determinate sentences or life sentences with or without parole.[887]
3.43 From this survey, it is clear that
Ireland’s common law counterparts have not adopted a unified response in
respect of sentencing for murder. Certain patterns do, however,
emerge. In the majority of common law countries and jurisdictions, the
mandatory life sentence for murder has been retained[888]
whereas in a significant minority, a presumptive or discretionary life sentence
has been adopted instead.[889] In
all common law countries, apart from Ireland, there is a system whereby a
person convicted of murder must serve a minimum term before becoming eligible
for early release. In addition, release is generally granted through a
formal parole system. In some countries and jurisdictions, the minimum
term is calculated by the sentencing judge having regard to judicial and/or
statutory guidance[890] whereas,
in some others, the minimum term is specified by statute.[891]
3.44 In this Part, the Commission
considers the sentencing system for murder, comprising the mandatory life
sentence and early release, against the conceptual framework established in
Chapter 1. Specifically, the Commission considers the system by reference
to: (1) the aims of sentencing, and (2) the principles of justice.
3.45 In Chapter 1, the Commission
observed that, in general, criminal sanctions pursue one or more of a number of
aims, namely: deterrence, punishment, reform and rehabilitation, reparation,
and incapacitation.[892] The
Commission also observed that deterrence and punishment (and incapacitation)
tend to feature more in cases involving more serious crimes and, consequently,
where sanctions are more severe. These aims feature most heavily in cases
involving murder and the mandatory life sentence. The mandatory life
sentence seeks to dissuade by coercive means the perpetrator of the murder (and
the public at large) from committing another murder and to punish him or her
severely for the offence.
3.46 It has been observed, however, that
the mandatory life sentence may not adequately meet the aims of deterrence and
punishment.[893]
Regarding deterrence, it has been noted that some murders are committed in the
heat of the moment when the perpetrator does not contemplate the legal
consequences of his or her actions.[894]
In such circumstances, it is unlikely that the prospect of a mandatory life
sentence will enter into the perpetrator’s mind let alone dissuade him or her
from executing his or her intention. As discussed in Chapter 1, however,
when examining the issue of deterrence, one must consider that many members of
the public may have been inhibited from committing murder by the prospect of a
mandatory life sentence.
3.47 Regarding punishment, it has been
noted that murder can be committed in a variety of circumstances and involve
different levels of moral culpability.[895]
From a retributive perspective, a person with a lower level of moral
culpability does not deserve the same punishment as a person with a higher
level of moral culpability. (This is discussed in greater detail below at
paragraphs 3.49 to 3.57 in the context of consistency and proportionality.)
From a denunciatory perspective, the current mandatory life sentence
permits society to denounce in uniquely strong terms the offence of murder but
leaves little room for society to denounce in more or less strong terms the
more or less heinous instances of it. As discussed below at paragraphs
3.77 to 3.84, it may, however, be possible to reflect these differences in
culpability if the sentencing judge were permitted to recommend the minimum
term to be served by an offender convicted of murder.
3.48
In Chapter 1, the Commission observed that sentencing must comply with a
number of external constraints that emanate from fundamental principles of
justice, namely, the principles of: (a) consistency, and (b)
proportionality. In this section, the Commission considers the mandatory
life sentence for murder by reference to these principles.
3.49
In Chapter 1, the Commission observed that the principle of consistency
requires a consistent application of the aims and principles of sentencing
(consistency of approach) rather than uniformity of sentencing outcomes
(consistency of outcomes). To reiterate in brief, consistency of approach
requires that like cases should be treated alike and different cases should be
treated differently. The corollary of this is that inconsistency arises
where like cases are treated differently and different cases are treated alike.
3.50
As discussed in Chapter 2, the mandatory life sentence for murder
occupies a relatively unique position in the historical evolution of mandatory
sentences in so far as it was introduced as a replacement for a more severe sanction,
namely, the death penalty. The mandatory life sentence was considered to
be an acceptable alternative to the death penalty as every person convicted of
murder would continue (symbolically at least ) to pay for the offence with his
or her life. Thus from the outset, the focus of the sentence for murder
has been on the outcome of the sentencing process rather than the approach
to the sentencing process. As a result, all persons convicted of murder
are treated the same regardless of whether there are any distinguishing factors
in their circumstances or the circumstances of their offences. The
Commission observes that this amounts to different cases being treated alike
and is not, therefore, compatible with the principle of consistency. As discussed below at paragraphs
3.77 to 3.84, there may, however, be scope to distinguish individual cases if
the sentencing judge were permitted to recommend the minimum term to be served
by an offender convicted of murder.
3.51
Furthermore, as sentencing operates in conjunction with early release,
the Commission observes that full compliance with the principle of consistency
requires that any exacting standard that applies to sentencing should also
apply to early release. Arguably, a more consistent approach is taken in
respect of early release than in respect of sentencing for murder as the Parole
Board and the Minister for Justice consider each case against broadly the same
factors, namely, those listed at paragraphs 3.11 and 3.12. This may,
however, be jeopardised where, for instance, the Parole Board and the Minister
for Justice are: (i) dealing with a case in which the sentence has been
imposed following the application of an inconsistent approach, or (ii)
influenced by external events. Such external events might include media
attention surrounding the circumstances of a particular case that might
militate against release on parole or intervening changes in sentencing or
early release policy. This risk may, however, be minimised if the Minister for Justice and the
Parole Board were to receive guidance from the sentencing judge in the form of
a recommended minimum term to be served by the offender.
3.52
In Chapter 1, the Commission noted that the principle of proportionality
comprises: (a) constitutional proportionality, and (b) proportionality in
sentencing.
3.53
As discussed in Chapter 2, the Supreme Court in Whelan and Lynch[896]
held that section 2 of the Criminal Justice Act 1990 was compatible with
the principle of constitutional proportionality. In this regard, it
stated that the Oireachtas was entitled to promote respect for human life by
concluding that any murder, even at the lowest end of the scale, was so
abhorrent and offensive to society that it merited a mandatory life sentence.
3.54
In Whelan and Lynch,[897]
the Supreme Court made the following remarks regarding proportionality in
sentencing and the mandatory life sentence for murder:
“... [T]he duty to impose the sentence which is proportionate or appropriate to
the circumstances of the case only arises where a judge is exercising a
judicial discretion as to the sentence to be imposed within the parameters laid
down by law. It does not arise where a court is lawfully imposing a fixed
penalty generally applicable to a particular offence as described in Deaton
v The Attorney General.”
Thus, where a
mandatory sentence is prescribed by statute, the courts are precluded from
considering whether the sentence is proportionate to the particular
circumstances of the individual case.
3.55
A consequence of prescribing a mandatory sentence is thus to create a
system of sentencing in which sentencing proportionality plays a limited
role. In Chapter 1, the Commission observed that, for most cases, the
courts have adopted a three-tiered approach to formulating proportionate
sentences. This requires the courts to: (i) identify the range of
applicable penalties; (ii) locate the particular case on that range (by
reference to culpability, harm and offender behaviour); and (iii) apply any
factors which would mitigate or aggravate the sentence. Even though the
outcome of a sentencing hearing for murder is, in general, more severe than the
outcome of sentencing hearings for other offences, the sentencing process for
murder is much less complex. First of all, there is no need to identify a
range of applicable penalties; the only applicable penalty is the mandatory
life sentence. Secondly, there is no need to consider where on any
such range a particular murder case is located as all cases of murder,
irrespective of their particular circumstances, attract the mandatory life
sentence. Thirdly, there is no need to consider whether there are any
factors which mitigate or aggravate the severity of the sentence. As a
result, the courts do not distinguish between cases at the upper end of the
scale and cases at the lower end of the scale.
3.56
This reference to a “scale” is not to suggest that some murders are not
serious. It is undoubtedly the case that murder of any description
is a very serious offence. Indeed, by definition, every murder will
involve a significant degree of culpability, namely, an intention to
kill or cause serious injury, and result in an irreparable level of harm,
namely, the death of the victim.[898]
Once these requirements are met, however, there may be other factors which
could merit differential treatment. Some cases may exhibit a relatively
lower degree of culpability where, for instance, the murder was committed in
the heat of the moment, whereas other cases may exhibit a relatively higher
degree of culpability where, for instance, there is evidence of planning and
premeditation. An offender’s behaviour may be less reprehensible where,
for instance, he or she tried to save the victim, or more reprehensible where,
for instance, he or she tortured the victim over a prolonged period of time before
killing him or her. Furthermore, there may be factors such as a guilty
plea or material assistance which in the context of other offences might be
afforded weight but which cannot be taken into account in murder cases.
As discussed below at paragraphs 3.77 to 3.84, there would, however, be scope
to reflect the individual circumstances of each case if the sentencing judge were permitted to recommend a
minimum term to be served by an offender convicted of murder.
3.57
As with the principle of consistency, the Commission considers that full
compliance with the principle of proportionality requires that any exacting
standard that applies to sentencing should also apply to early release.
Arguably, a more proportionate approach is taken in respect of early release
than in respect of the sentence for murder in so far as the Parole Board and
the Minister for Justice consider the individual circumstances of each
case. In much the same way as with the principle of consistency, this may
be jeopardised where, for instance, the Parole Board and the Minister for
Justice are: (i) dealing with a case in which the sentence has been
imposed following the application of a disproportionate approach, or (ii)
influenced by external events. Such external events might include adverse
media attention surrounding the circumstances of a particular case or
intervening changes in policy. As discussed below at paragraphs 3.77 to 3.84, this risk may be
minimised if the Minister for Justice and the Parole Board were to receive
guidance from the sentencing judge in the form of a recommended minimum term to
be served by the relevant offender.
3.58 In Chapter 2, the Commission
observed that the system comprising the mandatory life sentence and early
release mechanisms has been considered by the Irish courts and the European
Court of Human Rights.
3.59 The constitutionality of the
mandatory life sentence was upheld by the Supreme Court in Whelan and Lynch
v Minister for Justice, Equality and Law Reform.[899]
Regarding section 2 of the Criminal Justice Act 1990, the Supreme Court
held that it was not contrary to the constitutional doctrine of the separation
of powers for the Oireachtas to prescribe a mandatory sentence for certain
offences provided that there was a rational connection between the prescribed
sentence and the requirements of justice. It also held that although
murder could be committed in a variety of circumstances, it was not contrary to
the constitutional principle of proportionality for the Oireachtas to prescribe
a mandatory life sentence for all murders as any murder, even at the lowest end
of the scale, is so abhorrent and offensive to society that it merits a life
sentence.[900] The
Court also held that a constitutional interpretation of section 2 of the 1990
Act did not require the sentencing courts to make a non-binding recommendation
regarding the minimum term to be served by an offender before he or she became
eligible for release. It did not, however, reject the possibility that
the Oireachtas could introduce such a system. Regarding temporary
release, the Supreme Court held that the Minister’s power to grant temporary
release was not contrary to the constitutional doctrine of the separation of
powers as the granting of temporary release was not a sentencing exercise.[901]
3.60 The compatibility of a mandatory
sentencing system with the European Convention on Human Rights was upheld by
the European Court of Human Rights (ECtHR) in Kafkaris v Cyprus.[902]
Regarding the mandatory life sentence, the Court ruled that a mandatory life
sentence would not in itself give rise to an issue under Article 3 provided
that there was a de facto and de jure possibility of
release. It also held that prolonged detention under an entirely punitive
life sentence, irrespective of considerations of risk or dangerousness, was
compatible with Article 5(1) as there was a clear and sufficient causal
connection between the conviction and the continued detention. The Court
refrained from ruling on a complaint under Article 5(4), which might have
clarified whether, in the case of a mandatory life sentence, the requirements
of Article 5(1) were satisfied by the original trial and appeal proceedings[903]
or whether a review was required.[904]
3.61 It should be noted, however, that
since its decision in Kafkaris the ECtHR appears to have modified its
position regarding the compatibility of the mandatory life sentence with
Article 3. In Vinter, Bamber and Moore v United Kingdom,[905]
the Court indicated that a mandatory life sentence without the possibility of
parole might in itself give rise to an issue under Article 3 where it was
considered to be grossly disproportionate. It noted, however, that “gross
disproportionality” was a strict test which would rarely be met. This
modified position appears to coincide with the recognition by the Court of a
trend away from the mandatory life sentence among the Council of Europe Member
States. In Kafkaris, the Court indicated that in the absence of a
discernible trend amongst Member States it was within the margin of
appreciation of each Member State to decide on the system it adopted in respect
of life sentences. The Court thus concluded that it was acceptable for a
Member State such as Cyprus to operate a mandatory life sentence without
parole. By contrast, in Vinter, the Court observed that the trend
in Europe was “clearly against” the mandatory life sentence without
parole. While the Court did not conclude that it was no longer acceptable
for a Member State to operate a mandatory life sentence without parole, the
inference is that if the current tide against the mandatory life sentence
continues the Court might develop further the test of “gross disproportionality.”
3.62 Nevertheless, as the law currently
stands, it would appear that the system comprising a mandatory life sentence
and early release is, in general terms, compatible both with the Constitution
of Ireland and with the European Convention on Human Rights (ECHR). (As
discussed above at paragraphs 2.101 to 2.104, this is subject to continuing
uncertainty as to whether Article 5(4) of the ECHR entitles prisoners serving
wholly punitive life sentences to regular reviews of their detention by an independent,
court-like body.) In light of the Attorney General’s request, however,
there remains the question of whether the current system should be retained,
repealed or reformed. Accordingly, the Commission now turns to the
arguments that may be made in favour of each of these options. In doing
so, it first discusses the mandatory life sentence itself. The Commission
then discusses related matters that arise in the context of the arrangements
for early release and the extent to which this aspect of the system might be
reformed.
3.63
The Commission
acknowledges that a variety of arguments exist in favour of both the retention
and the abolition of the mandatory life sentence for murder. During the public
consultation and roundtable discussion which the Commission conducted after the
publication of the Consultation Paper, a range of contrasting views were
expressed in relation to the persuasiveness of these arguments.
Similarly, within the Commission itself, differing views have emerged as to
which set of arguments carries greater weight.
3.64
In this section, the Commission first outlines the arguments in
favour of retaining the mandatory life sentence for murder. These
arguments are considered to be persuasive by a majority of the Commission,
President Quirke and Commissioners Baker and Flanagan. The arguments in
favour of replacing the mandatory life sentence for murder with a discretionary
life sentence are then outlined in turn. These arguments are considered
to be persuasive by a minority of the Commission, Commissioners O’Connell and
O’Malley.
3.65
In the first place, as
observed by the Supreme Court in Whelan and Lynch v Minister for Justice,
Equality and Law Reform:
“[i]n committing the crime of murder the perpetrator deprives the
victim, finally and irrevocably, of that most fundamental of rights, the right
‘to be’ and at the same time extinguishes the enjoyment of all other rights
inherent in that person as a human being.”[906]
For this reason, the offence has long “been regarded as the ultimate crime against
society as a whole”.[907]
3.66
Murder is the most
serious criminal offence and it is therefore appropriate that it should attract
the most severe sanction permissible under Irish law. As discussed at
paragraph 2.218 since the abolition of the death penalty by the Criminal
Justice Act 1990, life imprisonment fits this mould. It is arguable
that only this, the most punitive of available penalties, serves to denounce
murder as the most heinous offence under Irish law.
3.67
This is not to deny
that murder may be committed in a variety of circumstances and that some
offenders may be more culpable than others. However, as
acknowledged by the Supreme Court in Whelan and Lynch, it remains the
case that “the crime itself, by its very nature, has always been
considered at the highest level of gravity among all forms of homicide or other
crimes against the person, whatever the circumstances”.[908]
It may thus be argued that murder, even in its least culpable form, is so
repugnant to society that it merits the imposition of a mandatory life
sentence. This was the view adopted by the High Court and affirmed by the
Supreme Court in Whelan and Lynch. In the High Court, Irvine J
notably concluded that “there can be nothing offensive in the Oireachtas
promoting the respect for life by concluding that any murder even at the lowest
end of the scale, is so abhorrent and offensive to society that it merits a
mandatory life sentence... ”.[909]
As discussed below at paragraphs 3.77 to 3.84, however, differences in
culpability could be reflected if the sentencing judge were permitted to
recommend the minimum term to be served by an offender convicted of murder.
3.68
A closely related
argument is that the provision of a discretionary life sentence for murder
would fail to reflect the unique gravity of this form of homicide. At
present, life imprisonment is the discretionary maximum penalty for the offence
of manslaughter. If both murder and manslaughter were subject to the same
penalty regime, it is considered that this would blur the distinction between
these offences. As murder alone involves the killing of a person
arising from an intention to kill or cause serious injury, it is considered
that this should be differentiated by the application of a distinct penalty
regime.
3.69
A further argument in
favour of retaining the mandatory life sentence for murder is that this penalty
facilitates the protection of the public against the risk of further violence
on the part of a convicted murderer. Although prisoners serving life
sentences will rarely remain in prison for the rest of their natural lives, the
fact that they are serving life sentences means that their release is
conditional on their good behaviour (as discussed at paragraphs 3.06 and 3.07).[910]
If released, these offenders remain at liberty subject to the conditions of
their temporary release under the Criminal Justice Act 1960, as amended
by the Criminal Justice (Temporary Release of Offenders) Act 2003.
In addition, they are monitored by the Probation Service of the Department of
Justice and can be returned to prison if they breach the terms of their
temporary release. By contrast, an individual who has served a
determinate sentence cannot, in the event that he or she breaches the terms of
their temporary release, be returned to prison on the basis of the original
conviction.
3.70
In the first place, as
not all murders are equally heinous, it is considered unjust that an identical
penalty should apply in every case. While some murderers may exhibit a
level of appalling depravity or sadism, the majority of these offences occur in
an emotional context. As the mandatory life sentence cannot reflect these
variations in culpability, it is difficult to reconcile this penalty regime
with the principles of consistency and proportionality in sentencing.
3.71
A related argument is
that if judges had sentencing discretion for both murder and manslaughter,
sentencing practice could reflect the fact that some instances of murder are
very close to voluntary manslaughter in terms of culpability.[911]
The Supreme Court noted in The People (DPP) v Conroy (No. 2) that:
“[h]aving regard to the multiple factors which enter into consideration
of sentence in the case of a homicide, there would not appear to... be any
grounds for a general presumption that the crime of manslaughter may not,
having regard to its individual facts and particular circumstances be in many
instances, from a sentencing point of view, as serious as, or more serious
than, the crime of murder.”[912]
3.72
The provision of
sentencing discretion for both murder and manslaughter would also offset the
possibility that juries may, in some instances, feel tempted to acquit some
killers of murder and convict them of manslaughter in order to spare the
offender the application of the mandatory life sentence.
3.73
It would not
necessarily follow, however, that the substitution of a discretionary life
sentence for the mandatory life sentence would erode the distinction between
murder and manslaughter as the elements of these homicide offences would remain
the same notwithstanding any reform of the applicable punishments.
3.74
A further argument
against the retention of the mandatory life sentence is that there is a lack of
clarity regarding the consequences of this penalty. While the sentence
endures for life in the sense that a released murderer may be recalled to
prison for breaching his or her conditions of temporary release, the term ‘life
sentence’ is nonetheless misleading. This term suggests that the offender
will spend the remainder of his or her life in prison. However, in
practice, the sentence specified in court bears no relationship to the
punishment which a convicted murderer will undergo. The pronouncement of
this penalty therefore provides no meaningful information to the offender, the
victim’s family, the media or the public as to what the sentence really means. As those convicted of murder do not
in reality receive the same penalty, the argument that there is only one
appropriate punishment for this offence is also problematic.
3.75
Finally, if the
mandatory life sentence for murder were replaced with a discretionary life
sentence, a convicted murderer could still be subjected to ‘life-long’
post-release conditions. An offender who receives a discretionary life
sentence is also eligible to be recalled to prison, in the event that he or she
breaches the conditions attached to temporary release. In this respect, a
discretionary life sentence for murder would afford just as much protection to
the public as a mandatory life sentence.
3.76
The Commission, by a
majority, recommends that the mandatory life sentence for murder be retained.
3.77
The Commission now turns to consider how the mandatory sentencing
regime for murder could be reformed by the introduction of a judicial power to
recommend a minimum term to be served.
3.78
As discussed at paragraph 3.15ff, in Northern Ireland, a
mandatory life sentence for murder is prescribed by section 1(1) of the Northern
Ireland (Emergency Provisions) Act 1973. Article 5 of the Life
Sentences (Northern Ireland) Order 2001 requires that where a court imposes
a life sentence, it must specify the minimum period that must be served by the
offender “to satisfy the requirements of retribution and deterrence,” before he
or she becomes eligible for parole.[913]
Where the offence is particularly serious, the court may order a “whole life
tariff” if it considers that the offender should be detained for the remainder
of his or her natural life.[914] In
calculating the minimum term to be served by an offender, the Northern Ireland
Court of Appeal, in R v Candless,[915]
directed the courts to have regard to the guidance provided by Lord Woolf LJ in
his 2002 Practice Statement (Crime: Life Sentences). The
Practice Statement (as discussed at paragraph 3.18) sets out the starting
points, and the circumstances in which each starting point applies, and also
outlines the factors which tend to aggravate or mitigate the duration of the
minimum term.
3.79
As discussed at paragraph 2.12, in England and Wales, section 1(1) of
the Murder (Abolition of the Death Penalty) Act 1965 provides for a
mandatory life sentence for murder. Under section 269 of the Criminal
Justice Act 2003, a court is required, when imposing a life sentence, to make
an order specifying the minimum term to be served by the offender before he or
she may be considered for release by the Parole Board.[916]
Where the court is of the opinion that, because of the seriousness of the offence,
no such order should be made, it must order that the early release provisions
are not to apply to the offender.[917]
As to how to calculate a minimum term, Schedule 21 of the Criminal Justice
Act 2003 (as discussed at paragraph 3.23ff) sets out the starting points,
the circumstances which dictate which starting point applies, and the factors
which tend to aggravate or mitigate the duration of the minimum term. The
Commission considers that the approach adopted in Northern Ireland is
preferable to the more prescriptive legislative model established in England
and Wales, under which the appropriate starting points are specified by the Criminal
Justice Act 2003.
3.80
In the view of the Commission, the Northern Irish experience illustrates
the benefits of permitting sentencing courts to pronounce on the relative
culpability of convicted murderers. Cases such as R v Howell[918] and R v Stewart[919] (discussed above at paragraphs 3.19 and 3.20)
demonstrate that this approach enables the courts to incorporate elements of
the principles of proportionality and consistency when sentencing the offence
of murder. Furthermore, where courts are afforded scope to acknowledge
the various aggravating and mitigating factors which may characterise murder
cases, this plays an important role in maintaining public confidence in the
sentencing process.
3.81
The Commission also considers that permitting sentencing courts to
pronounce on the relative culpability of convicted murderers may reduce two
problems associated with the current early release arrangements for
murder. The first problem relates to the factors considered by the
Parole Board and the Minister for Justice in assessing whether an offender is
suitable for release. As discussed at paragraph 3.13, in performing this
role, the Parole Board and the
Minister for Justice take into account a number of factors that are comparable,
though not identical, to those considered in the sentencing process. In
particular, consideration of the nature and gravity of the offence engages the
Parole Board and the Minister for Justice in a process that closely resembles a
sentencing exercise.[920] This
is an unavoidable consequence because the Parole Board and the Minister for
Justice should not be blind in their analysis to the seriousness of the
particular offender’s offence or to the severity of the sentence that he or she
is serving. The concerns that this overlaps with considerations that are
more appropriate to the sentencing process might be alleviated if the Parole
Board and the Minister for Justice were to receive guidance from the sentencing
judge in the form of a recommended minimum term to be served by the particular
offender.
3.82
The second problem
relates to the possibility that external events may influence the Minister for
Justice or the Parole Board in their consideration of a case for early release.
As discussed at paragraph 3.51, it is arguable that a more consistent and
proportionate approach is taken in respect of the granting of early
release than in respect of sentencing for murder. This is because the
Parole Board and the Minister for Justice: (i) consider each case against
broadly the same factors, namely, those listed at paragraphs 3.11 and 3.12
(thereby facilitating consistency), and (ii) have regard to the individual
circumstances of each case under consideration (thereby facilitating
proportionality). This approach may be jeopardised, however, where the
Parole Board and the Minister for Justice are: (i) dealing with a case in
which the sentence has been imposed following the application of an inconsistent
and/or disproportionate approach, or (ii) influenced by external events.
Such external events might include adverse media attention surrounding the
circumstances of a particular case or intervening changes in sentencing or
early release policy. The Commission considers, however, that this risk
would be reduced if the
Minister for Justice and the Parole Board were to receive guidance from the
sentencing judge in the form of a recommended minimum term to be served by the
offender.
3.83
The Commission has concluded, therefore, that it would be “appropriate
and beneficial” to permit sentencing courts to recommend a minimum term to be
served by an offender convicted of murder. As noted at paragraph
3.05, Article 13.6 of the Constitution provides that the power to commute or
remit punishment imposed by any court is vested in the President but may also
be conferred by law on other authorities. This was done in the Criminal
Justice Act 1951, which confers the right to remit a sentence on the
Government.[921] For this reason, any judicial indication at
sentencing that an offender sentenced to life imprisonment should serve a
minimum term is subject to the power of remission of the Executive under
Article 13.6 and therefore would constitute a recommendation only that the
offender serve such term. The Commission considers that this proposed
reform would complement its earlier recommendation that a Judicial Council be
empowered to provide guidance on sentencing. It is suggested that,
together, these changes would serve to enhance consistency and proportionality
in the Irish sentencing process.
3.84
The Commission recommends
that where an offender is convicted of murder, and is therefore sentenced to
life imprisonment, legislation should provide that the judge may recommend a
minimum term to be served by the offender.
3.85
As discussed above at
paragraphs 2.101 to 2.104, it may be questioned whether the mandatory
life sentence for murder and the accompanying early release arrangements comply
with Article 5(4) of the European Convention on Human Rights (ECHR). The
case-law of the European Court of Human Rights has not addressed the question
of whether Article 5(4) entitles prisoners serving wholly punitive life
sentences to regular reviews of their detention by an independent, court-like
body. For this reason, in Whelan and Lynch v Minister for Justice,
Equality and Law Reform,[922] the
Supreme Court held that the non-statutory, advisory nature of the Parole Board
does not necessarily conflict with the requirements of Article 5 ECHR.
The Commission considers, however, that the establishment of the Parole Board
on a statutory basis is desirable and welcomes the Government’s stated
intention to introduce this reform.[923]
It notes that the establishment of a statutory Parole Board would have the
benefit of enhancing the consistency and transparency of sentencing outcomes in
murder cases. The specification of a recommended minimum term by a
sentencing court (as recommended by the Commission in this Report) would, in
turn, assist the proposed statutory Parole Board in performing its
functions.
3.86
The Commission
recommends that the Parole Board be established on an independent statutory
basis, and welcomes the Government’s proposal to introduce legislation bringing
about this effect.
4
4.01
In this Chapter, the Commission considers the second type of mandatory
sentence identified in the introduction, namely, the presumptive minimum
sentence. Two pieces of legislation provide for such a sentencing regime
in Ireland: the Misuse of Drugs Act 1977 and the Firearms Acts. In
Part B, the Commission considers the sentencing regime under the Misuse of
Drugs Act 1977, beginning with an examination of how this regime operates
in practice. In Part C, the Commission considers the practical operation
of the sentencing regime under the Firearms Acts. Part D considers
the use of minimum sentencing regimes in other common law countries. The
Commission concludes in Part E by examining each of these presumptive
sentencing regimes against the conceptual framework for criminal sanctions and
sentencing.
4.02
There are two offences under the Misuse of Drugs Act 1977 which
attract a presumptive minimum sentence. These are the offences of
possessing[924] and
importing[925] controlled
drugs, having a value of €13,000 or more,[926]
with intent to sell or supply. Where a person is convicted of either of
these offences, the court must impose a minimum sentence of 10 years[927]
unless there are exceptional and specific circumstances which would make such a
sentence unjust in all the circumstances.[928]
In this section, the Commission considers the application of this category of
presumptive minimum sentence by examining: (1) the elements of the possession
and importation offences, (2) the relevant penalty provisions, (3) the early
release provisions, and (4) the particular situation of drug couriers.
4.03
Some of the elements described below are particular to either the
possession offence under section 15A of the Misuse of Drugs Act 1977 or
the importation offence under section 15B. Others are common to both
offences.
4.04
The first element of the offence under section 15A (but not section 15B)
is “possession” of a controlled drug. While the term possession has not
been definitively defined, the legal understanding of the term may be
distinguished from the common understanding. Whereas the common
understanding might equate “possession” with “custody”, the legal understanding
identifies “custody” as being just one aspect of a more complex theory.
In this regard, McAuley and McCutcheon observe that possession comprises
control or dominion over goods and knowledge of their existence.[929]
Thus, a person may, in legal terms, possess goods regardless of whether or not
he or she has custody of them. Where a person has custody and exercises
control over goods, he or she is said to have “actual possession” of the goods.[930]
Where, on the other hand, a person does not have custody of the goods but
exercises control over them, he or she is said to have “constructive
possession” of the goods. By way of illustration, McAuley and McCutcheon
refer to the judgment of Davitt P in Minister for Posts and Telegraphs v
Campbell:[931]
“... a person cannot, in the context of a criminal case, be properly said to
keep or have possession of an article unless he has control of it personally or
by someone else. He cannot be said to have actual possession of it unless
he personally can exercise physical control over it; and he cannot be said to
have constructive possession of it unless it is in the actual possession of
someone over whom he has control so that it would be available to him if and
when he wanted it... He cannot properly be said to be in control or
possession of something of whose existence and presence he has no knowledge.”[932]
4.05
Thus, the term “possession” is broad enough to describe the range of
roles played by those involved in the drugs supply chain. At one end of
the scale, there are the high-level offenders who manage and direct the supply
chain. These may be described as having constructive possession of the
drugs as they exercise ultimate control over the supply chain. At the
other end of the scale, there are the low-level offenders who, for instance,
are coerced into delivering the drugs to their final destination. These
may be described as having actual possession of the drugs as they exercise
physical control over the drugs.
4.06
The Court of Criminal Appeal has considered the issue of possession in a
number of drugs cases. In The People (DPP) v Gallagher,[933]
the applicant sought to appeal his conviction on the ground that the evidence
did not establish that he as a matter of law had ever been in possession of the
drugs in question. It was submitted that since the container had been at
all times under Garda surveillance, it, together with its contents, had been in
the custody and control of the authorities and could not in law, therefore, be
described as being in his possession. In rejecting this argument, the
Court stated:
“The word ‘possession’ is a common word of the English language and well known
to the law. There are many offences concerning unlawful possession such
as those relating to firearms, stolen goods, pornography, lethal weapons
etc. It is a term which may indeed require particular analysis in certain
contexts such as where there is an issue of constructive possession. In
this case the context is plain. It is one of actual possession.
Possession having been taken of the container on delivery, the men in question opened
it and proceeded to unload its contents... [T]hey were exercising
physical control over the container and its contents. There could not be
a clearer case of actual possession. The fact that the gardaí were
involved in a close surveillance operation with a view to arresting those
involved in the transportation and unloading of the drugs does not take away
from these objective facts and does not in law mean that those involved did not
at the time of their arrest have possession of the drugs in question...
Surveillance operations based on information and intelligence are part and
parcel of policing techniques and it would be ludicrous to suggest that such
surveillance operations, which closely monitor illegal activity with a view to
arresting the culprits, could in some way exculpate such culprits from
responsibility for their actions and in particular mean that they did not have
possession of that which was de facto in their possession.”
4.07
In The People (DPP) v Goulding,[934]
the Court of Criminal Appeal considered whether there was sufficient evidence
to leave the question of possession to the jury. An independent witness
had testified to seeing a package being thrown from the passenger side of a car
in which the applicant had been the front-seat passenger. The Court of
Criminal Appeal concluded that this constituted sufficient evidence.
4.08
The first element of the offence under section 15B (but not section 15A)
is “importation” of a controlled drug. While the term “import” has not
been defined by the Misuse of Drugs Act 1977, as amended, the ordinary
meaning of the term is to bring goods or services into a country for sale.[935]
In this regard, it may be noted that while it is an offence under section 15B
to import controlled drugs, it is not an offence under section 15B to export
controlled drugs. This raises an issue as to whether a person
convicted of exporting controlled drugs worth €13,000 or more, like a person
convicted of importing the same value of controlled drugs, may attract a
presumptive minimum sentence of 10 years.
4.09
The second element of the offences under section 15A and section 15B is
that the possession or importation must relate to a controlled drug. The
term “controlled drug” is defined by section 2(1) of the Misuse of Drugs Act
1977 as:
“... any substance, product or preparation (other than a substance, product or
preparation specified in an order under subsection (3) of this section which is
for the time being in force) which is either specified in the Schedule to this
Act or is for the time being declared pursuant to subsection (2) of this
section to be a controlled drug for the purposes of the Act.”
There is thus no distinction between different types of controlled drugs.
4.10
The third element of the offences under section 15A and section 15B is
that the controlled drug must have a market value of €13,000 or more. The
term “market value” is defined as the price that the drug could be expected to
fetch on the market for the unlawful sale or supply of controlled drugs.[936]
4.11
Evidence regarding the market value of the drug may be given by a member
of An Garda Síochána or an officer of customs and excise who has knowledge of
the unlawful sale or supply of controlled drugs.[937]
In The People (DPP) v Hanley,[938]
the applicant had sought leave to appeal his conviction on the ground that the
trial judge had erred in admitting evidence from a retired Garda regarding the
value of the drugs in question. It was submitted that the effect of
section 15A(3) was to prescribe the manner in which the value of the controlled
drug had to be proved and that was by means of a Garda witness giving evidence
in accordance with the section. The Court of Criminal Appeal rejected
this argument and held that section 15A(3) was an “enabling provision”:
“It enables the value of the drugs to be proved by a member of the Garda
Síochána or an officer of the Customs and Excise who has knowledge of the
unlawful sale or supply of controlled drugs. But what the subsection does
not do is say that such evidence may not be adduced in some other manner.
It could be adduced by an admission. It could be adduced by some other
expert. Certainly any person who would have knowledge of the illegal drug
industry may be in a position to satisfy the trial judge that he has the status
of an expert and so place himself in a position to give evidence.”
The court found that
while the retired Garda witness did not come within section15A(3), he had
proved himself an expert by providing evidence regarding his knowledge and
experience of the sale and supply of controlled drugs. Thus, he had been
competent to give evidence.
4.12
The use of “market value” as the standard for determining whether an
offence under section 15A or section 15B has been committed, and therefore
whether the statutory minimum sentence applies, is problematic in a number of
respects.[939] By
and large, these problems stem from the fact that the market value of any
commodity may fluctuate to a significant degree depending on when and where
that commodity is sold and how much of that commodity is already on the market.[940]
As a result, evidence regarding the market value of drugs is at best an
estimate.
4.13
Thus, it may be argued that “market value” is not capable of proof
beyond a reasonable doubt. However, that section 15A obliges the
prosecution to establish this criterion beyond a reasonable doubt was recently
acknowledged by the Supreme Court in The People (DPP) v Connolly:[941]
“... [P]roof of value is an essential ingredient of the offence under section
15A. It is what distinguishes it from the offence of possession for sale
or supply of an unquantified and unvalued amount of drugs. Most
importantly, it is what has caused the Oireachtas, subject to exceptional
mitigating circumstances, to mark the offence as one of extreme seriousness
such as to require imprisonment. This is, of course, subject to the
exceptions mentioned in the section. The ingredient of value must be
proved to the satisfaction of the jury beyond reasonable doubt.”[942]
Given that the
market value is not static, it is at least arguable that in most (if not all)
cases, there will be a reasonable doubt as to the accuracy of the market value
being asserted.[943]
4.14
The fact that the market value may fluctuate to a significant degree
gives rise to a second problem: the risk of arbitrariness. It is not
difficult to imagine a situation in which two similarly placed people, convicted
of identical offences under section 15A, are sentenced to different terms of
imprisonment because the market value in the locality of the first offence is
different to the market value in the locality of the second.[944]
4.15
For similar reasons, O’Malley asserts that “market value” is an
inappropriate triggering factor.[945]
In this regard, he observes that minimum sentences are generally triggered by a
factor which is additional to, or aggravates, the basic offence. He
asserts that these triggering factors should be clearly defined and capable of
unequivocal identification. As market value depends on an estimated
street value of the drugs, it cannot be clearly defined and is not capable of
unequivocal definition.[946]
4.16
Finally, it has been noted that the threshold of €13,000 has not been
adjusted since its introduction, with the exception of a slight increase when
the Euro was introduced.[947]
This, it is argued, creates a risk of arbitrary and unjust consequences which
is mitigated only by the exercise of the limited judicial discretion accorded
by section 27.[948]
4.17
The process by which market value is determined was considered by the
Supreme Court in The People (DPP) v Connolly.[949]
The appellant had been charged with an offence under section 15A when 10 packs
containing 10 kilogrammes of drugs were found in his car. Five of the 10
packs were analysed and found to contain amphetamine. While the purity of
the amphetamine was not tested, the forensic evidence was that “in general”
purities fell between 10 percent and 40 percent. On cross-examination, it
was conceded that the presence of as little as 1 percent of amphetamine could
trigger the results which had been achieved. The crucial issue was
whether the threshold market value of €13,000 had been established. If
there had been 10 percent of amphetamine in five of the packs, the value of the
drugs would have been approximately €72,877.50. However, if there had
only been 1 percent of amphetamine, the value would have been €7,287.75 which
would not have triggered the statutory minimum sentence.
4.18
In the Circuit Criminal Court, the appellant sought a direction that
there was no case to answer on the ground that there was insufficient proof
that the drugs were worth €13,000 or more. The trial judge refused the
application and sentenced the appellant to 10 years’ imprisonment. The
appellant appealed to the Court of Criminal Appeal on the ground that the trial
judge had erred in not withdrawing the case from the jury. The Court of
Criminal Appeal dismissed the appeal but, pursuant to section 29 of the Courts of Justice
Act 1929, certified the following question as a question of law of
exceptional public importance:
“In a prosecution pursuant to section
15A of the Misuse of Drugs Act 1977, for the purpose of ascertaining the
amount of a controlled substance present in a powder in a sealed container or
in a number of such containers proven by expert evidence to contain that particular
controlled substance, may the amount of that controlled substance present in
the powder be established by the oral evidence of an expert as to the range
within which amounts of that controlled substance in other powders generally
fell and, if the answer is in the affirmative, must the prosecution disclose to
the defence a statement for a report by that expert setting out the facts upon
which her or his opinion as to that range is based?” [emphasis added.]
4.19
The Supreme Court considered the limited extent to which the samples had
been analysed in so far as the purity of the amphetamine had not been
tested. It examined the use of the term “generally” to describe the rate
at which purity levels fell between 10 percent and 40 percent. In the
absence of any clarification as to what “generally” meant, the Supreme Court
concluded that “generally” meant “probably” and that probability was not enough
to exclude the possibility that the percentage of amphetamine present could
have been as low as 1 percent. The Supreme Court thus set aside the
conviction.
4.20
O’Malley commends the Supreme Court for having “reached the right
decision ... for the right reason”.[950]
He notes, however, that:
“It is rather frightening in retrospect to realise that a conviction for a
s.15A offence could be based on the probability as opposed to the actuality of
drug purity levels. It is all the more worrying in circumstances where
conviction carries either a presumptive or mandatory minimum sentence of 10
years’ imprisonment, a matter to which the Supreme Court rightly drew
attention. The quashing of the appellant’s conviction should be a wake-up
call to those charged with furnishing the necessary proofs in trials for s.15A
and s.15B offences.”[951]
4.21
The process by which market value is determined was considered by the
Court of Criminal Appeal in the earlier case of The People (DPP) v
Finnamore.[952] The
applicant had been charged with an offence under section 15A when he was found
in possession of a number of bags in which amphetamine was detected. The
forensic evidence was that tests had been carried out on one of 48 tape-bound
plastic packs and a sample of loose white powder found in another bag.
The evidence was that amphetamine was the “main component” in the plastic pack
and a “major component” of the loose white powder. Further tests were
carried out on 16 of the 48 packs and a sample of the loose white powder.
The evidence was that there was a “presence of amphetamine”. At no point
was the purity of the amphetamine analysed.
4.22
The applicant argued that it was not reasonable to ask the jury to
accept that on the basis of an analysis of a small portion of the drugs found,
all the drugs were, beyond a reasonable doubt, the same. The Court of
Criminal Appeal held:
“The question as to what is or is not sufficient analysis, in terms of amount,
or the purity of the drugs, must depend on the circumstances of each
case. There is no principle or rule of law known to this court which
requires that in each and every case, every package must inevitably be
individually analysed before a conviction can be considered safe.”[953]
Thus it would appear that an analysis need not be carried out on every pack
found in every case. This will, however, depend very much on the
circumstances of the particular case. In Finnamore, for instance,
the Court appeared to attach weight to the fact that the 48 packs had been
“wrapped in a substantially identical manner” and placed together while the
loose powder was found “without any apparent division or distinction between
what was taken for analysis and the remainder of the bulk”. The Court
noted, however, that in a different case, a more extensive analysis might be
required.
4.23
In The People (DPP) v Connolly,[954]
the Supreme Court distinguished Finnamore on the ground that the
forensic evidence in Finnamore was that amphetamine was the “main” or
“major” component in the samples taken.
4.24
The Misuse of Drugs Act 1977, as amended, provides that mens
rea regarding the value of the drugs involved is not necessary.[955]
This ensures that the range of actors in the drugs supply chain may be found
guilty of an offence under section 15A or section 15B. At one end of the
scale, there are the high-level offenders who undoubtedly know the approximate
value of the controlled drugs while, at the other end of the scale, there are
the low-level offenders who are less likely to know the value of the drugs
4.25
The fourth element of an offence under section 15A (but not section 15B)
is that the possession must be motivated by an intention to sell or supply the
controlled drugs. However, it is rarely, if ever, necessary for the
prosecution to prove intention as section 15A(2) contains a reverse onus
provision. This permits the court to presume, until satisfied to the
contrary,[956] that there
was such an intention where, having regard to the quantity of the controlled
drug or to such other matters as it considers relevant, it is satisfied that
the controlled drug was not intended for immediate personal use.
4.26
Section 27(3C) of the Misuse of Drugs Act 1977[957] provides that where a person is convicted of an offence
under section 15A or section 15B, the court must impose a sentence of not less
than 10 years.[958] Section 27(3C) must, however, be read in
conjunction with section 27(3A), which provides that the maximum sentence for
an offence under section 15A is life imprisonment, and section 27(3D), which
provides that a period shorter than 10 years may be imposed where there are
“exceptional and specific circumstances” relating to the offence or the
offender.
4.27
The presumptive 10-year minimum should not be used as a benchmark
sentence but may be a useful guide as to the gravity of the offences under
section 15A. In The People (DPP) v Renald,[959]
the applicant sought leave to appeal against a sentence of five years and
argued that once exceptional and specific circumstances were found to exist,
the 10-year minimum became irrelevant. The Court of Criminal Appeal
rejected this argument:
“Even where exceptional circumstances exist which would render the statutory
minimum term of imprisonment unjust, there is no question of the minimum
sentence being ignored... even though that sentence may not be applicable in a
particular case, the very existence of a lengthy mandatory minimum sentence is
an important guide to the Courts in determining the gravity of the offence and
the appropriate sentence to impose for its commission. That is not to say
that the minimum sentence is necessarily the starting point for determining the
appropriate sentence. To do so would be to ignore the other material
provisions, that is to say the maximum sentence.”[960]
This passage has been endorsed by the courts on a number of
occasions.[961]
4.28
The Court of Criminal Appeal has also considered the method by which the
courts determine the sentence to be imposed in individual cases. In The
People (DPP) v Duffy,[962] the
applicant sought leave to appeal against a sentence of six years. In the
Circuit Court, the judge had outlined the method by which he would determine
the length of the sentence to be imposed. He indicated that he would
first assess the length of the sentence on the assumption that there were no mitigating
factors. He would then consider the various mitigating factors and reduce
the sentence accordingly. If the result was a sentence which was greater
than the statutory minimum, that would be the sentence which he would
impose. If, on the other hand, the result was a sentence which was less
than the statutory minimum, he would consider whether he should increase the
sentence to the statutory minimum. The Court of Criminal Appeal upheld
this approach and found that it was “essentially in harmony” with the law as
explained by Murphy J in Renald. It noted that other methods might
be equally satisfactory provided that the sentencing judge had taken account of
the statutory minimum as he or she was obliged to do. In subsequent
cases, however, the Court of Criminal Appeal has tended to advocate the
approach adopted in Duffy.[963]
Irrespective of the approach adopted, however, it
would appear that best practice requires the sentencing judge to set out
clearly the method by which he or she has determined the sentence to be
imposed.[964]
4.29 Section 27(3D)[965]
of the Misuse of Drugs Act 1977, as amended, provides that section
27(3C)[966] will not
apply where the court is satisfied that there are exceptional and specific
circumstances relating to the offence, or the person convicted of the offence,
which would make a sentence of at least 10 years’ imprisonment unjust in all
the circumstances. By contrast with ordinary mitigating factors, the
circumstances contemplated by section 27(3D) must be both exceptional and
specific.[967]
4.30 The extent to which exceptional and
specific circumstances may justify a downward departure from the statutory
minimum is not a precise mathematical calculation. In The People (DPP)
v Rossi and Hellewell[968]
the Court of Criminal Appeal thus noted:
“Firstly it cannot be assumed that ten years is the appropriate sentence from
which any discounts are to be calculated. The maximum period is life
imprisonment, not to say that these particular offences would have attracted
life imprisonment, but it is not correct necessarily to calculate by deduction
from ten years and secondly it is not an exercise in a mathematical process
where you take three years for one element and then look for a further
calculated discount under the headings... .”
Where there is
an overlap between various exceptional and specific circumstances, this should
not necessarily result in separate reductions of the sentence.[969]
In
any case, the sentence imposed should always reflect the gravity of the
particular offence.[970]
4.31 Section 27(3D) indicates that
exceptional and specific circumstances may include “any matters [which the
court] considers appropriate”, including whether the person has pleaded guilty
to the offence and whether the person has materially assisted in the
investigation of the offence. As noted in Chapter 1, a guilty plea
and material assistance are, in general, considered to be factors which
mitigate the severity of the sentence rather than the seriousness of the
offence.
4.32 Section 27(3D)(b)(i)[971]
of the Misuse of Drugs Act 1977, as amended, provides that a guilty plea
may be considered an exceptional and specific circumstance for the purpose of
considering whether the statutory minimum sentence of 10 years should
apply. The provision recognises, however, that: (a) the stage at
which the accused indicates his or her intention to plead guilty;[972]
and (b) the circumstances surrounding that plea[973]
may be relevant to the determination of whether or not the statutory minimum
should apply. Thus, it has been noted that an early guilty plea merits
more credit than a late guilty plea[974]
and
that an accused who voluntarily pleads guilty will be given more credit than an
accused who pleads guilty having been caught red-handed.[975]
4.33 The Court of Criminal Appeal has,
however, cautioned against treating a guilty plea, in and of itself, as an
exceptional and specific circumstance. In The People (DPP) v Ducque,[976]
the Court observed:
“First of all there is nothing exceptional about a plea of guilty, it is one of
the commonest occurrences in any criminal trial. Secondly, it seems to be
at least implied in the judgment of this court delivered by Hardiman J in Botha
... that importance must be attached to the conjunctive ‘and, if so’ in the
statutory provision so that a plea of guilty can only be relevant to an escape
from the mandatory minimum sentence if there are other circumstances which
effectively can render the combination of the plea of guilty and those
circumstances to be exceptional circumstances. These can include the
stage at which the accused indicated the intention to plead guilty, the
circumstances in which the indication was given and whether that person
materially assisted in the investigation of the offence.”
Thus,
the courts will, more often than not, consider a guilty plea in addition to
other factors such as material assistance.[977]
The
courts may also consider whether there is some additional factor which endows
the guilty plea with exceptionality, such as where it is particularly early,[978]
lightens the workload of
the courts or assists the prosecution’s case.[979]
4.34 While a guilty plea may result in
the imposition of a sentence lower than the presumptive minimum, an accused who
pleads “not guilty” will not automatically receive a sentence of at least 10
years.[980] Similarly, it has been
noted that an accused who decides to plead ‘not guilty’ should not be penalised
with a more severe sentence.[981]
4.35 In a 2001 Department of Justice
report,[982] McEvoy
concluded that section 27 of the Misuse of Drugs Act 1977 had been
reasonably successful in its operation in so far as it had encouraged a very
high rate of guilty pleas. During the period November 1999 to May 2001,
in all but one of 55 cases, the accused had pleaded guilty. This he
attributed to the fact that a conviction following a “not guilty” plea would
probably have resulted in the imposition of a 10-year sentence. Section
27 had thus saved court time and public funds, freed up Gardaí and resulted in
a higher rate of conviction. He noted, however, that there was now a “positive
disincentive” to test the prosecution case:
“In a
criminal trial anything can go wrong; difficulties can arise with warrants,
witnesses may be unavailable for a variety of reasons, there can be a flaw in
the chain of evidence, technical errors may be made and so forth. However
the consequences of unsuccessfully testing the prosecution case in a s.15A
charge are so severe, it would seem that one of the practical effects of the
section has been to discourage the vast majority of accused persons from
proceeding to trial unless the case against them appears to be obviously
flawed.”[983]
4.36
This view was confirmed
in the course of the Commission’s consultation process with interested parties,
following the publication of the Consultation Paper.
4.37 Section 27(3D)(b)(ii)[984]
of the Misuse of Drugs Act 1977, as amended, provides that material
assistance may also be considered an exceptional and specific circumstance for
the purpose of determining whether the statutory minimum sentence should
apply. Material assistance may take many forms. In The People
(DPP) v Davis,[985] Denham J
observed that:
“The
most basic [form of material assistance] is to admit the offence.
Secondly, an admission may be made together with showing the Gardaí drugs, etc,
relating to the specific offence in issue. Thirdly, there is a much more
significant material assistance where an accused assists the Gardaí in relation
to other offences and criminality. This latter is a matter of great
public interest, and has been given significant weight in other cases.”
Therefore, an admission or the provision of
information regarding the particular offence or other offences may be
considered material assistance.
4.38 The Court of Criminal Appeal has
cautioned against treating an admission without more as material assistance.[986]
In general, therefore, an admission must relate to more than just the accused’s
own involvement in the offence.[987]
It must, for instance, facilitate the investigation or prosecution of the
offence by revealing the full extent of the accused’s involvement or the
identity of any others involved.[988]
The Court has
indicated that it will have particular regard to situations in which the
accused has made an admission where, by doing so, he or she has exposed himself
or herself to a risk of death or serious injury.[989]
An admission voluntarily given will merit more credit than an admission where
the accused has been caught red-handed.[990]
4.39 Similarly, information which
facilitates the investigation or prosecution of an offence may constitute
material assistance.[991]
Information regarding those in charge of the operation is particularly sought
after.[992]
However, the courts seem to have grown more sympathetic towards those who feel
that they cannot provide information for fear of retribution.[993]
4.40 Section 27(3D)(b)[994]
of the Misuse of Drugs Act 1977, as amended, also provides that the
court may have regard to “any matters it considers appropriate”. While
these matters have not been exhaustively defined in the legislation or
elsewhere, there are a number of matters to which the courts’ attention has
been frequently drawn. These matters may be divided into two categories:
(a) those that mitigate the seriousness of the offence, and (b) those that
mitigate the severity of the sentence.
4.41 The matters that mitigate the
seriousness of the offence include those relating to culpability (duress,
capacity), harm (type, quantity and value of the controlled drugs) and offender
behaviour (level of involvement). The fact that an offender was coerced
into carrying or holding drugs may be considered an exceptional and specific
circumstance.[995] Similarly,
the fact that an offender suffers from an intellectual disability, has low
intelligence, or is simply gullible and naive, may constitute an exceptional and
specific circumstance.[996]
Whereas the courts may only have limited regard to the type of controlled drug
involved,[997] the courts must consider the value and quantity.[998]
Finally, the fact that an offender had a low level of involvement in the
commission of an offence may be considered an exceptional and specific
circumstance.[999] In this regard, the
Court of Criminal Appeal has distinguished between those who are vulnerable and
those who willingly engaged in the drug trade for financial gain.[1000]
4.42 The matters that mitigate the severity
of the sentence include previous good character, rehabilitation and the
particular burden of a custodial sentence. Thus, the fact that an
offender was previously of good character may be considered an exceptional and
specific circumstance.[1001] An
offender may be treated as being of previous good character where he or she has
previous convictions which are either minor and unrelated to drug trafficking,[1002]
or which date back some time.[1003]
The fact that an offender has sought to overcome
a drug addiction[1004] or is unlikely to re-offend[1005]
may be considered exceptional and specific circumstances. Where certain
factors would render a custodial sentence particularly burdensome for an
offender (for example, where an offender is a foreign national[1006]
or suffers from ill-health[1007])
these may also constitute exceptional and
specific circumstances.
4.43 Section 27(3D)(c)[1008]
of the Misuse of Drugs Act 1977, as amended, provides that the court,
when deciding whether it would be unjust in all the circumstances to impose the
minimum sentence, may have regard to: (i) any previous drug trafficking
convictions, and (ii) the public interest in preventing drug trafficking.
4.44 Section 27(3D)(c)(i) provides that
the court may have regard to any previous drug trafficking offences when
determining whether the statutory minimum should apply.[1009]
It is unclear what purpose section 27(3D)(c)(i) serves other than to emphasise
the pre-existing power of the courts to consider previous convictions.[1010]
Smith observes that a matter of greater concern is the extent to which evidence
of previous involvement in the drugs trade may be admissible.[1011]
In The People (DPP) v Gilligan,[1012]
for instance, the Court of Criminal Appeal held that the sentencing judge could
not have regard to evidence of previous misconduct for which the accused had
neither been charged nor convicted and which the accused had not asked to be
taken into account. The Court noted, however, that the sentencing court
could not “act in blinkers” and was thus entitled, if not obliged, to consider
the facts and circumstances surrounding each offence.[1013]
4.45 Section 27(3D)(c)(ii) provides that
the court may consider whether or not the public interest would be served by
the imposition of a sentence of less than 10 years. This provision
clearly echoes the words of the Minister for Justice when he stated that the
courts should keep in mind the social impact of drug trafficking when
determining whether or not to impose the statutory minimum sentence.[1014]
It has been noted, however, that it may be difficult to determine what is in
the “public interest”.[1015]
Smith, on the other hand, observes that the provision suggests that a court
should consider that the public interest will not always be served by
committing an offender to prison.[1016]
4.46
The power to grant early release to those who have been convicted of an
offence under section 15A or section 15B of the Misuse of Drugs Act 1977,
as amended, has been restricted. It has been observed that
this reflects the “clear policy” of the Oireachtas that the courts should, in
the absence of special circumstances, impose a prison sentence of 10 years or
longer and that such sentences should be served in their entirety less
remission.[1017]
Section 27(3H),[1018] however,
provides that any sentence imposed for an offence under section 15A or section
15B is subject to ordinary remission for good behaviour which currently stands
at one-fourth of the total sentence.
4.47
Thus section 27(3G)[1019] of the Misuse
of Drugs Act 1977, as amended, provides that the powers of commutation and
remission conferred on the Government by section 23 of the Criminal Justice
Act 1951 cannot be exercised in respect of a person sentenced for an
offence under section 15A or section 15B. Furthermore, section 27(3I)[1020]
provides that the power to grant temporary release conferred by section 2 of
the Criminal Justice Act 1960 may not be exercised until such time as
the power to grant commutation or remission has arisen except “for grave
reasons of a humanitarian nature”. The period of temporary release must
be for such limited period as is justified by those reasons. Such reasons
might include serious illness on the part of the offender or an immediate
family member, or the death of a close family member.[1021]
4.48
Section 27(3J)[1022] provides
that the court may list a sentence for review after the expiry of not less than
half of the term specified by the court under section 27(3C)[1023]
or section 27(3F).[1024] To
list a sentence for review, the court must be satisfied that the offender was
addicted to drugs at the time of the offence[1025]
and that the addiction was a substantial factor leading to the commission of
the offence.[1026] In
this respect, the legislation acknowledges a difference in the lesser
culpability of those who become involved in drug dealing in order to feed their
own addiction compared to those further up the hierarchy who often have no
addiction problem.[1027]
4.49
Section 27(3K)[1028] provides
that on reviewing the sentence the court may suspend the remainder of the
sentence on any conditions it considers fit and having regard to any matters it
considers appropriate. In The People (DPP) v Finn,[1029]
the Supreme Court firmly disapproved of the general practice of imposing
reviewable sentences but accepted that sentences imposed for offences under
section 15A might continue to have review elements because of the specific
statutory authorisation.
4.50
In The People (DPP) v Dunne,[1030]
the Court of Criminal Appeal held that the review power was only available in
circumstances where the mandatory minimum sentence had been passed and not
where the court had imposed a lesser sentence on the ground that there were
exceptional and specific circumstances. This could lead to the illogical
consequence of a person subject to the statutory minimum sentence being in a
better position than a person not subject to the statutory minimum.[1031]
It has also been noted that the purpose of the review provision is
rehabilitative and that this mechanism should therefore be available to all
drug addicts irrespective of the length of the sentence imposed on them.[1032]
4.51
The review power remains following the amendment to section 27[1033]
which imposes a mandatory minimum sentence of 10 years without exception where
the offender is convicted of a second or subsequent offence under section 15A
or section 15B.
4.52 The Commission observes that
low-level drug mules are more susceptible to being caught under section 15A or
section 15B of the Misuse of Drugs Act 1977 than high-level drug
barons. First, it has been noted that drug mules are generally vulnerable
and desperate people who have been exploited by those higher up the drugs chain
rather than hardened criminals.[1034] They are thus less likely to be
adept at evading detection and it has been noted that they are sometimes placed
in the direct line of fire in order to divert attention from other
transportations. Second, as noted at paragraphs 4.04 to 4.07 and 4.24,
the legislative provisions dealing with “possession” and “mens rea” are
broad enough to capture those operating at the lower end of the drugs chain who
are more likely to be in actual possession of the controlled drugs and less
likely to know their market value. In addition, while drug mules might benefit
from the exceptional and specific circumstance of a “guilty plea”, they are
less likely through lack of information or fear to benefit from the exceptional
and specific circumstance of “material assistance”.
4.53 Therefore,
it has been observed that the majority of those being sentenced under the
presumptive sentencing regime are low-level drug mules rather than high-level
drug barons.[1035]
During the public consultation and roundtable discussion, practitioners
stated that this is their experience. From its own review of the case law
in this area,[1036] the
Commission agrees that this is probably the case.
4.54
The fact that the use of drug mules in the drugs trade is at the very
least “popular” has been confirmed by the European Monitoring Centre for Drugs
and Drug Addiction. The Centre has made a recent attempt to define the
term “drug mule” for use in a European context,[1037]
indicating that the current understanding of the term is:
“A drug courier who is paid, coerced
or tricked into transporting drugs across an international border but who has
no further commercial interest in the drugs.”[1038]
4.55
As discussed in Chapter 1, the Criminal Justice Act 2006 amended
the Firearms Acts with the result that many firearms offences now carry a
presumptive sentence of five or 10 years. In this Part, the Commission
considers the application of these categories of presumptive minimum sentence
by examining: (1) the elements of the relevant firearms offences, (2) the
relevant penalty provisions, and (3) the early release provisions.
4.56
Section 15 of the Firearms Act 1925, as amended,[1039]
provides that it is an offence to possess or control any firearm or ammunition:
(a) with intent to endanger life or cause serious injury to property, or
(b) with intent to enable any other person by means of the firearm or
ammunition to endanger life or cause serious injury to property, regardless of
whether any injury to person or property has actually been caused.
4.57
Neither the term “possession” nor the term “control” is defined by the
1925 Act. As noted at paragraphs 4.04 to 4.07, however, the term
“possession” includes actual possession, which denotes having custody and
control over an article, and constructive possession, which denotes having
control but not custody.[1040]
The fact that the terms “possession” and “control” are separated by the
conjunction “or” serves to emphasise that either custody of, or dominion over,
the firearms or ammunition will suffice for an offence under section 15.
4.58
The term “possession” is thus broad enough to describe the range of
roles played by those involved in firearms offences. At one end of the
scale there are the high-level offenders who may be in charge of
operations. These may be described as having constructive possession as
they have ultimate control over those who possess the firearms or ammunition on
their behalf. At the other end of the scale there are the low-level
offenders who may, for instance, have been coerced or tricked into hiding
firearms or ammunition for someone else. These may be described as having
actual possession of the firearms or ammunition as they exercise physical
control over the firearms or ammunition.
4.59
In addition to possessing or controlling the firearm or ammunition, the
offender must intend, personally, to endanger life or cause serious injury to
property or to enable someone else to do so. Thus, for example, a person
transporting firearms or ammunition who has no intention of using those
firearms or ammunition himself or herself, might still be found guilty of an
offence under section 15.
4.60
Section 112(1) of the Road Traffic Act 1961 prohibits
a person from using or taking possession of a mechanically propelled vehicle without
the consent of the owner. Section 26(1) of the Firearms Act 1964,
as amended,[1041] provides
that a person who contravenes section 112(1) of the Road Traffic Act 1961
and who, at the time of the contravention, has a firearm or imitation firearm
with him or her, is guilty of an offence. Again, it is difficult to
determine the exact implications of the elements of this offence as the Court
of Criminal Appeal has not examined section 26 in recent times.
4.61
Section 3(1) of the Road Traffic Act 1961 provides that the term
“use” in relation to a vehicle includes park, which means to keep or leave
stationary. Presumably, however, the term also includes “driving”, which
means to manage and control and, in relation to a bicycle or tricycle, to
ride. In relation to a vehicle, at any rate, it is conceivable that an
offender could manage and control a vehicle without personally operating the
vehicle. Thus, for example, an offender might manage and control a
vehicle where he or she forces the owner to drive by holding a firearm to his
or her head.
4.62
The term “take” is not defined by the 1961 Act. A narrow
definition of the term might refer to taking custody whereas a broader
definition might refer to taking possession which, as noted at
paragraphs 4.04 to 4.07, is not limited to having custody. The narrow
definition of “take” implies that an offender must have physical custody of the
vehicle whereas the broader definition would allow for situations in which an
offender does not have physical custody, such as where the offender, at a
remote location from the vehicle, forces the owner to drive by threatening his
or her family with a firearm.
4.63
Section 3(1) of the Road Traffic Act 1961 provides that the term
“mechanically propelled vehicle” means a vehicle intended or adapted for
propulsion by mechanical means. This includes: (a) a bicycle or
tricycle with an attachment for propelling it by mechanical power, whether or
not the attachment is being used, and (b) a vehicle the means of propulsion of
which is electrical or partly electrical and partly mechanical. It does
not, however, include a tramcar or other vehicles running on permanent rails.
4.64
The term “have” is not defined by the 1964 Act. The fact that the
term is used with the words “with him or her” suggests, however, that
the offender must have actual possession of the firearm or imitation firearm at
the time when he or she is taking the particular vehicle.
4.65
Section 1(1) of the Firearms Act 1925, as amended,[1042]
provides that the term “firearm” means: (a) a lethal firearm or other
weapon of any description from which any shot, bullet or other missile can be
discharged; (b) an air gun (including an air rifle and air pistol) with a
muzzle energy greater than one joule or any other weapon incorporating a barrel
from which any projectile can be discharged with such muzzle energy; (c) a
crossbow; (d) any type of stun gun or other weapon causing any shock or other
disablement to a person by means of electricity or any other kind of energy
emission; (e) a prohibited weapon;[1043]
and (f) any article which would be a firearm under any of the foregoing
paragraphs but for the fact that, owing to the lack of necessary component part
or parts or to any other defect or condition, it is incapable of discharging a
shot, bullet or other missile or projectile or of causing a shock or other
disablement; and (g) except where the context otherwise requires, includes a
component part of any article referred to in section 1.
4.66
The term “imitation firearm” is not defined by the Act.
Presumably, however, the term includes any article which is calculated, or is
reasonably likely, to give the person perceiving it to believe that it is a
real firearm. As noted by Finnegan J in The People (DPP) v Clail,[1044]
it makes very little difference to a person who is confronted in the course of
a crime with a weapon that, unbeknownst to him or her, it is
non-functioning. The crucial issue is that an imitation firearm may be an
equally effective means of threatening a person and/or pursuing an ulterior
objective.
4.67
Section 27 of the Firearms Act 1964, as amended,[1045]
prohibits the use or production of a firearm or imitation firearm[1046]
for the purpose of resisting arrest[1047]
or aiding the escape or rescue of the person or another person from lawful
custody.[1048] As
the Court of Criminal Appeal has not examined section 27 in recent times, it is
difficult to determine the exact implications of the elements of the
offence.
4.68
Neither the term “use” nor the term “produce” is defined by the 1964
Act. The ordinary meaning of the term “use” is to take, hold, deploy or
employ.[1049] In
The People (DPP) v Curtin,[1050]
the Court of Criminal Appeal referred to the “use” of the firearm in terms of
it having been discharged. The ordinary meaning of the term “produce” is
to show or provide for consideration, inspection or use.[1051]
The fact that the terms “use” and “produce” are separated by the conjunction
“or” suggests that either use or production will suffice for an offence under
section 27. Thus, for instance, a firearm need not be discharged but may
be merely shown for the purpose of section 27.
4.69
The person using or producing the firearm or imitation firearm must be
pursuing the objective of resisting arrest, aiding his or her escape or rescue,
or aiding the escape of another person.
4.70
Section 27A of the Firearms Act 1964, as amended,[1052]
provides that it is an offence for a person to possess or control[1053]
a firearm in circumstances that give rise to a reasonable inference that the
person does not possess or control it for a lawful purpose, unless the person
does possess or control it for such a purpose. The Court of Criminal
Appeal has considered section 27A on a number of occasions but as there was a
guilty plea in each case, the Court did not have an opportunity to examine the
exact implications of the elements of an offence under section 27A.[1054]
4.71 The
meaning of the term “firearm” has been considered at paragraph 4.65 and will
not be considered again here. It is interesting to note, however, that
section 27A may be distinguished from other provisions of the 1964 Act in so
far as it does not refer to imitation firearms.
4.72
While the expression is not explained by the 1964 Act, it is clear that
what is contemplated is that the circumstances surrounding the possession or
control would allow a reasonable person objectively to conclude that the
possession or control is for the purpose of pursuing an unlawful act. The
act of possessing or controlling the firearm may not be the unlawful act
contemplated by section 27A as there may be situations in which the offender is
legally entitled to possess or control the firearm.
4.73
Section 27B of the Firearms Act 1964, as amended,[1055]
provides that it is an offence for a person to have with him or her, a firearm
or an imitation firearm,[1056] with
intent to commit an indictable offence or to resist or prevent the arrest of
the person or another person. Again, the Court of Criminal Appeal has
considered section 27B on a number of occasions but as there was a guilty plea
in each case, the Court did not have an opportunity to examine the exact
implications of the elements of an offence under section 27B.[1057]
4.74
The meaning of the term “have” has been considered at paragraph 4.64 and
will not be considered again here. It should be noted, however, that by
contrast with section 27 which creates the offence of using or producing
a firearm or imitation firearm for the purpose of resisting arrest, section 27B
creates the offence of having a firearm or imitation firearm regardless of whether
it is used or produced. Thus, the fact that an offender has a firearm or
imitation firearm on his or her person may be sufficient for the purposes of
section 27B.
4.75
While this expression has not been explained in the 1964 Act, it is
clear that what is contemplated is that the offender should have with him or
her, a firearm or imitation firearm for the purpose of committing an indictable
offence or resisting or preventing an arrest.[1058]
Thus, having the firearm is an element of the overall plan to commit an offence
or to resist or prevent an arrest.
4.76
Section 12A of the Firearms and Offensive Weapons Act 1990, as
amended,[1059] provides
that it is an offence for a person to shorten the barrel of a shot-gun to a
length of less than 61 centimetres[1060]
or a rifle to a length of less than 50 centimetres.[1061]
Thus, the mere act of shortening the barrel of a shot-gun or rifle is an
offence regardless of whether or not there is other criminal intent.[1062]
4.77 The presumptive sentencing regime
under the Firearms Acts is modelled on the presumptive sentencing regime under
the Misuse of Drugs Act 1977. Thus, many of the observations
outlined in respect of the presumptive sentence applicable to offences under
the Misuse of Drugs Act 1977 equally apply to the presumptive sentence
applicable to offences under the Firearms Acts.
4.78
Under the Firearms Acts, some offences attract a five-year
presumptive sentence while others attract a 10-year presumptive sentence.
The offences which attract a five-year presumptive sentence are: (i)
possession of a firearm while taking a vehicle without authority;[1063]
(ii) possession of a firearm or ammunition in suspicious circumstances;[1064]
(iii) carrying a firearm or imitation firearm with intent to commit an
indictable offence or resist arrest;[1065]
and (iv) shortening the barrel of a shotgun or rifle.[1066]
Each of these offences is subject to a maximum sentence of 14 years[1067]
with the exception of the offence of shortening the barrel of a shotgun or
rifle, which is subject to a maximum sentence of 10 years.[1068]
The offences which attract a presumptive 10-year sentence are: (i)
possession of firearms with intent to endanger life;[1069]
and (ii) using a firearm to assist or aid in an escape.[1070]
These offences are subject to a maximum sentence of life imprisonment.[1071]
4.79
As with the presumptive sentencing regime under the Misuse of Drugs
Act 1977, it would appear that the courts must have regard to the
presumptive sentence even where it does not apply[1072]
and to the maximum sentence.[1073]
4.80
Each of the presumptive sentencing provisions under the Firearms Acts
provides that the presumptive sentence will not apply where there are
exceptional and specific circumstances relating to the offence or the person
convicted of the offence, which would make a sentence of not less than five
years or 10 years unjust in all the circumstances.[1074]
Exceptional and specific circumstances may include “any matters [the court]
considers appropriate”, including whether the person has pleaded guilty to the
offence and whether the person has materially assisted in the investigation of
the offence. As noted in Chapter 1, a guilty plea and material assistance
are in general considered to be factors which mitigate the severity of the
sentence rather than the seriousness of the offence.
4.81 Subsection (5)(a)[1075]
of each provision provides that a guilty plea may be considered an exceptional
and specific circumstance for the purpose of determining whether the statutory
minimum sentence of five or 10 years should apply. The provision
recognises, however, that the stage at which the accused indicates his or her
intention to plead guilty and the circumstances surrounding that plea may be
relevant. Thus, it has been noted that an early guilty plea merits more
credit than a late guilty plea[1076]
and that an accused who voluntarily pleads guilty will be given more credit
than an accused who pleads guilty having been caught red-handed.[1077]
In any case, a guilty plea will usually be considered in addition to other
mitigating factors such as material assistance.[1078]
4.82 Subsection (5)(b)[1079]
of each provision provides that material assistance may also be considered an
exceptional and specific circumstance for the purpose of determining whether
the statutory minimum sentence should apply. Presumably, as observed by
the Court of Criminal Appeal in relation to the Misuse of Drugs Act 1977,
material assistance may be in the form of an admission[1080]
or the provision of information.
4.83 Subsection (5)[1081]
also provides that the court may have regard to “any matters it considers
appropriate”. While these matters have not been exhaustively defined in
the legislation or elsewhere, there are a number of matters to which the
courts’ attention has been frequently drawn. As under the Misuse of
Drugs Act 1977, these matters may be divided into two categories: (a) those
that mitigate the seriousness of the offence, and (b) those that mitigate the
severity of the sentence.
4.84 The matters that mitigate the
seriousness of the offence include those relating to culpability (duress,
naivety), harm (discharge of firearm) and offender behaviour (level of
involvement). The fact that an offender was coerced into committing a
firearms offence[1082] or was
naive[1083] may be
considered exceptional and specific circumstances. Similarly, the fact
that the offender did not discharge the weapon may be considered an exceptional
and specific circumstance.[1084]
Finally, the fact that an offender had a low level of involvement in the
commission of the offence may be considered an exceptional and specific
circumstance.[1085]
4.85 The matters that mitigate the
severity of the sentence include previous good character[1086]
and personal circumstances, such as the youth of the offender, personal traumas
suffered by the offender, family support and the possibility of rehabilitation.[1087]
4.86 Subsection (6)[1088]
of each provision provides that the court may, when deciding whether or not to
impose the statutory minimum sentence, have regard to: (i) any previous
convictions for firearms’ offences, and (ii) the public interest in preventing
firearms’ offences.
4.87 The existence of previous
convictions for an offence under the Firearms Acts 1925 to 2006, the Offences
Against the State Acts 1939 to 1998, or the Criminal Justice (Terrorist
Offences) Act 2005, may justify an upward departure from the statutory
minimum. Subsection (3) and subsection (6)(a)[1089]
of each provision provides that the court may have regard to such previous
convictions when determining whether the statutory minimum should apply.[1090]
The Court of Criminal Appeal will, in any case, take a dim view of previous
convictions.[1091]
4.88 Subsection (6)(b) of each provision
provides that the court may consider whether or not the public interest would
be served by the imposition of a sentence of less than the presumptive minimum.
4.89 Factors including the nature of the
firearm,[1092] the fact
that it was brandished in a crowded place and the fact that it was discharged,
have justified the imposition of sentences longer than the presumptive minimum
sentence.[1093]
The fact that the offender possessed more than one firearm[1094]
and the fact that he or she possessed a firearm and drugs have also aggravated
the minimum sentence.[1095]
4.90 Like section 27 of the Misuse of
Drugs Act 1977, section 27C of the Firearms Act 1964, as amended,
restricts the power to grant early release to those who have been convicted of
an offence under the Firearms Acts.[1096]
Specifically, section 27C(2) restricts the power to commute or remit
punishment; section 27C(3) restricts the power to grant remission for good
behaviour; and section 27C(4) restricts the power to grant temporary
release. By contrast with the Misuse of Drugs Act 1977, however,
section 27C does not permit the court to list a sentence for review.
4.91 In this Part, the Commission
considers the use of mandatory and presumptive minimum sentences in other
common law countries.
4.92 In Northern Ireland, in addition to
the mandatory life sentence for murder, there are presumptive sentences for
certain firearms offences and public protection but not for drugs offences.[1097]
4.93 The use of firearms is regulated by
the Firearms (Northern Ireland) Order 2004, as amended.[1098]
Article 70 stipulates that the courts must impose a minimum sentence of five
years on offenders aged 21 years or over and a minimum sentence of three years
on offenders aged less than 21 years, unless there are “exceptional
circumstances relating to the offence or to the offender which justify its not
doing so”.[1099]
4.94 The offences to which the mandatory
sentencing regime applies are: (i) the possession, purchase or
acquisition of a handgun without holding a firearm certificate or otherwise
than as authorised by a firearm certificate;[1100]
(ii) the possession, purchase, acquisition, manufacture, sale or transfer of
certain controlled firearms or ammunition;[1101]
(iii) the possession of a firearm or ammunition with intent to endanger life or
cause serious damage to property or to enable another person to do so;[1102]
(iv) the use of a firearm or imitation firearm to resist arrest;[1103]
(v) the carrying of a firearm with intent to commit an indictable offence or to
resist arrest or to prevent the arrest of another;[1104]
(vi) the carrying or discharge of a firearm in a public place;[1105]
and (vii) trespass in a building with a firearm or imitation firearm.[1106]
4.95 The stated purpose of the Firearms
(Northern Ireland) Order 2004 is to provide a legislative framework for the
control of firearms which is effective and proportionate and strikes a balance
between public safety and the reasonable expectations of legitimate shooting
enthusiasts.[1107]
The order was prepared following the publication of a review conducted by the
Northern Ireland Office.[1108]
The Review was inspired by the Criminal Justice Act 2003, which made a
number of changes to the sentencing framework in England and Wales, and to a
lesser extent by the 2000 Review of the Criminal Justice System in Northern
Ireland.[1109]
The Review examined Northern Ireland’s firearms legislation, the Firearms
(Northern Ireland) Order 1981, and recommendations contained in the Cullen Inquiry
into the 1996 Dunblane Massacre.[1110]
4.96
Two minimum sentencing provisions apply in respect of “dangerous”
offenders who are perceived to pose a significant risk to members of the
public.
4.97
Article 13 of the Criminal
Justice (Northern Ireland) Order 2008 requires the imposition of a life
sentence for a specified “serious offence”,[1111]
where the court is of the opinion that there is a significant risk to members
of the public of serious harm occasioned by the commission by the offender of
further specified offences. Under this Article, a life sentence must be
imposed: (a) where the offence is one in respect of which the offender
would, apart from Article 13, be liable to a life sentence, and (b) if the
court is of the opinion that the seriousness of the offence, or of the offence
and one or more offences associated with it, justifies the imposition of such a
sentence.[1112]
4.98 Where the serious offence does not
fulfil these conditions, the court must impose an “indeterminate custodial
sentence” if it considers that an “extended custodial sentence” (discussed
below at paragraph 4.101) would be inadequate for the purpose of protecting the
public from serious harm occasioned by the commission by the offender of
further specified offences.[1113]
An indeterminate custodial sentence consists of a sentence of imprisonment (or
detention, in the case of an offender under the age of 21 years) for an
indeterminate period. When imposing this penalty, the court is required
to specify a period of at least two years as the minimum term required to
satisfy the requirements of retribution and deterrence.[1114]
An offender sentenced under Article 13 will be released on licence when:
(i) he or she has served this minimum period, and (ii) the Parole
Commissioners have directed that he or she be released.[1115]
This direction may only be given where the Commissioners are satisfied that it is no longer necessary for the protection of the public from
serious harm that the offender should be confined.[1116] Remission may not be granted
under the prison rules to an offender sentenced under Article 13.[1117]
4.99 The fact that Article 13 bears a
remarkable resemblance to section 225 of the Criminal Justice Act
2003 (which, as discussed at paragraph 2.196, was repealed in 2012) may be
explained by reference to the findings of the 2000 Review of the Sentencing
Framework in Northern Ireland. The Review referred to the fact that
section 225 of the Criminal Justice Act 2003 had introduced extended and
indeterminate public protection sentences for offenders convicted of specified
sexual or violent offences who were assessed as dangerous by the sentencing
court.[1118] It
observed, however, that the 2003 Act did not apply to Northern Ireland and that
there remained as a result a gap in Northern Irish law in respect of such
offenders:
“The Review identified a gap in
provision in Northern Ireland for the management of dangerous, violent and
sexual offenders who continue to pose a risk to the public at their automatic
release date. Under existing provision it is only where offenders have
been given a mandatory or discretionary life sentence that assessment of the
risk they pose to the public enables their continued detention in custody.
Consultation respondents considered this an important public protection issue
which needed to be addressed. Therefore we now introduce indeterminate
and extended custodial sentences in Northern Ireland.”[1119]
4.100
Although Article 13 was inspired by section 225 of the Criminal
Justice Act 2003, it would appear that the difficulties associated with the
IPP sentence in England and Wales have not materialised in the context of the
Northern Irish legislation. In July 2012, Criminal Justice Inspection
Northern Ireland published its Report on The Management of Life and
Indeterminate Sentence Prisoners in Northern Ireland. This Report
found that “the legislative
basis for managing indeterminate sentenced prisoners in Northern Ireland was
good, and had been informed by serious pitfalls that arose in England and
Wales.”[1120] The
Commission observes that one apparent difference between the two sentencing
models is that the regime which operates in Northern Ireland requires the court
to first consider whether the imposition of an “extended custodial sentence”
(discussed below) would be sufficient to protect the public from serious harm. Where this is the case, an indeterminate custodial sentence may not be
imposed.
4.101
Article 14 of the Criminal
Justice (Northern Ireland) Order 2008 requires the imposition of an “extended
custodial sentence” for a “specified violent offence”[1121]
or “specified sexual offence”.[1122]
This obligation applies where the sentencing court is of the opinion that:
(i) there is a significant risk to members of the public of serious harm
occasioned by the commission by the offender of further specified offences, and
(ii) in the event that the specified offence is a “serious offence”, the court
is not required by Article 13 to impose a life sentence or an indeterminate
custodial sentence.[1123]
4.102
Under Article 14, an
“extended custodial sentence” is a sentence of imprisonment (or detention, in
the case of an offender under the age of 21 years) which is equal to the
aggregate of: (a) the “appropriate custodial term”, which means a term of
at least 12 months, not exceeding the statutory maximum, which the
court considers appropriate, and (b) a further period for which the offender is
to be subject to a licence and which is of such length as the court considers
necessary for the purpose of protecting members of the public from serious harm
occasioned by the commission by the offender of further specified offences.[1124]
The extension period imposed must not exceed five years in the case of a
“specified violent offence” or 8 years in the case of a “specified sexual
offence”.[1125] As
a whole, the term of an extended custodial sentence may not exceed the
statutory maximum sentence for the relevant offence.[1126]
4.103
An offender sentenced
under Article 14 will become eligible for release only after he or she has
served half of the custodial sentence imposed by the court.[1127]
An offender who has served the entirety of the “appropriate custodial term”
must be released unless he or she has previously been recalled while on
licence. Remission may not be granted under the prison rules to an
offender sentenced under Article 14.[1128]
4.104
It has been observed
that mandatory sentencing in the United Kingdom reflects the attention which
was paid to recidivist offenders in the 1990s, and which resulted in the
enactment of “three-strikes” statutes in the United States.[1129]
In England and Wales, in addition to the mandatory life sentence for murder,
there are presumptive minimum sentences for certain repeat drug offences;
repeat serious violent and/or sexual offences; repeat domestic burglaries;
firearms offences; and aggravated knife offences. Those sentencing
regimes which apply only in respect of repeat offenders are considered in
Chapter 5. In this section, the Commission focuses on those provisions
which create a “one-strike” rule so that a presumptive or mandatory sentence
applies where an offender is convicted for the first time of a specified
offence.
4.105 Section 51A[1130]
of the Firearms Act 1968, as amended,[1131]
prescribes a presumptive minimum sentence of five years’ imprisonment for an
offender, aged at least 21 years,[1132]
who is convicted of a specified firearms offence. These offences are:
(i) possession, purchase, acquisition, manufacture, sale or transfer of a
firearm;[1133] (ii)
using another person to mind a dangerous prohibited weapon;[1134]
(iii) possession of a firearm with intent to injure;[1135]
(iv) possession of a firearm with intent to cause fear of violence;[1136]
(v) use of a firearm to resist arrest;[1137]
(vi) carrying a firearm with criminal intent;[1138]
(vii) carrying a firearm in a public place;[1139]
and (viii) trespassing in a building with a firearm.[1140]
The minimum term must be imposed unless there are exceptional circumstances
which would justify the court not doing so.[1141]
It would appear that a guilty plea will not result in a reduction of the
sentence imposed for an offence under section 51A.[1142]
Ashworth observes that this is a feature which renders section 51A “a
particularly severe provision.”[1143]
4.106
Section 1A of the Prevention of Crime Act 1953[1144]
prescribes a presumptive minimum sentence of six months’ imprisonment for an
adult offender[1145] convicted
of threatening another person with an offensive weapon in public.[1146]
Under this sentencing regime, the minimum penalty must be imposed unless the
court considers that there are particular circumstances which relate to the
offence or the offender which would make the application of the minimum
sentence unjust in all the circumstances.[1147]
4.107
Section 139AA of the Criminal Justice Act 1988[1148] prescribes
a presumptive minimum sentence of six months’ imprisonment for an adult
offender[1149]
convicted of threatening another person with an offensive weapon or an article
with a blade or point in a public place or on school premises.[1150]
Once again, the minimum penalty must be imposed unless the court considers that
there are particular circumstances which relate to the offence or the offender
which would make the application of the minimum sentence unjust in all the
circumstances.
4.108
Where an offender pleads guilty to either of these aggravated knife
offences, the court may reduce
the sentence which it would otherwise have imposed.[1151]
It may not, however, reduce the sentence below 80 percent of the minimum term
provided by law.
4.109
In introducing these sentencing provisions, the then Secretary of State
for Justice stated that these presumptive penalties were intended “to stop
people believing that knife crime will not be punished properly in the criminal
justice system.”[1152] It
remains to be seen whether, in practice, this sentencing regime will produce
the desired deterrent effect. Certain commentators have emphasised that
in the moment of drawing a knife, few offenders consider the legal
ramifications of their actions.[1153]
Rather, they suggest that the lives of many such offenders are so chaotic and
violent that they are more fearful of each other and the prospect of being
stabbed, than of the penal consequences of carrying a knife themselves.[1154]
4.110 In Scotland, in addition to the
mandatory life sentence for murder, there are mandatory minimum sentences for
certain drug and firearms offences. The mandatory minimum sentence
prescribed for certain drug offences is considered in Chapter 5 as this applies
only in respect of repeat offenders.
4.111
Section B4 of the Scotland Act 1998 provides that the power to
legislate in relation to firearms is reserved to Westminster. Thus, the
control of firearms is regulated by the Firearms Act 1968, as amended by
the Criminal Justice Act 2003. Section 51A[1155]
of the Firearms Act 1968 introduces a mandatory sentencing regime in
respect of certain firearms offences. It stipulates that the Scottish
courts must impose a minimum sentence of three years upon offenders aged 16 to
20 years, and five years upon those aged over 20 years. These minimum terms must be imposed unless
there are exceptional circumstances which would justify the court not doing
so.
4.112
As noted at paragraph 4.105, section 51A(1A)[1156] of the Firearms
Act 1968 provides that the offences to which these presumptive sentences
apply are: (i) possession of a firearm with intent to injure;[1157]
(ii) possession of a firearm with intent to cause fear of violence;[1158]
(iii) use of a firearm to resist arrest;[1159]
(iv) carrying a firearm with criminal intent;[1160]
(v) carrying a firearm in a public place;[1161]
and (vi) trespassing in a building with a firearm.[1162]
4.113 Section 206(1) of the Criminal
Procedure (Scotland) Act 1995 provides that no person shall be sentenced to
imprisonment by a court of summary jurisdiction for a period of less than five
days.[1163]
4.114 Most American states have
presumptive or mandatory sentencing regimes in respect of drugs and/or firearms
offences. Many states apply presumptive or mandatory sentencing regimes
in respect of other offences as well. In general, second or subsequent
offences will attract enhanced penalties; some of these regimes are considered
in Chapter 5.
4.115 In Alabama, §13A-12-215 of the Penal
Code prescribes a minimum sentence of 10 years for selling, furnishing or
giving a controlled substance to a person under the age of 18 years.
§13A-12-231 prescribes various minimum terms, ranging from three years to life
imprisonment without parole, for drug trafficking.[1164]
§13A-12-231(13) stipulates that an additional penalty of five years must be
imposed for drug trafficking while in possession of a firearm.
§13A-12-250 stipulates that an additional penalty of five years must be imposed
for selling drugs within a three-mile radius of a school, college or
university. §13A-12-270 stipulates that an additional penalty of five
years must be imposed for selling drugs within a three-mile radius of a housing
project. §13A-12-233 prescribes a minimum term of 25 years without parole
for running a drug trafficking enterprise and life without parole for a second
offence.
4.116 §13A-5-6 of the Penal Code prescribes
a minimum sentence of 20 years for the commission of a Class A felony with a
firearm and 10 years for the commission of a Class B or Class C felony.
§13A-11-60 stipulates that an additional penalty of three years must be imposed
for possession and sale of brass or steel Teflon-coated handgun ammunition.
4.117 Minimum sentences are also
prescribed in respect of: (i) a fourth or subsequent conviction for driving
under the influence within a five-year period;[1165]
(ii) driving under the influence with a passenger under 14 years of age;[1166]
(iii) robbery of a pharmacy;[1167]
(iv) second or subsequent offences of domestic violence;[1168]
(v) terrorism;[1169] (vi)
certain sexual offences against children;[1170]
(vii) hate crimes;[1171] (viii)
falsely reporting an incident;[1172]
and (ix) possession, transportation, receipt or use of a destructive device,
explosive, bacteriological or biological weapon.[1173]
There are also provisions dealing with habitual offenders.[1174]
4.118 In Maine, §1105-A of the Penal
Code prescribes a variety of minimum sentences, ranging from one year to
four years, for trafficking a scheduled drug: (i) with a child under the
age of 18 years or with the aid or conspiring of a child under the age of 18
years; (ii) in circumstances where the offender has a prior conviction for a
Class A, Class B or Class C drug offence; (iii) in circumstances where the
offender is in possession of a firearm; or (iv) on a school bus or within 1,000
feet of a school zone.
4.119 §1105-B prescribes a minimum
sentence of two years for trafficking or furnishing a counterfeit drug: (i) to
a child under the age of 18 years; (ii) in circumstances where the offender has
a prior conviction for a Class A, Class B or Class C drug offence; (iii) in
circumstances where the offender is in possession of a firearm; or (iv) in
circumstances where death or serious bodily injury is subsequently caused by
the use of the drug.
4.120 §1105-C prescribes a variety of
minimum sentences, ranging from one year to two years, for furnishing a scheduled
drug: (i) to a child under the age of 18 years or with the aid or conspiring of
a child under the age of 18 years; (ii) in circumstances where the offender has
a prior conviction for a Class A, Class B or Class C drug offence; (iii) in
circumstances where the offender is in possession of a firearm; or (iv) on a
school bus or within 1,000 feet of a school zone.
4.121 §1105-D prescribes a variety of
minimum sentences, ranging from one year to four years, for cultivating
marijuana plants: (i) in circumstances where the offender has a prior
conviction for a Class A, Class B or Class C drug offence; (ii) in
circumstances where the offender is in possession of a firearm; (iii) with the
aid or conspiring of a child; or (iv) within 1,000 feet of a school zone.[1175]
4.122 §1252(5) prescribes a minimum
sentence of four years for committing a Class A crime while using a firearm
against a person; two years for committing a Class B crime while using a
firearm against a person; and one year for committing a Class C crime while
using a firearm against a person.
4.123 In Virginia, §18.2-248.1(d) of the Penal
Code prescribes a minimum sentence of five years for the sale or
distribution of marijuana, where it is the offender’s third or subsequent
felony. §18.2-248 prescribes a variety of minimum sentences, ranging from
three years to 40 years, for distributing or transporting marijuana.
§18.2-255(A,i) prescribes a variety of minimum sentences, ranging from two
years to five years, for selling a certain amount of marijuana to a
minor. §18.2-255(A,ii) prescribes a variety of minimum sentences, ranging
from two years to five years, for selling a certain amount of marijuana, where
the minor assists in distribution.
4.124 §18.2-248 prescribes a variety of
minimum sentences, ranging from 20 years to life, where there is a continuing
criminal enterprise grossing specified amounts of money. §18.2-248 also
prescribes a variety of minimum sentences, ranging from 20 years to life, for
the distribution of certain quantities of certain drugs as part of a continuing
criminal enterprise. §18.2-248 also prescribes a variety of minimum sentences,
ranging from three years to 20 years, for the distribution of certain
quantities of certain drugs. §18.2-248(C) prescribes a minimum sentence
of five years for a third or subsequent offence of selling or possessing with
intent to sell or distribute Schedule I or Schedule II drugs.
§18.2-248(C1) prescribes a minimum sentence of three years for a third or
subsequent offence of manufacturing metamphetamine.
4.125 §18.2-248.01 prescribes
a variety of minimum terms, ranging from three years to 10 years for
transporting Schedule I or Schedule II drugs to the Commonwealth.
§18.2-255.2 prescribes a minimum sentence of one year for a second or
subsequent offence of distributing controlled substances on school
property. §18.2-248.5(A) prescribes a minimum sentence of six months for
the offence of selling or distributing anabolic steroids. §18.2-248(H)
prescribes a minimum sentence of 20 years for the distribution of a Schedule I
or II drug.[1176]
4.126 §18.2-53.1 prescribes a minimum
sentence of three years for using a firearm in the commission of a felony and
five years for a second or subsequent offence. §18.2-308.4(B) and (C)
prescribe minimum sentences of two to five years for possessing or selling
certain types of drug while possessing a firearm. §18.2-308.2(A)
prescribes minimum sentences of two to five years for possession or
transportation of a firearm where the offender is a convicted felon.
§18.2-308.2:2(M) prescribes a minimum sentence of five years for the provision
of more than one firearm to an ineligible person. §18.2-308.1(B)
prescribes a minimum sentence of five years for the use of a firearm on school
property.
4.127 Minimum sentences are also
prescribed in respect of: (i) the illicit possession, importation, sale
or distribution of cigarettes;[1177]
(ii) certain types of assault;[1178]
(iii) escape from a correctional facility;[1179]
(iv) identity theft;[1180] (v)
certain gang-related offences in a school zone;[1181]
(vi) certain types of manslaughter;[1182]
(vii) certain types of sexual offence against children;[1183]
(viii) violations of certain protective orders;[1184]
(ix) certain types of sexual assault;[1185]
driving while intoxicated;[1186] (x)
operating a vehicle while licence revoked;[1187]
(xi) reckless driving causing death;[1188]
(xii) certain types of hate crime;[1189]
and (xiii) certain types of vandalism.[1190]
There is also a provision dealing with habitual offenders.[1191]
4.128 §841(a), §841(b)(1)(A) and §2D1.1 of
the Penal Code prescribe a variety of minimum sentences, ranging from
five years to life, for manufacturing, distributing or possessing drugs, with
intent to distribute. The sentences escalate for second and subsequent
offences. §846, §2D1.1, §2D1.2, §2D1.5 - §2D1.13, §2D2.1, §2D2.2, §2D3.1
and §2D3.2 stipulate that the mandatory minimum sentence for the underlying
offence be imposed for attempts and conspiracies to commit any drug trafficking
or possession offence.
4.129 §848(a) and §2D1.5 prescribe a
minimum sentence of 20 years for a continuing criminal enterprise and 30 years
for a second or subsequent offence. §848(b) and §2D1.5 prescribe a
minimum sentence of life for acting as principal administrator, organiser or
leader of a continuing criminal enterprise. §848(e) and §2d1.5 prescribe
a minimum sentence of 20 years for engaging in a continuing criminal enterprise
and intentionally killing an individual or law enforcement officer.
4.130 §859 and §2D1.2 prescribe a minimum
sentence of one year or the minimum required by §841(b), whichever is longer,
for distribution of drugs to persons under the age of 21 years. §860(a)
and §2D1.2 prescribe a minimum sentence of one year or the minimum required by
§841(b), whichever is longer, for distribution of a controlled substance near a
school or similar facility; three years or the minimum required by §841(b),
whichever is longer, for a second offence; and the minimum required by
§841(b)(1)(A) for a third offence. §861 and §2D1.2 prescribe the minimum
required by §841(b)(1)(A) for the employment or use of persons under 18 years
in drug operations. §861(b), §861(c) and §2D1.2 prescribe a minimum
sentence of one year for knowingly and intentionally employing or using a
person under the age of 18 years in drug operations; one year for a second
offence; and the minimum required by §841(b)(1)(A) for a third offence.
4.131 §861(f) and §2D1.2 prescribe a
minimum sentence of one year for knowingly or intentionally distributing a
controlled substance to a pregnant individual. §960(a), §960(b) and
§2D1.1 prescribe a variety of minimum sentences, ranging from five years to
life, depending on whether it is a first or subsequent offence, for the
unlawful importation or exportation of drugs. §963, §2D1.1, §2D1.2,
§2D1.5-§2D1.13, §2D2.1, §2D2.2, §2D3.1 and §2D3.2 prescribe the same mandatory
minimum sentence for the underlying offence as for attempts and conspiracies to
commit any offence of importation or exportation.
4.132 §924(c)(1)(A)(i) and §2K2.4
stipulate that an additional penalty of five years must be imposed for using or
carrying a firearm during a crime of violence or drug trafficking crime.
§924(c)(1)(A)(ii) and §2K2.4 stipulate that an additional penalty of 7 years
must be imposed for brandishing a firearm during a crime of violence or drug
trafficking crime. §924(c)(1)(A)(iii) and §2K2.4 stipulate that an
additional penalty of 10 years must be imposed for discharging a firearm during
a crime of violence or drug trafficking crime. §924(c)(1)(B)(i) and
§2K2.4 stipulate that an additional penalty of 10 years must be imposed for
possessing a firearm that is a short-barrelled rifle or shotgun.
§924(c)(1)(B)(ii) and §2K2.4 stipulate that an additional penalty of 30 years
must be imposed for possessing a machinegun, destructive device or firearm
equipped with a silencer or muffler.
4.133 §924(c)(1)(C)(i) and §2K2.4
stipulate that an additional penalty of 25 years must be imposed for a second
or subsequent conviction under §924(c)(1)(A). §924(c)(1)(C)(ii) and
§2K2.4 prescribe a minimum sentence of life for a second or subsequent
conviction under §924(c)(1)(A), with a machine gun, destructive device or
firearm equipped with a silencer or muffler. §924(c)(5)(A) and §2K2.4
stipulate that an additional penalty of 15 years must be imposed for possession
or use of armour-piercing ammunition during a crime of violence or drug
trafficking crime. §924(e)(1) and §2K2.4 prescribe a minimum sentence of
15 years for possession of a firearm or ammunition by a fugitive offender or
addict, who has three convictions for violent felonies or drug offences.
§929(a)(1) and §2K2.4 stipulate that an additional penalty of five years must
be imposed for carrying a firearm during a violent offence or drug trafficking
crime.
4.134 Minimum sentences are also
prescribed for: (i) certain immigration offences;[1192]
(ii) identity theft;[1193] (iii)
sexual offences against children;[1194]
(iv) production, possession or use of fire or explosives;[1195]
(v) airplane hijacking;[1196] (vi)
obstruction of justice;[1197] (vii)
illegal food stamp activity;[1198]
(viii) kidnapping;[1199] (ix)
hostage-taking;[1200] (x) bank
robbery, racketeering, and organised crime;[1201]
(xi) fraud, bribery and white collar crime;[1202]
(xii) piracy;[1203] (xiii)
certain types of assault or battery;[1204]
(xiv) interference with civil service examinations;[1205]
(xv) stalking in violation of a restraining order;[1206]
(xvi) treason;[1207] (xvii)
failure to report seaboard saloon purchases;[1208]
(xviii) practice of pharmacy and sale of poisons in China;[1209]
(xix) navigable water regulation violation;[1210]
(xx) deposit of refuse or obstruction of navigable waterway;[1211]
(xxi) deposit of refuse in New York or Baltimore harbours;[1212]
(xxii) violation of merchant marine act;[1213]
(xxiii) refusal to operate railroad or telegraph lines;[1214]
(xxiv) sale or donation of HIV positive tissue or bodily fluids to another
person for subsequent use other than medical research;[1215]
(xxv) and trespassing on federal land for hunting or shooting.[1216]
As discussed in Chapter 5, there are also provisions dealing with habitual
offenders.[1217]
4.135
In October 2011, the United States Sentencing Commission prepared a
report on mandatory sentences pursuant to a congressional directive in section
4713 of the Hate Crimes Prevention Act 2009.[1218]
The Sentencing Commission was thus required to assess the compatibility of
mandatory minimum penalties with the federal guideline system and to discuss
mechanisms other than mandatory minimum sentencing laws by which Congress might
take action with respect to sentencing policy.
4.136
In the Report, the Sentencing Commission indicated that while there was
a spectrum of views among its members regarding mandatory minimum penalties, it
uniformly believed that a strong and effective sentencing guidelines system
best serves the purposes of the Sentencing Reform Act. The
Sentencing Commission stated, however, that if Congress decided to exercise its
power to direct sentencing policy by enacting mandatory minimum penalties, such
penalties should: (1) not be excessively severe, (2) be narrowly tailored
to apply only to those offenders who warrant such punishment, and (3) be
applied consistently.
4.137
The Sentencing Commission observed that certain mandatory minimum provisions
apply too broadly and/or are set too high to warrant the prescribed minimum
penalty for the full range of offenders who could be prosecuted under the
particular criminal statute. Different charging and plea practices have
thus developed in various districts and resulted in the disparate application
of certain mandatory minimum penalties.
4.138
The Sentencing Commission asserted that this disparity can largely be
traced to the structure and severity of mandatory minimum penalties. It
observed that mandatory minimum provisions typically use a limited number of
aggravating factors to trigger the prescribed penalty, without regard to the
possibility that mitigating circumstances surrounding the offence or the
offender might justify a lower sentence. For such a sentence to be
reasonable in every case, it observed, the factors triggering the mandatory
minimum penalty must always warrant the prescribed mandatory minimum penalty,
regardless of the individualised circumstances of the offence or the offender.
It noted that this cannot be the situation for all cases and thus suggested
that Congress should consider whether a statutory “safety valve” mechanism,
similar to the one available for certain drug trafficking offenders, might be
appropriately tailored for low-level, non-violent offenders convicted of other
offences carrying mandatory minimum penalties.
4.139
By contrast with mandatory minimum penalties, the Sentencing Commission
observed that sentencing guidelines prescribe proportional, individualised
sentences, based on many factors relating to the seriousness of the offence and
the criminal history and other characteristics of the offender. It
concluded that this multi-dimensional approach to sentencing seeks to avoid the
problems inherent in the structure of mandatory minimum penalties and, for this
reason, best serves the purposes of the Sentencing Reform Act.
4.140
Under the first Canadian Criminal Code of 1892, mandatory minimum
sentences applied in respect of six offences, most of which related to
corruption.[1219] In
recent decades, however, Canada has witnessed a marked increase in the use of
this mode of punishment.[1220]
Minimum sentences are now prescribed for certain drug offences, firearms
offences, sexual offences committed against children, and serious fraud.
In this section, the Commission considers the application of these sentencing
regimes to offenders convicted for the first time of a specified offence.
The enhanced minimum penalties applicable to repeat offenders are addressed in
Chapter 5.
4.141 Numerous drug offences attract
a mandatory minimum sentence under the Controlled Drugs and Substances Act, as
amended.[1221]
4.142 First, a minimum sentence of one
year applies where the following offences are committed in prescribed
circumstances: (i) trafficking in a substance listed in Schedule I or
Schedule II to the Act or any substance represented or held out to be such a
substance,[1222] and (ii)
possessing a substance listed in Schedule I or Schedule II to the Act for the
purpose of trafficking.[1223]
The minimum sentence must be imposed where: (a) the person
committed the offence for the benefit of, at the direction of, or in
association with, a criminal organization; (b) the person used, or
threatened to use, violence in committing the offence; (c) the person
carried, used, or threatened to use a weapon in committing the offence; or
(d) the person was convicted of a designated substance offence, or served
a prison sentence for a designated substance offence, within the previous 10
years.[1224]
These offences attract an enhanced minimum sentence of two years if one of the
following aggravating factors is present: (a) the person committed the offence in or near
a school, on or near school grounds, or in or near any other public
place usually frequented by persons under the age of 18 years; (b) the
person committed the offence in a prison or on its grounds; or (c) the
person used the services of a person under the age of 18 years, or involved
such a person, in committing the offence.[1225]
4.143 Second, a minimum sentence of one
year also applies where the following offences are committed in specified
circumstances: (i) importing and exporting a substance listed in Schedule
I in an amount that is not more than one kilogram, or a substance listed in
Schedule II,[1226] and (ii)
possessing, for the purpose of exportation, a substance listed in Schedule I in
an amount that is not more than one kilogram, or a substance listed in Schedule
II.[1227]
The court must impose the minimum sentence where: (a) the offence was
committed for the purpose of trafficking; (b) the perpetrator, while committing
the offence, abused a position of trust or authority; or (c) the person had
access to an area that is restricted to authorised persons and used that access
to commit the offence.[1228] Where the subject matter of either offence is a substance listed
in Schedule I, in an amount that is more than one kilogram, a minimum sentence
of two years applies.[1229]
4.144 Third, the offence of producing a
substance listed in Schedule I[1230]
ordinarily attracts a minimum sentence of two years.[1231]
However, if one of the following aggravating factors is present, the court is
required to impose a minimum sentence of three years: (a) the person used
real property belonging to a third party in committing the offence; (b) the
production constituted a potential security, health or safety hazard to persons
under the age of 18 years who were in the location where the offence was
committed or in the immediate area; (c) the production constituted a potential
public safety hazard in a residential area; or (d) the person set or placed a
trap, device or other thing that is likely to cause death or bodily harm to
another person in the location where the offence was committed or in the
immediate area, or permitted such a trap, device or other thing to remain or be
placed in that location or area.[1232]
4.145 The offence of
producing a substance listed in Schedule II[1233]
(other than marijuana) attracts a minimum sentence of one year if the
production is for the purpose of trafficking.[1234]
A minimum sentence of 18 months applies if the production is for the purpose of
trafficking and if any of the aggravating factors listed in section 7(3) of the
Act (as outlined at paragraph 4.144) apply.[1235]
Where the subject matter of the offence is cannabis, the Act prescribes
minimum sentences ranging from six months to three years. The applicable
minimum sentence is determined by the number of plants produced and whether any
of the aggravating factors listed in section 7(3) of the Act are present. [1236]
4.146 Section 10 of the Controlled
Drugs and Substances Act provides that a court may delay sentencing
an offender convicted of any of the foregoing offences in order to enable the
offender to participate in a drug treatment court program approved by the
Attorney General, or to attend a treatment program approved by the province
under the supervision of the court. If the offender successfully
completes such a program, the court is not required to impose the prescribed
minimum sentence.
4.147 Dupuis observes that vigorous debate
surrounded the introduction of these minimum sentences.[1237] On one side, it was argued
that mandatory sentencing for drug offences: (i) addresses the
(perceived) problem of judges prioritising the rehabilitation of offenders over
crime deterrence and the right of law-abiding citizens to go about their lives
without fear; (ii) destroys the criminal infrastructure that keeps the crime
cycle going; (iii) encourages addicts to choose drug treatment programmes
rather than go to prison; (iv) is an important deterrent and denouncement by
society; and (v) incapacitates offenders by keeping them off the streets.
On the other side, it was argued that mandatory sentencing: (i) strips judges
of discretion in sentencing; (ii) risks turning Canadian prisons into “US-style
inmate warehouses”; (iii) draws funds away from social programmes; and (iv) has
not proven to be an effective deterrent.[1238]
Concerns have also arisen that this sentencing regime will impact
most heavily on marginalised groups (particularly aboriginal people) who are
already disproportionately represented in the Canadian prison system.[1239]
4.148 The Canadian Criminal Code
prescribes mandatory minimum sentences for certain offences involving firearms
and/or other weapons.
4.149 First, the following offences
attract a minimum one-year sentence: (i) using a firearm in the
commission of an offence;[1240] (ii)
using an imitation firearm in the commission of an offence;[1241]
(iii) possession of a weapon obtained by the commission of an offence;[1242]
(iv) trafficking of a prohibited or restricted weapon;[1243]
(v) possession of a prohibited or restricted weapon for the purpose of weapons
trafficking;[1244] (vi)
making an automatic firearm;[1245]
and (vii) importing or exporting a prohibited weapon, a restricted weapon, or any
component or part designed exclusively for use in the manufacture of, or
assembly into, an automatic firearm, knowing it is unauthorised.[1246]
4.150 Second, the following offences
attract a minimum sentence of three years: (i) possession of a prohibited
or restricted firearm with ammunition;[1247]
(ii) weapons trafficking;[1248] (iii)
possession of a firearm, prohibited weapon, restricted weapon, prohibited
device, any ammunition
or any prohibited ammunition for the purpose of weapons trafficking;[1249]
and (iv) importing or exporting a firearm, a prohibited device or
any prohibited ammunition, knowing it is unauthorised.[1250]
Third, where a firearm is used in the commission of the offence, the following
offences attract a minimum sentence of four years: (i) causing death by
criminal negligence;[1251] (ii)
manslaughter;[1252] (iii)
attempted murder;[1253] (iv)
recklessly discharging a firearm;[1254]
(v) sexual assault with a weapon (threats to a third party or
causing bodily harm);[1255] (vi) kidnapping;[1256] (vii)
hostage-taking;[1257] (viii)
robbery;[1258] and
(ix) extortion.[1259]
4.151 Fourth, where a restricted
or prohibited firearm is used in the commission of the offence, or if any
firearm is used in the commission of the offence and the offence is committed
for the benefit of, at the direction of, or in association with, a criminal organisation, the following offences attract a
minimum sentence of five years: (i) attempted murder;[1260] (ii) recklessly discharging a
firearm;[1261] (iii)
sexual assault with a weapon (threats to a third party or causing bodily harm);[1262] (iv)
aggravated sexual assault;[1263] (v) kidnapping;[1264] (vi)
hostage-taking;[1265] (vii)
robbery;[1266] and
(viii) extortion.[1267] Finally, the offences of: (i)
sexual assault with a weapon (threats to a third party or causing bodily harm);[1268]
and (ii) aggravated sexual assault, also attract a minimum sentence of five
years.[1269]
4.152 The Commission observes that the
operation of this minimum sentencing regime has given rise to
controversy. On one side, proponents have asserted that these provisions
necessarily respond to a growth in gun violence in urban centres, particularly
in the context of gang-related activities.[1270]
On the other side, critics have argued that these provisions are of doubtful
deterrent value[1271] and
excessively constrain judicial discretion.[1272]
4.153 In two recent cases concerning
firearms offences, sentencing courts have refused to impose the minimum
penalties prescribed by the Criminal Code, asserting that these
punishments are grossly disproportionate. In the first such instance, the
Ontario Superior Court concluded that the three-year minimum sentence provided
for the possession of a prohibited or restricted firearm with ammunition
violated the Charter of Rights and Freedoms.[1273]
In the second instance, the Ontario Court of Justice declared the minimum
three-year sentence prescribed for the trafficking of a prohibited or
restricted weapon to be unconstitutional.[1274]
Both rulings are currently under appeal.[1275]
4.154 The Canadian Criminal Code
also prescribes mandatory minimum sentences for certain sexual offences, where
these are perpetrated against children.
4.155 First, the following offences
attract a minimum sentence of 90 days’ imprisonment: (i) householder
permitting sexual activity with a child aged 16 or 17 years;[1276]
(ii) making sexually explicit material available to a child;[1277]
and (iii) exposure of genitals for a sexual purpose to a child under 16 years
of age.[1278]
Second, the following offences attract a minimum sentence of six months’
imprisonment: (i) possession of child pornography;[1279]
(ii) accessing child pornography;[1280]
(iii) parent or guardian procuring sexual activity with a child aged 16 or 17
years;[1281] (iv)
householder permitting sexual activity with a child under 16 years of age;[1282]
and (v) prostitution of a person under 18 years of age.[1283]
4.156 Third, the following offences
attract a minimum one-year sentence of imprisonment: (i) sexual
interference with a child under 16 years of age;[1284]
(ii) invitation to sexual touching to a child under 16 years of age;[1285]
(iii) sexual exploitation of a child aged 16 or 17 years;[1286]
(iv) bestiality in the presence of a child or inciting a child to commit
bestiality;[1287] (v)
making child pornography;[1288] (vi)
distribution etc. of child pornography;[1289]
(vii) parent or guardian procuring sexual activity with a child under 16 years
of age;[1290]
(viii) luring a child;[1291] (ix)
agreement or arrangement for the commission of a sexual offence against a
child;[1292]
and (x) sexual assault of a child under 16 years of age.[1293]
4.157 Fourth, the offence of “living on
the avails” of the prostitution of a person under 18 years of age attracts a
minimum sentence of two years.[1294]
Fifth, the following offences attract a minimum sentence of five years:
(i) incest with a child under 16 years of age;[1295]
(ii) aggravated offence of living on the avails of the prostitution of a person
under 18 years of age;[1296] and
(iii) trafficking of a person under 18 years of age.[1297]
Sixth, where the offender kidnaps, commits an aggravated assault or aggravated
sexual assault against, or causes death to, the victim during the commission of
the offence, the offence of trafficking a person under 18 years of age attracts
a minimum sentence of six years’ imprisonment [1298]
4.158 The Canadian Ministry of Justice
contends that these provisions ensure that the need to strongly deter and
denounce the sexual exploitation of children is consistently reflected in
sentencing.[1299]
The Ministry argues that this is achieved by virtue of the fact that “the starting point for any sentence
calculation must be a sentence of imprisonment... .”[1300] By contrast, however, critics of this sentencing regime assert that there is little evidence to
suggest that mandatory sentencing effectively deters child sexual abuse.[1301]
The constraints placed on judicial discretion, and the corresponding risk of
disproportionate punishment, are also emphasised by these commentators.[1302]
4.159 Section 380 of the Canadian Criminal
Code[1303] prescribes
a minimum sentence of two years’ imprisonment for any offender who by
deceit, falsehood or other fraudulent means, defrauds the public or any person
(whether ascertained or not) of any property, money, valuable security or service,
where the total value of the subject-matter exceeds one million dollars. It has been observed that the
introduction of this provision reflected a move by the Canadian government to
treat white collar crime more seriously.[1304]
4.160 In Australia, mandatory sentencing
has a long history.[1305]
During the 18th and 19th centuries, mandatory sentencing was used for a wide
variety of offences.[1306] However,
during the 19th century, this approach was largely abandoned in favour of
parliament setting the maximum penalty, with the sentencing judge responsible
for determining the appropriate sentence for the individual offender.[1307]
In recent years, it would appear that the use of mandatory and presumptive
sentencing is again becoming increasingly commonplace. The Commission
notes, as a preliminary observation, that a persistent criticism of these
sentencing regimes is that indigenous adults are much more likely to be
affected than non-indigenous adults.[1308]
(I)
People Smuggling
4.161 At federal level, only one Act, the Migration
Act 1958, provides for mandatory
minimum sentences. Under section 236B, the court is required to impose a
sentence of at least five years’ imprisonment for: (i) the offence of
“aggravated people smuggling” (where the offence is committed in relation to at
least five people), and (ii) the “aggravated offence of false documents and
false or misleading information etc. relating to non-citizens” (where the
offence is committed in relation to at least five people). A mandatory
minimum sentence of 8 years applies for an aggravated offence of people
smuggling which involves exploitation or the danger of death or serious harm to
those smuggled, or where (as discussed at paragraph 5.66) one of the foregoing
offences is committed on a second or subsequent occasion. Under this
sentencing regime, the court is required to fix a minimum non-parole period of
three years, or five years if the conviction is for a repeat offence.[1309]
The prescribed minimum penalties will not apply, however, where it is
established on the balance of probabilities that the offender was under
18 years of age when the offence was committed.
4.162 The Commission observes that
significant controversy surrounds the operation of section 236B of the Migration
Act 1958. Many commentators,[1310]
including several members of the Australian judiciary,[1311]
have criticised this mandatory sentencing regime on the basis that it has led
to the imposition of disproportionate sentences on low-level offenders.
4.163 Sentencing in New South Wales is
regulated by the Crimes (Sentencing Procedure) Amendment (Standard Minimum
Sentencing) Act 2002, which amended the Crimes
(Sentencing Procedure) Act 1999.[1312]
This legislation does not appear to prescribe mandatory minimum sentences for
any offence.[1313]
However, section 54A to section 54D of the Crimes (Sentencing Procedure)
Amendment (Standard Minimum Sentencing) Act 2002 does create standard
non-parole periods for a number of offences, including armed robbery but not
drug offences. When sentencing an offender for one of these offences, the
court must, if it decides that imprisonment is appropriate, be guided by the
minimum non-parole period. This arrangement restricts judicial discretion
with respect to the duration of custody, while leaving a court free to impose a
non-custodial sanction.
4.164 In the Northern Territory,
presumptive minimum sentences are prescribed for certain first-time violent
offences and drug offences. Imprisonment is also the mandatory penalty
for certain sexual offences. As discussed in Chapter 5, the Northern
Territory provides enhanced presumptive penalties for second or subsequent
violent offences, while repeat transgressions of a domestic violence order also
attract a presumptive minimum sentence.
4.165 The Commission observes that
mandatory sentencing regimes have been a source of particular controversy in
the Northern Territory. Most notably, the Sentencing Act 1995, as
amended in 1997, had prescribed mandatory sentences in respect of a broad range
of property offences. The Act provided for a minimum sentence of 14 days’
imprisonment for a first offence; 90 days for a second offence and one year for
a third offence.[1314]
The same amendments also imposed mandatory minimum 28-day terms of imprisonment
on juvenile repeat property offenders (aged 15 or 16 years) with escalating
penalties for subsequent offences. When this sentencing regime was
associated with a number of deaths in prison, a grass roots campaign led to its
amendment and eventual repeal in 2001.[1315]
4.166 Under the Sentencing Act, the
Northern Territory prescribes a presumptive sentencing regime in respect of
certain violent offences. First, where an offender who has not previously
been convicted of a violent offence[1316]
is convicted of a crime classified as a “Level 5”[1317]
offence, he or she must receive a minimum three-month term of imprisonment.[1318]
Second, where an offender is convicted of a crime classified as a “Level 4”[1319]
offence, he or she must receive a minimum three-month sentence, irrespective of
whether he or she has previously been convicted of a violent offence.[1320]
Third, an offender convicted of a “Level 3”[1321]
offence, who has not previously been convicted of a violent offence, must
receive a custodial sentence in circumstances where the victim suffers physical
harm as a result of the offence.[1322]
Any offender convicted of a “Level 2”[1323]
offence must also receive a custodial sentence, irrespective of whether he or
she has previously been convicted of a violent offence.[1324]
A sentencing court may not suspend a term of imprisonment imposed in accordance
with these provisions.[1325]
4.167 The obligation to impose a minimum
penalty of a specified period will not apply where the court is satisfied that
the circumstances of the case are exceptional.[1326]
In determining whether the circumstances are exceptional, the court may have
regard, in particular, to any victim impact statement or victim report
presented to the court, and any other matters which it considers relevant.[1327]
The following circumstances may not be regarded as exceptional circumstances:
(a) that the offender was voluntarily intoxicated at the time of
committing the offence, or (b) that another person was involved in committing
the offence, or coerced the offender to commit the offence.[1328]
Equally, where the offender is under the age of 18 years, the court will not be
required to impose a prescribed minimum sentence of a specified period upon him
or her.[1329] Where
exceptional circumstances are present or where the offender is under the age of
18 years, the court is nonetheless required to specify a custodial sentence and
this may not be suspended.[1330]
4.168 In May 2013, the proviso was
introduced that a sentencing court may not suspend a minimum term prescribed
under this regime.[1331]
According to the Northern Territory Government, this reform was intended to
facilitate the protection of vulnerable victims of violent crime.[1332]
The Government has argued, in particular, that the chief benefit of this
amendment was that it would signal to serious and repeat violent offenders, as
well as victims of crime, that those who perpetrate violent offences will serve
actual prison time. It would appear that this amendment was therefore
intended to further the particular sentencing aims of deterrence and
retribution.
4.169 The Commission notes that this
presumptive sentencing regime has been criticised by certain commentators who
maintain that these provisions are liable to impact disproportionately on
Aboriginal offenders.[1333]
4.170 Section 37 of the Misuse of Drugs
Act provides that a
28-day presumptive minimum sentence must be imposed for a number of drug
offences. The court is not required to impose the sentence if, having
regard to the particular circumstances of the offence or the offender, the
court is of the opinion that the penalty should not be imposed.
4.171
Under the Sentencing
Act, a sentencing court is required to impose a custodial term upon an
offender convicted of a specified sexual offence.[1334]
The sentence imposed may be suspended in part, but not as a whole.[1335]
4.172 In Queensland, certain firearms
offences attract a mandatory minimum sentence of imprisonment.
(I)
Firearms Offences
4.173 The Weapons Act 1990, as amended,[1336]
provides that where specific aggravating factors are present, certain firearms
offences will attract a mandatory minimum sentence.
4.174 First, the offence of unlawfully
possessing a firearm will attract a minimum sentence of either 9 months[1337]
or 18 months[1338]
(depending on the weapons involved) where an adult offender uses the firearm to
commit an indictable offence.[1339]
This offence will attract a minimum sentence of either six months[1340]
or one year[1341] where an
adult offender unlawfully possesses the firearm for the purpose of committing
or facilitating the commission of an indictable offence.[1342]
A minimum sentence of one year is also prescribed for the unlawful possession
of a short firearm in a public place, without a reasonable excuse.[1343]
Second, the offence of unlawfully supplying weapons will attract a minimum
sentence of either two and a half years[1344]
or three years[1345] where at
least one of the weapons is a short firearm and the person does not have a
reasonable excuse for unlawfully supplying the firearm.[1346]
Third, the offence of unlawfully trafficking in weapons will attract a minimum
sentence of either three and a half years[1347]
or five years[1348] where at
least one of the weapons is a firearm and the offender does not have a
reasonable excuse for unlawfully carrying on the business.[1349]
4.175 Section 185B of the Corrective
Services Act 2006[1350] stipulates
that an offender who receives a minimum sentence under the Weapons Act 1990 will
not be eligible for parole until the prescribed minimum term has been served.
4.176 The introduction of this minimum
sentencing regime was proposed in the aftermath of a series of shootings in
South East Queensland.[1351] It
would appear that most of these high-profile incidents were related to ongoing
feuding between rival motorcycle gangs.[1352]
4.177 According to the Queensland
Government, these mandatory sentencing provisions were intended to provide a
strong deterrent to the unlawful use of firearms. The Minister for Police
and Community Safety expressed the view that the pre-existing repercussions of
illegal weapons use were “weak” and that minimum sentences were required to “send a clear message that trafficking, supply, unlawful possession
and use of illegal firearms will not be tolerated.”[1353]
On the other hand,
however, the value of these provisions has been disputed by a number of
commentators, including the Queensland Law Society.[1354]
Reiterating its longstanding view that “mandatory sentencing laws are unfair,
unworkable and run contrary to Australia’s international treaty obligations”,
the Society has expressed concern that this regime will: (i) unduly
fetter judicial discretion, leading to injustice in individual cases; (ii) reduce
the proportion of guilty pleas, increasing costs, delays, and the stress to
victims and other witnesses;
and (iii) impact disproportionately on the most marginalised members of
society.[1355]
The Society has also noted that there is a lack of evidence to demonstrate that
mandatory sentencing provides a deterrent effect, and that these regimes have
in fact failed to
reduce crime in other Australian states and common law countries.[1356]
4.178 South Australia does not appear to
prescribe a mandatory or presumptive minimum sentence for any offence.
4.179 Likewise, Tasmania does not appear
to provide a mandatory or presumptive minimum sentence for any offence.
4.180 Victoria prescribes mandatory
minimum sentences for certain offences involving the causation of fire in a
country area.
4.181 Section 39A of the Country Fire
Authority Act 1958 prescribes a minimum three-month sentence of
imprisonment for the offence of causing a fire in a country area in extreme
conditions of weather. In addition, section 39C prescribes a minimum
one-year sentence of imprisonment for the offence of causing a fire in a
country area with intent to cause damage.
4.182 As will be discussed in Chapter 5,
Western Australia applies a mandatory minimum sentencing regime in respect of
repeat burglary offenders. Where perpetrated for the first time, certain
forms of assault also attract a minimum sentence in this state.
(I)
Assaults against Public Officers
4.183 Section 297 of the Criminal Code provides
a mandatory minimum sentence for the commission, in prescribed circumstances,
of grievous bodily harm against a member of one of a number of specified
classes of public officer.[1357]
Under this section, a sentencing court must impose a minimum sentence of 12
months’ imprisonment upon an adult offender or three months’ imprisonment or
detention, as it sees fit, upon an offender aged 16 or 17 years. The
court may not suspend any sentence imposed under this regime and must record a
conviction against the offender.
4.184 Section 318 of the Criminal Code provides
a mandatory minimum sentence for the commission, in prescribed circumstances,
of a serious assault resulting in bodily harm to a member of one of a number of
specified classes of public officer.[1358]
Under this section, a sentencing court must impose a minimum sentence of six
months’ imprisonment on an adult offender, or three months’ imprisonment or
detention, as it sees fit, on an offender aged 16 or 17 years. Where the perpetrator was at least
18 years of age at the time of the offence and was at, or immediately before or
immediately after the commission of the offence, armed with any dangerous or
offensive weapon or instrument, or in company with another person or persons,
he or she will attract a minimum sentence of 9 months’ imprisonment. When
sentencing an offender under section 318, the court may not suspend any term of
imprisonment imposed and must record a conviction against the person.
4.185 It has been emphasised by the
Government of Western Australia that since the introduction of these mandatory
sentencing provisions in September 2009, reported assaults against
police officers have declined significantly.[1359]
Whether this decrease is attributable to the new sentencing regime is, however,
uncertain. The Sentencing Advisory Council of Tasmania has observed that
shortly prior to the introduction of these provisions, the Western Australian
police changed their policy regarding single officer patrols so that officers
were no longer to be rostered, directed or encouraged to patrol alone.[1360]
This has been identified as a factor which may have contributed to the decrease
in reported assaults on police officers.[1361]
The Council has also noted that assaults in public places declined during the
years 2009-2011, matching the pattern regarding assaults against police
officers for the same period.[1362]
This decline in assault offences occurred not only in Western Australia but in
Tasmania, and has been attributed by the Tasmanian police to a general decline
in all areas of crime throughout Australia during this period.[1363]
4.186 In October 2012, the Western
Australia Police Union expressed concern that prison sentences had only been
imposed in 38 percent of the 87 finalised cases involving assaults on public
officers.[1364] In 36 percent of cases, the
charge was instead downgraded, resulting in the imposition of a non-custodial
penalty.[1365] In response to the misgivings
expressed by the Police Union, the Criminal Lawyers’ Association of Western
Australia insisted that the number of downgraded charges accorded with proper
prosecuting guidelines. These guidelines require that the public interest
and the prospects of conviction be considered in each individual case.[1366] The Association maintains
that it is inevitable that the mandatory sentencing regime will be taken into
account in considering whether it is in the public interest to pursue a charge.[1367]
4.187 As outlined in Chapter 5, New
Zealand applies a mandatory sentencing regime in respect of certain repeat
offences. However, where committed by an offender for the first time, no
offence would appear to attract a mandatory minimum sentence.
4.188
A comparative analysis of common law countries that have introduced
minimum sentencing regimes is of interest. As illustrated in Chapter 2,
it is clear that the enactment of presumptive minimum sentences for drugs and
firearms offences in this State was, to some extent, influenced by sentencing
reforms in the United States of America and the United Kingdom, in
particular. Traditionally, it has also been the consistent approach of
the Commission to engage in comparative analysis when evaluating potential
options for law reform in this State.
4.189
Equally, however, the Commission cautions against relying too heavily on
the example set by other common law jurisdictions. It should be noted
that the rationale for introducing minimum sentencing regimes varies from
country to country and that these provisions are often the product of
circumstances and cultural factors specific to the jurisdiction in
question. The Commission notes, therefore, that it is important to independently
assess any proposed extension of mandatory sentencing to ensure that any reform
would be consistent with the key sentencing aims and principles identified in
Chapter 1.
4.190 In this Part, the Commission
considers presumptive minimum sentences against the conceptual framework
established in Chapter 1. Specifically, the Commission considers this
category of mandatory sentence against: (1) the aims of sentencing, and
(2) the principles of justice.
4.191
The Commission has observed that criminal sanctions pursue one or more
of a number of aims including deterrence, punishment, reform and rehabilitation
and reparation. The Commission has also observed that deterrence and
punishment tend to feature more heavily in cases involving more serious crimes
and, consequently, more severe sanctions. Likewise, it is ostensibly
these aims which feature most heavily in cases involving those offences which
attract presumptive minimum sentences. Specifically, these presumptive
sentences seek to: (i) dissuade by coercive means, the offender from
committing another drugs or firearms offence and to punish him or her severely
for the offence that he or she has committed, and (ii) dissuade the public at
large from committing the relevant drugs or firearms offences. It
is arguable, however, that these presumptive sentences are not adequately
meeting these aims.
4.192
The Commission observes that, for various reasons, the presumptive
sentencing regime under the Misuse of Drugs Act 1977 may not adequately
meet the aim of deterrence. At one end of the scale, there are the high-level
offenders who, it would seem, shield themselves from detection and prosecution
by means of complex and constantly evolving networks of distributors. It
is unlikely that many of these high-level offenders would be deterred by the
prospect of a presumptive 10-year sentence when they are unlikely to be
subjected to it.
4.193
At the other end of the scale, there are the low-level drug mules whose
involvement in the drugs trade is generally secured by means of exploitation
and/or coercion. It is unlikely that these offenders would be deterred by
the prospect of a presumptive minimum sentence as many of them will not be in a
position (through incapacity, foreign nationality etc) to assess the legal
consequences of their actions and many others will be more afraid of the
consequences of refusal. The Court of Criminal Appeal has observed that
in addition to these offenders who have been “exploited to work as drug
couriers for a pittance”, many of those appealing sentences imposed under this
regime “are themselves drug addicts struggling to escape from the terrors of
their addiction.”[1368]
This is significant in so far as mandatory sentences are understood to have a
very limited deterrent impact on those who are seeking to support a drug
addiction through criminality.[1369]
In particular, Mascharka notes that as drug addicts are often prepared to risk
victimisation, overdose, the transmission of diseases, and toxicity and
impurities in the drug in order to feed their addiction, they are unlikely to
be deterred by the prospect of lengthy imprisonment.[1370]
4.194
Admittedly, it may be the case that having once served a sentence for
their role as a drug mule, some of these offenders will be less willing to
perform that role again. Given that there is a virtually limitless pool
of vulnerable and desperate potential candidates,[1371]
however, it is unlikely that this would have a significant impact on the
overall rate of drug trafficking.
4.195
The Commission also observes that the presumptive sentencing regime
under the Misuse of Drugs Act 1977 may not adequately meet the aim of
punishment. From a retributive perspective, it would seem unjust that the
range of actors involved in drug trafficking should be subject to the same
presumptive sentencing regime regardless of their level of moral culpability or
involvement. This regime creates a parallel system of sentencing whereby
offenders who were in possession of controlled drugs worth €13,000 or more are
liable to be punished more severely than others involved in the illicit drugs
trade. The market value of the drugs is therefore prioritised at the
expense of other factors relevant to culpability, such as the role, motive and
state of mind of the offender.[1372]
This regime would appear to create a risk that an individual offender may
receive a level of punishment disproportionate to his or her culpability.
The courts are permitted to impose a sentence lower than the presumptive
minimum sentence where there are exceptional and specific circumstances.
This goes some way towards ensuring that offenders do not receive
disproportionate sentences.
4.196
Similar observations may be made regarding the denunciatory aspect of
this sentencing regime. As this regime prioritises the market value of
the drugs at the expense of other factors relevant to culpability, it creates a
risk that an individual offender may be denounced more forcefully than is
warranted by his or her culpability.
4.197
The Commission observes that rehabilitation is another aim that is built
into the presumptive sentencing regime under the Misuse of Drugs Act 1977.
As discussed at paragraph 4.48, section 27(3J) provides that the court may list
a sentence for review after half of the term has expired. To list a
sentence for review, the court must be satisfied that the offender was addicted
to drugs at the time of the offence and that this was a substantial factor
leading to the commission of the offence. It has been noted, however,
that this provision is limited to the extent that it only applies to offenders
who have received the minimum sentence of 10 years or more.[1373]
4.198
It is thus questionable whether the presumptive sentencing regime under
the Misuse of Drugs Act 1977 is contributing to the overall aim of the
criminal justice system, namely, the reduction of prohibited or unwanted
conduct. Indeed, while it is possible that offending rates might be
higher in the absence of these provisions, it has been noted that recorded
levels of drug crime have increased greatly during the period in which these
presumptive sentences have been in force.[1374]
This tends to support the view that the objective of reducing drug-related
crime is unlikely to be achieved solely through criminal law enforcement.
4.199
The Commission notes that in 2006 the Health Research Board (HRB)
examined the nature of the link between drugs and crime with a view to
informing the development of effective policy responses.[1375] The study employed four
explanatory models: (i) the psycho-pharmacological model;[1376]
(ii) the economic-compulsive model;[1377]
(iii) the systemic model;[1378]
and (iv) the common-cause model.[1379]
This analysis suggested, among other things, that: (i) well-resourced
treatment services, such as methadone substitution, can have a positive impact
on criminal behaviour; (ii) local policing partnerships which acknowledge that
fear of retribution is a deterrent to crime-reporting are essential to
addressing drug-related crime in deprived areas; and (iii) addressing
socio-economic circumstances is an essential part of dealing with the problem
of drugs and crime. The HRB concluded that while activities aimed at
supply control, combined with efforts to reduce the demand for drugs, remain
essential policy goals, the development of an Irish crime-reduction strategy
needs to appreciate the complexity of the drugs-crime nexus.[1380]
In particular, it emphasised that while law enforcement activities may have
contributed, among other things, to the relative containment of illicit drug
use, there is little evidence that such approaches have halted the expansion of
illicit drug markets or reduced associated criminal activities for any
sustained period.[1381]
4.200
The research conducted by the HRB indicates that policies designed to
counter illicit drug dependence have a key contribution to make to the
reduction of crime. Of particular interest in this respect, is the work
of the Misuse of Drugs work sector of the British-Irish Council (BIC).
The Commission notes that in January 2012 the Member Administrations of the BIC
confirmed their commitment to actively encouraging a renewed focus on recovery
from drug dependence in future drug strategies.[1382]
The work sector, which is led by the Irish administration, further agreed that
Member Administrations will work together to evaluate and share successful
approaches to this challenge. At the summit meeting held in January 2012,
Ministers discussed drug treatment measures and strategies that have been put
in place in each administration to facilitate the path of recovery. The
Council noted that a more ambitious inter-agency approach was needed involving individual
care plans to better address the holistic needs of clients. A discussion
paper titled Recovery from Problem Drug Use was also welcomed by the
various delegations in attendance. The Commission notes that in 2012 the
BIC also considered issues such as: (i) the misuse of prescription drugs;
(ii) the misuse of new psychoactive substances; and (iii) cycles of problem
substance abuse among young people.[1383]
4.201
The Commission observes that there has been little commentary in the
literature on presumptive sentencing under the Firearms Acts. Given,
however, that it was modelled on the presumptive sentencing regime under the Misuse
of Drugs Act 1977, many of the comments made in relation to the Misuse
of Drugs Act 1977 also apply to the Firearms Acts.
4.202
The presumptive sentencing regime under the Firearms Acts may not, for
instance, adequately meet the aim of deterrence. In this regard, Campbell
observes that presumptive sentencing as a means of deterring gun crime assumes
that the offender has made a rational decision to commit the offence.[1384]
She notes, however, that expressions of masculinity and social deprivation are
also contributing factors and firearms offenders might respond better to an
educational and psychological approach rather than a legal approach.[1385]
4.203
In addition, the Commission observes that this sentencing regime may not
appropriately pursue the aim of punishment. The Firearms Acts prioritise
one aggravating factor, namely, the existence of a prior relevant conviction
under the Acts, at the expense of other factors relevant to culpability.
In this regard, the regime may run the risk of inflicting disproportionate
punishment upon a particular offender. The Commission acknowledges,
however, that the courts may undertake a downward departure from the
presumptive minimum sentence on the basis of factors which constitute exceptional
and specific circumstances. This goes some way towards ensuring that
offenders do not receive disproportionate sentences.
4.204
Similar observations may be made regarding the denunciatory aspect of
this sentencing regime. As the Firearms Acts prioritise the existence of
a prior relevant conviction at the expense of other factors relevant to
culpability, this regime creates a risk that an individual offender may be
denounced more forcefully than is warranted by his or her culpability.
4.205
The Commission has observed that sentencing must also comply with a
number of external constraints that emanate from fundamental principles of
justice, namely, the principles of: (a) consistency, and (b)
proportionality. In this section, the Commission considers the
presumptive sentencing regimes under the Misuse of Drugs Act 1977 and
the Firearms Acts against these principles.
4.206
The Commission has observed that the principle of consistency requires a
consistent application of the aims and principles of sentencing (consistency of
approach) rather than uniformity of sentencing outcomes (consistency of
outcomes). Consistency of approach thus requires that like cases should
be treated alike and different cases should be treated differently. The
corollary of this is that inconsistency arises where like cases are treated
differently and different cases are treated alike.
4.207
The Commission observes that there are a number of ways in which the
presumptive sentencing regime under the Misuse of Drugs Act 1977 may run
the risk of being inconsistent.
4.208
First, as discussed in Chapter 2, the presumptive 10-year minimum
sentence under the Misuse of Drugs Act 1977 was introduced (against the
backdrop of an escalating drugs problem) to address the perceived leniency of
the sentencing courts in drug trafficking cases. Thus, at the outset at
least, the primary focus of the presumptive sentencing regime for drug
trafficking offences was the outcome of the sentencing process rather
than the approach to the sentencing process.
4.209
Second, the Commission considers that using the market value of the
controlled drugs as the triggering factor for the presumptive sentence, may
have implications for consistency in sentencing. It has been noted that
the factor which engages a mandatory sentencing regime should be clearly
defined and unequivocal.[1386] By
contrast, it has been observed that:
“[The market value] was, and remains,
an unacceptably casual and unscientific manner of establishing the nature and
quantity of drugs involved in any given case. By virtue of their
illegality and the clandestine manner in which they circulate, prohibited
substances cannot be valued, except in the crudest terms, like other
commodities. Street value may vary over time and, also, from one part of
the country to another. There can be no guarantee that the amount of
drugs (or any particular kind of drug) that could be bought for Ł10,000 in 1999
would approximate to what can now be bought for €13,000.”[1387]
There is therefore a risk that similarly situated offenders may
be treated differently on the basis of an unreliable evaluation of the
controlled drugs they possessed. In addition, as the market value threshold
has not changed since 1999, there is a risk that if the market value of drugs
inflates over time, which it is likely to do, more and more lower-level
offenders will be caught by the provision.
4.210
Third, the Commission observes that aside from the unreliability of the
“market value” threshold, the fact that this threshold creates a “sentencing
cliff” (whereby a small difference in facts may lead to a significant
difference in sentence[1388])
arguably requires the adoption of a different sentencing approach in respect of
similarly situated offenders. An offender convicted of a section 15A or
section 15B offence involving drugs worth at least €13,000, may expect to
receive a minimum 10-year sentence save where there are exceptional and
specific circumstances. However, by contrast, where the drugs at issue
were worth even marginally less than €13,000, an offender may cite any
mitigating factors and potentially receive a reduction in sentence on the basis
of these factors. This regime may thus require the courts to adopt a
different sentencing approach in respect of individuals whose conduct and level
of culpability are virtually identical. Indeed, the fact that mens rea
regarding the value of the drugs is not an element of the offence, arguably
compounds the risk that similarly culpable offenders may be treated
differently.
4.211
Fourth, at a broader level, inconsistency may result from the fact that
judicial discretion is constrained in the sentencing of certain drugs and
firearms offences, while the sentencing of most other offences, including more
serious ones, is largely discretionary.[1389]
4.212
Fifth, the Commission observes that the courts’ power to list a sentence
for review creates an inconsistent system in so far as it only applies to
offenders who have received the minimum sentence.
4.213
The Commission notes, however, that the presumptive sentencing regime
under the Misuse of Drugs Act 1977 permits the courts to take some
account of distinguishing factors in individual cases, at least in so far as
they constitute exceptional and specific circumstances. This goes some
way towards ensuring that different cases are treated differently.
4.214
The Commission observes that similar comments may be made in respect of
the presumptive sentencing regime under the Firearms Acts.
4.215
Like the regime under the Misuse of Drugs Act 1977, the presumptive
sentencing regime under the Firearms Acts was introduced in response to an
apparent increase in firearms offences. Arguably, the decision to address
the issue by means of more severe sentencing suggests that, at the outset at
least, the primary focus of the regime was the outcome of the sentencing
process rather than the approach to the sentencing process. The
Commission notes, however, that the presumptive sentencing regime under the
Firearms Acts permits the courts to take some account of distinguishing factors
in individual cases, at least in so far as they constitute exceptional and
specific circumstances. As noted at paragraph 4.213, this goes some way
towards ensuring that different cases are treated differently.
4.216
As discussed at paragraph 4.211, however, it may be considered
inconsistent that judicial discretion should be constrained in the sentencing
of certain drugs and firearms offences, while a largely discretionary approach
is permitted in the context of other offences of equal or greater gravity.
4.217
The Commission has observed that the principle of proportionality comprises:
(a) constitutional proportionality, and (b) proportionality in
sentencing.
4.218
As discussed in Chapter 3, the Supreme Court has ruled that the
Oireachtas is entitled to prescribe a mandatory sentence whenever it considers
that a mandatory sentence is an appropriate penalty.[1390]
It thus follows that
the Oireachtas is entitled to prescribe a presumptive minimum sentence whenever
it considers that such a sentence is an appropriate penalty.
4.219
The Commission has observed that the principle of proportionality in
sentencing requires an individualised
approach to sentencing whereby the court has regard to the circumstances of
both the offence and the offender.
4.220 The Commission
observes that there are a number of ways in which the presumptive sentencing
regime under the Misuse of Drugs Act 1977 may give rise to
disproportionate sentencing.
4.221 In the first
instance, the Commission observes that the presumptive sentencing regime under
the Misuse of Drugs Act 1977 is a relatively severe system of
sentencing. It creates a “one-strike rule”[1391]
whereby any offender who is found to have been in possession of controlled
drugs worth €13,000 or more, may expect to receive a sentence of 10 years to
life save where there are exceptional and specific circumstances. By
international standards, this prescribed minimum term is very long.[1392]
Furthermore, the severity of this system is compounded by the fact that the Misuse
of Drugs Act 1977 limits the circumstances in which such an offender may be
granted early release.
4.222 Second, those
who are in favour of mandatory sentences typically focus on the most serious
cases, with little regard to the less serious cases to which the sentences also
apply.[1393]
By constraining the ability of the courts to punish offenders on an
individualised basis, these regimes create an increased risk of
disproportionate sentencing.[1394] In particular, the regime
under the Misuse of Drugs Act 1977 would appear to entail a danger that
low-level offenders may be treated like high-level offenders. Indeed, as they are easier to
detect, it has been noted that the majority of those being sentenced under the
presumptive regime are low-level drug mules rather than high-level drug barons.[1395]
4.223
The Commission observes that similar comments may be made in respect of
the presumptive sentencing regime under the Firearms Acts. This regime
also imposes a relatively severe “one-strike” rule and, to the extent that it
constrains judicial discretion, creates a risk of disproportionate sentencing.
4.224
In Chapter 1, the
Commission noted that drugs and firearms offences have a particularly
deleterious impact on society. It is therefore understandable that the
Oireachtas should wish to increase the severity of the sanctions applicable to
these offences through the enactment of presumptive minimum sentences.
The Commission further recognised that the provision of presumptive minimum
sentences may be seen to afford individual members of society, who might
otherwise feel victimised and powerless, an opportunity to express their
condemnation of such offences.
4.225
The
Commission observes, however, that having regard to the aims and principles of
sentencing outlined in Chapter 1, there is a need to ensure that these
provisions achieve their stated objectives and that, as a result, they
facilitate the reduction of crime (the paramount aim of the criminal justice
system). From the analysis undertaken in Part E, it would appear that this
is not the case; the Commission has identified seven problems which
characterise the presumptive minimum sentencing regimes applicable to drugs and
firearms offences.
4.226 The first problem relates to the
category of offenders that are being prosecuted and sentenced. In
relation to the Misuse of Drugs Act 1977, at least, it would appear that
many of those coming before the courts are low-level drug mules rather than
high-level drug barons.
4.227 The second problem relates to the
aims of sentencing, in particular, the aims of deterrence, punishment and
rehabilitation. In this regard, the Commission has observed that the
presumptive sentencing regimes under the Misuse of Drugs Act 1977 and
the Firearms Acts may not adequately meet these aims.
4.228 The third problem is a related
problem. Where the presumptive sentencing regimes are not meeting the
aims of sentencing, it is questionable whether they are furthering the overall
aim of the criminal justice system, namely, to reduce prohibited or unwanted
conduct.
4.229 The fourth problem relates to the
principles of justice, namely, the principles of consistency and
proportionality. In this regard, the Commission has noted that the
presumptive sentencing regimes under the Misuse of Drugs Act 1977 and
the Firearms Acts may give rise to inconsistent and disproportionate
sentencing.
4.230 The fifth problem relates to the
argument that minimum sentences are not a cost-effective response to
crime. Regarding mandatory minimum sentences for drug offences, the Rand
Corporation has noted that for the same amount of money, a more effective
method would be to strengthen enforcement under the previous sentencing regime
or to increase treatment for heavy drug-users.[1396]
4.231 The sixth
problem relates to the argument that there is incongruence between the
sentences applicable to drugs offences and the sentences applicable to firearms
offences. In this
regard, Smith observes:
“[A]s
a sentencing procedure [sentencing section 15A offences] can lead to unfairness
for those who come before the courts. Whilst it is accepted that the
dangers of drugs and their threat to society can never be underestimated, it is
unclear why those who are caught with firearms are only subject to a
presumptive mandatory sentence of five years. Whereas, those vulnerable
persons in society who are used as couriers are subject to the presumptive 10
year mandatory minimum. It is accepted that exceptional and specific
circumstances tend to guide judges away from the 10 years in appropriate
circumstances, but nonetheless the figure is constantly present in [the]
sentencing judge’s mind.”[1397]
In a broader sense, it would also appear to be
inconsistent that certain drugs and firearms offences attract a presumptive
minimum sentence, whereas many other offences of equal or greater gravity
attract neither a presumptive nor mandatory sentencing regime.
4.232
The final problem relates to the argument that mandatory sentencing
regimes are too rigid to keep abreast of evolving penal philosophy. As
discussed in the Consultation Paper, the views of sentencers regarding matters
such as the seriousness of a particular offence and the appropriateness of
various non-custodial and custodial sanctions may evolve over time.[1398]
Mandatory sentencing regimes are incapable of keeping pace with these
developments.
4.233
In light of this analysis, the Commission recommends that the existing
presumptive sentencing regimes applicable to drugs and firearms offences be
repealed. In the Consultation Paper, the Commission observed that
it had not been established that presumptive minimum sentences for drugs and
firearms offences had succeeded in reducing criminality. The Commission
affirms this view. As these regimes do not appear to further the
sentencing aims of deterrence, retribution and rehabilitation, it is unlikely
that they further the overarching goal of crime-reduction.
4.234
In addition to the apparent failure of these regimes to reduce
criminality, the Commission notes that these provisions have, in practice,
produced a number of counter-productive results. First, having expanded
upon the analysis contained in the Consultation Paper, the Commission considers
that these sentencing regimes are not consistent with the fundamental
principles of justice discussed in Chapter 1, namely, the principles of
consistency and proportionality in sentencing. As discussed in Part E,
these provisions appear to require an inconsistent approach to sentencing in so
far as the courts are constrained in their ability to treat like cases alike
and different cases differently. Similarly, in constraining the ability
of the courts to take account of the individual circumstances of each offender,
it would appear that these regimes create a risk of disproportionate
sentencing.
4.235
Second, in the context of drug trafficking offences, in particular, it
would appear that the introduction of presumptive minimum sentences has
primarily affected low-level “drug mules” rather than the most culpable
participants in the illicit drugs industry. As discussed in Part B,
during the public consultation and roundtable discussion, practitioners stated
that high-level offenders have adapted to this sentencing scheme and are
largely shielding themselves from prosecution through the use of low-level
offenders as couriers. This view is consistent with the Commission’s own
review of the case law in this area and, in particular, with the observations
of the Court of Criminal Appeal in the case of The People (DPP) v
Byrne (see paragraph 4.193 above). It may have initially been
thought that some “drug mules” would have been in a position to provide
valuable evidence in relation to those criminal actors higher up the
organisational structure. However, during the consultation process,
practitioners stated that this has occurred in very few, if any, instances.
This is because drug mules tend not to be members of the criminal organisation
and are chosen for that very reason. Indeed, those closely involved with
the practical application of this sentencing regime noted that there was a
strong incentive for drug mules to plead guilty rather than run the risk of
becoming witnesses for the prosecution. This is because the legislation
provides for the non-application of the presumptive minimum sentence where a
person pleads guilty. This further aspect of the regime also explains why
the majority of those imprisoned under this provision are low-level offenders
as opposed to influential high-level participants in the illicit drugs
trade.
4.236
In recommending the repeal of these presumptive sentencing regimes, the
Commission proposes that the development of a more structured, guidance-based
sentencing system (as envisaged in the recommendations made in Chapter 1) would
provide an appropriate alternative to these provisions. In the context of
drug-related crime, in particular, the Commission also considers that law
enforcement efforts may be beneficially supplemented by other initiatives, such
as those highlighted in the research conducted by the Health Research Board and
the Misuse of Drugs work sector of the British-Irish Council (see paragraphs
4.199 and 4.200).
4.237
Having regard to this conclusion regarding the existing presumptive
sentencing regimes for drugs and firearms offences, the Commission agrees with
the view, provisionally adopted in the Consultation Paper, that the
introduction of additional presumptive minimum sentences would not be an
“appropriate or beneficial” response to other forms of criminality. The
Commission notes (as discussed at paragraphs 2.168 to 2.174) that presumptive
sentencing regimes have been proposed in recent years in Ireland in respect of
a number of offences, such as assaults against emergency workers and aggravated
false imprisonment. However, as discussed above, it has not been
established that presumptive minimum sentences achieve the relevant sentencing
aims of deterrence, retribution and rehabilitation. As a result, these
regimes are not likely to facilitate a reduction in criminal conduct. The
Commission therefore recommends that the use of presumptive minimum sentences
not be extended to other offences under Irish
law.
4.238
The Commission recommends that the following be repealed: (i) the
presumptive minimum sentencing regime applicable to drugs offences under
section 27(3C) of the Misuse of Drugs Act 1977, and (ii) the presumptive
minimum sentencing regime applicable to firearms offences under section 15 of
the Firearms Act 1925; section 26, section 27, section 27A and section 27B of
the Firearms Act 1964; and section 12A of the Firearms and Offensive Weapons
Act 1990. The Commission also recommends that the use of presumptive
minimum sentencing regimes not be extended to other offences.
4.239
The Commission also recommends that a more structured, guidance-based
sentencing system (as envisaged in the recommendations made in Chapter 1) would
provide an appropriate alternative to these provisions. In the context of
drug-related crime, the Commission also considers that law enforcement efforts
may be beneficially supplemented by other initiatives, such as those
highlighted in the research conducted by the Health Research Board and the
Misuse of Drugs work sector of the British-Irish Council.
5
5.01
In the Consultation Paper, the Commission observed that in very
select situations, legislation provides guidance as to how repeat offenders
should be sentenced for second or subsequent offences.[1399]
Section 11(1) of the Criminal Justice Act 1984,[1400]
for example, provides that any sentence imposed on a person for an offence
committed while he or she is on bail, must run consecutively to any sentence
passed on him or her for the prior offence. Section 13(1) of the Criminal
Law Act 1976 also provides that any sentence passed on a person for an
offence committed while he or she is serving a sentence, must run consecutively
to the sentence that he or she is serving.
5.02
In this chapter, the
Commission focuses on the imposition of presumptive or mandatory sentences for
second or subsequent offences. In Ireland, there are three examples of
this type of sentencing regime; these are prescribed by: (i) the Criminal
Justice Act 2007; (ii) the Misuse of Drugs Act 1977; and (iii) the
Firearms Acts. Part B to Part D of this chapter examines the
practical operation of these sentencing regimes. Part E considers the
approaches adopted by other common law countries in respect of the sentencing
of repeat offenders. The Commission concludes in Part F by examining
presumptive and mandatory sentences for second or subsequent offences against the
conceptual framework for criminal sanctions and sentencing.
5.03
Subject to specified conditions, section 25(1) of the Criminal
Justice Act 2007 prescribes a presumptive minimum sentence for the
commission of a second or subsequent serious offence listed under Schedule 2 to
the Act. In this Part, the Commission considers the application of this
regime by examining: (1) the elements which trigger the presumptive
minimum sentence, (2) the relevant penalty provisions, and (3) the early
release provisions.
5.04
In this section, the Commission is not concerned with the particular
elements of the offences listed in Schedule 2 to the Criminal Justice Act
2007. These offences are not relevant to the operation of this
presumptive sentencing regime except in so far as a second or subsequent
conviction for any such offence will trigger the regime. In this respect,
section 25 of the 2007 Act differs from the presumptive penalty
provisions under the Misuse of Drugs Act 1977 and the Firearms Acts.
(i) Age
5.05
Section 25(1) provides that the offender must be at least 18 years of
age on the dates on which he or she is convicted of the first and subsequent
scheduled offences. Presumably, this subsection was intended to ensure
that the presumptive minimum sentence would not apply to juvenile offenders.[1401]
The reference to the ‘date of conviction’ means, however, that an
offender who commits a scheduled offence while under the age of 18
years, but who attains this age by the date of conviction, may still be
subject to section 25.
(ii) Prior Scheduled
Offence
5.06
Section 25(1)(a) states that the offender must have been convicted on
indictment of an offence listed in Schedule 2 to the 2007 Act. Section
25(4) provides that the prior offence may be one committed before or after the
commencement of section 25. Thus, it appears that the provision may in
certain circumstances apply retrospectively.[1402]
5.07
The offences included in Schedule 2 may be described as serious offences
and are particularly likely to be committed by those involved in gangland
activities.[1403]
This is unsurprising in the sense that the 2007 Act (as discussed at
paragraphs 2.209 and 2.210) was intended to respond to the particular
problems posed by gangland crime. Nonetheless, it is not a requirement of
this regime that the scheduled offences be committed in relation to such
activities; rather, the presumptive sentence may apply regardless of whether
there is any such connection. The Commission considers that this is in
order as the scheduled offences are, of themselves, serious enough to merit
severe penalties.
(iii) Five Year Sentence
of Imprisonment
5.08
Section 25(1)(b) states that the offender must have been sentenced to
imprisonment for at least five years for the prior offence. This
provision was intended to distinguish between more serious and less serious
incidents of the crimes listed in Schedule 2. In this respect, the
Commission notes that it is also the case that “serious”[1404]
and
“arrestable”[1405] offences
are defined by reference to a five-year term of imprisonment. The 2007
Act does stipulate, however, that the presumptive sentencing regime will not
apply where the sentence for the prior offence has been wholly[1406]
or partially[1407]
suspended, or where the conviction has been quashed on appeal or otherwise.[1408]
(iv) Subsequent Scheduled
Offence
5.09
Section 25(1)(c) provides that the offender must be convicted on
indictment of a subsequent offence listed in Schedule 2 to the 2007 Act.
It is not a requirement of the sentencing regime that this offence be
connected with gangland activities or to the prior scheduled offence.
Section 25(4) states, however, that the subsequent offence must have been
committed after the commencement of section 25. If the subsequent
scheduled offence is murder, or a drugs or firearms offence that attracts a
presumptive minimum sentence under the Misuse of Drugs Act 1977 or the
Firearms Acts, section 25 will not apply.[1409]
5.10
The fact that section 25 refers to the date on which the offender was convicted
of the prior offence (as opposed to the date on which the offence
was committed) reflects the rationale that the offender should be addressed by
reference to his or her previous interaction with the law. If reference
was made to the date of commission, the offender might not have had an
interaction with the law and therefore might not be expected to have learned
from his or her punishment.
(v) Within a Period
of 7 Years
5.11
Section 25(1)(c)(ii) provides that the subsequent offence must be
committed within 7 years of the date of conviction for the first offence.
This excludes any period of imprisonment in respect of the first or subsequent
offence. The period of 7 years thus appears to relate to the time during
which the offender was at liberty following the date of conviction.
5.12
Alternatively, section 25(1)(c)(ii) states that the offence may be
committed during any period of imprisonment in respect of the first or
subsequent offence. It thus appears that, in such circumstances, the
subsequent offence may be committed during a period exceeding 7 years,
depending on the length of the term of imprisonment.
5.13
In the above circumstances, section 25(1) of the Criminal Justice Act
2007 prescribes a presumptive minimum sentence of at least three quarters
of the maximum term provided by law for the subsequent offence. If the
offence carries a maximum sentence of life imprisonment, a presumptive minimum
term of 10 years will apply. The severity of the presumptive penalty will
therefore depend on the nature of the subsequent offence.
5.14
Section 25(3) provides, however, that the minimum sentence need not be
applied where the court is satisfied that its imposition would be
“disproportionate in all the circumstances of the case”. This provision
appears to impose a lower threshold than the “exceptional and specific
circumstances” proviso under the Misuse of Drugs Act 1977 and the
Firearms Acts. As a result, it has been observed that this aspect
of the sentencing regime “will probably deprive [it] of much of [its] punitive
bite”[1410] and that
section 25 is therefore “essentially discretionary”.[1411]
5.15
The power to grant early release to those convicted of a second or
subsequent scheduled offence under section 25 of the Criminal Justice Act
2007 has been restricted. Section 25(13) states that the powers of
commutation and remission granted to the Government by section 23 of the Criminal
Justice Act 1951 cannot be exercised in respect of an offender sentenced in
accordance with section 25. Section 25(13) does provide, however, that a
sentence imposed under section 25 will remain subject to ordinary remission for
good behaviour which currently stands at one-quarter of the sentence.
Section 25(15) states that the power to grant temporary release[1412]
may not be exercised until such time as the power to grant commutation or
remission has arisen, except “for grave reasons of a humanitarian nature”.
Where temporary release is granted, it will be for such limited period of
time as is justified by those reasons. It should also be noted that
section 25 does not permit the court to list a sentence for review.
5.16
Section 27(3F) of the Misuse of Drugs Act 1977, as amended,[1413]
states that where an adult offender is convicted of a second or subsequent
offence under section 15A or section 15B of the 1977 Act, the court must
specify a sentence of not less than the statutory minimum sentence. In
this Part, the Commission considers the practical implications of this sentencing
regime.
5.17
The mandatory minimum sentence prescribed by section 27(3F) of the Misuse
of Drugs Act 1977 applies where a person has been convicted of two or more
offences under section 15A, two or more offences under section 15B, or two or
more offences under section 15A and section 15B. This regime does not
require that a sentence of at least the presumptive minimum term have been
imposed for the initial offence. It is arguable therefore, that the prior
crime could be relatively minor. Furthermore, this regime does not
stipulate any particular time frame within which the second offence must be
committed. Therefore a significant period of time could elapse between
the first and second offence.
5.18
The presumptive minimum sentence must be imposed in the case of a second
or subsequent section 15A or section 15B offence; no exception is permitted.[1414]
5.19
It appears that subsection (3G) to subsection (3K) (discussed at
paragraphs 4.47 and 4.49) continue to apply in relation to persons convicted of
a second or subsequent offence. While the power to grant early release is
therefore restricted, the power to list a sentence for review is maintained.
5.20
The Firearms Acts, as amended, require the imposition of a
mandatory minimum sentence upon an adult offender who is convicted of a second
or subsequent specified firearms offence.[1415]
In this Part, the Commission considers the practical operation of this sentencing
regime.
5.21
The mandatory minimum sentence prescribed under the Firearms Acts applies
where a person is convicted on a subsequent occasion of a firearms offence
which would, in the case of a first conviction, attract a presumptive minimum
sentence. This regime does not require that a sentence of at least the
presumptive minimum term have been imposed for the prior offence. The
prior offence could be relatively minor. Furthermore, this regime does
not stipulate a particular time frame within which the subsequent offence must
be committed. Thus, in The People (DPP) v Clail,[1416]
the Court of Criminal Appeal observed that it was obliged to impose the
prescribed minimum sentence in circumstances where the prior firearm offence
had been committed in 1990.
5.22
The presumptive minimum sentence must be imposed in the case of a second
or subsequent firearms offence; no exception is permitted.[1417]
5.23
It appears that section 27C[1418]
of the Firearms Act 1964 (discussed at paragraph 4.90) continues to
apply in relation to persons convicted of second or subsequent offences.
The power to grant early release is thus restricted.
5.24
In this Part, the Commission considers the use of mandatory (and
presumptive) sentences for second or subsequent offences in other common law
countries.
(a)
Northern Ireland
5.25
Although Northern Ireland applies a mandatory sentencing regime in
respect of certain firearms offences and “serious offences”, it does not apply
such a scheme in respect of second or subsequent offences.
(b)
England and Wales
5.26
In England and Wales, there are three examples of presumptive sentencing
regimes applicable to repeat offenders. These sentencing regimes are
prescribed for certain repeat drug offences, repeat domestic burglaries, and
for the purposes of public protection.
5.27
Section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 prescribes
a minimum sentence of 7 years’ imprisonment for an offender, aged at least 21
years, who is convicted of a third Class A drug trafficking offence, committed
when he or she was at least 18 years of age.[1419]
Where an offender is under the age of 21 years and is convicted of a third
class A drug trafficking offence, committed when he or she was at least 18
years of age, the court must impose a minimum sentence of 7 years’ detention in
a young offender institution. For the purposes of this regime, one of the
prior drug trafficking offences must have been committed by the offender after
he or she was convicted of the other.
5.28
Under section 110(2), a sentence of less than 7 years may only be imposed
where there are “specific
circumstances” relating to the offences or the offender which would make it
“unjust in all the circumstances” to apply the minimum sentence. While
the 2000 Act does not define what is meant by “specific circumstances”, section
110(3) obliges the court, where it finds that such circumstances exist, to
expressly state what these are.
5.29
Section 152(3) of the
2000 Act permits the court to impose a sentence of not less than 80 percent of
the minimum term prescribed, where the accused has indicated an intention to
plead guilty.[1420] In
determining whether to exercise this option, the court is required to take into
account the stage at which the accused indicated this intention and the
circumstances surrounding that indication.[1421]
It has been asserted, however, that the court is entitled to take advantage of
section 152 whenever an offender has pleaded guilty, even in
circumstances where the intention to plead guilty was not indicated in advance
of the trial.[1422]
Where the court does rely on section 152 in imposing a sentence lower than the
prescribed minimum, it must indicate how it arrived at that sentence and what
allowance has been made for the plea.[1423]
5.30
Section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 prescribes
a minimum sentence of three years’ imprisonment for an offender, aged at least
21 years, who is convicted of a third domestic burglary, committed when he or
she was at least 18 years of age. Where an offender under the age of 21
years is convicted of a third domestic burglary, committed when he or she was
at least 18 years of age, the court must impose a minimum sentence of three
years’ detention in a young offender institution. For the purposes of
this regime, one of the prior burglary offences must have been committed by the
offender after he or she was convicted of the other.[1424]
The obligation to impose the minimum sentence will apply unless the court
considers that there are particular circumstances relating to the offences or
the offender which would make it unjust in all the circumstances to impose the
minimum penalty.[1425]
5.31
Once again, section
152(3) of the 2000 Act permits the court to impose a sentence of not less than
80 percent of the minimum term prescribed, where the accused has indicated an
intention to plead guilty.[1426] In
determining whether to exercise this option, the court is required to take into
account the stage at which the accused indicated this intention and the
circumstances surrounding that indication.[1427]
As previously noted, it has been asserted, however, that a court is entitled to
take advantage of section 152 whenever an offender has pleaded guilty,
even though the intention to plead guilty was not indicated in advance of the
trial.[1428]
Where a court does rely on section 152 in imposing a sentence lower than the
prescribed minimum, it must indicate how it arrived at that sentence and what
allowance has been made for the plea.[1429]
5.32
As discussed at
paragraphs 2.200 and 2.201, the presumptive three-year minimum sentence was
introduced in response to a perception that the courts were imposing unduly
lenient sentences for burglary offences. It is debatable, however,
whether the enactment of this sentencing regime has addressed this perceived
problem. In 2007, for example, 79 percent of offenders convicted of a
third domestic burglary did not receive the three-year presumptive minimum
sentence.[1430]
Wasik notes that these statistics:
“indicat[e] that judges are not held
in sway to the criminal record [of a repeat burglary offender], despite the
section’s emphasis on that aspect of the sentencing decision, and that they
look at all the circumstances before deciding on the appropriate sentence for
the new offence.”[1431]
5.33
Section 224A of the Criminal Justice Act 2003[1432] applies a presumptive ‘two-strike’ sentencing regime in
respect of certain serious offenders. This regime requires a sentencing
court to impose a life sentence upon an adult offender who is convicted of an
offence listed in Part 1 of Schedule 15B,[1433]
where both the “sentence condition” and “previous offence condition” (discussed
below) are fulfilled. Section 244A(2) grants the court discretion not to
impose the life sentence where there are particular circumstances which relate
to the offence, the previous offence, or the offender, which would render the
application of this penalty unjust in all the circumstances.
5.34
For the purposes of section 224A, the “sentence condition” requires that
the second offence must be serious enough to justify the imposition of a
sentence of at least 10 years’ imprisonment.[1434]
In considering whether this condition is met, the court must contemplate the
sentence that it would have imposed but for section 224A, disregarding any
extension period that it would have applied under section 226A.[1435]
Thomas notes that because the sentencing court must be willing to impose a
sentence of at least 10 years having taken account of all relevant
considerations (including the offender’s plea), the ‘sentence condition’ sets a
“very high threshold”[1436] for the
imposition of a life sentence.
5.35
The “previous offence condition” stipulates that the offender must, at
the time when the second offence was committed, have a prior conviction for an
offence listed in any part of Schedule 15B[1437]
and have received a “relevant life sentence” or a “relevant sentence of
imprisonment” for that prior offence.[1438]
Section 224A(5) clarifies that a “relevant life sentence” is one where the
offender was not eligible for release during the first five years (not taking
into account any period spent on remand or bail). Any extended sentence[1439]
or other determinate sentence of imprisonment or detention[1440]
will be considered relevant where the custodial term was at least 10
years. Section 224A(9) provides that any reduction in sentence for the
purpose of taking account of time spent on remand, either in custody or on
bail, is to be disregarded when considering whether the “previous offence
condition” has been met. Thomas suggests that very few offenders are
likely to satisfy both the “sentence condition” and the “previous offence
condition” and that, as a result, “the imposition of a new-style automatic life
sentence will be a rare event indeed.”[1441]
5.36
The presumptive life sentence prescribed by section 224A has been
described as a “most peculiar provision”.[1442]
Although referred to as a ‘mandatory’ provision by the Government,[1443]
it is clear that a life sentence need only be imposed under this regime where
it would be just in all the circumstances of the case. As the courts will
always seek to impose a sentence that is just in the circumstances, the purpose
of this reform has been called into question.[1444]
5.37
Subject to certain conditions,[1445]
section 226A of the Criminal Justice Act 2003[1446] permits the application of an extended sentence to an
adult offender[1447] who is
convicted of a specified violent offence[1448]
or a specified sexual offence.[1449]
Under this regime, an “extended sentence of imprisonment” is a sentence the
term of which is equal to the aggregate of: (a) the appropriate custodial
term that would (apart from this section) be imposed in compliance with section
153(2) of the Criminal Justice Act 2003, and (b) a further period (the
“extension period”) for which the offender is to be subject to a licence.[1450]
While this sentencing regime does not prescribe a minimum sentence, section
246A of the Criminal Justice Act 2003[1451] provides that an offender sentenced under this regime
will not be eligible for release on licence until he or she has served at
least two-thirds of the custodial term imposed, as opposed to one-half of
the sentence, as had formerly been the case.[1452]
(c)
Scotland
5.38
In Scotland, certain repeat drug offences attract a presumptive minimum
sentence of imprisonment.
5.39
Section 205B of the Criminal Procedure (Scotland) Act 1995[1453]
requires the court to impose a minimum sentence of 7 years’ imprisonment on a
person, aged at least 21 years, who is convicted of a third class A drug
trafficking offence, committed when he or she was at least 18 years of
age. Where the offender is at least 18 years of age but under the age of
21 years, the court must impose a minimum 7-year term of detention in a young
offender institution.[1454]
For the purposes of this regime, the age of the offender at the time when he or
she committed the two prior drug trafficking offences is irrelevant.[1455]
However, one of the two prior offences must have been committed after the
offender was convicted of the other.[1456]
A sentencing court is obliged to impose the prescribed minimum sentence unless
it considers that there are specific circumstances relating to any of the offences
or the offender which would make the application of that penalty unjust.[1457]
(d)
United States of America
5.40
As discussed in Chapter 2, mandatory sentencing regimes for repeat
offenders achieved renewed popularity in the United States following the onset
of the “three-strikes movement” in the early 1990s. At present, it
appears that at least 26 American states apply some form of mandatory “strike”
law in respect of offenders convicted of second or subsequent, specified
offences.[1458] It
has been observed, however, that significant variations exist among these
sentencing regimes. Stemen, Rengifo and Wilson note that these laws tend
to differ in terms of: (i) the number of prior convictions required to
trigger a mandatory sentence; (ii) whether both the prior and present offences
must involve violence; (iii) the type of prior adjudication required to trigger
these regimes (for example, states differ as to whether a prior conviction is
sufficient or whether the accused must have served a term of imprisonment in
respect of that conviction); (iv) the time limits placed on when these prior
adjudications must have occurred; and (v) the sentences available under these
laws.[1459]
5.41
In considering the operation of these mandatory sentencing regimes, the
Commission will necessarily focus on a limited number of examples.
Specifically, attention will be given to the approaches adopted in Washington
(the state which spearheaded the modern ‘three-strikes’ movement) and
California and Georgia, the states which have made greatest use of these
sentencing regimes.[1460]
The position adopted by the Federal Government in relation to repeat offender
laws will also be considered.
(i)
Washington
5.42
The Persistent Offender Accountability Act provides that an
offender convicted for the third time of a designated felony[1461]
must receive a sentence of life imprisonment without parole.[1462]
This regime operates retrospectively in so far as offences committed prior to
its enactment may constitute ‘strikes’ on the record of the offender where they
are comparable to any of the designated offences.[1463]
Federal convictions from other states may also qualify where they relate to
conduct similar to that entailed by a designated offence.[1464]
The Act stipulates that at least one of the prior convictions must have
occurred before the commission by the offender of any of the other designated
offences.[1465]
5.43
Austin et. al assert that Washington is representative of most other
states in that its law produced a relatively narrow strike zone and requires
three strikes in order for a mandatory life sentence to apply.[1466]
The Commission notes, however, that Washington does impose a ‘two-strikes’ law
upon certain repeat sex offenders. This regime applies to those who are
convicted of a specified sexual offence,[1467]
the commission of which was preceded by at least one conviction (whether in the
state or elsewhere) for another specified sexual offence or for a federal
offence, out-of-state offence, or offence under prior Washington law, which is
comparable to a specified sexual offence.[1468]
Where subject to this ‘two-strikes’ law, an offender must be sentenced to life
in prison without parole.[1469]
5.44
It has been observed that low-level offenders have been most affected by
the ‘three-strikes’ sentencing regime enacted in Washington.[1470]
In particular, commentators have highlighted the fact that second degree
robbery is the most common ‘third-strike’ offence.[1471]
As this offence poses little risk of physical injury, some commentators,
including the Washington Sentencing Guidelines Commission, have recommended
that this offence (along with certain forms of second degree assault) be
removed from the list of designated ‘strike’ offences.[1472]
(ii)
California
5.45
Section 667[1473] of the Penal
Code provides that in sentencing an offender who has one prior conviction
for a violent felony[1474] or a
serious felony,[1475] for any
subsequent felony, a court must impose a term of imprisonment which is at least
twice the term already provided as punishment for the current felony.[1476]
Such an offender must complete at least 80% of his or her sentence before being
eligible for release[1477] or 85%
of his or her sentence where convicted of a violent felony.[1478]
5.46
In its original form, section 667 also required that an offender with
two or more violent and/or serious felony convictions, who was subsequently
convicted of any felony offence, receive an indeterminate life sentence
with a minimum term calculated to be the greater of: (i) three times the
term otherwise provided for the current felony conviction; (ii) 25 years; or
(iii) the term provided for the current charge plus any applicable sentence
enhancements.[1479]
The fact that non-violent and/or non-serious felony convictions were sufficient
to trigger these enhanced penalties, led to controversial sentencing outcomes[1480]
and
contributed to a widespread perception of the Californian ‘three-strikes’ model
as the most severe in the United States.[1481]
5.47
On 6 November 2012, California chose to modify this particularly
contentious aspect of its ‘three-strikes’ regime. By a margin of 68.6
percent to 31.4 percent, voters approved Proposition 36 which amended the
‘three-strikes’ law so that, ordinarily, an offender with two or more violent
and/or serious felony convictions will attract a sentence of twice the term
provided as punishment for any subsequent felony of which he or she is
convicted.[1482] In
order to trigger an indeterminate life sentence, an offender must now be
convicted of a serious and/or violent felony and have two prior convictions for
serious and/or violent felonies. Alternatively, any felony
conviction may still attract an indeterminate life sentence where the
perpetrator has a previous conviction for one of the most serious offences in
the criminal calendar, such as murder, attempted murder, rape, child
molestation or a felony involving the use of a firearm.[1483]
5.48
Under the Californian ‘three-strikes’ regime, probation may not be
granted for the current offence, nor may execution or imposition of the
sentence be suspended for any prior offence.[1484]
Diversion may not be granted to an offender sentenced under this regime nor
will he or she be eligible for commitment to the California Rehabilitation
Centre.[1485]
5.49
Section 667(f)(2) provides that a prosecuting attorney may move to
dismiss an allegation of a prior conviction for a strike offence in the
furtherance of justice or if there is insufficient evidence to prove the prior
conviction. If the court is satisfied that there is insufficient evidence
to prove the prior conviction, it may dismiss or strike the allegation.
Section 667(g) aims to limit the discretion of system officials by prohibiting
the use of prior felony convictions in plea bargaining.
5.50
While the Californian ‘three-strikes’ regime has been eased to some
extent by the approval of Proposition 36, the greatly enhanced penalties
imposed on second-strike and third-strike offenders continue to render this law
severe. The California State Auditor has estimated that those imprisoned
under this regime serve sentences which, on average, are nine years longer due
to the requirements of the law.[1486]
Accordingly, certain commentators identify this sentencing scheme as a key
contributor to the well-documented problem of overcrowding in Californian
prisons.[1487] It
is notable that, as of April 2009, prisoners serving sentences under this
regime comprised approximately 25% of the total inmate population in
Californian penal institutions.[1488]
5.51
In addition to these ‘three-strikes’ provisions, section 667.7 of the Penal
Code imposes a mandatory sentencing regime on “habitual offenders”.
Under this regime, a “habitual offender” is defined as any person convicted of
a felony in which he or she inflicted great bodily injury on another person, or
personally used force which was likely to inflict great bodily injury, and who
has previously served two or more prison terms for a specified offence.[1489]
A habitual offender who has served two prior prison terms will receive a life
sentence for the current offence and, at a minimum, will not be eligible for
parole until 20 years have been served. A habitual offender who has
served three or more prior prison terms will receive a sentence of life
imprisonment without parole.
5.52
Section 667.71 of the Penal Code establishes a mandatory
sentencing regime for habitual sexual offenders. A habitual sexual
offender is defined as a person who has previously been convicted of one or
more specified sexual offences[1490]
and who is convicted in the current proceedings of another such offence.
Under this regime, a habitual sexual offender must be punished by imprisonment
in the state prison for a term of 25 years to life.
5.53
It has been observed that in the majority of cases, the sentencing
regime applicable to habitual offenders has been supplanted by the state’s
“three-strikes” law.[1491]
(iii)
Georgia
5.54
Section 17-10-7(a) of the Penal Code prescribes a mandatory
sentence for an offender convicted of a felony offence, who has previously been
convicted of a felony offence in the state or an offence in another American
state, which, if committed in Georgia, would be a felony. Under this
regime, such an offender must be sentenced to the maximum term prescribed for
the current offence provided that, unless otherwise provided by law, the trial
judge may in his or her discretion probate or suspend the maximum sentence
prescribed for the offence.
5.55
Section 17-10-7(c) prescribes a mandatory sentence in respect of an
offender who is convicted of a fourth or subsequent felony, having previously
been convicted in Georgia of three felonies, or having been convicted under the
laws of another American state of three offences which would be felonies if
committed in Georgia. This sentencing regime provides that such an
offender must be sentenced to the maximum term provided for the current
offence, and will not be eligible for parole until this maximum sentence has
been served.
5.56
Distinct from this general class of felonies are 7 offences which have
been designated “serious violent felonies” by the Georgia legislature.
The offences of murder; armed robbery; kidnapping; rape; aggravated child
molestation; aggravated sodomy; and aggravated sexual battery attract a
“two-strike” sentencing arrangement. Under section 17-10-7(b)(2) of the Penal
Code, an offender convicted of a serious violent felony (for which he or
she is not sentenced to death) who has previously been convicted of a serious
violent felony in the state, or who has been convicted in another American
state of an offence which would be a serious violent felony if committed in
Georgia, must receive a sentence of life imprisonment without parole.
This sentence may not be suspended, stayed, probated, deferred, or
withheld. Such an offender will not be eligible for any form of pardon,
parole or early release administered by the State Board of Pardons and Paroles,
or any sentence-reducing measure under a program administered by the Department
of Corrections, except as may be authorized by any existing or future
constitutional provisions.
5.57
Heyer observes that in terms of the number of offences required to
trigger a life sentence without parole, “Georgia’s two strikes law is the
harshest version of a three strikes law to emerge out of the 1990s... .”[1492]
The same commentator emphasises, however, that because this regime covers a
narrow range of offences, and because these serious, violent offences would
attract a lengthy sentence irrespective of the two-strikes law, this regime has
not significantly impacted on Georgia’s overall prison population.[1493]
(iv)
Federal Government
5.58
At federal level, 18 USC 3559(c) prescribes a mandatory life sentence in
respect of an offender convicted of a serious violent felony[1494]
who has at least two prior state or federal serious violent felony convictions,
or who has one or more of these convictions plus one or more state or federal
serious drug convictions.[1495] Other than the first
such offence, each
serious violent felony or serious drugs offence must have been committed after
the conviction of the offender of the preceding serious violent felony or
serious drugs offence.
5.59
Section 3559(e) also requires that a person convicted of a federal sex
offence[1496] in which
a minor is the victim (who is not sentenced to death for that offence) be
sentenced to life imprisonment if he or she has a prior federal or state conviction
for a sex offence in which a minor was the victim. In this context, a
“prior conviction” means a conviction for which the sentence was imposed before
the conduct constituting the subsequent federal sex offence occurred.
(e)
Canada
5.60
In Canada, certain repeat firearms offences attract a mandatory minimum
sentence of imprisonment.
(i)
Firearms Offences
5.61
Under the Criminal Code, an offender will attract an
enhanced minimum sentence where: (a) he or she has a prior conviction for
a specified firearms offence, or for using a firearm in the commission of a
specified violent offence, and (b) he or she is subsequently convicted of
another such offence.[1497]
5.62
First, where this constitutes his or her second conviction for a
specified offence, an offender convicted of one of the following
firearms offences will attract a minimum one-year sentence: (i)
possession of a firearm knowing its possession is unauthorised,[1498]
and (ii) possession of a prohibited weapon, device or ammunition knowing its
possession is unauthorised.[1499]
Alternatively, where this constitutes his or her third or subsequent conviction
for a specified offence, a conviction for either of these possession offences
will attract a minimum sentence of two years less a day.
5.63
Second, where this constitutes his or her second or
subsequent conviction for a specified offence, an offender convicted of
one of the following offences will attract a minimum sentence of three
years: (i) using a firearm in the commission of an offence,[1500]
and (ii) using an imitation firearm in the commission of an offence.[1501]
Third, where this constitutes his or her second or subsequent
conviction for a specified offence, an offender convicted of one of the
following offences will attract a minimum sentence of five years: (i)
possession of a prohibited or restricted firearm with ammunition;[1502]
(ii) weapons trafficking;[1503] (iii)
possession of a firearm, a prohibited device, any ammunition or any prohibited
ammunition for the purpose of weapons trafficking;[1504] and (iv)
importing or exporting a firearm, a prohibited device or any prohibited
ammunition, knowing it is unauthorized.[1505]
5.64
Finally, an offender who uses a firearm in the commission of certain
violent offences will attract a minimum sentence of 7 years where: (a)
this is his or her second or subsequent conviction for using a firearm in one
of these violent offences, and (b) prescribed circumstances exist.
Specifically, this provision will apply where the firearm used is restricted or
prohibited or where any firearm is used in connection with a criminal
organisation.[1506]
Where a firearm is thus used in their commission, the following offences
attract the prescribed minimum 7-year sentence: (i) attempted murder;[1507]
(ii) discharging a firearm with intent;[1508]
(iii) recklessly discharging a firearm;[1509]
(iv) sexual assault with a weapon (threats to a third party or causing bodily
harm);[1510] (v)
aggravated sexual assault;[1511] (vi)
kidnapping;[1512] (vii)
hostage-taking;[1513] (viii)
robbery;[1514] and (ix)
extortion.[1515]
(f)
Australia
5.65
Certain Australian jurisdictions prescribe mandatory or presumptive
sentences for specified repeat offences. The Commission observes,
however, that these jurisdictions tend to differ in terms of the offences to
which these sentencing regimes are applied.
(i)
Commonwealth
(I)
People Smuggling
5.66
At federal level, section 236B of the Migration Act 1958 prescribes
a mandatory minimum sentence for a repeat offence of aggravated people
smuggling, and a repeat offence involving the aggravated use of false documents
or misleading information in relation to non-citizens. For the purposes
of this regime, a conviction qualifies as a “repeat offence” if, in proceedings
after the commencement of section 236B (whether in the same proceedings
relating to the offence or in previous proceedings), a court: (i) has
convicted the person of another of the foregoing offences, or (ii) has found,
without recording a conviction, that the person has committed another such
offence. Section 236B specifies that an offender to whom this regime
applies must receive a minimum sentence of 8 years. The court must also
set a non-parole period of five years. This regime will not apply,
however, where it is established on the balance of probabilities that the
offender was under the age of 18 years when the offence was committed.
(ii)
New South Wales
5.67
New South Wales does not impose a mandatory sentencing regime in respect
of repeat offenders. The state does, however, grant sentencing courts the
discretion to declare an offender to be a “habitual criminal”, in which case a
minimum penalty will apply.
5.68
Section 4(1) of the Habitual Criminals Act 1957 provides that a
sentencing judge may pronounce any person, aged at least 25 years, to be an
“habitual criminal” where he or she is convicted on indictment,[1516]
having, on at least two prior occasions, served separate terms of imprisonment
as a consequence of convictions for indictable offences.[1517]
In these circumstances, a further sentence may then be imposed on the offender
in addition to that applicable for the current offence. This additional
term of imprisonment must be for a period of at least five years and may not
exceed 14 years. The judge may pronounce an offender to be a “habitual
criminal” if satisfied that it is expedient with a view to his or her
reformation, or to the prevention of crime, that he or she be detained in prison
for a substantial period.
5.69
The Judicial Commission of New South Wales notes that sentencing courts
very rarely pronounce offenders to be “habitual criminals” under the 1957 Act.[1518]
(iii)
Northern Territory
5.70
The Northern Territory provides a presumptive sentencing regime in
respect of certain repeat violent offences, as well as repeat violations of a
domestic violence order.
5.71 Under the Sentencing Act,
enhanced presumptive sentences apply in respect of second or subsequent violent
offences. First, where an offender who has previously been convicted of a
violent offence[1519] is
subsequently convicted of a crime classified as a “Level 5”[1520]
offence, he or she must receive a minimum one-year term of imprisonment.[1521]
Second, an offender convicted of a “Level 3”[1522]
offence, who has previously been convicted of a violent offence, must receive a
minimum three-month sentence.[1523]
An offender convicted of a “Level 1”[1524]
offence, who has previously been convicted of a violent offence, must receive a
custodial sentence.[1525] A
sentencing court may not suspend a term of imprisonment imposed in accordance
with these provisions.[1526]
5.72 The obligation to impose a minimum
penalty of a specified period will not apply where the court is satisfied that
the circumstances of the case are exceptional.[1527]
In determining whether the circumstances are exceptional, the court may have
regard, in particular, to any victim impact statement or victim report
presented to the court, and any other matters which it considers relevant.[1528]
The following circumstances may not be regarded as exceptional circumstances:
(a) that the offender was voluntarily intoxicated at the time of
committing the offence, or (b) that another person was involved in committing
the offence, or coerced the offender to commit the offence.[1529]
Equally, where the offender is under the age of 18 years, the court will not be
required to impose a prescribed minimum sentence of a specified period in
respect of him or her.[1530] Where
exceptional circumstances are present or where the offender is under the age of
18 years, the court is nonetheless required to specify a custodial sentence and
this may not be suspended.[1531]
5.73
Section 121 of the Domestic and Family Violence Act 2007 prescribes a
presumptive minimum sentence of 7 days’ imprisonment for a second or subsequent
violation of a domestic violence order by an adult. This minimum penalty
does not apply, however, if no harm was caused and if the court is satisfied
that it is not appropriate to record a conviction and to sentence the person in
the circumstances of the offence.[1532] Section 122 applies the same presumptive
minimum penalty to an offender aged between 15 and 18 years who breaches a
domestic violence order, having previously been convicted of this
offence. Once again, the presumptive minimum sentence does not apply if
no harm was caused and if the court is satisfied that it is not appropriate to
record a conviction and to sentence the person in the circumstances of the
offence, including, as a result of the age of the offender.
(iv) Queensland
(I)
Serious Child Sex Offences
5.74
Part 9B of the Penalties and Sentences Act 1992[1533] prescribes a mandatory sentence for an
offender convicted of a repeat serious child sex offence. A “serious
child sex offence” is an offence listed in Schedule 1A to the Act,[1534]
committed against a child under the age of 16 years, and in circumstances in
which an offender convicted of the offence would be liable to life
imprisonment. Counselling or procuring the commission of such an offence
also qualifies as a serious child sex offence.[1535]
5.75
This sentencing regime applies where an offender with a prior conviction
for a serious child sex offence is convicted of a subsequent serious child sex
offence.[1536]
The offender must have committed both the prior and subsequent offences when he
or she was an adult.[1537]
Such an offender, despite any other penalty imposed by the Criminal Code,
is liable to a life sentence which cannot be mitigated or varied under any law,
or is liable to an indefinite sentence which shall continue until a court
orders, upon review, that the indefinite term of imprisonment be discharged.[1538]
Where an offender is sentenced to life imprisonment under this regime, section
181A of the Corrective Services Act 2006 provides that he or she must
serve a minimum non-parole period of 20 years.
5.76
The Commission notes that this sentencing regime was introduced in
response to a high level of public concern regarding the adequacy of sentences
imposed upon those who sexually offend against children.[1539] In a letter to the Parliamentary
Legal Affairs and Community Safety Committee, the Queensland Department of
Justice emphasised that previous efforts to reflect this outrage and to
appropriately denounce repeat child sex offenders were perceived to have
failed. In particular, a 2012 report by the Sentencing Advisory Council
illustrated that legislative amendments made in 2003 and 2010 had not produced
the desired effect of increasing: (i) the proportion of offenders
receiving a custodial term for sexual offences against children, or (ii) the
length of the sentences received by these offenders.[1540]
5.77
The provision of mandatory sentences for serious child sex offences has
attracted divergent views. On one side, certain child protection
advocates have welcomed this legislation on the basis that it may serve to
incapacitate incorrigible offenders.[1541]
On the other side, however, there are those who dispute the claim that this
regime will enhance child safety. Among those to express concern
regarding this reform were the Queensland Police Service who warned that:
(i) because the same mandatory sentence would apply in respect of both
murder and repeat child sex offences, offenders may be incentivised to kill
their victims in order to evade punishment; (ii) the regime may prompt a
reduction in the reporting of child sex offences, particularly in cases where
the witness makes a complaint with a view to stopping the abuse rather than
with the aim of ensuring that the offender is punished; and (iii) the regime
may lead to more matters being contested in court, thereby worsening the impact
on victims.[1542]
Other criticisms which have been made of this legislation relate to: (i)
the constraints which mandatory sentencing regimes place on judicial
discretion; (ii) the lack of persuasive evidence that these regimes deter
criminality; and (iii) the tendency for these sentencing provisions to impact
disproportionately on minority groups.[1543]
(v)
South Australia
5.78
South Australia does not appear to impose a mandatory sentencing regime
for any repeat offence. In certain circumstances, however, the state does
grant sentencing courts the discretion to impose a sentence on a repeat
offender, which is not proportionate to the current offence for which he or she
is being sentenced.
5.79
Division 2A of the Criminal Law (Sentencing) Act 1988 permits sentencing courts to declare an offender to be
a “serious repeat offender”[1544]
where he or she (whether as an adult or as a youth) has been convicted of a
“serious offence”[1545] on at
least three separate occasions. The offender must have received a
sentence of imprisonment (other than a suspended sentence) for those offences
or, if a penalty has yet to be imposed, a sentence of imprisonment (other than
a suspended sentence) must be the appropriate penalty. Alternatively,
this declaration may be made in respect of an offender who (whether as an
adult or as a youth) has committed and been convicted on at least two separate
occasions of a “serious sexual offence”[1546]
against a person under the age of 14 years. An offence will not be
regarded as a “serious offence” or a “serious sexual offence” unless the
maximum penalty prescribed is, or includes, a term of imprisonment of at least
five years.
5.80
If a person is convicted of a serious offence or a serious sexual
offence and he or she is liable, or becomes liable as a result of the
conviction, to a declaration that he or she is a “serious repeat offender”, the
court: (a) must consider whether to make that declaration, and (b) if of
the opinion that his or her history of offending warrants a particularly severe
sentence in order to protect the community, should make that declaration.
Where the declaration is made or where the offender has previously been
declared a “serious repeat offender”: (a) the court is not bound to
ensure that the sentence it imposes is proportionate to the current offence,
and (b) any non-parole period fixed in relation to the sentence must be at
least four-fifths the length of the sentence.
5.81
Tasmania does not appear to prescribe a mandatory
sentence for any repeat offence.
(v)
Victoria
5.82
Victoria does not appear to prescribe a mandatory or presumptive
sentencing regime for any second or subsequent offence. Part 2A of the Sentencing
Act 1991 does, however, permit
a sentencing court to impose a sentence on an offender who has previously been
convicted of two or more sexual offences (for which he or she received a sentence
of imprisonment or detention in a youth justice centre) which is not
proportionate to the immediate offence. The Act specifies that when
sentencing such an offender, the court must regard the protection of the
community as the principal purpose for which the sentence is imposed.[1547]
(vii)
Western Australia
(I)
Domestic Burglary
5.83
Section 401(4) of the Criminal Code provides that an adult
convicted for the third or subsequent time of a home burglary must receive a
minimum 12-month sentence of imprisonment. A juvenile convicted of this
offence for the third or subsequent time must receive a minimum 12-month term
of imprisonment or detention. The Aboriginal Justice Council has noted that this mandatory sentence
has had no impact on burglary rates but has had a disproportionate impact on
Aboriginal offenders appearing before the courts.[1548]
(g)
New Zealand
5.84
In New Zealand, a three-stage mandatory sentencing regime applies in
respect of repeat serious violent offenders.[1549]
5.85
Under section 86B of the Sentencing Act 2002, a first warning is
issued to an offender who is convicted of a “serious violent offence”,[1550]
where he or she was at least 18 years of age when the offence was committed,
and where he or she did not have any previous warnings under the Act.
This first warning must alert the offender to the enhanced consequences
(detailed below) which he or she will face if subsequently convicted of another
serious violent offence, committed after that warning.
5.86
Section 86C applies to an offender who has received a first
warning, but not a final warning, and who is convicted of a subsequent serious
violent offence, other than murder. Such an offender must receive a
warning detailing the enhanced consequences which will follow if he or she is
subsequently convicted of a further serious violent offence, committed after
that warning. Additionally, if the sentence imposed on the offender for
the current offence is a determinate sentence of imprisonment, the court must order
that he or she serve the full term of the sentence. Where the relevant
offence is murder, section 86E requires the court to sentence the offender to
life imprisonment and order that this sentence be served without parole, unless
it is satisfied that, given the circumstances of the offence and the offender,
this would be manifestly unjust. If the court does decline to make this
order, it must explain its reasons in writing and instead impose a sentence in
accordance with section 103 of the Sentencing Act 2002. Section
103 stipulates that the
minimum term ordered may not be less than 10 years, and must be the minimum
term that the court considers necessary to satisfy all or any of the following
purposes: (a) holding
the offender accountable for the harm done to the victim and community; (b) denouncing the conduct of the
offender; (c) deterring the
offender or other persons from committing the same or a similar offence; or (d) protecting the community from
the offender.
5.87
Under section 86D, an offender who has received a final warning must,
where committed for trial for a subsequent serious violent offence, be
committed to the High Court for that trial. If convicted, only the High
Court (or the Court of Appeal or Supreme Court on an appeal) may sentence him
or her for the offence. The sentence which must be imposed for the
current offence, other than where the offence in question is murder, must be
the maximum term prescribed for that offence. The court must order that
the offender serve the entirety of this sentence without parole, unless it
considers that it would be manifestly unjust to make that order, in which case,
it must give its reasons in writing.
5.88
If the relevant offence is manslaughter, the court must order that the
offender serve a minimum term of 20 years, unless it considers that given the
circumstances of the offence and the offender, this would be manifestly
unjust. If the court does decline to make this order, it must again
explain its reasons in writing. Furthermore, it must instead order that
the offender serve a minimum term of 10 years. If the offence is murder,
section 86E requires the court to sentence the offender to life imprisonment
without parole, unless it is satisfied that this would be manifestly unjust, given
the circumstances of the offence and the offender. Once again, if the
court does decline to make this order, it must give written reasons for this
and instead impose a minimum sentence of 20 years. In turn, however, if
the court is satisfied that a minimum sentence of 20 years would, given the
circumstances of the offence and the offender, be manifestly unjust, it must
instead impose a sentence in accordance with section 103. If a minimum
sentence of 20 years is thus not imposed, the court must again give its reasons
for this in writing.
5.89
In New Zealand, the enactment of this “three-strikes” regime proved
politically divisive.[1551] On
one side, proponents of this reform argued that these provisions would serve to
protect the community from incorrigible individuals who are unwilling to desist
from violent offending.[1552] On
the other side, the concerns most commonly expressed by opponents were that
this regime: (a) was at odds with the principle of proportionality in
sentencing; (b) was of doubtful deterrent value; (c) was likely to lower public
confidence in the judiciary; (d) was likely to lead to a substantial decrease
in guilty pleas, adversely affecting victims; and (e) was likely to
disproportionately affect members of the Maori community who are already
over-represented in the criminal justice system.[1553]
In respect of the last of these concerns, it has been noted that as of May
2012, Maori offenders accounted for 47% of the male recipients of first strikes
and 58% of the female recipients of first strikes.[1554]
(h) Summary
5.90
A comparative analysis of the common law countries that have introduced
mandatory (or presumptive) sentencing for repeat offences is of interest.
As illustrated in Chapter 2, it is clear that the enactment in this State
of mandatory minimum sentences for repeat offences was to some extent
influenced by sentencing reforms in the United States of America and the United
Kingdom, in particular. Traditionally, it has been the consistent
approach of the Commission to engage in comparative analysis when evaluating
potential options for law reform in this State.
5.91
Equally, however, the Commission cautions against relying too heavily on
the example set by other common law jurisdictions. It should be noted
that the rationale for introducing minimum sentencing regimes varies from
country to country and that these provisions are often the product of
circumstances and cultural factors specific to the jurisdiction in
question. The Commission notes, therefore, that it is important to assess
any proposed extension of mandatory sentencing to ensure that any reform would
be consistent with the key sentencing aims and principles identified in Chapter
1.
5.92
In this Part, the Commission considers mandatory and presumptive
sentences for second or subsequent offences against the conceptual framework
established in Chapter 1. Specifically, these sentencing regimes will be
evaluated by reference to: (1) the aims of sentencing, and (2) the
principles of justice.
5.93
The Commission has observed that criminal sanctions pursue one or more
of a number of aims including deterrence, punishment, reform and rehabilitation
and reparation. The Commission has also noted that the aims of deterrence
and punishment tend to feature more heavily in those cases involving more
serious crimes and, consequently, more severe sanctions. Likewise,
it is ostensibly these aims which feature most heavily in those cases involving
second or subsequent offences subject to presumptive or mandatory sentences. These
sentencing regimes seek to dissuade the offender by coercive means, from
committing further offences and to punish him or her severely for committing a
second or subsequent offence of the type specified. It is not clear
whether these regimes adequately meet these aims.
(a) Criminal
Justice Act 2007
5.94
The Commission observes that the sentencing regime under section 25 of
the Criminal Justice Act 2007 is unlikely to fulfil the aim of
deterrence. As discussed at paragraph 1.22, some commentators maintain
that neither mandatory sentences nor lengthy prison sentences in general are
effective deterrents. (Indeed, the fact that section 25 seeks to address
those who commit a subsequent offence of the type already subject to a
significant sentence arguably supports the view that in many cases lengthy
imprisonment does not deter). Kazemian cites research which she asserts
illustrates that incarceration has either no effect or undesirable effects on
subsequent offending.[1555]
5.95
Section 25 would appear to be consistent with the sentencing aim of
punishment. From a retributive perspective, this sentencing regime
permits society to punish more severely instances of serious repeat offending.
It does not necessarily preclude the courts from differentiating between
more and less culpable cases of repeat offending. A particularly culpable
repeat offender may be subjected to a more severe sentence than the prescribed
minimum. Similarly, a less culpable repeat offender may receive a
sentence lower than the presumptive minimum where the court considers that it
would be disproportionate in all the circumstances of the case to apply the
minimum penalty. As noted at paragraph 5.14, this proportionality test appears
to pose a lower threshold than the “exceptional and specific circumstances”
criterion applicable under the Misuse of Drugs Act 1977 and the Firearms
Acts.
5.96
Similar observations may be made regarding the denunciatory aspect
of this sentencing regime. Section 25 permits society to forcefully
denounce instances of serious repeat offending. In accordance with the
proportionality test included in this provision, an individual offender need
only be denounced in accordance with his or her particular level of
culpability.
(b) Misuse of
Drugs Act 1977
5.97
The Commission considers it unlikely that the mandatory sentence
applicable to repeat offenders under the Misuse of Drugs Act 1977
facilitates deterrence. It has already been noted that in general the
deterrent effect of mandatory sentencing is questionable. In the specific
context of drug trafficking, however, the Commission notes that the
effectiveness of such a regime appears particularly doubtful.
5.98
First, the Commission observes that the prospect of a mandatory sentence
for a second or subsequent offence is unlikely to deter high-level actors
within the drug trafficking trade. As discussed at paragraph 4.235, these
offenders appear to have adapted to this penal approach by developing complex
distribution networks that enable them to evade detection and prosecution.
As these high-level offenders are rarely apprehended, it seems unlikely
that either the prospect of a presumptive sentence for a first offence, or a
mandatory sentence for a subsequent offence, will deter them from engaging in
this form of criminality.
5.99
Second, as discussed at paragraph 4.194, the Commission observes that
even if the prospect of a mandatory sentence may deter some low-level offenders
from risking a second or subsequent conviction, this regime is unlikely to
further the goal of general deterrence. As there will in all probability
remain a plentiful supply of willing replacements, this sentencing regime is
unlikely to impact significantly on the overall rate of drug-trafficking.
5.100
The Commission observes that the sentencing regime for repeat offenders
under the Misuse of Drugs Act 1977 may not appropriately pursue the aim
of punishment. From a retributive perspective, this regime restricts the
ability of the courts to punish repeat drug trafficking offenders in accordance
with their level of culpability. The most culpable repeat offenders may
be punished more heavily through the imposition of a sentence greater than the
mandatory minimum. However, by prioritising two aggravating factors,
namely, the existence of a prior conviction under section 15A or section 15B,
and the value of the drugs involved, at the expense of any factors which might
justify a downward departure from the prescribed minimum, this regime risks
certain repeat offenders receiving a disproportionate sentence.
5.101
Similar observations may be made regarding the denunciatory aspect of
this sentencing regime. This regime prioritises two aggravating factors
at the expense of any factors which might justify a downward departure from the
prescribed minimum sentence. This creates a risk that an individual
offender may be denounced more forcefully than is warranted in the
circumstances.
5.102
The Commission observes that rehabilitation is another aim which is
built into the mandatory sentencing regime under the Misuse of Drugs Act
1977. As discussed at paragraph 4.48, section 27(3J) provides
that a sentencing court may list a sentence for review after half of the term
has expired. To list a sentence for review, the court must be satisfied
that the offender was addicted to drugs at the time of the offence and that
this was a substantial factor leading to the commission of the offence.
This provision also stipulates that only an offender who has at least received
the minimum 10-year sentence may have his or her sentence listed for review.
As the minimum sentence must be imposed in all cases in which an offender
receives a second or subsequent conviction under section 15A or section 15B,
this criterion will be fulfilled in every such instance. The Commission
therefore observes that this sentencing regime may, to some extent, further a
rehabilitative aim.
(c) Firearms Acts
5.103
The Commission considers that the mandatory sentence applicable to
repeat offenders under the Firearms Acts is unlikely to facilitate deterrence.
It has been noted that in general the deterrent effect of mandatory
sentencing is questionable. In the specific context of firearms offences,
however, the Commission notes that the effectiveness of such a regime is open
to particular doubt. As discussed at paragraph 4.202, mandatory
sentencing regimes operate on the premise that the decision to offend is fully
rational. In the context of firearms offences, however, this approach may
be overly simplistic, disregarding complex potential contributing factors such
as expressions of masculinity and social deprivation.
5.104
The Commission also observes that the sentencing regime for repeat
offenders under the Firearms Acts may not appropriately pursue the aim of
punishment. From a retributive perspective, the Firearms Acts prioritise
one aggravating factor, namely, the existence of a prior relevant conviction
under the Acts, at the expense of any factors which might justify a
downward departure from the prescribed minimum sentence. This regime
therefore risks certain repeat offenders being punished in a manner
disproportionate to their level of culpability.
5.105
Similar observations may be made regarding the denunciatory aspect of
this sentencing regime. This regime prioritises two aggravating factors
at the expense of any factors which might justify a downward departure from the
prescribed minimum sentence. This creates a risk that an individual
offender may be denounced more forcefully than is warranted in the
circumstances.
(a) The Principle of
Consistency and Mandatory and Presumptive Sentences for Second or Subsequent
Offences
5.106
The Commission has observed that the principle of consistency requires a
consistent application of the aims and principles of sentencing (consistency of
approach) as opposed to uniformity of sentencing outcomes (consistency of
outcomes). Consistency of approach thus requires that like cases should
be treated alike and different cases should be treated differently. The
corollary of this is that inconsistency arises where like cases are treated
differently and different cases are treated alike.
(i) Criminal
Justice Act 2007
5.107
The Commission notes that, at first sight, the sentencing regime
applicable to repeat offenders under the Criminal Justice Act 2007
appears to adhere to the principle of consistency. First, although this
regime applies in respect of a broad range of scheduled offences, three
specific elements must be satisfied in order for the presumptive penalty to
apply. As previously outlined, this regime requires that: (i) both
the initial and subsequent offence must have been committed by an offender aged
at least 18 years; (ii) the initial offence must have attracted a sentence of
at least five years’ imprisonment; and (iii) the subsequent offence must have
been committed within 7 years of the date of conviction for the initial
offence. The inclusion of these requirements goes some way towards
ensuring that the regime only applies in respect of similar cases.
Second, the fact that a sentencing court may disregard the presumptive
penalty where its application would be “disproportionate in all the
circumstances of the case” appears to provide that different cases need not be
treated uniformly. A less culpable repeat offender need not be subjected
to the same minimum penalty as a more serious offender. Instead, the
court may consider any mitigating factors that exist in his or her favour and
impose a sentence that more appropriately reflects his or her culpability.
5.108
Nonetheless, the Commission considers that the presumptive nature of
this sentencing regime conflicts with the principle of consistency. As
discussed at paragraphs 2.209 and 2.210, section 25 was enacted with a view to
punishing more severely those offences typically associated with gangland
criminality. It therefore prioritises the realisation of consistent
sentencing outcomes at the expense of a consistent sentencing approach.
By introducing a specific statutory regime for this particular group of
offences, section 25 may divert the courts from the key objective of adopting a
consistent sentencing approach to all instances of repeat offending.
Indeed, from its discussions with interested parties since the publication of
the Consultation Paper, the Commission is not aware that section 25 has been
applied in any case to date. Practitioners have, however, emphasised to
the Commission that in accordance with the aims and principles of sentencing
discussed in Chapter 1, higher sentences are in any event imposed on repeat
offenders than would be imposed on first-time offenders. To that extent,
section 25, if it were to be applied, would arguably bring confusion and add
little or nothing to established sentencing practice. The Commission
therefore considers that the structured, guidance-based sentencing system
envisaged in the recommendations made in Chapter 1, would provide a more consistent
approach to the sentencing of repeat offenders.
(ii) Misuse of Drugs
Act 1977
5.109
The Commission considers that the mandatory sentence applicable to
repeat offenders under the Misuse of Drugs Act 1977 may conflict with
the principle of consistency. As discussed at paragraph 2.204, this
regime was introduced to ensure that offenders who avoided the prescribed
minimum sentence upon being convicted of a first section 15A or section 15B
offence, would not evade this penalty if subsequently convicted under either
provision. It is clear therefore, that the focus of this regime was,
initially at least, the outcome of the sentencing process rather than the
approach to this process. The Commission observes, however, that unlike
the presumptive regime under the Criminal Justice Act 2007, the regime
under the Misuse of Drugs Act 1977 does not temper this focus by
permitting the courts to treat dissimilar cases differently. Instead,
there appear to be three ways in which this sentencing regime may produce
inconsistency.
5.110
First, this regime may require the courts to adopt an inconsistent
approach to the sentencing of similarly situated repeat drug offenders.
This problem stems from the use of the “market value” criterion as the
triggering element for the regime. As discussed at paragraphs 4.12 to
4.15, evidence regarding the market value of drugs is at best an estimate as
the market value of any commodity may fluctuate depending on when and where it
is sold and how much of that commodity is already available. Nonetheless,
whether a repeat offender is considered to fall foul of this threshold will
determine whether the court is free to take into account any mitigating factors
which may justify the imposition of a sentence of less than 10 years.
There is a risk therefore, that similarly situated repeat offenders may be
treated differently on the basis of an unreliable evaluation of the drugs in
their possession.
5.111
Second, the Commission reiterates that in addition to the unreliability
of this “market value” threshold, it creates a “sentencing cliff” whereby a
small difference in facts may lead to a significant difference in
sentence. Arguably, this mandates the adoption of a different
sentencing approach in respect of similarly situated repeat offenders. As
previously outlined, a repeat offence involving drugs worth at least €13,000
will attract a minimum sentence notwithstanding any mitigating factors.
However, by contrast, where the drugs at issue were worth even marginally less
than €13,000, a repeat offender may cite any relevant mitigating factors and
potentially receive a lower sentence. This regime may thus require the
courts to adopt a different sentencing approach in respect of individuals whose
conduct and level of culpability are virtually identical. Indeed, the
fact that mens rea regarding the value of the drugs is not an element of
the offence arguably compounds the risk that similarly culpable offenders may
be treated differently.
5.112
Third, the Commission notes that this regime may require the courts to
adopt a sentencing approach to certain repeat drug offenders, which is at odds
with the approach adopted in respect of other recidivist offenders. In
particular, it has been noted that it would appear to be inconsistent that:
“[t]he sentencing of virtually all
other offences, including more serious ones, remains discretionary. ... A
person caught in possession of, say, €15,000 worth of cocaine who had
previously been convicted of a similar offence must now receive a prison
sentence of 10 years or longer. Yet, another person appearing in an
adjoining court on the same day on a manslaughter, rape or robbery charge might
well receive a much shorter sentence, even though he had previous convictions
for similar offences. Violent offences of this nature usually attract
heavy prison sentences, but courts are always entitled to exercise leniency
when there are clear and exceptional mitigating factors. The repeat
section 15A offender may also be able to point to exceptional mitigating
factors but, unlike the person convicted of a serious violent offence, he can
receive no leniency on that account... .”[1556]
(iii) Firearms Acts
5.113
The Commission observes that the regime applicable to repeat offenders
under the Firearms Acts was introduced to ensure that those who avoided the
presumptive sentence when first convicted of a specified offence would not
evade this penalty if subsequently convicted of such an offence. It is
thus clear that the focus of this regime was, initially at least, the outcome
of the sentencing process rather than the approach to this process.
5.114
Furthermore, as previously discussed, it is arguably inconsistent that this
regime requires the courts to adopt a sentencing approach to repeat firearms
offenders which is at odds with the approach adopted in respect of other
recidivist offenders.
(b) The Principle of
Proportionality and Mandatory and Presumptive Sentences for Second or
Subsequent Offences
5.115
The Commission has observed that the principle of proportionality
comprises: (a) constitutional proportionality, and (b) proportionality in
sentencing.
(i)
Constitutional Proportionality and Mandatory and Presumptive Sentences for
Second or Subsequent Offences
5.116
As discussed in Chapter 3, the Supreme Court has confirmed that the
Oireachtas is entitled to prescribe a mandatory sentence whenever it considers
this to be an appropriate penalty. It follows therefore, that mandatory
or presumptive sentences for second or subsequent offences do not offend the
constitutional doctrine of proportionality.
(ii) Sentencing
Proportionality and Mandatory Sentences for Second or Subsequent Offences
5.117
The Commission has observed that the principle of proportionality in
sentencing requires an
individualised approach to sentencing whereby the court has regard to the
circumstances of both the offence and the offender.
(i) Criminal
Justice Act 2007
5.118
The Commission observes that the sentencing regime under section 25 of
the Criminal Justice Act 2007 does not conflict with the principle of
proportionality in sentencing. This regime expressly permits a sentencing
court to disregard the presumptive minimum sentence where the application of
this penalty would be “disproportionate in all the circumstances of the case”.
(ii) Misuse of Drugs
Act 1977
5.119
The Commission
considers that the mandatory sentencing regime under section 27(3F) of the Misuse
of Drugs Act 1977 poses a particular risk of disproportionate
sentencing. This risk stems from the fact that the regime permits of no
exceptions to the imposition of the minimum sentence. Instead, it
prioritises two aggravating factors, namely, the fact of a previous section 15A
or section 15B conviction, and the market value of the drugs involved, without
regard to the possible presence of any mitigating factors which might justify a
downward departure from the prescribed minimum. For such a sentence to be
proportionate in every case, the aggravating factors which trigger the
sentencing regime must always warrant the application of the prescribed minimum
penalty.[1557] It
cannot be guaranteed, however, that this will be the case in every instance of
repeat offending.
(iii) Firearms Acts
5.120
The Commission observes that similar comments may be made in respect of
the mandatory sentencing regime applicable to repeat offenders under the
Firearms Acts. This regime prioritises one aggravating factor, namely,
the fact of a previous relevant conviction under the Acts, at the expense of
any mitigating factors which may justify a downward departure from the
prescribed minimum sentence. Accordingly, this sentencing regime creates
a risk of disproportionate sentencing.
5.121 In Chapter 1, the Commission
acknowledged that repeat offending has a particularly deleterious impact on
society. It is understandable therefore, that the Oireachtas should wish
to increase the severity of the sanctions applicable to these offences through
the enactment of mandatory minimum sentences. The Commission further
recognised that the provision of mandatory sentences may be seen to afford
individual members of society, who might otherwise feel victimised and
powerless, an opportunity to express their condemnation of such offences.
5.122
The Commission
reiterates, however, that having regard to the aims and principles of
sentencing outlined in Chapter 1, there is a need to ensure that these
provisions achieve their stated objectives and that, as a result, they
facilitate the reduction of crime (the paramount aim of the criminal justice
system). From the analysis undertaken in Part F, it would appear that
this is not the case; the Commission has identified six problems which
characterise the mandatory and presumptive minimum sentencing regimes currently
applicable to certain repeat offences. Many of these problems also arise,
and have therefore been discussed, in the context of the presumptive minimum
sentences applicable to certain first-time drugs and firearms offences.
5.123 The first problem relates to the
aims of sentencing, in particular, the aims of deterrence and punishment.
In this regard, the Commission has observed that the mandatory sentencing
regimes under the Misuse of Drugs Act 1977 and the Firearms Acts may not
adequately meet these aims.
5.124 The second problem is a related
problem. Where these mandatory sentencing regimes are not meeting the
aims of sentencing, it is questionable whether they are furthering the overall
aim of the criminal justice system, namely, the reduction of prohibited or
unwanted conduct.
5.125 The third problem relates to the
principles of justice, namely, the principles of consistency and
proportionality. In this regard, the Commission has noted that the
mandatory sentencing regimes under the Criminal Justice Act 2007, Misuse
of Drugs Act 1977 and the Firearms Acts may give rise to inconsistent
sentencing. The provisions under the Misuse of Drugs Act 1977 and
the Firearms Acts also appear to create a particular risk of disproportionate
sentencing.
5.126 The fourth problem relates to the
argument that minimum sentences are not a cost-effective response to
crime. As discussed at paragraph 4.230, in the context of minimum sentences
for drug offences, the Rand Corporation has noted that for the same amount of
money, a more effective method would be to strengthen enforcement under the
previous sentencing regime or to increase treatment for heavy drug-users.[1558]
5.127 The fifth
problem relates to the argument outlined at paragraph 4.231 that there is an
incongruence between the sentences applicable to drug offences and the
sentences applicable to firearms offences. In a broader sense, it would
also appear to be inconsistent
that certain repeat drug and firearms offences attract a mandatory sentence,
whereas many other repeat offences of equal or greater gravity do not.
5.128
The final problem relates to the argument that mandatory sentencing
regimes are too rigid to keep abreast of evolving penal philosophy. As
noted in the Consultation Paper, the views of sentencers regarding
matters such as the seriousness of a particular offence and the appropriateness
of various non-custodial and custodial sanctions may evolve over time.[1559]
Mandatory sentencing regimes are incapable of keeping pace with these
developments.
5.129
In light of this analysis, the Commission recommends that the existing
mandatory and presumptive sentencing regimes applicable to repeat offences be
repealed. As discussed above, it has not been established that
these sentencing provisions have succeeded in reducing criminality.
5.130
In addition to the apparent failure of these regimes to reduce
criminality, the Commission notes that these provisions may, in practice,
produce a number of counter-productive results. First, having expanded
upon the analysis contained in the Consultation Paper, the Commission considers
that these sentencing regimes are inconsistent with the fundamental principles
of justice discussed in Chapter 1, namely, the principles of consistency and
proportionality in sentencing. As discussed in Part F, these provisions
appear to require an inconsistent approach to sentencing in so far as the
courts are constrained in their ability to treat like cases alike and different
cases differently. Similarly, in restricting the ability of the courts to
take account of the individual circumstances of each offender, the regimes
under the Misuse of Drugs Act 1977 and the Firearms Acts appear to
create a risk of disproportionate sentencing.
5.131
In recommending the repeal of these mandatory and presumptive minimum
sentencing regimes, the Commission proposes that the development of a more
structured, guidance-based sentencing system (as envisaged in the
recommendations made in Chapter 1) would facilitate an appropriate, alternative
response to the relevant offences. In the context of drug-related crime,
in particular, the Commission also considers that law enforcement efforts may
be beneficially supplemented by alternative initiatives, such as those
highlighted in the research conducted by the Health Research Board and the
Misuse of Drugs work sector of the British-Irish Council (see paragraphs 4.199
and 4.200).
5.132
Finally, the Commission agrees with the view, provisionally adopted in
the Consultation Paper, that the introduction of additional mandatory or presumptive
minimum sentences would not be an “appropriate or beneficial” response to other
forms of repeat offending. As discussed above, it has not been
illustrated that mandatory or presumptive sentences for repeat offending
achieve their intended sentencing aims and, as a result, that these regimes are
likely to reduce criminal conduct. The Commission therefore recommends
that the use of mandatory or presumptive minimum sentences not be extended to
other forms of repeat offending.
5.133
The Commission recommends that the following be repealed: (i) the
presumptive sentencing regime applicable to serious repeat offences under
section 25 of the Criminal Justice Act 2007; (ii) the mandatory minimum
sentencing regime applicable to repeat drug offences under section 27(3F) of
the Misuse of Drugs Act 1977; and (iii) the mandatory minimum sentencing regime
applicable to repeat firearms offences under section 15(8) of the Firearms Act
1925; section 26(8), section 27(8), section 27A(8), and section 27B(8) of the
Firearms Act 1964; and section 12A(13) of the Firearms and Offensive Weapons
Act 1990. The Commission also recommends that the use of presumptive or
mandatory minimum sentencing regimes not be extended to other forms of repeat
offending.
5.134
The Commission also recommends that a more structured, guidance-based
sentencing system (as envisaged in the recommendations made in Chapter 1) would
provide an appropriate alternative to these provisions.
6
6.01
The recommendations made by the Commission in this Report are as
follows:
6.02 The Commission supports the
recommendations made in 2000, and reiterated in 2011, that a Judicial Council
be empowered to develop and publish suitable guidance or guidelines on
sentencing, which would reflect the general aims of criminal sanctions and the
principles of sentencing discussed in this Report. The Commission also
recommends that such guidance or guidelines should have regard to: (i) the
sentencing guidance and guidelines available from decisions of the Supreme
Court and the Court of Criminal Appeal (including those discussed in this
Report); (ii) the aggravating and mitigating factors, and individual offender
characteristics, identified in the Commission’s 1996 Report on Sentencing
and developed by the courts since 1996; and (iii) information in relevant
databases including, in particular, the Irish Sentencing Information System
(ISIS). [paragraph 1.128]
6.03 The Commission, by a majority,
recommends that the mandatory life sentence for murder be retained. [paragraph
3.76]
6.04 The
Commission recommends that
where an offender is convicted of murder, and is therefore sentenced to life
imprisonment, legislation should provide that the judge may recommend a minimum
term to be served by the offender. [paragraph 3.84]
6.05 The Commission recommends that the
Parole Board be established on an independent statutory basis, and welcomes the
Government’s proposal to introduce legislation bringing about this
effect. [paragraph 3.86]
6.06 The
Commission recommends that the following be repealed: (i) the presumptive
minimum sentencing regime applicable to drugs offences under section 27(3C) of
the Misuse of Drugs Act 1977, and (ii) the presumptive minimum
sentencing regime applicable to firearms offences under section 15 of the Firearms
Act 1925; section 26, section 27, section 27A and section 27B of the Firearms
Act 1964; and section 12A of the Firearms and Offensive Weapons Act 1990.
The Commission also recommends that the use of presumptive minimum
sentencing regimes should not be extended to other offences. [paragraph
4.238]
6.07 The
Commission also recommends that a more structured, guidance-based sentencing
system (as envisaged in the recommendations made in Chapter 1) would provide an
appropriate alternative to these provisions. In the context of
drug-related crime, the Commission also considers that law enforcement efforts
may be beneficially supplemented by other initiatives, such as those
highlighted in the research conducted by the Health Research Board and the
Misuse of Drugs work sector of the British-Irish Council. [paragraph
4.239]
6.08
The Commission recommends that the following be repealed: (i) the
presumptive sentencing regime applicable to serious repeat offences under
section 25 of the Criminal Justice Act 2007; (ii) the mandatory
minimum sentencing regime applicable to repeat drug offences under section
27(3F) of the Misuse of Drugs Act 1977; and (iii) the mandatory minimum
sentencing regime applicable to repeat firearms offences under section 15(8) of
the Firearms Act 1925; section 26(8), section 27(8), section 27A(8), and
section 27B(8) of the Firearms Act 1964; and section 12A(13) of the Firearms
and Offensive Weapons Act 1990. The Commission also recommends that
the use of presumptive and mandatory minimum sentencing regimes should not be
extended to other forms of repeat offending. [paragraph 5.133]
6.09
The Commission also recommends that a more structured, guidance-based
sentencing system (as envisaged in the recommendations made in Chapter 1) would
provide an appropriate alternative to these provisions. [paragraph 5.134]
7
[1]
Consultation Paper on Mandatory Sentences
(LRC CP 66-2011). This is referred to as the Consultation Paper in the
remainder of this Report.
[2]
Article 15.2.1° of the Constitution of Ireland.
[3] See
generally: Law Reform Commission Report on Court Poor Box: Probation
of Offenders (LRC 75-2005).
[4]
See, for example, Ashworth Sentencing and Criminal Justice 3rd
ed (Butterworths, 2000), Chapter 3, and O’Malley Sentencing Law and Practice
2nd ed (Thomson Round Hall, 2006), Chapter 2.
[5]
Section 2(1) of the Criminal Law Act 1997 defines an “arrestable
offence” as “an offence for which a person of full capacity and not previously
convicted may, under or by virtue of any enactment, be punished by imprisonment
for a term of five years or by a more severe penalty and includes an attempt to
commit any such offence.”
[6] Law
Reform Commission Report on Sentencing (LRC 53-1996).
[7]
Section 2 of the Criminal
Justice Act 1990.
[8]
Section 4 of the Criminal
Justice Act 1990.
[9]
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.
[10]
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.
[11]
Under the Firearms
Act 1925, as amended by section 42 of the Criminal
Justice Act 2006.
[12]
Section 25 of the Criminal
Justice Act 2007.
[13]
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.
[14]
[1972] IR 402.
[15]
The Commission
acknowledges that there are many other factors at play in terms of the causes
of criminal activity in society, and that the criminal justice system is merely
one aspect of how society, including the State, attempts to reduce such
activity. These include other policy-related matters such as general
economic policy, education policy and employment policy. This Report is
confined primarily to a discussion of the role of the criminal justice system.
The Commission discusses at paragraph 4.199ff, below, the research of the
Health Research Board and the British-Irish Council on the link between drugs
and crime with a view to informing the development of effective policy
responses.
[16]
McAuley and McCutcheon Criminal
Liability (Round Hall, Sweet and Maxwell, 2000) at 103.
[17]
Courts Service Annual
Report 2010 at 57-64.
[18]
McAuley and McCutcheon Criminal
Liability (Round Hall, Sweet and Maxwell, 2000) at 104ff; and O’Malley Sentencing
Law and Practice (Thomson, Round Hall, 2006) at 31ff.
[19]
McAuley and McCutcheon Criminal
Liability (Round Hall, Sweet and Maxwell, 2000) at 105-106. See also:
Walker The Aims of a Penal System (The James Seth Memorial Lecture 1966) (Edinburgh
University Press, 1966).
[20]
See: Article 1 of
the Sixth Protocol and Article 2 of the Thirteenth Protocol to the European
Convention on Human Rights.
[21]
See: Article
15.5.2° and Article 28.3.3° of the Constitution, which prohibit the imposition
of the death penalty.
[22]
See: Article
40.3.1° of the Constitution; and State (C) v Frawley [1976] IR 365. See
also: Article 3 of the European Convention on Human Rights
[23]
See also: Article 7 of
the European Convention on Human Rights.
[24]
See also: Article 14 of
the European Convention on Human Rights.
[25]
[1972] IR 402.
[26] [1972] IR
402 at 408.
[27]
Ibid. The
approach described was adopted in The People (DPP) v Duffy [2009] 3 IR 613, where the defendant had
been convicted of an offence under the Competition Act 2002 arising from
his participation in a price cartel. The Central Criminal Court
(McKechnie J) imposed a suspended sentence on the defendant “solely on the basis...
of keeping some alignment” with the suspended sentences which had been imposed
upon two members of the same cartel whose level of culpability was comparable
to that of the accused. The Court considered that it would be contrary to
the principle of equality to require the defendant to serve a custodial
sentence against that background.
[28] The
offences which attract a five-year presumptive minimum sentence are: (i)
possession of a firearm while taking a vehicle without authority (section 26 of
the Firearms Act 1964, as substituted); (ii) possession of a firearm or
ammunition in suspicious circumstances (section 27A of the Firearms Act 1964,
as substituted); (iii) carrying a firearm or imitation firearm with
intent to commit an indictable offence or resist arrest (section 27B of the Firearms
Act 1964, as substituted); and (iv) shortening the barrel of a
shotgun or rifle (section 12A of the Firearms and Offensive Weapons Act
1990, as substituted).
[29]
The offences which attract a 10-year
presumptive minimum sentence are: (i) possession of firearms with intent
to endanger life (section 15 of the Firearms Act 1925, as substituted by
section 42 of the Criminal Justice Act 2006); and (ii) using a firearm
to assist or aid in an escape (section 27 of the Firearms Act 1964, as
substituted by section 58 of the Criminal; Justice Act 2006).
[30]
The offences listed above at note 15
attract a mandatory minimum five-year sentence where committed on a second or
subsequent occasion.
[31]
The offences listed above at note 16
attract a mandatory minimum 10-year sentence where committed on a second or
subsequent occasion.
[32]
For the purposes of this sentencing
regime, “serious offences” are those listed under Schedule 2 to the Criminal
Justice Act 2007. Among others, these include: murder, certain
non-fatal offences against the person, specified firearms and explosives
offences, and aggravated burglary.
[33]
O’Malley
Sentencing Law and Practice (Thomson Round Hall, 2nd 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).
[34]
McAuley
and McCutcheon Criminal Liability (Round Hall Sweet and Maxwell, 2000)
at 104.
[35]
Law
Reform Commission Consultation Paper on Sentencing (LRC CP 2-1993).
[36]
Ibid at paragraph 4.42.
[37]
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.
[38]
O’Malley
Sentencing Law and Practice (Thomson Round Hall, 2nd ed,
2006) at 34.
[39]
Ibid at 34-35; Walker and Padfield Sentencing: Theory, Law
and Practice (Butterworths, 2nd ed, 1996) at 97.
[40]
Law
Reform Commission Consultation Paper on Sentencing (LRC CP 2-1993).
[41]
Ibid. at paragraph
10.26.
[42]
Tonry
Sentencing Matters (Oxford University Press, 1996) at 135ff. Tonry
suggests that the real reason for enacting mandatory sentencing provisions is
not deterrence: “Supporters of mandatory penalties in anxious times are
concerned with political and symbolic goals.” (at 159-160).
[43] Ibid
at 137-139.
[44]
Walker
Why Punish? (Oxford University Press, 1991) at 69ff; O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 31ff; and
Department of Justice, Equality and Law Reform White Paper on Crime,
Discussion Document No.2: Criminal Sanctions (February 2010).
[45]
O’Malley
Sentencing Law and Practice (Thomson Round Hall, 2nd ed,
2006) at 43ff; and R v M(CA) [1996] 1 SCR 500 at paragraph 81, cited
with approval by the court in R v Latimer [2001] 1 SCR 3 at 41.
[46]
The
People (DPP) v M [1994] 3 IR 306, 317; and
R v M (CA) [1996] 1 SCR 500, paragraph 80.
[47]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 31.
[48]
Law
Reform Commission Report on Sentencing (LRC 53-1996).
[49]
Ibid at paragraph 2.13.
[50]
Department
of Justice, Equality and Law Reform White Paper on Crime, Discussion
Document No.2: Criminal Sanctions (February 2010).
[51]
The People (DPP) v M
[1994] 3 IR 306 at 314.
[52]
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.
[53]
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.
[54]
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, 3rd ed, 2002)
at 44-45.
[55]
Walker and Padfield Sentencing:
Theory, Law and Practice (Butterworths, 2nd ed, 1996) at
paragraph 9.38.
[56]
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, 3rd ed, 2002)
at 44-45.
[57]
O’Malley
Sentencing Law and Practice (Thomson Round Hall, 2nd ed,
2006) at 42.
[58]
Ibid; Ashworth Sentencing and Criminal Justice (Butterworths, 3rd
ed, 2000) at 69; and Law Reform Commission Consultation Paper on Sentencing
(LRC CP 2-1993) at paragraph 4.46.
[59]
Cavadino and Dignan The
Penal System - An Introduction (Sage Publications, 3rd ed, 2002)
at 39.
[60]
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 GK [2008]
IECCA 110; Caffrey v. Governor of
Portlaoise Prison [2012] IESC 4; and Minister for Justice
and Equality v Nolan [2012] IEHC 249.
[61]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 49-50.
[62]
Making Punishments Work -
Report of a Review of the Sentencing Framework for England and Wales (Home
Office, 2001) at paragraph 2.21.
[63]
Making Punishments Work -
Report of a Review of the Sentencing Framework for England and Wales (Home
Office, 2001) at paragraph 2.21.
[64]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 53.
[65]
Law Reform Commission Consultation
Paper on Prosecution Appeals from Unduly Lenient Sentences in the
District Court (LRC CP 33-2004).
[66]
Ibid at paragraph
6.07. O’Malley observes: “Disparity and inconsistency are closely
related concepts and... little turns on the difference between them. Both
are concerned with the problem of discordance. Arguably, consistency is more
concerned with incompatibility of particular decisions with avowed principles
or previous practice, whereas disparity is more concerned with inequality and
incongruity between particular decisions.” See: O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at 49.
[67]
Ashworth Sentencing and
Criminal Justice (Butterworths, 3rd ed, 2000) at 35-36.
[68]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 52.
[69]
Ibid.
[70]
Ibid at 52-53.
[71]
Ibid at 53.
[73]
[2010] IESC 34; [2012] 1 IR 1.
[74]
Heaney v Ireland [1994] 3 IR 593.
[75]
Ibid.
[76]
Ibid at 607.
[77]
In re the Employment Equality Bill
1996 [1997] 2 IR 321.
[78]
Ibid at 383.
[79]
Ibid at
503.
[80]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 534.
[81]
[2007]
IEHC 374, [2008] 2 IR 142; [2010] IESC 34, [2012] 1 IR 1.
[82]
O’Malley The Criminal
Process (Roundhall, 2009) at paragraph 22.02.
[83]
The
People (Attorney General) v Poyning [1972]
IR 402, discussed at paragraph 1.10ff, above.
[84]
The People (Attorney
General) v O’Driscoll (1972) 1 Frewen 351.
[85]
Ibid at 359.
[86]
The People (DPP) v Tiernan [1988] IR 251.
[87]
Section 29 of the Courts of
Justice Act 1924.
[88]
The People (DPP) v Tiernan [1988] IR 251 at 253.
[89]
The People (DPP) v M [1994] 3 IR 306.
[90]
Ibid at 316.
[91]
The People (DPP) v WC
[1994] 1 ILRM 321; The People (DPP) v Sheedy [2000] 2 IR 184; The
People (DPP) v Kelly [2005] 1 ILRM 19; The People (DPP) v
O’Dwyer [2005] 3 IR 134; Pudlizsewski v Judge Coughlan [2006] IEHC
304; The People (DPP) v H [2007] IEHC 335; The People (DPP) v GK
[2008]
IECCA 110; The People (DPP) v Keane [2008] 3 IR 177; The People (DPP) v Harty
Court of Criminal Appeal 19 February 2008; The People (DPP) v O’C [2009]
IECCA 116; and The People (DPP) v Woods
[2010] IECCA 118.
[92]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 89ff.
[93]
The People (DPP) v M [1994] 3 IR 306.
[94]
Ibid at 315.
[95]
See: Law Reform Commission Report
on Sentencing (LRC 53-1996) at paragraphs 3.5-3.8.
[96]
The People (DPP) v Crowe
[2010] 1 IR 129. See also: O’Malley
Sentencing Law and Practice (Thomson Round Hall, 2nd ed,
2006) at 93. O’Malley cites the 2004 Guideline of the Sentencing
Guidelines Council of England and Wales on Seriousness and the decision of
the English Court of Appeal in R v Howells [1999] 1 WLR 307.
[97]
The People (DPP) v Maguire
[2008] IECCA 56; The People (DPP) v O’C [2009]
IECCA 116; and The People (DPP) v Halligan Court of Criminal Appeal 15 February 2010.
[98]
The People (DPP) v Loving
[2006]
IECCA 28.
[99]
Section 14 of the Criminal
Justice (Theft and Fraud Offences) Act 2001.
[100]
The People (DPP) v Tiernan [1988] IR 251.
[101]
Ibid at 253.
[102]
The People (DPP) v Princs [2007]
IECCA 142.
[103]
For further discussion, see:
Lynch “Analysis of Manslaughter Sentencing 2007 - 2012” (Judicial Researchers’
Office, 2013) at 9ff. Available at: www.irishsentencing.ie/en/ISIS/Pages/WP09000222
[Last accessed: 22 May 2013].
[104]
The People (DPP) v Kelly
[2005] IR 321.
[105]
Ibid at 331.
[106]
Ibid.
[107]
Ibid.
[108]
The People (DPP) v Colclough [2010]
IECCA 15.
[109]
The People (DPP) v Murray [2012] IECCA 60.
[110]
In The People (DPP) v
McGrath [2008] IECCA 27, for example, the Court of Criminal Appeal stated
that the totality test requires the sentencing court, when imposing consecutive
sentences for individual offences, to consider whether, overall, the sentences
are proportionate in their totality.
[111]
The People (DPP) v WC [1994] 1 ILRM 321.
[112]
Ibid at 325.
[113]
The People (DPP) v Kelly [2005] 1 ILRM 18.
[114]
Ibid at 22. See also:
The People (DPP) v Dillon Court of Criminal Appeal 17 December
2003; Pudliszewski v Judge Coughlan [2006] IEHC 304; and Dunne v
Judge Coughlan High Court 25 April 2005.
[115]
The People (DPP) v WD [2008] 1 IR 308.
[116]
Ibid at 330.
[117]
Ibid at 319.
[118]
Ibid.
[119]
Ibid at 324.
[120]
Ibid.
[121]
Ibid.
[122]
Ibid.
[123]
Ibid at 327.
[124]
The People (DPP) v WD [2008] 1 IR 308 at 324.
[125]
Ibid at 326.
[126]
Ibid.
[127]
Ibid at 327.
[128]
The New Oxford Dictionary of
English (Oxford University Press, 2001) at 383 defines “condign” as:
“(of punishment or retribution) appropriate to the crime or wrongdoing;
fitting and deserved.”
[129]
The People (DPP) v WD [2008] 1 IR 308 at 319.
[130]
Ibid at 327.
[131]
Ibid at 328.
[132]
Ibid at 329.
[133]
Ibid at 330.
[134]
Ibid.
[135]
The People (DPP) v H [2007] IEHC
335.
[136]
The People (DPP) v Pakur Pakurian [2010] IECCA 48.
[137]
Ibid.
[138]
Section 14 of the Criminal
Justice (Theft and Fraud Offences) Act 2001.
[139]
The People (DPP) v GK [2008]
IECCA 110.
[140]
Ibid. See: the Court of Criminal Appeal decision
in The People (DPP) v Keane [2008] 3 IR 177 at 195, which concerned the
sentence for rape, in which Murray CJ indicated that: “[t]he law obliges [the
sentencing judge] to have regard to all the salient features of the
circumstances in which the offence was committed, the nature of the offence and
its impact on the victim and society so as to evaluate its
gravity. The sentencing judge is also obliged to have regard to the
particular individual who must be sentenced, his or her personal history and
circumstances so that a punishment which is proportionate and just may be
imposed.” (emphasis added)
[141]
O’Malley Sentencing -
Towards a Coherent System (Round Hall, 2011) at 194; and O’Malley Sentencing Law
and Practice (Thomson Round Hall, 2nd ed, 2006) at 92.
[142]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 92.
[143]
The People (DPP) v O’Dwyer [2005] 3 IR 134.
[144]
The People (DPP) v O’Dwyer [2005] 3 IR 134 at 148.
[145]
Ibid at 152.
[146]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 92.
[147]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 194.
[148]
Ibid; and O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 92. See also: The People (DPP) v Dwyer
[2005] 3 IR 134; and the 2004 Sentencing Guideline
of the Sentencing Guidelines Council of England and Wales on Seriousness.
[149]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 194.
[150]
The People (DPP) v WD [2008] 1 IR 308.
[151]
Ibid at 334.
[152]
The People (DPP) v WD [2008] 1 IR 308 at 334.
[153]
The People (DPP) v GK [2008]
IECCA 110.
[154]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 195.
[155]
Ibid at 196.
[156]
Ibid at 194. See: R
v Cox [1993] 1 WLR 188.
[157]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 92. See
generally: The People (DPP) v WD [2008] 1 IR 308.
[158]
The People (DPP) v Black
[2010] IECCA 91; The People (DPP) v Kelly [2005] 1 ILRM 19; The People (DPP) v
Princs [2007] IECCA 142; The People (DPP) v Maguire [2008] IECCA 56; and The People (DPP) v Dillon Court of Criminal
Appeal 17 December 2003.
[159]
The People (DPP) v Black
[2010] IECCA 91; The People (DPP) v Kelly [2005] 1 ILRM 19; The People (DPP) v
Princs [2007] IECCA 142; and The People (DPP) v
Maguire [2008]
IECCA 56.
[160]
The People (DPP) v GK [2008]
IECCA 110; The People (DPP) v Keane [2008] 3 IR 177; and The People (DPP) v
WD [2008] 1 IR 308.
[161]
The People (DPP) v Keane [2008] 3 IR 177.
[162]
The People (DPP) v GK [2008]
IECCA 110; and The People (DPP) v Maguire [2008] IECCA 56.
[163]
The People (DPP) v Tiernan
[1988] IR 250; and The People (DPP) v Maguire [2008] IECCA 56.
[164]
The People (DPP) v M [1994] 3
IR 306.
[165]
The People (DPP) v Tiernan
[1988] IR 250; and The People (DPP) v WD [2008] 1 IR 308.
[166]
The People (DPP) v Tiernan [1988] IR 250.
[167]
Ibid at 253-254.
[168]
The People (DPP) v Roseberry
Construction Ltd and McIntyre [2003] 4 IR
338.
[169]
The People (DPP) v Redmond [2001] 3 IR 390.
[170]
R v F Howe & Son (Engineers)
Ltd [1999] 2 All ER 249.
[171] The comparable
legislation in Northern Ireland is the Health and Safety at Work (Northern Ireland)
Order 1978.
[172]
The People (DPP) v Roseberry
Construction Ltd and McIntyre [2003] 4 IR 338 at
340.
[173]
Ibid.
[174]
Ibid.
[175]
R v F Howe & Son (Engineers)
Ltd [1999] 2 All ER 249 at 254.
[176]
The People (DPP) v Roseberry
Construction Ltd and McIntyre [2003] 4 IR
338 at 342.
[177]
The People (DPP) v Loving [2006] 3 IR 355.
[178]
R v Oliver (2003) 1 Cr App R 28.
[179]
The People (DPP) v Loving [2006] 3 IR 355 at 362.
[180]
Ibid.
[181]
R v Oliver (2003) 1 Cr App R 28 at 467.
[182]
Law Reform Commission Report on Sentencing (LRC 53-1996) at Chapter 3.
[183]
Ibid at paragraph 3.2.
[184]
Law Reform Commission Report on Sentencing (LRC 53-1996) at paragraph 3.2.
[185]
Law Reform Commission Report on Sentencing (LRC 53-1996) at Chapter 3.
[186]
Ibid at paragraphs 3.5-3.8
[187]
Ibid at paragraph 3.17.
[188] The People
(DPP) v Tiernan [1988] IR 250.
[189]
The People (DPP) v Tiernan
[1988] IR 250 at 255.
[190]
R v King (1986) 82 Cr App R 120. See: O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 129.
[191]
R v King (1986) 82 Cr App R 120 at 122.
[192]
See: O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at paragraph 6-33.
[193]
The People (DPP) v Princs [2007]
IECCA 142.
[194]
Ibid. See: O’Malley Sentencing Law and Practice
(Thomson Round Hall, 2nd ed, 2006) at 129-131.
[195]
The People (DPP) v H [2007] IEHC
335.
[196]
The People (DPP) v GK [2008]
IECCA 110.
[197]
The People (DPP) v Kelly [2005] 1 ILRM 19.
[198]
The People (DPP) v Kelly [2005] 1 ILRM 19 at 33.
[199]
The People (DPP) v Duffy [2009] 3 IR 613.
[200]
Ibid at 635.
[201]
Ibid at 634.
[202]
The People (DPP) v M [1994] 3 IR 306.
[203]
Ibid at 314.
[204]
O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 53.
[205]
Maguire “Consistency in Sentencing”
[2010] JSIJ 14.
[206]
O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 54.
[207]
Maguire
“Consistency in Sentencing” [2010] JSIJ 14 at 18-28.
[208]
O’Malley Sentencing
- Towards a Coherent System (Round Hall, 2011) at 8 and 9.
[209]
Maguire “Consistency in Sentencing”
[2010] JSIJ 14 at 31ff.
[210]
15 out of a total of 54 District
Court Judges participated in the study.
[211]
Maguire indicates that this approach involves the judge considering all the
relevant factors of the case, including the circumstances of the offence and
the offender, and then coming to a decision about the appropriate sentence
without indicating the precise weight being attributed to individual factors or
groups of factors. Maguire “Consistency in Sentencing” [2010] JSIJ 14 at
34.
[212]
Maguire “Consistency in Sentencing”
[2010] JSIJ 14 at 34.
[213]
Ibid at 35 and 36. Maguire highlights a
“fundamental contradiction” in the logic of the judges: “[W]hile they
explicitly recognised that a general tariff would be inconsistent with the need
to respond to the uniqueness of each case they did not seem to recognise that
the adoption by them of their individual approaches (developed incrementally
over a period of time) might also be inconsistent with the need to respond to
the uniqueness of each case.” (at 37).
[214]
Maguire “Consistency in Sentencing”
[2010] JSIJ 14 at 37.
[215]
Maguire “Consistency in Sentencing” [2010]
JSIJ 14 at 42.
[216]
Ibid.
[217]
Ibid at 43.
[218]
Ibid at 44.
[219] Ibid at
45.
[220]
The author observes, however, that
at the time of the research there was only one dedicated Drug Treatment Court
in Dublin’s North Inner City and so, in reality, very few of the judges who
participated in the research would have been able to refer offenders to this
court. Maguire “Consistency in
Sentencing” [2010] JSIJ 14 at 45.
[221]
Maguire “Consistency in Sentencing”
[2010] JSIJ 14 at 45-46.
[222]
Ibid at 47.
[223]
Ibid at 52.
[224]
Hamilton “Sentencing in the District
Court: ‘Here be Dragons’” (2005) 15(3) ICLJ 9a.
[225]
The People (DPP) v Tiernan
[1988] IR 250.
[226]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 116ff; and Law Reform Commission Consultation
Paper on Sentencing (LRC CP 2-1993) at paragraph 3.22.
[227]
O’Malley “Living Without Guidelines”
in Ashworth and Roberts, eds, Sentencing Guidelines: Exploring the English
Model” (Oxford University Press, 2013) [forthcoming]
[228]
Ibid.
[229]
O’Malley Sentencing -Towards a
Coherent System (Round Hall, 2011) at 116ff; and Law Reform Commission Consultation
Paper on Sentencing (LRC CP 2-1993) at paragraph 3.22.
[230]
O’Malley Sentencing -Towards a
Coherent System (Round Hall, 2011) at 118ff.
[231]
O’Malley “Living Without Guidelines”
in Ashworth and Roberts, eds, Sentencing Guidelines: Exploring the English
Model” (Oxford University Press, 2013) [forthcoming]
[232]
Ibid.
[233]
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]
[234]
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.
[235]
Conroy and Gunning “The Irish
Sentencing Information System (ISIS): A Practical Guide to a Practical Tool”
[2009] 1 JSIJ 37 at 38.
[236]
Ibid.
[237]
O’Malley “Recent Developments in
Sentencing”. Paper delivered at 13th Annual National Prosecutors’
Conference, Dublin Castle,19 May 2012 at 3.
[238]
Conroy and Gunning “The Irish
Sentencing Information System (ISIS): A Practical Guide to a Practical Tool”
[2009] 1 JSIJ 37 at 53.
[239]
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: Report of the Thornton Hall Project Review Group 2011 at 73.
[240]
See: “New initiatives on Sentencing
Information announced on 27th January 2013” Press Release, 27
January 2013. Available at: www.irishsentencing.ie/en/ISIS/Pages/WP13000002
[Last accessed: 22 May 2013].
[241]
Ibid.
[242]
See: www.irishsentencing.ie/en/ISIS/Pages/WP09000222
[Last accessed: 22 May 2013].
[243]
See “Work to establish an interim
Judicial Council begins” Courts Service News Vol 13 Issue 3 (Winter
2011) at 15.
[244]
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].
[245]
Report 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 Report
of the Working Group on a Courts Commission 1998 (Government Publications,
1998) at 175-176.
[246]
The Thornton Hall Project Review
Group raised the possibility of “judicially framed guidelines” forming part of
the programme for the proposed Judicial Council. See: Report of the
Thornton Hall Project Review Group 2011 at 73.
[247]
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).
[248]
Agreement at Hillsborough Castle
5 February 2010 at 6.
[249]
Monitoring and Developing
Sentencing Guidance in Northern Ireland - A Report to the Lord Chief Justice
from the Sentencing Working Group (Sentencing Working Group, 2010).
[250]
Ibid at 3.
[251]
Lord Chief Justice’s Priority
Sentencing List - Summary of Responses, Analysis of Consultation and Programme
of Action (2011) at 1.
[252]
Consultation on a Sentencing
Guidelines Mechanism (Northern Ireland Department of Justice, October
2010).
[253]
Consultation on a Sentencing
Guidelines Mechanism - Summary of Responses (Northern Ireland Department of
Justice, March 2011).
[254]
Hansard, Northern Ireland Assembly,
29 November 2011, Volume 69, No 4 at 215ff.
[255]
Ibid at 228.
[256]
Hansard, Northern Ireland Assembly,
11 June 2012, Volume 75, No 5 at 299ff.
[257]
Ibid at 301.
[258]
Ibid at 310.
[259]
Hansard, Northern Ireland Assembly,
11 June 2012, Volume 75, No 5 at 311.
[260]
Ibid.
[261]
Ibid.
[262]
Ibid.
[263]
Ibid at 312.
[264]
Law Reform Commission Report on
Sentencing (LRC 53-1996).
[265]
See generally: O’Malley
“Creativity and Principled Discretion over Sentencing a Necessity” Irish Times
19 December 2011.
[266]
Section 2 of the Criminal
Justice Act 1990. Section 10 of the International Criminal Court
Act 2006 clarifies that if genocide; a crime against humanity; a war crime;
or an ancillary offence under the 2006 Act involves murder, then a mandatory
life sentence will apply.
[267]
Section 3 of the Criminal
Justice Act 1990
[268]
See: O’Malley “Sentencing
Murderers: The Case for Relocating Discretion” (1995) 5(1) ICLJ 31 at 32ff for
a comprehensive account.
[269]
Dawtry “The Abolition of
the Death Penalty in Britain” (1966) 6 Brit J Criminology 183 at 188.
[270]
Children and Young
Persons Act 1908.
[271]
Children and Young Persons
Act 1933.
[272]
Infanticide Act 1922.
[273]
Infanticide Act 1938.
[274]
Morris Crime and
Criminal Justice since 1945 (Blackwell, 1989) at 78.
[275]
Weis “Not Innocent, Not
Guilty; Edith Thompson was an adulterer, a woman consorting below her
class. But was that reason enough to hang her for murder?” The Guardian
10 November 1993.
[276]
Joseph “The wife, her teenage
lover and a brutal murder that became a Cause Celebre” Bournemouth Echo 24
April 2011.
[277]
Dawtry “The Abolition of the
Death Penalty in Britain” (1966) 6 Brit J Criminology 183 at 188.
[278]
Ibid.
[279]
Ibid at 189; and Morris
Crime and Criminal Justice since 1945 (Blackwell, 1989) at 78-80.
[280]
Dawtry “The Abolition of the
Death Penalty in Britain” (1966) 6 Brit J Criminology 183 at 189; and Morris Crime
and Criminal Justice since 1945 (Blackwell, 1989) at 78-80.
[281]
Smith “The Penalty for Murder”
(1988) 19 Cambrian Law Review 5 at 5. Morris asserts that the Government
was careful to set the Commission’s terms of reference so as to preclude any
consideration of abolition itself (see: Morris Crime and Criminal Justice
since 1945 (Blackwell, 1989) at 80).
[282]
Report of the Royal
Commission on Capital Punishment 1949-1953 (HMSO, Cmnd 8932, 1953); Morris Crime
and Criminal Justice since 1945 (Blackwell, 1989) at 80; and Dession “The
Gowers Report and Capital Punishment” (1954) 29 NYU L Rev 1061.
[283]
Shute “Punishing Murders:
Release Procedures and the ‘Tariff’, 1953-2004” [2004] Crim LR 873 at 874; and
Morris Crime and Criminal Justice since 1945 (Blackwell, 1989) at 81.
[284]
Shute “Punishing Murders:
Release Procedures and the ‘Tariff’, 1953-2004” [2004] Crim LR 873 at 874.
[285]
Morris Crime and Criminal
Justice since 1945 (Blackwell, 1989) at 81.
[286]
R (on the application of
Westlake) v Criminal Cases Review Commission [2004]
EWHC 2779 (Admin); Morris Crime and Criminal Justice since 1945
(Blackwell, 1989) at 81-83; Prior “Timothy Evans Family’s 60-Year Conviction
Wait” BBC News 9 March 2010. Available at: http://news.bbc.co.uk/1/hi/wales/8556721.stm
[Last accessed: 22 May 2013]; and Martin “The Abolition of Capital Punishment”
(1964-1965) 13 Chitty’s LJ 75 at 78-79.
[287]
R v Secretary of State for
the Home Department ex parte Bentley [1993] EWHC QB 2; “The Killing of
Derek Bentley” The Guardian 31 July 1998; Allen “Comment: The Shocking Thing
is, the Truth about Derek Bentley was there all the Time” The Guardian 31 July
1998; and “Bentley Case Breakthrough” BBC News 6 November 1997. Available
at: http://news.bbc.co.uk/1/hi/uk/24208.stm
[Last accessed: 22 May 2013].
[288]
Morris asserts that it was the
idea that Bentley should hang while Craig went free that was repugnant to many
who were nevertheless in favour of capital punishment (see: Morris Crime and
Criminal Justice since 1945 (Blackwell, 1989) at 81.
[289]
R v Ellis [2003]
EWCA Crim 3556; Morris Crime and Criminal Justice since 1945
(Blackwell, 1989) at 83; “Ruth Ellis murder verdict upheld...” The Guardian 9
December 2003; “Ruth Ellis: Villain or Victim?” BBC News 30 November
1999. Available at: http://news.bbc.co.uk/1/hi/uk/542186.stm [Last accessed:
22 May 2013]; and “On this day: 13 July 1955: Crowd outside prison appeals for
Mrs Ellis” The Guardian 13 July 2009.
[290]
Morris Crime and Criminal
Justice since 1945 (Blackwell, 1989) at 83.
[291]
Ibid at 84.
[292]
Ibid.
[293]
Shute “Punishing Murders:
Release Procedures and the ‘Tariff’, 1953-2004” [2004] Crim LR 873 at 875;
Smith “The Penalty for Murder” (1988) 19 Cambrian Law Review 5 at 5-7; and
Morris Crime and Criminal Justice since 1945 (Blackwell, 1989) at 84-85.
[294]
These included murders
committed in the course or furtherance of a theft; murders committed by means
of firearms or explosives; murders committed in the course of a lawful arrest;
murders committed while effecting or assisting an escape or rescue from legal
custody; murders of police officers; murders of prison officers acting in the
course of their duty where the murderer was a prisoner at the time of the
killing; and multiple murders.
[295]
Shute “Punishing Murders:
Release Procedures and the ‘Tariff’, 1953-2004” [2004] Crim LR 873 at 875;
Smith “The Penalty for Murder” (1988) 19 Cambrian Law Review 5 at 7; and Morris
Crime and Criminal Justice since 1945 (Blackwell, 1989) at 85.
[296]
It would appear that Gwynne
Owen Evans’s real name was John Robson Walby. See: “Stable murder
rate sways MPs to permanently end the death penalty” Lincolnshire Echo 12
December 2006.
[297]
Edge “The Last Hangings” Daily
and Sunday Express 5 August 2011; “Enough rope: Tomorrow it will be 25 years
since the last hanging in Britain...” The Guardian 12 August 1989; and “Stable
murder rate sways MPs to permanently end the death penalty” Lincolnshire Echo
12 December 2006.
[298]
Dawtry “The Abolition of the
Death Penalty in Britain” (1966) 6 Brit J Criminology 183; and Blom-Cooper “The
Penalty for Murder: A Myth Exploded” [1996] Crim LR 707 at 710.
[299]
Dawtry “The Abolition of the
Death Penalty in Britain” (1966) 6 Brit J Criminology 183 at 184.
[300]
Dawtry “The Abolition of the
Death Penalty in Britain” (1966) 6 Brit J Criminology 183 at 184-185; and Smith
“The Penalty for Murder” (1988) 19 Cambrian Law Review 5 at 9.
[301]
Dawtry “The Abolition of the
Death Penalty in Britain” (1966) 6 Brit J Criminology 183 at 185.
[302]
Shute “Punishing Murders:
Release Procedures and the ‘Tariff’, 1953-2004” [2004] Crim LR 873 at 875; and
Smith “The Penalty for Murder” (1988) 19 Cambrian Law Review 5 at 8. See:
section 4 of the Murder (Abolition of Death Penalty) Act 1965.
[303]
Smith “The Penalty for Murder”
(1988) 19 Cambrian Law Review 5 at 8.
[304]
This also led to the
establishment of the Emslie Committee in Scotland.
[305]
Report on the Penalty for
Murder (Criminal Law Revision Committee, 1973). The Emslie Committee
had reported a year earlier (see: Report on the Penalties for Murder
(Lord Emslie Committee, 1972)).
[306]
Report on the Penalty for
Murder (Criminal Law Revision Committee, 1973) at 17. By contrast,
the Emslie Committee had recommended that the legislation should be amended to
oblige courts to recommend a minimum term (see: Report on the Penalties for
Murder (Lord Emslie Committee, 1972) at paragraph 92).
[307]
Report on the Penalty for
Murder (Criminal Law Revision Committee, 1973) at 17.
[308]
Ibid at 18.
[309]
Report on the Penalty for
Murder (Criminal Law Revision Committee, 1973) at 19. By contrast,
the Emslie Committee had recommended that the courts should be obliged to give
reasons (see: Report on the Penalties for Murder (Lord Emslie Committee,
1972) at paragraph 102.)
[310]
Report on the Penalty for
Murder (Criminal Law Revision Committee, 1973) at 19. The Emslie
Committee had come to the same conclusion (see: Report on the Penalties for
Murder (Lord Emslie Committee, 1972) at paragraph 96).
[311]
Report of
the Committee on Mentally Abnormal Offenders (HMSO, 1975) Cmnd 6244.
[312]
Sentences of Imprisonment:
A Review of Maximum Penalties (HMSO, 1978).
[313]
Smith “The Penalty for Murder”
(1988) 19 Cambrian Law Review 5 at 8-12.
[314]
Ibid at 8.
[315]
McCutcheon and Coffey “Life
Sentences in Ireland and the European Convention on Human Rights (2006) Irish
Yearbook of International Law 101 at 103.
[316]
Weeks v United Kingdom (1988) 10 EHRR 293.
[317]
Ibid at paragraph 38.
[318]
Ibid at paragraph 40.
[319]
Ibid at paragraph 51.
[320]
Ibid at paragraph 61.
[321]
McCutcheon and Coffey “Life
Sentences in Ireland and the European Convention on Human Rights (2006) Irish
Yearbook of International Law 101 at 104.
[322]
Wynne v United Kingdom
(1995) 19 EHRR 333.
[323]
Ibid at paragraph 31.
[324]
Thynne, Wilson and Gunnell
v United Kingdom (1991) 13 EHRR 666.
[325]
Wynne v United Kingdom
(1995) 19 EHRR 333 at paragraph 36.
[326]
Wynne v United Kingdom
(1995) 19 EHRR 333 at paragraph 35.
[327]
Thynne, Wilson and Gunnell
v United Kingdom (1991) 13 EHRR 666.
[328]
Ibid at paragraph 64.
[329]
Ibid at paragraph 78.
[330]
Emmerson, Ashworth and
Macdonald, eds, Human Rights and Criminal Justice (Thomson, Sweet & Maxwell,
2007) at 678. The procedure is now governed by section 82A of the Powers
of Criminal Courts (Sentencing) Act 2002.
[331]
Practice
Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870.
[332]
R v Dalton [1995] 2 Cr
App R 340.
[333]
McCutcheon and Coffey “Life
Sentences in Ireland and the European Convention on Human Rights (2006) Irish
Yearbook of International Law 101 at 104.
[334]
Hussain v United Kingdom
(1996) 22 EHRR 1.
[335]
Ibid at paragraph 47.
[336]
Ibid at paragraph 50.
[337]
Ibid at paragraph 51.
[338]
Hussain v United Kingdom
(1996) 22 EHRR 1 at paragraph 52.
[339]
Ibid at paragraph 53.
[340]
Ibid at paragraph 54.
[341]
Ibid.
[342]
Ibid.
[343] Emmerson,
Ashworth and Macdonald, eds, Human Rights and Criminal Justice (Thomson,
Sweet & Maxwell, 2007) at 679.
[344]
McCutcheon and Coffey “Life
Sentences in Ireland and the European Convention on Human Rights (2006) Irish
Yearbook of International Law 101 at 105.
[345]
V and T v United Kingdom
(2000) 30 EHRR 121.
[346]
Ibid at paragraph 111.
[347]
Ibid at paragraph 114.
[348]
Ibid.
[349]
Emmerson, Ashworth and
Macdonald, eds, Human Rights and Criminal Justice (Thomson, Sweet &
Maxwell, 2007) at 680.
[350]
Practice Statement (Life
Sentences for Murder) [2002] Cr App R 457. This has since been
replaced by section 269 of the Criminal Justice Act 2003. Schedule
22 to the 2003 Act contains transitional provisions for those serving mandatory
life sentences whose offences were committed before the Act came into force.
[351]
R (Smith) v Secretary of
State for the Home Department [2006] 1 AC 159.
[352]
Stafford v United Kingdom
(2002) 35 EHRR 32.
[353]
McCutcheon and Coffey “Life
Sentences in Ireland and the European Convention on Human Rights” (2006) Irish
Yearbook of International Law 101 at 105.
[354]
Stafford v United Kingdom
(2002) 35 EHRR 32 at paragraph 57.
[355]
Ibid at paragraph 58.
[356]
Ibid at paragraph 59.
[357]
Ibid at paragraph 59.
[358]
Ibid at paragraph 85.
[359]
Ibid at paragraph 85.
[360]
Ibid at paragraph 86.
[361]
Ibid at paragraph 81.
[362]
Ibid at paragraph 87.
[363]
Ibid.
[364]
Stafford v United Kingdom
(2002) 35 EHRR 32 at paragraph 79.
[365]
Kafkaris v Cyprus (2009) 49 EHRR 35.
[366]
Stafford
v United Kingdom (2002) 35 EHRR 32 at paragraph 78.
See: Emmerson, Ashworth and Macdonald, eds, Human Rights and Criminal
Justice (Thomson, Sweet & Maxwell, 2007) at 682-683.
[367]
R v
Secretary of State for the Home Department, ex parte Anderson [2003] 1 AC 837.
[368]
Vinter, Bamber and Moore v United
Kingdom European Court of Human Rights 17 January 2012. (Application Nos
66069/09, 130/10 and 1396/10).
[369]
R (Anderson) v Secretary of State
for the Home Department [2003] 1 AC 837.
[370]
Kafkaris
v Cyprus (2009) 49 EHRR 35.
[371]
R v Bieber [2009] 1 WLR 223.
[372]
Vinter,
Bamber and Moore v United Kingdom European Court of Human Rights 17
January 2012. (Application Nos 66069/09, 130/10 and 1396/10) at paragraph 89.
[373]
R v Jones and Others [2006] 2 Cr App R (S) 19.
[374]
Stafford
v United Kingdom (2002) 35 EHRR 32.
[375]
Article 7 ECHR: No one shall be held
guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at the time
when it was committed. Nor shall a heavier penalty be imposed than the
one that was applicable at the time the criminal offence was committed.
[376]
Osborough “Homicide and Criminal
Responsibility Bill (NI) 1963” (1965) 16 NILQ 73 at 73.
[377]
Ibid.
[378]
Ibid.
[379]
Attorney
General for Northern Ireland v Gallagher [1962] NI 122.
[380]
DPP v
Smith [1961] AC 290.
[381] Osborough
“Homicide and Criminal Responsibility Bill (NI) 1963” (1965) 16 NILQ 73 at 76.
[382]
Stannard “The View from Ireland” in
Reed and Bohlander, eds, Loss of Control and Diminishment Responsibility -
Domestic, Comparative and International Perspectives (Ashgate Publishing
Ltd, 2011) at 161.
[383]
Osborough “Homicide and Criminal
Responsibility Bill (NI) 1963” (1965) 16 NILQ 73 at 76; and Stannard “The View
from Ireland” in Reed and Bohlanderm, eds, Loss of Control and Diminishment
Responsibility - Domestic, Comparative and International Perspectives
(Ashgate Publishing Ltd, 2011) at 161.
[384]
Stannard “The View from Ireland” in
Reed and Bohlander, eds, Loss of Control and Diminishment Responsibility -
Domestic, Comparative and International Perspectives (Ashgate Publishing
Ltd, 2011) at 161-162.
[385]
Section 10 of the Criminal
Justice (Northern Ireland) Act 1966.
[386]
Schedule 5 to the Northern
Ireland (Emergency Provisions) Act 1973.
[387]
Article 5(1) and (2) of the Life
Sentences (Northern Ireland) Order 2001.
[388]
Article 5(3) of the Life
Sentences (Northern Ireland) Order 2001.
[389]
Review of the Criminal Justice
System in Northern Ireland (Criminal Justice Review Group, 2000).
[390]
Consultation on the Review of the
Sentencing Framework in Northern Ireland (Northern Ireland Office, 2005).
[391]
Annual Report 2009-2010
(Parole Commissioners of Northern Ireland, 2010) at 4 ff.
[392]
Article 3 of the Life Sentences
(Northern Ireland) Order 2001.
[393]
Article 46(1) of the Criminal
Justice (Northern Ireland) Order 2008 substituted the name “Parole
Commissioners” for “Life Sentence Commissioners”.
[394]
Article 6(4) of the Life
Sentences (Northern Ireland) Order 2001.
[395]
Article 28(2) of the Criminal
Justice (Northern Ireland) Order 2008.
[396]
R v
Candless [2004] NI 269 at 274-275.
[397]
Practice
Statement (Crime: Life Sentences) [2002] 3 All ER 412 at 413-415;
[2002] 1 WLR 1789 at 1790-1792.
[398]
Paragraphs 10 to 19 of the Practice
Statement (Crime: Life Sentences) [2002] 3 All ER 412 at 413-415; [2002] 1
WLR 1789 at 1790-1792.
[399]
Paragraphs 13 to 19 of the Practice
Statement (Crime: Life Sentences) [2002] 3 All ER 412 at 413-415; [2002] 1
WLR 1789 at 1790-1792.
[400]
Section 24 of the Northern
Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010.
[401] For example,
Article 20 of the Criminal Justice (Northern Ireland) Order 2008 and
Article 7 of the Life Sentences (Northern Ireland) Order 2001 provide
for the grant of temporary release on compassionate grounds.
[402]
Tadros “The Scots Law of Murder” in The
Law of Murder: Overseas Comparative Studies (Law Commission, 2005) at
87-105. Sheehan and Dickson Criminal Procedure - Scottish Criminal Law
and Practice Series (LexisNexis Butterworths, 2nd ed, 2003) at
329.
[403]
Criminal Justice (Scotland) Act
2003 and Convention Rights (Compliance) Scotland Act 2001, as
amended by section 16(1), section 16(2), paragraph 14 of Schedule 1 and
Schedule 3 to the Crime and Punishment (Scotland) Act 1997 and the Convention
Rights (Compliance) Scotland Act 2001.
[404]
Section 2(2) of the Prisoners and
Criminal Proceedings (Scotland) Act 1993, as amended by section 16(1),
section 16(2), paragraph 14 of Schedule 1, and Schedule 3 to the Crime and
Punishment (Scotland) Act 1997 and the Convention Rights (Compliance)
Scotland Act 2001. See: Slapper and Kelly The English Legal
System: 2009-2010 (Taylor and Francis, 2009) at 513.
[405]
Section 2(5) of the Prisoners and
Criminal Proceedings (Scotland) Act 1993, as amended by section 16(1),
section 16(2), paragraph 14 of Schedule 1, and Schedule 3 to the Crime and
Punishment (Scotland) Act 1997 and the Convention Rights (Compliance)
Scotland Act 2001.
[406]
Section 2(4) of the Prisoners and
Criminal Proceedings (Scotland) Act 1993, as amended by section 16(1),
section 16(2), paragraph 14 of Schedule 1, and Schedule 3 to the Crime and
Punishment (Scotland) Act 1997 and the Convention Rights (Compliance)
Scotland Act 2001.
[407]
The Penalties for Murder
(Lord Emslie Committee, 1972).
[408]
Ibid at paragraph 92.
[409]
Ibid at paragraph 98.
[410]
Ibid at paragraph 102.
[411]
Walker v HM Advocate 2003 SLT
130; HM Advocate v Al Megrahi High Court of Justiciary 24 November 2003;
and Locke v HM Advocate 2008 SLT 159.
[412]
HM Advocate v Boyle and Others [2009]
HCJAC 89; see also: McDiarmid “Sentencing Murder: Boyle v HM Advocate”
(2010) 14 Edin LR 473.
[413]
HM Advocate v Boyle and Others
[2009] HCJAC 89 at paragraph 13. See
also: Walker v HM Advocate 2003 SLT 130; and HM Advocate v Al Megrahi
High Court of Justiciary 24 November 2003.
[414]
HM Advocate v Boyle and Others
[2009] HCJAC 89 at paragraph 13.
[415]
HM Advocate v Boyle and Others
[2009] HCJAC 89 at paragraph 13; see also: Walker
v HM Advocate 2002 SCCR 1036.
[416]
HM Advocate v Boyle and Others
[2009] HCJAC 89 at paragraph 14.
[417]
Ibid at paragraph 17.
[418]
Governance of Britain - Review of
the Executive Royal Prerogative Powers: Final Report (Ministry of Justice,
2009) at 17.
[419]
For example, section 3 of the Prisoners
and Criminal Proceedings (Scotland) Act 1993 empowers the Secretary of
State, on the advice of the Parole Board, to grant temporary release on
compassionate grounds.
[420]
Sheehan and Dickson Criminal Procedure
- Scottish Criminal Law and Practice Series (LexisNexis Butterworths, 2nd
ed, 2003) at paragraph 443.
[421]
“You shall hang by the neck” Irish
Independent 21 November 2009; and “British hangman’s price drop save Free State
a bit of capital” Irish Times 5 January 2012.
[422]
O’Malley “Sentencing Murderers: The
Case for Relocating Discretion” (1995) 5(1) ICLJ 31 at 32.
[423]
Article 13.6 of the Constitution.
[424]
O’Malley “Sentencing Murderers: The
Case for Relocating Discretion” (1995) 5(1) ICLJ 31 at 32. See: Dáil
Debates, Private Members’ Business Abolition of Capital Punishment Motion, 21
November 1951, Vol 127; Dáil Debates, Private Members’ Business Abolition of
Capital Punishment Motion, 5 December 1951, Vol 128; and Dáil Debates, Private
Members’ Business Abolition of Capital Punishment Motion, 30 January 1952, Vol
129.
[425]
Dáil Debates, Private Members’
Business, Abolition of Capital Punishment Motion, 30 January 1952, Vol 129.
[426]
O’Malley “Sentencing Murderers: The
Case for Relocating Discretion” (1995) 5(1) ICLJ 31 at 32. See: Seanad
Debate, Capital Punishment Motion, 30 May 1956, Vol 46.
[427]
O’Malley “Sentencing Murderers: The
Case for Relocating Discretion” (1995) 5(1) ICLJ 31 at 32; McNally “Last
hanging in State 50 years ago today” Irish Times 20 April 2004; Mulqueen “An
Irishman’s Diary” Irish Times 21 April 2009; Rice “Last man hanged in Ireland
was drunk and mentally deficient” Sunday Tribune 18 April 2004; “Murderer was
the last man to be hanged here” Irish Independent 17 November 2009; and
“Victim’s family opposed death penalty” Irish News 29 November 2004.
[428]
“Borstal Boy” Irish Times 1 February
2004; “Remembering Behan is a quare delight” Irish Independent 10 July 2010; “A
Quare end to hanging” Sunday Mirror 5 February 2006; and “Behan ‘ended hanging”
The Mirror 6 February 2006.
[429]
Eyre and Wright Changing Stages:
A View of British Theatre in the Twentieth Century (Bloomsbury,
2000).
[430]
Dáil Debates, Criminal Justice (No
2) Bill 1990, Second Stage, 1 June 1990, Vol 399, No 6, Col 1230; and Osborough
“Homicide and Criminal Responsibility (Northern Ireland) Bill 1963” (1965) NILQ
73 at 78. See also: “A Quare end to hanging” Sunday Mirror 5 February
2006; and “Behan ‘ended hanging’” The Mirror 6 February 2006.
[431] Dáil Debates,
Criminal Justice Bill 1963, Second Stage, 6 November 1963, Vol 205, No 7, Col
997ff, Minister for Justice, Charles Haughey TD.
[432]
See: section 1 of the Treason Act
1939.
[433]
Sections 124, 125, 127 and 128 of
the Defence Act 1954.
[434]
Dáil Debates, Criminal Justice Bill
1981, First Stage, 5 May 1981, Vol 328, No 9, Col 2150ff, Dr Noel Brown.
[435]
Ibid.
[436]
Seanad Debates, Criminal Justice
Bill 1981, Second Stage, 15 October 1981, Vol 96, No 3, Col 218ff, Minister for
Justice, Jim Mitchell TD.
[437]
Seanad Debates, Criminal Justice
(Abolition of Death Penalty) Bill 1984, Second Stage, 13 February 1985, Vol
107, No 3, Col 278, Senator Shane Ross.
[438]
Seanad Debates, Criminal Justice
(Abolition of Death Penalty) Bill 1984, First Stage, 15 May 1984, Vol 103,
Senator Shane Ross.
[439]
Dáil Debates, Criminal Justice (No
2) Bill 1990, Second Stage, 1 June 1990, Vol 399, No 6, Col 1194ff, Minister
for Justice, Ray Burke TD.
[440]
Ibid.
[441]
Dáil Debates, Criminal Justice (No
2) Bill 1990, Second Stage, 1 June 1990, Vol 399, No 6, Col 1195, Minister for
Justice, Ray Burke TD.
[442]
Ibid.
[443]
Section 1 and section 2 of the Criminal
Justice Act 1990.
[444]
Section 3 of the Criminal Justice
Act 1990. See: O’Malley Sentencing Law and Practice (Thomson
Round Hall, 2nd ed, 2006) at 244.
[445]
Dáil Debates, Criminal Justice (No
2) Bill 1990, Committee and Final Stages, 12 June 1990, Vol 339, No 10, page
22, Minister for Justice.
[446]
Section 5(1) of the Criminal
Justice Act 1990.
[447]
Section 5(2) of the Criminal
Justice Act 1990.
[448]
Section 5(3) of the Criminal
Justice Act 1990. See: Dáil Debates, Criminal Justice
(No 2) Bill 1990, Committee and Final Stages, 12 June 1990, Vol 339, No 10,
page 22, Minister for Justice.
[449]
O’Malley “Sentencing Murderers: The
Case for Relocating Discretion” (1995) 5(1) ICLJ 31. In its Report on
Sentencing (LRC 53-1996) at Recommendation 12, and in its Report on
Homicide: Murder and Involuntary Manslaughter (LRC 87-2008) at paragraph
1.67, the Law Reform Commission recommended the abolition of the mandatory life
sentence for murder.
[450]
The People (DPP) v Kelly [2005] 1 ILRM 19.
[451]
Ibid at 29-30. Hardiman
J cites The State (Healy) v Donoghue [1976] IR 325; The People
(Attorney General) v O’Driscoll (1972) 1 Frewen 351; and The People
(DPP) v M [1994] 3 IR 306 in relation to rehabilitation.
[452]
Report of the Constitution Review
Group (Dublin Stationery Office, 1996).
[453]
Article 15.5.2° provides: “The
Oireachtas shall not enact any law providing for the imposition of the death
penalty.”
[454]
[2007] IEHC 374, [2008] 2 IR 142; [2010] IESC 34, [2012] 1 IR 1.
[455]
Deaton v Attorney General
[1963] IR 170.
[456]
Whelan and Lynch v Minister for
Justice Equality and Law Reform [2012] 1 IR 1; [2010] IESC
34
[457]
Ibid.
[458]
Ibid.
[459]
Caffrey v Governor of Portlaoise
Prison [2012]
IESC 4.
[460]
Caffrey v Governor of Portlaoise
Prison [2010] IEHC 213.
[461]
Ibid.
[462]
Nascimento v Minister for
Justice, Equality and Law Reform [2011] 1 IR 1.
[463]
[2007] IEHC 374, [2008] 2 IR 142; [2010] IESC 142, [2012] 1 IR 1.
[464]
[2012] 1 IR 1 at 26.
[465]
[2007] IEHC 374, [2008] 2 IR 142; [2010] IESC 34, [2012] 1 IR 1.
[466]
Pursuant to section 5(1) of the European
Convention on Human Rights Act 2003.
[467]
Kafkaris v Cyprus (2009) 49 EHRR 35, at paragraphs 98-99.
[468]
Whelan and Lynch v Minister for
Justice, Equality and Law Reform [2010] IESC
34, [2012] 1 IR 1 at 32.
[469]
Article 5(1): Everyone has the right
to liberty and security of the person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure
prescribed by law: a) the lawful detention of a person after
conviction by a competent court...
[470]
Article 5(4): Everyone who is
deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.
[471]
This echoes the view taken by the
Irish Human Rights Commission in its Report into the Determination of Life
Sentences (IHRC, 2006) at 3.
[472]
Kafkaris v Cyprus (2009) 49 EHRR 35.
[473]
Ibid
at paragraph 121.
[474]
Article 6(1) of the European
Convention on Human Rights: [I]n the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law...
[475]
Kafkaris v Cyprus (2009) 49 EHRR 35.
[476]
Ibid at paragraphs 80-86.
[477]
Ibid at paragraphs 87-95.
[478]
Ibid
at paragraph 96.
[479]
Ibid
at paragraph 97.
[480]
Ibid
at paragraph 98.
[481]
Ibid at paragraph 99. See also: joint partly dissenting
opinion of Judges Tulkens, Cabral Barreto, Fura-Sandstrom, Spielmann and
Jebens: “[T]he prospect of release, even if limited, must exist de facto in
concrete terms, particularly so as not to aggravate the uncertainty and
distress inherent in a life sentence. By ‘de facto’ we mean a genuine
possibility of release. That was manifestly not the case in this
instance”. (at paragraph O-II4).
[482]
Ibid at paragraph 108.
[483]
Kafkaris v Cyprus (2009) 49 EHRR 35 at paragraphs
104-105.
[484]
It is interesting to note that a
sizeable minority emphasised that a life sentence which impeded the purpose of
reintegration might constitute inhuman and degrading treatment. See:
joint partly dissenting opinion of Judges Tulkens, Cabral Barreto,
Fura-Sandstrom, Spielmann and Jebens (at paragraph O-II13).
[485]
Kafkaris v Cyprus (2009) 49 EHRR 35 at paragraphs
111-112.
[486]
Ibid at paragraphs 113-116.
[487]
Ibid at paragraph 120.
[488]
Ibid at paragraph 121.
[489]
Ibid at paragraph 123.
[490]
Ibid at paragraph 124.
[491]
Ibid at paragraph 125.
[492]
Ibid at paragraph 105.
See also: the joint partly dissenting opinion of Judges Tulkens, Cabral
Barreto, Fura-Sandstrom, Spielmann and Jebens, who did not agree with this
statement and identified trends at the Council of Europe, European Union and
international criminal justice levels (at paragraphs O-II9-O-II12).
[493]
Ibid at paragraph 100.
[494]
Kafkaris v Cyprus (2009) 49 EHRR 35, concurring opinion of
Judge Bratza (at paragraph O-I8).
[495]
Quinn and McLaughlin “The Evolution
of Federal Drug Control Legislation” (1972-1973) 22 Cath U L Rev 586 at 588.
[496]
Ibid at 589.
[497]
Quinn and McLaughlin “The Evolution
of Federal Drug Control Legislation” (1972-1973) 22 Cath U L Rev 586 at 625.
[498]
Ibid at 593.
[499] Ibid at
601.
[500]
Ibid.
[501]
Ibid at 619; and Report to
Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System
(United States Sentencing Commission, 2011) at 22.
[502]
Mascharka “Mandatory Minimum
Sentences: Exemplifying the Law of Unintended Consequences” (2001) Florida
State University Law Review 935 at 939; and Quinn and McLaughlin “The
Evolution of Federal Drug Control Legislation” (1972-1973) 22 Cath U L Rev 586
at 620.
[503]
Quinn and McLaughlin “The Evolution
of Federal Drug Control Legislation” (1972-1973) 22 Cath U L Rev 586 at
620.
[504]
Special Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 1991) at Chapter 2; and Quinn and McLaughlin “The
Evolution of Federal Drug Control Legislation” (1972-1973) 22 Cath U L Rev 586
at 620.
[505]
Quinn and McLaughlin “The Evolution
of Federal Drug Control Legislation” (1972-1973) 22 Cath U L Rev 586 at 620.
[506]
Mascharka “Mandatory Minimum
Sentences: Exemplifying the Law of Unintended Consequences” [2001] 28 Florida
State University Law Review 935 at 938.
[507]
Mascharka “Mandatory Minimum
Sentences: Exemplifying the Law of Unintended Consequences” (2001) Florida
State University Law Review 935 at 939; Report to Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 22; Special Report to Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 1991) at Chapter 2; and Lutjen “Culpability and
Sentencing under Mandatory Minimums and the Federal Sentencing Guidelines: The
Punishment no longer fits the Crime” (1996) 10 Notre Dame JL Ethics & Pub
Pol’y 389 at 396. See also: Glick “Mandatory Sentencing: The Politics of
the New Criminal Justice” (1979) 43 Fed Probation 3.
[508]
See also: Glick “Mandatory
Sentencing: The Politics of the New Criminal Justice” (1979) 43 Fed Probation
3.
[509]
Report to Congress: mandatory
Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 23.
[510]
Glick “Mandatory Sentencing: The
Politics of the New Criminal Justice System” (1979) 43 Fed Probation 3 at 3-6;
Zimring “Sentencing Reform in the States: Some Sobering Lessons from the 1970s”
(1981-1982) 2 N Ill U L Rev 1 at 2-4; and Special Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 1991) at Chapter 2.
[511]
Special Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 1991) at Chapter 2.
[512]
Bayer “The Effects of the 1973 Drug
Laws on the New York State Courts: A Comment” (1976) 5 Contemporary Drug
Problems 631 at 631-632; and Glanville “Drug Abuse, Law Abuse, and the Eighth
Amendment: New York’s 1973 Drug Legislation and the Prohibition against Cruel
and Unusual Punishment” (1974-1975) 60 Cornell L Rev 638 at 639.
[513]
See: “Background on Michigan
mandatory minimum drug law reforms”. Available at: www.famm.org/state/Michigan.aspx
[Last accessed: 22 May 2013].
[514]
In 1987, Michigan introduced
mandatory consecutive sentencing provisions which provided that a sentence for
a drug offence had to be served consecutively to any other sentence being
served for a felony. See: www.famm.org/state/Michigan.aspx
[Last accessed: 22 May 2013].
[515]
Mascharka “Mandatory Minimum
Sentences: Exemplifying the Law of Unintended Consequences” [2001] 28 Florida
State University Law Review 935 at 941.
[516]
Report to Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 23.
[517]
Special Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 1991) at Chapter 2.
[518]
Report to Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 24-25.
[519]
Special Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 1991) at Chapter 2.
[520]
Report to Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 25; and Special Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 1991) at Chapter 2.
[521]
Special Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 1991) at Chapter 2; and Mascharka “Mandatory
Minimum Sentences: Exemplifying the Law of Unintended Consequences” [2001] 28 Florida
State University Law Review 935 at 941.
[522]
Mascharka “Mandatory Minimum
Sentences: Exemplifying the Law of Unintended Consequences” [2001] 28 Florida
State University Law Review 935 at 941-942.
[523]
Report to Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 29-31.
[524]
These include: Delaware, Indiana,
Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Nevada, New
Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island,
and South Carolina. See: “State Responses to Mandatory Minimum Laws”
(2011) Available at www.famm.org. [Last
accessed: 22 May 2013]; and Austin “Criminal Justice Trends - Key
Legislative Changes in Sentencing Policy, 2001-2010” (2010). Available at:
www.vera.org [Last accessed: 22 May
2013].
[525]
“State Responses to Mandatory
Minimum Laws” (2011). Available at: www.famm.org.
[Last accessed: 22 May 2013].
[526]
Austin “Criminal Justice Trends -
Key Legislative Changes in Sentencing Policy, 2001-2010” (2010) Available at: www.vera.org. [Last accessed: 22 May
2013]; and “State Responses to Mandatory Minimum Laws” (2011). Available
at: www.famm.org. [Last accessed: 22 May
2013].
[527]
Austin “Criminal Justice Trends -
Key Legislative Changes in Sentencing Policy, 2001-2010” (2010).
Available at: www.vera.org. [Last accessed:
22 May 2013]; and “State Responses to Mandatory Minimum Laws”. Available at: www.famm.org. [Last accessed: 22 May
2013].
[528]
“Drug Sentencing Reform: A Bipartisan
Priority” (2011). Available at: www.famm.org.
[Last accessed: 22 May 2013].
[529]
White Paper on Crime, Justice and
Protecting the Public Cm 965 (HMSO, 1990).
[530]
Ashworth and Player “Criminal
Justice Act 2003: The Sentencing Provisions” (2005) 68 Mod L Rev 822 at 822;
Fitzgerald “Californication of Irish Sentencing Law” (2008) 18 ICLJ 42 at 42;
and Bacik “Crime and Punishment - Retribution or Rehabilitation” (2001).
Available at:
www.lawlibrary.ie/viewdoc.asp?Docid=144&Catid=18&StartDate=01+January+2001
[Last accessed: 22 May 2013].
[531]
Ashworth and Player “Criminal Justice
Act 2003: The Sentencing Provisions” (2005) 68 Mod L Rev 822.
[532]
Ibid.
[533]
White Paper on Protecting the
Public - The Government’s Strategy on Crime in England and Wales (HMSO,
1996).
[534]
Ibid at 3.
[535]
Ibid at 4.
[536]
Ibid at 23.
[537]
Ibid at 49.
[538]
Ashworth and Player “Criminal
Justice Act 2003: The Sentencing Provisions” (2005) 68 Mod L Rev 822.
[539]
Henham “Back to the Future on
Sentencing: The 1996 White Paper” (1996) 59 Mod L Rev 861.
[540]
Fitzgerald “Californication of Irish
Sentencing Law” (2008) 18 ICLJ 42.
[541]
Ibid; Thomas “The Crime
(Sentences) Act 1997” [1998] Crim LR 83; and Thomas Current Law Statutes
(Sweet and Maxwell, 1997) at 43-3.
[542]
Current Law Statutes (Sweet and
Maxwell, 1997) at 43-3.
[543]
Fitzgerald “Californication of Irish
Sentencing Law” (2008) 18 ICLJ 42.
[544]
The amendment also applied to those
sentenced for domestic burglary. See: Henham “Making Sense of the
Crime (Sentences) Act 1997” (1998) 61 Mod L Rev 223.
[545]
Henham “Making Sense of the Crime
(Sentences) Act 1997” (1998) 61 Mod L Rev 223.
[546]
Section 3 of the Crime
(Sentences) Act 1997. Section 2 established a presumptive
“two-strikes” rule that required the imposition of a life sentence, except in
exceptional circumstances, on offenders who had been convicted of a second
serious offence. Section 4 established a presumptive “three-strikes” rule
that required the imposition of a three-year sentence, except in exceptional
circumstances, on offenders who had been convicted of a third domestic
burglary.
[547]
Thomas “The Crime (Sentences) Act
1997” [1998] Crim LR 83.
[548]
The Powers of Criminal Courts
(Sentencing) Act 2000 was enacted pursuant to the recommendations of the
Law Commission and the Scottish Law Commission contained in the 2000 Report
on the Consolidation of Legislation relating to Sentencing Cm 4626
SE/2000/15.
[549]
Current Law Statutes (Sweet
and Maxwell, 2000) at 6-7.
[550]
Class A drugs are defined in Part 1
of Schedule 2 to the Misuse of Drugs Act 1971. The term “drug
trafficking offence” is defined by section 1 of the Drug Trafficking Act
1994.
[551]
Sentencing Council “Courts issued
with New Guideline for Sentencing Drug Offenders” Press Release 24 January
2012.
[552]
Drug Offences Guidelines
Professional Consultation (Sentencing Council, 2011); Drug Offences
Guidelines Public Consultation (Sentencing Council, 2011); and Drug
Offences Response to Consultation (Sentencing Council, 2012).
[553]
Research into the Effects of the
Draft Drug Offences Guideline on Sentencing Practice Analysis and Research
Bulletins (Sentencing Council, 2012).
[554]
Jacobson, Kirby and Hough Public
Attitudes to the Sentencing of Drug Offences (Sentencing Council, 2011).
[555]
Drugs Offences Analysis and Research
Bulletins (Sentencing Council, 2011).
[556]
Drug “Mules”: Twelve Case Studies
Analysis and Research Bulletins (Sentencing Council, 2011).
[557]
Burke “Rabbitte Revisited: The First
Report of the Ministerial Task Force on Measures to Reduce Demand for Drugs -
Ten Years On” (2007) 55 Administration 125 at 128.
[558]
First Report of the Ministerial
Task Force on Measures to Reduce Demand for Drugs 1996 at 12.
[559]
Section 15 of the Misuse of Drugs
Act 1977.
[560]
Section 27(a) of the Misuse of
Drugs Act 1977 provided that an offender, on summary conviction, would be liable
to a fine of Ł250 and/or a maximum term of 12 months and section 27(b) provided
that an offender, on indictment, would be liable to a maximum fine of Ł3,000
and/or a maximum term of 14 years.
[561] Select Committee
on Legislation and Security Debates, Criminal Justice (Drug Trafficking) Bill
1996, Committee Stage, 18 June 1996, Mr John O’Donoghue TD.
[562]
Section 6 of the Misuse of Drugs
Act 1984 inserted a new section 27 into the Misuse of Drugs Act 1977.
Section 27(3)(a) provided that an offender, on summary conviction, would be
liable to a maximum fine of Ł1,000 and/or a maximum term of 12 months and
section 27(3)(b) provided that an offender, on indictment, would be liable to a
fine of such amount as the court considers appropriate or a maximum term of
life imprisonment or a fine and a lesser period of imprisonment.
[563]
Dáil Debates, Adjournment Debate -
Importation of Illegal Drugs, 9 November 1995, Vol 458, No 1; Cusack and Mooney
“Pounds 150m Cannabis Haul may have been bound for UK” Irish Times 9 November
1995; Cleary “Drug Force’s Major Haul probably aimed at UK” Irish Times 11
November 1995; Maher “Gardaí claim Media Leaks thwarted Attempts to Capture
Drugs Barons” Irish Times 9 December 1995; and Editorial “Divisions in Drugs
Response” Irish Times 11 December 1995.
[564]
Burke “Rabbitte Revisited: The First
Report of the Ministerial Task Force on Measures to Reduce Demand for Drugs -
Ten Years On” (2007) 55 Administration 125 at 129.
[565]
Dáil Debates, Private Members’
Business: Drug Abuse Motion, 16 May 1995, Vol 452, No 8, Ms Liz O’Donnell TD,
Progressive Democrats Spokesperson for Justice.
[566]
Dáil Debates, Private Members’
Business: Drug Abuse Motion, 17 May 1995, Vol 453, No 1, Mr Des O’Malley TD.
[567]
Select Committee on Legislation and
Security Debate, Criminal Justice (Drug Trafficking) Bill 1996, Committee
Stage, 18 June 1996, Mr John O’Donoghue TD, Fianna Fáil Spokesperson for
Justice.
[568]
Select Committee on Legislation and
Security Debate, Criminal Justice (Drug Trafficking) Bill 1996, Committee
Stage, 18 June 1996.
[569]
Ibid.
[570]
Dáil Debates, Killing of Dublin
Journalist: Statements, 26 June 1996, Vol 467, No 5; and Kennedy “Stunned
Political Leaders see Killing as Attack on Democracy” Irish Times 27 June 1996.
[571]
Burke “Rabbitte Revisited: The First
Report of the Ministerial Task Force on Measures to Reduce Demand for Drugs -
Ten Years On” (2007) 55 Administration 125 at 130; and “Crime Bosses had to run
for Cover after Murder of Journalist” Irish Times 16 March 2001.
[572]
Browne “Litany of Repressive
Measures emanating from the Airwaves is not an appropriate Response” Irish
Times 28 June 1996; Walsh “States of Emergency are not the Answer” Irish Times
29 June 1996; “Warnings against extreme Reaction to Murder” Irish Times 2 July
1996; “The Case for a Commission” Irish Times 2 July 1996; “The Response to
Organised Crime” Irish Times 3 July 1996; Cusack “Garda unconvinced by Crime
Measures” Irish Times 4 July 1996; Holland “Lessons of the Past show Hard Cases
make Bad Law” Irish Times 4 July 1996; and “The Debate on Crime” Irish Times 6
July 1996.
[573]
Tynan, Cusack and Maher “Government
prepares Crime Package in Wake of Murder” Irish Times 28 June 1996; Tynan and
Maher “Owen to accept FF Bill on freezing Assets of Dealers” Irish Times 1 July
1996; Tynan “Coalition to present Anti-Crime Package later Today” Irish Times 2
July 1996; Kenny “Innocent have Nothing to fear from Justice System Reforms”
Irish Times 3 July 1996; Tynan “Dáil to debate Six Law Measures” Irish Times 23
July 1996; and Kennedy “Cabinet bid to pass Four Bills on Organised Crime
Today” Irish Times 25 July 1996.
[574]
Seanad Debates, Criminal Justice (No
2) Bill 1997, Second Stage, 9 December 1997, Vol 153, No 1. See also: Law
Reform Commission Report on the Confiscation of the Proceeds of Crime
(LRC 35-1991).
[575]
Seanad Debates, Criminal Justice (No
2) Bill 1997, Second Stage, 9 December 1997, Vol 153, No 1.
[576]
Dáil Debates, Criminal Justice (No
2) Bill 1997 [Seanad], Second Stage, 11 June 1998, Vol 492, No 3.
[577]
Section 4 of the Criminal Justice
Act 1999.
[578]
Section 27(3B) inserted by section 5
of the Criminal Justice Act 1999.
[579]
Section 1 of the Euro Changeover
(Amounts) Act 2001 converted this amount to €13,000.
[580]
Irish Current Law Statutes
Annotated 1999 at 10-05.
[581]
Section 3(2) of the Crime
(Sentences) Act 1997.
[582]
McEvoy Research for the
Department of Justice on the Criteria applied by the Courts in sentencing under
S. 15A of the Misuse of Drugs Act 1977 (as amended) (Department of Justice,
2001).
[583]
Dáil Debates, Criminal Justice Bill
2004, Second Stage, 15 February 2005, Vol 597, No 5.
[584]
Dáil Debates, Criminal Justice Bill
2004, Second Stage, 15 February 2005, Vol 597, No 5.
[585]
“Mandatory Drug Offence Terms rarely
imposed” Irish Times 7 March 2006; Lally and Reid “Sentences for Drugs, Gun
Crimes questioned after Killing” Irish Times 7 March 2006; and Browne “Now that
would be a Watershed” Irish Times 8 March 2006.
[586]
Dáil Debates, Criminal Justice Bill
2004 Motion, 28 March 2006, Vol 617, No 97.
[587]
In The People (DPP) v Power [2007] 2 IR 509 at 522, the Supreme Court
confirmed that even before the insertion of subsection (3A), section 15A had
not required the prosecution to establish mens rea regarding the value of
the drugs. As a result, a number of earlier decisions which had held that
mens rea was an element of the offence were overruled. See, for
example: The People (DPP) v Charles Portlaoise Circuit Court 13 July
2004.
[588]
Regulation 4 of the Misuse of
Drugs Regulations 1988 and section 27(6) of the Misuse of Drugs Act 1977.
Select Committee on Justice, Equality, Defence and Women’s Rights Debates,
Criminal Justice Bill 2004, Committee Stage, 11 May 2006.
[589]
Select Committee on Justice,
Equality, Defence and Women’s Rights Debates, Criminal Justice Bill 2004,
Committee Stage, 11 May 2006, Mr McDowell TD.
[590]
Now section 27(3D)(c).
[591]
Select Committee on Justice,
Equality, Defence and Women’s Rights Debates, Criminal Justice Bill 2004,
Committee Stage, 11 May 2006. It is interesting to note that Minister
McDowell’s reason for inserting subsection (3CC) - to close the gap between
Oireachtas intention and judicial action - was very similar to the reason which
had been offered by Minister O’Donoghue for the introduction of presumptive
sentencing in respect of offences under section 15A of the Misuse of Drugs
Act 1977.
[592]
Ibid.
[593]
Ibid.
[594]
Commentators have noted the
difficulty in determining what is in the public interest in preventing drug
trafficking. See: Irish Current Law Statutes 2006 at 26-84.
[595]
Dáil Debates, Criminal Justice Bill
2007, Second Stage, 22 March 2007, Vol 634, No 2, Col 383; Donohoe “New Bill to
end Judges’ Discretion in serious Drug Cases” Irish Times 13 March 2007;
“Tougher Sentencing on Way in new Crime Package” Irish Independent 13 March
2007; “Ex-Judge knocks new Drug Laws” Irish Independent 14 March 2007; and
O’Mahony “McDowell’s Battle with Judiciary not Justified” Irish Times 22 March
2007.
[596]
Lally “Only Three of 57 Drug Dealers
got 10-Year Sentence” Irish Times 30 October 2007.
[597]
Burke “Rabbitte Revisited: The First
Report of the Ministerial Task Force on Measures to Reduce Demand for Drugs -
Ten Years On” (2007) 55 Administration 125 at 127-132; and First Report of
the Ministerial Task Force on Measures to Reduce Demand for Drugs 1996 at
6-15 and 25-26.
[598]
Ashworth “Changes in Sentencing Law”
(1997) Crim LR 1.
[599]
Zimring “Firearms and Federal Law:
The Gun Control Act of 1968” (1975) 4 J Legal Stud 133.
[600]
Glick “Mandatory Sentencing: The
Politics of the New Criminal Justice System” (1979) 43 Fed Probation 3 at 3-6;
Zimring “Sentencing Reform in the States: Some Sobering Lessons from the 1970s”
(1981-1982) 2 N Ill U L Rev 1 at 2-4; and Special Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 1991) at Chapter 2.
[601]
Zimring “Firearms and Federal Law:
The Gun Control Act of 1968” (1975) 4 J Legal Stud 133.
[602]
Ibid.
[603]
Ibid at 149.
[604]
Ibid at 147.
[605]
See: 18 USC §924(c). Zimring
“Firearms and Federal Law: The Gun Control Act of 1968” (1975) 4 J Legal Stud
133 at 147 and 149.
[606]
Report to Congress: mandatory
Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 23.
[607]
18 USC § 844(h).
[608]
Report to Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 25; and Scott Wallace “Mandatory Minimums and
the Betrayal of Sentencing Reform: A Legislative Dr Jekyll and Mr Hyde” (1993)
57 Fed Probation 9 at 10.
[609]
Report to Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 25-26.
[610]
18 USC § 924(e),
[611]
Report to Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011) at 26.
[612]
Mass Gen Laws Ann ch 269, § 10(c)
(Supp 1976). Beha “‘And Nobody can get You out’ - The Impact of a
Mandatory Prison Sentence for the Illegal Carrying of a Firearm on the Use of
Firearms and on the Administration of Criminal Justice - Part I” (1977) 57 B U
L rev 96.
[613]
Loftin and McDowall “The Deterrent
Effects of the Florida Felony Firearm Law” (1984) 75 J Crim L & Criminology
250 at 251.
[614]
Parnas and Salerno “The Influence
behind, Substance and Impact of the New Determinate Setnencing Law in
California” 11 UCD L Rev 29; and Lizotte and Zatz “The Use and Abuse of Sentence
Enhancement for Firearms Offenses in California” (1986) 49 Law & Contemp
Probs 199 at 203-204.
[615]
Loftin et al “Mandatory Sentencing
and Firearms Violence: Evaluating an Alternative to Gun Control” (1982-1983) 17
Law & Soc’y Rev 287; and Heumann and Loftin “Mandatory Sentencing and the
Abolition of Plea Bargaining: The Michigan Felony Firearm Statute” (1978-1979)
13 Law & Soc’y Rev 393 at 395.
[616]
Heumann and Loftin “Mandatory
Sentencing and the Abolition of Plea Bargaining: The Michigan Felony Firearm
Statute” (1978-1979) 13 Law & Soc’y Rev 393 at 397 (footnote 9).
[617]
Justice for All Cm 5563 (Home
Office, 2002).
[618]
Ibid at 11.
[619]
Making Punishments Work: Report
of a Review of the Sentencing Framework for England and Wales (Home Office,
2001).
[620]
Justice for All (Home Office,
Cm 5563, 2002) at paragraph 5.2.
[621]
Hansard, House of Commons, Oral
Answers to Questions, 2 December 2002, Column 594.
[622]
Ibid. Even before the
provisions regarding mandatory minimum sentences were inserted, the Criminal
Justice Bill had been widely criticised by civil liberties’ groups. See:
Tempest “Blunkett’s Bill under Fire” The Guardian 21 November 2002.
[623]
Sparrow “Blunkett outlaws Use of
Fake Guns” The Telegraph 6 January 2003; Vasagar and Ward “Five-Year Jail Terms
planned as Rise in Use of Illegal Weapons revealed” The Guardian 6 January
2003; and “Blunkett confirms tough new Gun Penalties” The Guardian 6 January
2003.
[624]
Hales, Lewis and Silverstone Gun
Crime: The Market in and Use of illegal Firearms Research Study 298 (Home
Office, 2006) at 7.
[625]
Oliver “Birmingham Shooting Victims
Named” The Guardian 3 January 2003.
[626]
Burke, Thompson, Bright, Hinsliff,
Barnett and Rowan “Where the Gun rules and the Innocent go in Fear” The
Guardian 5 January 2003.
[627]
Allen and Barrett “Huge Increase in
Gun Use as Crime Figures Soar” The Independent 9 January 2003; Burrell “Tories
attack ‘truly terrible’ Rise in Gun Crime” The Independent, 10 January 2003;
and Vasagar and Ward “Five-Year Jail Terms planned as Rise in Use of Illegal
Weapons revealed” The Guardian 6 January 2003.
[628]
Vasagar and Ward “Five-Year Jail
Terms planned as Rise in Use of Illegal Weapons revealed” The Guardian 6
January 2003; Sparrow “Blunkett outlaws Use of Fake Guns” The Telegraph 6
January 2003; and “Blunkett confirms tough new Gun Penalties” The Guardian 6
January 2003.
[629]
“No 10 backs down on Gun Crime
Sentencing” The Telegraph 7 January 2003; and Gibb and Ford “Judges Force
Retreat on Sentences” The Guardian 7 January 2003.
[630]
“No 10 backs down on Gun Crime
Sentencing” The Telegraph 7 January 2003; Johnston “Blunkett’s New Five-Year
Minimum Jail Term ‘Knee-Jerk Politics’” The Telegraph 7 January 2003; and Gibb
and Ford “Judges Force Retreat on Sentences” The Guardian 7 January 2003.
[631]
Criminal Justice Act 2003 -
Explanatory Notes at paragraph 3; and Towards Effective Sentencing -
Fifth Report of Session 2007-2008, Volume I (House of Commons Justice
Committee, 2008) at 7.
[632]
Section 30 of the Violent Crime
Reduction Act 2006.
[633]
Dáil Debates, Oral Answers to Questions, 22 May 1986, Vol 366, Col
2108-9.
[634]
Dáil Debates, Written Answers -
Armed Crime, 28 October 1987, Vol 374.
[635]
Dáil Debates, Private Members’
Business - Measures against Crime Motion, 2 July 1996, Vol 467, No 7, Liz
O’Donnell TD; and “Coalition to present Anti-Crime Package later Today” Irish
Times 2 July 1996.
[636]
Mayor calls for Action on Guns”
Irish Times 15 August 1996; “The Law and Justice” Irish Times 13 September
1996; “69 Guns seized during Guerin Murder Inquiries” Irish Times 9 September
1996; “Garda are now closing in on Guerin Murderers” Irish Times 9 October
1996; and Maher “Murdered Drug Dealer linked to two Killings in Dublin” Irish
Times 9 December 1996.
[637]
“Contract Killing costs about Pounds
2000” Irish Times 1 May 1996; O’Connor “Death Toll from Contract Style Killings
rises to 12 in Dublin” Irish Times 27 June 1996; and Cusack “Dublin’s Gangsters
have got the Killing Habit” Irish Times 7 September 1996.
[638]
Dáil Debates, Killing of Dublin
Journalist: Statements, 26 June 1996, Vol 467, No 5; and Kennedy “Stunned
Political Leaders see Killing as Attack on Democracy” Irish Times 27 June 1996.
[639]
See, for example: the Criminal
Assets Bureau Act 1996 and the Proceeds of Crime Act 1996.
[640]
Committee on Justice, Equality,
Defence and Women’s Rights Debate, Garda Commissioner Presentation, 14 October
2003, Garda Commissioner Noel Conroy; Lally “Conroy says Rise in Use of Guns in
Homicides” Irish Times 15 October 2003; and Lally “Gardaí call for Overhaul of
Justice System” Irish Times 6 November 2003.
[641]
Lally “500% Rise in Murders using
Guns” Irish Times 19 November 2003.
[642]
Lally “Gun and Drug Laws to be
Toughened Up” Irish Times 6 April 2004; “Mandatory Sentences” Irish Times 7
April 2004; and Coulter “Sentence must be Proportionate to the Crime, say
Observers” Irish Times 7 April 2004.
[643]
Lally “Crime Figures show 6% Drop”
Irish Times 17 April 2004; and Brady “Crackdown on Way as Gun Crime Rockets”
Belfast Telegraph 17 April 2004.
[644]
Drug Use in Ireland and Northern
Ireland: 2002/2003 Drug Prevalence Survey (Health Board (Ireland) and Health
and Social Services Board (Northern Ireland), April 2004); and Lally “Report to
Show Drug Trade has spread throughout State” Irish Times 19 April 2004.
[645]
Lally “All-Ireland Survey Shows Fast
Rise in Use of Cocaine” Irish Times 20 April 2004; and McDaid “Minister Vows to
Get Tough on Drugs” Irish News 20 April 2004.
[646]
Lally “All-Ireland Survey Shows Fast
Rise in Use of Cocaine” Irish Times 20 April 2004.
[647]
Dáil Debates, Criminal Justice Bill
2004: Order for Second Stage, 15 February 2005, Vol 597, No 5.
[648]
Dáil Debates, Criminal Justice Bill
2004, Second Stage, 15 February 2005, Vol 597, No 5.
[649]
Robinson “Calls for Gun-Crime
Crackdown as Killings leave Public Reeling” Irish News 8 March 2006; “Time for
Action, not Words, on Guns” Irish Times 7 March 2006; O’Halloran “Harney says
Firearms Laws will be Amended” Irish Times 9 March 2006; and McMorrow “Ireland
in the Grip of Gun Crime” Sunday Tribune 12 March 2006.
[650]
Section 26 of the Firearms Act
1964, as substituted by section 57 of the Criminal Justice Act 2006.
[651]
Section 27A of the Firearms Act
1964, as substituted by section 59 of the Criminal Justice Act
2006.
[652]
Section 27B of the Firearms Act
1964, as substituted by section 60 of the Criminal Justice Act 2006.
[653]
Section 12A of the Firearms and
Offensive Weapons Act 1990, inserted by section 65 of the Criminal
Justice Act 2006.
[654]
Section 15 of the Firearms Act
1925, as substituted by section 42 of the Criminal Justice Act 2006.
[655]
Section 27 of the Firearms Act
1964, as substituted by section 58 of the Criminal Justice Act 2006.
[656]
Section 35 to section 39 of the Criminal
Justice Act 2006 inserted subsection (4A) into section 15 of the Firearms
Act 1925; section 26 of the Firearms Act 1964; section 27 of the Firearms
Act 1964; section 27A of the Firearms Act 1964; and section 27B of
the Firearms Act 1964. Section 40 of the Criminal Justice Act
2006 inserted subsection (9A) into section 12A of the Firearms and
Offensive Weapons Act 1990.
[657]
Section 15 of the Firearms Act
1925; section 26 of the Firearms Act 1964; section 27 of the Firearms
Act 1964; section 27A of the Firearms Act 1964; section 27B of the Firearms
Act 1964; and section 12A of the Firearms and Offensive Weapons Act 1990.
[658]
McIntyre Irish Current Law
Statutes Annotated 2007 at 29-43.
[659]
Collins “‘Tiger’ Jail Term Proposed”
Irish Times 27 January 2012.
[660]
Section 3(1)(c) of the
Criminal Justice (Aggravated False Imprisonment) Bill 2012.
[661]
Section 3(2) of the Criminal
Justice (Aggravated False Imprisonment) Bill 2012.
[662]
Section 3(3) of the Criminal
Justice (Aggravated False Imprisonment) Bill 2012.
[663]
Section 2 of the Assaults on
Emergency Workers Bill 2012.
[664]
Section 3(2) of the Assaults on
Emergency Workers Bill 2012.
[665]
Section 3(2)(a) to section 3(2)(b)
of the Assaults on Emergency Workers Bill 2012.
[666]
Section 3(1) of the Assaults on
Emergency Workers Bill 2012 provided that the regime would not apply in
respect of a “child,” while section 1 defined a “child” as a person under the
age of 16 years.
[667]
Dáil Debates, Assaults on Emergency
Workers Bill 2012, Second Stage, 5 October 2012, Vol 773, No. 11, Minister of State at the Department of the Taoiseach, Paul Kehoe
TD.
[668]
Ibid.
(See generally: section 2 to section 6 of the Non-Fatal Offences against the
Person Act 1997).
[669]
Section 185 of the Criminal Justice Act
2006.
[670]
Dáil Debates, Assaults on Emergency
Workers Bill 2012, Second Stage, 5 October 2012, Vol 773, No. 11, Minister of State at the Department of the Taoiseach, Paul Kehoe
TD.
[671]
Ibid.
[672]
Ibid.
[673]
Healy “3 year jail for attacking
elderly urged” Irish Times 19 January 2004.
[674]
Kelpie “Ahern considers prison terms
for burglars” Irish Examiner 24 September 2009.
[675]
Power “Call for mandatory sentencing
after latest ‘joyriding’ crash injures eight” Irish Times 10 May 2002.
[676]
Kane “Campaigners
call for mandatory sentences for child sex abusers” Irish Examiner 17 July
2008.
[677]
Hurley “Limerick TD calls for mandatory
sentences in dangerous driving cases” Limerick Leader 1 March 2013.
[678]
“FG seeks mandatory 25-year sentence
for gangland murders” Irish Examiner 2 February 2010.
[679]
O’Keefe “Call
for mandatory sentences in child pornography cases” Irish Examiner 2 June 2010.
[680]
O’Halloran “Sexton calls for
mandatory rape sentences” Irish Times 24 March 2007; and O’Caollai “Call for
introduction of minimum sentence for rape” Irish Times 31 January 2013.
[681]
Gallagher and Galvin “Someone could
get shot” Mayo News 11 December 2012.
[682]
Turner et al “‘Three Strikes and
You’re Out’ Legislation: A National Assessment” (1995) 59 Fed Probation 16 at
17; and Zimring et al Punishment and Democracy - Three Strikes and You’re
Out in California (Oxford University Press, 2001) at 4.
[683]
Turner et al “‘Three Strikes and
You’re Out’ Legislation: A National Assessment” (1995) 59 Fed Probation 16 at
17. See also: Katkin “Habitual Offender Laws” (1971-1972) 21 Buff L Rev
99 at 104.
[684]
Austin et al “Three Strikes and
You’re Out: The Implementation and Impart of Strike Laws” (US Department of
Justice, 2000) at 1; and Zimring et al Punishment and Democracy - Three
Strikes and You’re Out in California (Oxford University Press, 2001) at 4.
[685]
Austin et al “Three Strikes and
You’re Out: The Implementation and Impact of Strike Laws” (US Department of
Justice, 2000) at 15; and Zimring et al Punishment and Democracy - Three
Strikes and You’re Out in California (Oxford University Press, 2001) at 4.
[686]
Andrus “Which Crime Is It - The Role
of Proportionality in Recidivist Sentencing after Ewing v California” (2004)
19(1) BYU Journal of Public Law 279 at 284.
[687]
Vitiello “Three Strikes: Can We
Return to Rationality?” (1996-1997) 87 J Crim L & Criminology 395 at 410.
[688]
Vitiello “Three Strikes: Can We
Return to Rationality?” (1996-1997) 87 J Crim L & Criminology 395 at 411;
Zimring et al Punishment and Democracy - Three Strikes and You’re Out in
California (Oxford University Press, 2001) at 5; and Austin et al “Three
Strikes and You’re Out: The Implementation and Impart of Strike Laws” (US
Department of Justice, 2000) at 1.
[689]
The offences included murder, armed
robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy and
aggravated sexual battery.
[690]
Austin et al “Three Strikes and
You’re Out: The Implementation and Impart of Strike Laws” (US Department of
Justice, 2000) at 1.
[691]
Section 2 of the Penal Servitude
Act 1857. Radzinowicz and Hood “Incapacitating the Habitual Offender:
The English Experience” (1979-1980) 78 Mich L Rev 1305 at 1308.
[692]
Radzinowicz and Hood “Incapacitating
the Habitual Offender: The English Experience” (1979-1980) 78 Mich L Rev 1305
at 1333.
[693]
Section 2 of the Penal Servitude
Act 1857.
[694]
Radzinowicz and Hood “Incapacitating
the Habitual Offender: The English Experience” (1979-1980) 78 Mich L Rev 1305
at 1334.
[695]
Ibid.
[696]
Prevention of Crimes Act 1879.
[697]
Radzinowicz and Hood “Incapacitating
the Habitual Offender: The English Experience” (1979-1980) 78 Mich L Rev 1305
at 1334.
[698]
Ibid at 1335.
[699]
Radzinowicz and Hood “Incapacitating
the Habitual Offender: The English Experience” (1979-1980) 78 Mich L Rev 1305
at 1341.
[700]
Ibid at 1342.
[701]
Ibid at 1343.
[702]
Ibid at 1344.
[703]
Ashworth Sentencing and Criminal
Justice (Butterworths, 3rd ed, 2000) at 160; and Radzinowicz and
Hood “Incapacitating the Habitual Offender: The English Experience” (1979-1980)
78 Mich L Rev 1305 at 1352ff.
[704]
Ashworth Sentencing and Criminal
Justice (Butterworths, 3rd ed, 2000) at 160; and Radzinowicz and
Hood “Incapacitating the Habitual Offender: The English Experience” (1979-1980)
78 Mich L Rev 1305 at 1361ff.
[705]
Ashworth Sentencing and Criminal
Justice (Butterworths, 3rd ed, 2000) at 161.
[706]
Ibid; and Radzinowicz and
Hood “Incapacitating the Habitual Offender: The English Experience” (1979-1980)
78 Mich L Rev 1305 at 1378ff.
[707]
Practice Direction
(Corrective training: Preventative Detention) [1962] 1 All ER 671.
[708]
White Paper on the Adult Offender
(Home Office, 1965).
[709]
Ashworth Sentencing and Criminal
Justice (Butterworths, 3rd ed, 2000) at 161; and Radzinowicz and
Hood “Incapacitating the Habitual Offender: The English Experience” (1979-1980)
78 Mich L Rev 1305 at 1382ff.
[710]
Ashworth Sentencing and Criminal
Justice (Butterworths, 3rd ed, 2000) at 161.
[711]
Current Law Statutes (Sweet
& Maxwell, 1973).
[712]
Henham “Making Sense of the Crime
(Sentences) Act 1997” (1998) 61 Mod L Rev 223 at 224-225.
[713]
The Powers of Criminal Courts
(Sentencing) Act 2000 was enacted pursuant to the recommendations of the
Law Commission and the Scottish Law Commission contained in the 2000 Report
on the Consolidation of Legislation relating to Sentencing Cm 4626
SE/2000/15.
[714]
Dyer “Ruling neutralises ‘Two
Strikes’ Law” The Guardian 10 November 2000.
[715]
Justice for All (Home Office,
Cm 5563, 2002) at paragraph 5.2.
[716]
Justice for All Cm 5563 (Home
Office, 2002).
[717]
Making Punishments Work: Report
of a Review of the Sentencing Framework for England and Wales (Home Office,
2001).
[718]
Mandatory Sentences of
Imprisonment in Common Law Jurisdictions (Department of Justice, Canada) at
14.
[719]
The term “serious offence” is defined by section 224(2) of the Criminal
Justice Act 2003.
[720]
Ashworth and Player “Criminal
Justice Act 2003: The Sentencing Provisions” (2005) 68 Mod L Rev 822 at 835.
[721]
The Indeterminate Sentence for
Public Protection - A Thematic Review (HM Chief Inspector of Prisons and HM
Chief Inspector of Probation, 2008).
[722]
Ibid at 3.
[723]
Ibid.
[724]
Ibid at 4.
[725]
See, for instance: “Sentence
designed for ‘Public Protection” The Telegraph 20 August 2007.
[726]
Inserted by Schedule 5 to the Criminal
Justice and Immigration Act 2008.
[727]
Breaking the Cycle: Effective
Punishment, Rehabilitation and Sentencing of Offenders (Ministry of
Justice, 2010).
[728]
Breaking the Cycle: Effective
Punishment, Rehabilitation and Sentencing of Offenders (Ministry of
Justice, 2010) at 55.
[729]
Ibid at 56.
[730]
Breaking the Cycle: Government
Response (Ministry of Justice, 2011) at 11.
[731]
Hansard, House of Commons, Legal
Aid, Sentencing and Punishment of Offenders Bill: 1 November 2011, Column
785.
[732]
Hansard, House of Commons, Legal
Aid, Sentencing and Punishment of Offenders Bill: 1 November 2011, Column
788.
[733]
Ibid.
[734]
Ibid.
[735]
Thomas “The Legal Aid, Sentencing
and Punishment of Offenders Act 2012: The Sentencing Provisions” (2012) 8
Criminal Law Review 572 at 575.
[736]
Protecting the Public - The
Government’s Strategy on Crime in England and Wales Cm 3190 (Home Office,
1996).
[737]
Ibid at 51.
[738]
Ibid.
[739]
Ibid at 51-52.
[740]
Protecting the Public - The
Government’s Strategy on Crime in England and Wales Cm 3190 (Home Office,
1996).
[741]
The Powers of Criminal Courts
(Sentencing) Act 2000 was enacted pursuant to the recommendations of the
Law Commission and the Scottish Law Commission contained in the 2000 Report
on the Consolidation of Legislation relating to Sentencing Cm 4626
SE/2000/15.
[742]
The People (DPP) v Carmody
[1988] ILRM 370.
[743]
Ibid at 372.
[744]
Section 16 of and Schedule 3 to the Criminal
Law Act 1997. See: O’Malley “Bail and Predictions of Dangerousness”
(1989) 7 ILT 41.
[745]
Select Committee on Justice,
Equality, Defence and Women’s Rights Debates, Criminal Justice Bill 2004,
Committee Stage, 3 May 2006, Deputy Jim O’Keeffe.
[746]
Dáil Debates, Criminal Justice Bill
2004, Report Stage, 28 June 2006, Vol 622, No 78, Col 1259.
[747]
Dáil Debates, Criminal Justice Bill
2004, Report Stage, 28 June 2006, Vol 622, No 78, Col 1257.
[748]
Section 15(8) of the Firearms Act
1925; section 26(8) of the Firearms Act 1964; section 27(8) of the Firearms
Act 1964; section 27A(8) of the Firearms Act 1964; section 27B(8) of
the Firearms Act 1964; and section 12A(13) of the Firearms and
Offensive Weapons Act 1990, as inserted by section 42, section 57, section
58, section 59, section 60 and section 61 of the Criminal Justice Act 2006.
[749]
Dáil Debates, Criminal Justice Bill
2007, Second Stage, 22 March 2007, Vol 634, No 2, Col 381.
[750]
Dáil Debates, Criminal Justice Bill
2007, Second Stage, 22 March 2007, Vol 634, No 2, Col 382.
[751]
McIntyre Irish Current Law Statutes
2007 at 29-05; McDermott “Has the Time come to recalibrate the Criminal Trial
System?” (2007) 101(3) Law Society Gazette 14; and Griffin “Tinkering
with Due Process Values” (2007) 101(2) Law Society Gazette 14 at 15.
[752]
Section 24 of the Criminal
Justice Bill 2007. See: Dáil Debates, Criminal Justice Bill
2007, Second Stage, 22 March 2007, Vol 634, No 2, Col 382.
[753]
Dáil Debates, Criminal Justice Bill
2007, Second Stage, 22 March 2007, Vol 634, No 2, Col 383.
[754]
Dáil Debates, Criminal Justice Bill
2007, Second Stage, 22 March 2007, Vol 634, No 2, Col 384. §1961-68 of
the United States Code. See: Atkinson “‘Racketeer Influenced
and Corrupt Organizations’ 18 USC § 1961-68: Broadest of the Federal Criminal
Statutes” (1978) 69 J Crim L & Criminology 1 at 1-2.
[755]
Dáil Debates, Criminal Justice Bill
2007, Second Stage, 22 March 2007, Vol 634 No 2, Col 384.
[756]
Dáil Debates, Criminal Justice Bill
2007, Second Stage, 22 March 2007, Vol 634, No 2, Col 381; “McDowell’s
new Laws are old Promises” Irish Independent 15 February 2007; “Draconian
Measures ‘are necessary if we are to curb Gang Crime Epidemic’” Irish
Independent 23 March 2007; Brady “Gangland Killings a National Emergency, say
Gardaí” Irish Independent 2 April 2007; “Gangland Threat is a National
Emergency, Conference told” Irish Independent 5 April 2007; and Bray “Gangland
is flourishing, claims FG” Irish Independent 10 April 2007.
[757]
Notably, mandatory sentencing was
not one of these areas.
[758]
McIntyre Irish Current Law
Statutes 2007 at 29-06.
[759]
Dáil Debates, Criminal Justice Bill
2007, Second Stage, 22 March 2007, Vol 634, No 2, Col 394-395, Mr Jim
O’Keeffe, Fine Gael Spokesperson on Justice.
[760]
Van Dijk, Manchin, van Kesteren, and
Hideg The Burden of Crime in the EU - A Comparative Analysis of the European
Survey of Crime and Safety (EU ICS) 2005 (Gallup Europe, 2007).
[761]
Ireland ranked third highest for
burglaries and ranked high for car theft and personal theft.
[762]
Fahey, Russell and Whelan, eds, Best
of Times? The Social Impact of the Celtic Tiger (IPA, 2007).
[763]
Ibid at 252; and Lally
“Dublin Murder Rate is fastest growing” Irish Times 20 March 2007.
[764]
O’Halloran “Criminal Justice Bill
passed in Dáil” Irish Times 25 April 2007.
[765]
Collins “Legal Bodies urged to
oppose Justice Bill Timing” Irish Times 12 March 2007; “Rushed Legislation”
Irish Times 13 March 2007; De Bréadún “Groups criticise ‘rushing through’ of
Crime Bill” Irish Times 16 March 2007; O’Regan “McDowell rejects Calls for Time
to Debate” Irish Times 30 March 2007; “McDowell’s rushed Bill has more to do
with Votes than Crime Fight” Irish Independent 31 March 2007; Donohoe “Unrest
triggers Justice Bill Rethink” Irish Times 31 March 2007; “More Debate needed”
Irish Times 4 April 2007; Collins “More Time for Justice Bill Debate” Irish
Times 6 April 2007; and Walsh “Quinn claims Abuse of Power over Justice Bill”
Irish Times 27 April 2007.
[766]
“Rights Watchdog warns of ‘Danger of
Injustice’” Irish Times 30 March 2007.
[767]
Human Rights Commission Act 2000.
[768]
McIntyre Irish Current Law
Statutes Annotated 2007 at 29-26.
[769]
Dáil Debates, Criminal Justice Bill
2007, Report Stage and Final Stage, 24 April 2007, Vol 636, No 1, Col 122-123,
Mr McDowell TD, Minister for Justice.
[770]
Dáil Debates, Criminal Justice Bill
2007, Report Stage, 4 April 2007, Vol 635, No 2, Col 605, Mr O’Keeffe TD,
Spokesperson on Justice for Fine Gael.
[771]
Dáil Debates, Criminal Justice Bill
2007, Report Stage, 4 April 2007, Vol 635, No 2, Col 606, Mr McDowell TD,
Minister for Justice. The relevant offences are set out in Schedule 2 to
the Act: murder; causing serious harm; threats to kill or cause serious harm; false
imprisonment; causing explosion likely to endanger life or damage property;
possession, etc., of explosive substances; making or possessing explosives in
suspicious circumstances; possession of firearm with intent to endanger life;
possession of firearms while taking vehicle without authority; use of firearms
to assist or aid escape; possession of firearm or ammunition in suspicious
circumstances; carrying firearm with criminal intent; shortening barrel of
shotgun or rifle; aggravated burglary; drug trafficking offence within the
meaning of section 3(1) of the Criminal Justice Act 1994; offence of
conspiracy; organised crime; commission of offence for criminal organisation;
blackmail; extortion; and demanding money with menaces.
[772]
Lally “Crime Package leaves Gangland
untamed” Irish Times 14 February 2007; “Responding to Gangland Crime” Irish
Times 15 February 2007; McDonald “Hollow Ring to McDowell’s explosive Bill”
Irish Independent 16 March 2007; Kenny “Crime Bill has Opposition nicked”
Sunday Independent 18 March 2007; “Gangland Bill is Vote-getting Ploy that
betrays Civil Rights” Irish Independent 19 March 2007; and “Tackling Complex
Problem of Crime” Irish Times 11 October 2007.
[773]
Observations on the Criminal
Justice Bill 2007 (IHRC, 2007) at 15; “Rushed Criminal Justice Legislation
may curtail established Human Rights” (IHRC/Law Society, Press Release, 12
October 2007); “Rights Watchdog warns of ‘Danger of Injustice’” Irish Times 30
March 2007; and “IHRC warns Government over rushing Legislation” RTE News 15
October 2007. Available at: www.rte.ie/news/2007/1013/94679-crime/
[Last accessed: 22 May 2013].
[774]
What’s Wrong with the Criminal
Justice Bill 2007? (ICCL, 2007) at 8; and Kelly “Having a real Impact on
serious Crime will require wiser Counsel” Irish Independent 14 March 2007.
[775]
Murphy “Criminal Justice Bill should
be withdrawn” Irish Times 29 March 2007.
[776]
“Combating Organised Crime” The
Irish Times 21 February 2007 (Pauline Walley SC, Ivana Bacik BL, Brendan Grehan
SC, Paddy McCarthy SC, Anthony Sammon SC, Gerry O’Brien SC, Conor Devally SC,
Michael O’Higgins SC, Niall Durnin SC, Aileen Donnelly SC, Sean Gillane BL,
Dominic McGinn BL, Caroline Biggs BL, Vincent Heneghan BL, Garret Baker BL, and
Siobhán Ní Chulacháin BL); Grehan “Criminal Justice Bill increases Erosion of
Civil Rights” Irish Times, 26 April 2007; Molony “McDowell faces Lawyers’
Revolt over Bill” Irish Independent 29 March 2007; “Barristers revolt over new
Bill” Irish Independent 29 March 2007; Gartland “McDowell to accept Amendments
to Bill” Irish Times 29 March 2007; Collins and Molony “Tánaiste shrugs off
angry Law Protests over Bill” Irish Independent 30 March 2007; Clifford
“Chickening out of the Fight against Crime” Sunday Tribune 1 April 2007;
“Lawyers rally the Troops to fight McDowell’s Anti-Gangland Bill” Irish
Independent 9 April 2007; Rogers “Elements of Criminal Justice Bill do not
stand up to Scrutiny” Irish Times 4 April 2007; Brady “McDowell Fury at
Lawyers” Irish Independent 3 April 2007; “Government faces Wrath of Law on the
Double, in Row over Money and Crime” Irish Independent 16 April 2007; “Lawyers
to fight ‘Draconian’ Measures in new Crime Bill” Irish Independent 17 April
2007; “McDowell’s Bill will lead to Abuses, Lawyers say” Irish Independent 23
April 2007; and Bracken “Irish People ‘apathetic’ about Loss of Civil Rights in
the Justice System” Sunday Tribune 14 October 2007.
[777]
De Bréadún “President McAleese signs
Criminal Justice Bill into Law” Irish Times 10 May 2007; MacConnell “Council of
State to meet over new Justice Bill” Irish Times 7 May 2007; and Lavery
“President to make Call on Anti-Gang Bill” Sunday Independent 6 May 2007.
[778]
The People (DPP) v McMahon [2011]
IECCA 94. See also: “Minimum 10-Year Drug Term Reduced for
‘Naive’ Offender” Irish Times 16 January 2012.
[779]
The People (DPP) v Ward Court of
Criminal Appeal 16 January 2012.
[780]
Houses of the Oireachtas, Joint Oireachtas
on Justice, Defence and Equality Report on Penal Reform (March
2013).
[781]
Ibid at 23.
[782]
Ibid at 13.
[783]
Ibid.
[784]
The Commission notes, for example, that in
its 2013 Report on Penal Reform, the Oireachtas Justice
Committee’s Sub-Committee on Penal Reform called for a reduction in the prison
population and observed that “[i]f the numbers of prisoners are reduced
in the prisons, with a subsequent saving of money, such saving should be
transferred to the Probation Service.” (Ibid at 19).
[785]
Section 2 of the Criminal Justice Act
1990. Section 10 of the International Criminal Court Act 2006 clarifies
that if genocide, a crime against humanity, a war crime or an ancillary offence
under the 2006 Act involves murder, then a mandatory life sentence will apply.
[786]
Section 3 of the Criminal Justice Act 1990
[787]
Section 2 of the Criminal Justice Act
1990. As the offence of treason is not regularly prosecuted, the
Commission does not propose to examine in detail the application of the
mandatory life sentence under this provision.
[788]
Section 4 of the Criminal Justice Act
1964.
[789]
The Prison Rules 2007 (SI No. 252
of 2007), made under the Prisons Act 2007, revoked and replaced the Rules
for the Government of Prisons 1947 (SR&O No.320 of 1947).
[790]
Rule 59(3) of the Prison Rules 2007
provides that prisoners serving life sentences are not entitled to this
“standard remission.” The exclusion also applies to prisoners committed to
prison for contempt of court.
[791]
Rule 59(1) of the Prison Rules 2007
provides that a prisoner who has been sentenced to (a) a term of imprisonment
exceeding one month or (b) terms of imprisonment to be served consecutively the
aggregate of which exceeds one month shall be eligible, by good conduct, to
earn a remission of sentence not exceeding one quarter of such term or
aggregate.
[792]
Rule 59(2) of the Prison Rules 2007
provides that the Minister for Justice and Equality may grant remission of up
to one third of a sentence “where a prisoner has shown further good conduct by
engaging in authorised structured activity and the Minister is satisfied that,
as a result, the prisoner is less likely to re-offend and will be better able
to reintegrate into the community.”
[793]
O’Malley “The Ends of Sentence:
Imprisonment and Early Release Decisions in Ireland in Padfield, van Zyl Smith
and Dunkel, eds, Release from Prison: European Policy and Practice
(Willan Publishing, 2010) at 14.
[794]
Section 23(1) of the Criminal Justice
Act 1951 as enacted provided that “except in capital cases” the Government
may commute or remit, in whole or in part, any punishment imposed by a Court
exercising criminal jurisdiction, subject to such conditions as they may think
proper. Section 9 of the Criminal Justice Act 1990 deleted the words
“except in capital cases” as part of the abolition of the death penalty. The
effect of this was that the Government’s right to commute or remit a prisoner’s
sentence applies to any type of case.
[795]
O’Malley “The Ends of Sentence:
Imprisonment and Early Release Decisions in Ireland” in Padfield, van Zyl Smith
and Dunkel, eds, Release from Prison: European Policy and Practice
(Willan Publishing, 2010) at 3.
[796]
Ibid at 8.
[797]
Re Royal Prerogative of Mercy upon
Deportation Proceedings [1933] SCR 269 and R v Veregin [1933]
2 DLR 362; and O’Malley “The Ends of Sentence: Imprisonment and Early Release
Decisions in Ireland” in Padfield, van Zyl Smith and Dunkel, eds, Release
from Prison: European Policy and Practice (Willan Publishing, 2010) at 5 and
8.
[798]
Section 2 of the Criminal Justice Act
1960, as substituted by section 1 of the Criminal Justice (Temporary
Release of Prisoners) Act 2003, provides that the Minister for Justice and
Equality may make rules providing for the temporary release, subject to such
conditions (if any) as may be imposed in each particular case, of persons
serving a sentence of penal servitude or imprisonment, or of detention in Saint
Patrick’s Institution, and (as amended by the 2003 Act) sets out the matters
which the Minister should consider before granting temporary release.
(Section 2 of the 1960 Act was also amended by section 110 of the Criminal
Justice Act 2006 but the terms of this amendment are not relevant to this
Report).
[799]
O’Malley “The Ends of Sentence:
Imprisonment and Early Release Decisions in Ireland” in Padfield, van Zyl Smith
and Dunkel, eds, Release from Prison: European Policy and Practice
(Willan Publishing, 2010) at 9.
[800]
O’Malley “The Ends of Sentence:
Imprisonment and Early Release Decisions in Ireland” in Padfield, van Zyl Smith
and Dunkel, eds, Release from Prison: European Policy and Practice
(Willan Publishing, 2010) at 10.
[801]
Annual Report 2011 (Parole Board,
2012) at 6.
[802]
See: Department of Justice and Equality
“Life Sentences”. Available at: http://justice.ie/en/JELR/Pages/Life_sentences
[Last accessed: 22 May 2013].
[803]
Annual Report 2011 (Parole Board,
2012) at 6.
[804]
See: Department of Justice and Equality
“Parole Board”. Available at: http://justice.ie/en/JELR/Pages/Parole_Board
[Last accessed: 22 May 2013].
[805]
See: McDowell, address at the First
Edward O’Donnell McDevitt Annual Symposium - “Sentencing in Ireland” 28
February 2004.
[806]
Dáil Debates, Written Answers - Crime
Levels, 29 April 2010, Vol 707, No 5, Mr Ahern at paragraph 10.
[807]
Ibid.
[808]
Annual Report 2011 (Parole Board,
2012) at 6.
[809]
This may, for example, be relevant where a
prisoner has been sentenced for a sexual or drug-related offence and the judge
has recommended that he or she engage in a treatment programme. At
present, there is no provision under Irish law which permits a sentencing judge
to recommend the minimum term to be served by an offender. This is
discussed further at paragraphs 3.77 to 3.84 below.
[810]
This may, for example, be relevant where a
prisoner has been sentenced for a sexual or drug-related offence and the judge
has recommended that he or she engage in a treatment programme. At
present, there is no provision under Irish law which permits a sentencing judge
to recommend the minimum term to be served by an offender. This is
discussed further at paragraphs 3.77 to 3.84 below.
[811]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 222.
[812]
Report on the Review of the
Criminal Justice System in Northern Ireland (Northern Ireland Office,
2000), at paragraph 12.56. The 2000 Report comprised a wide-ranging
review of the criminal justice system in the wake of the 1998 Belfast
Agreements.
[813]
See Hansard HL Deb, 12 July 2001,
c1215.
[814]
In R v Hamilton [2008] NICA
27, a whole life tariff had been imposed on the defendant by the trial
judge but this was overturned by the Northern Ireland Court of Appeal, which
substituted a 35 year minimum period before he could be considered for parole.
[815]
The Parole
Commissioners for Northern Ireland were established under the Criminal
Justice (Northern Ireland) Order 2008 and replaced the Life Sentence Review Commissioners who had been
established under the Life Sentences (Northern Ireland) Order 2001.
[816]
Life Sentences (Northern Ireland) Order
2001, as amended by the Northern Ireland Act 1998 (Devolution of
Policing and Justice Functions) Order 2010, which transferred the relevant
functions from the Secretary of State for Northern Ireland to the Northern
Ireland Department of Justice.
[817]
R v Candless [2004] NI 269 at
274-275.
[818]
Practice Statement (Crime: Life
Sentences) [2002] 3 All ER 412 at 413-415; [2002] 1 WLR 1789 at 1790-1792.
[819]
Paragraphs 10 to 19 of the Practice
Statement (Crime: Life Sentences) [2002] 3 All ER 412 at 413-415; [2002] 1
WLR 1789 at 1790-1792.
[820]
Paragraphs 13 to 19 of the Practice
Statement (Crime: Life Sentences) [2002] 3 All ER 412 at 413-415; [2002] 1
WLR 1789 at 1790-1792.
[821]
R v Howell [2010] NICC
48.
[822]
R v Howell [2010] NICC
48 at para. 15.
[823]
R v Stewart [2011] NICC
10.
[824]
R v Walsh Belfast Crown Court, 28
October 2011.
[825]
Moriarty “Woman Gets 20 Years for
Murdering Neighbour” Irish Times 29 October 2011.
[826]
R v Candless [2004] NI 269 at
274-275.
[827]
Section 269(1) and (2) of the Criminal
Justice Act 2003.
[828]
Section 269(4) of the Criminal Justice
Act 2003.
[829]
Paragraph 4(1) of Schedule 21 of the Criminal
Justice Act 2003.
[830]
Paragraph 4(1) of Schedule 21 of the Criminal
Justice Act 2003.
[831]
Paragraph 5(1) of Schedule 21 of the Criminal
Justice Act 2003.
[832]
Paragraph 5A(1) - Paragraph 5A(2) of
Schedule 21 of the Criminal Justice Act 2003, inserted by the Criminal
Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order
2010.
[833]
Paragraph 6 of Schedule 21 of the Criminal
Justice Act 2003.
[834]
Paragraph 7 of Schedule 21 of the Criminal
Justice Act 2003.
[835]
Paragraph 8 to paragraph 11 of Schedule 21
of the Criminal Justice Act 2003.
[836]
R v Kelly [2011] 4 All ER 687.
[837]
See: sentencing remarks of
Treacy J, Central Criminal Court, 4 January 2012. Available at: www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/sentencing-remarks-dobson-norris-120104.pdf
[Last accessed: 22 May 2013]
[838]
As the offence had been committed before
the introduction of the Criminal Justice Act 2003, the previous
sentencing regime applied. This, however, is not a material distinction for the
purposes of this discussion.
[839]
Treacy J stated that had the offence
been committed by an adult, he or she would have faced a minimum term of
approximately 18 years.
[840]
“Lawrence verdict: ‘Neither of you has
shown the slightest regret or remorse’: Judge’s statement” The Guardian 5
January 2012.
[841]
Section 2(1) and 2(2) of the Prisoners
and Criminal Proceedings (Scotland) Act 1993.
[842]
Section 2(3A) of the Prisoners and
Criminal Proceedings (Scotland) Act 1993.
[843]
HM Advocate v Boyle and Others [2009]
HCJAC 89. See also: McDiarmid “Sentencing Murder: Boyle v HM Advocate”
(2010) 14 Edin LR 473.
[844]
Walker v HM Advocate 2003 SLT 130;
and HM Advocate v Al Megrahi High Court of Justiciary 24 November 2003.
[845]
HM Advocate v Boyle and Others [2009]
HCJAC 89 at paragraph 13. .
[846]
Ibid.
[847]
Ibid. See also: Walker
v HM Advocate 2002 SCCR 1036.
[848]
HM Advocate v Boyle and Others [2009]
HCJAC 89 at paragraph 14.
[849]
Ibid at paragraph 17.
[850] Section 745(a) of the
Criminal Code.
[851] Section 745(b),
section 745(b.1) and section 745(c) of the Criminal Code.
[852] Section 745.4 of the Criminal
Code.
[853] Section 745.2 of the Criminal
Code.
[854]
Section 745.6 of the Criminal Code.
[855]
Leader-Elliott “Fault Elements in
Murder - A Summary of Australian Law” in The Law of Murder: Overseas
Comparative Studies (Law Commission, 2005) at 7-8.
[856]
Division 71.2 of the Criminal Code Act
1995 (CW). The life sentence appears to be mandatory for offences
under divisions 115.1, 268.8 and 268.70 of the Criminal Code Act 1995
(CW).
[857]
Section 12(2) of the Crimes Act 1900
(ACT).
[858]
Section 18(1) of the Crimes Act 1900
(NSW).
[859]
Section 158 of the Criminal Code Act
1924 (Tas).
[860]
Section 3 of the Crimes Act 1958
(Vic).
[861] Section 19B
of the Crimes Act 1900, as amended by section 3 of the Crimes
Amendment (Murder of Police Officers) Act 2011. Section 19B
stipulates that in order for the mandatory life sentence to apply: (a) the
offender must have known, or ought reasonably to have known, that the victim
was a police officer, and (b) the offender must have intended to kill the
police officer or have been engaged in a criminal activity that risked serious
harm to police officers.
[862]
Section 279(4) of the Criminal Code
1913, as replaced by section 10 of the Criminal Law Amendment (Homicide)
Act 2008.
[863]
Ibid.
[864]
Section 279(6) of the Criminal Code
1913, as replaced by section 10 of the Criminal Law Amendment (Homicide)
Act 2008.
[865]
Section 157 of the Criminal Code Act
(NT), as amended by section 17 of the Criminal Reform Amendment Act (No
2) 2006 (NT).
[866]
Section 305 of the Criminal Code Act
1899 (Qld).
[867]
Section 11 of the Criminal Law
Consolidation Act 1935 (SA).
[868]
Law Reform Commission Consultation
Paper on Mandatory Sentences (LRC CP 66-2011) at paragraph 2.84.
[869]
Section 19AB of the Crimes Act 1914
(CW).
[870]
Section 65 of the Crimes (Sentencing)
Act 2005 (ACT).
[871]
Section 288 of the Crimes (Sentence
Administration) Act 2005 (ACT).
[872]
Table in Division 1A of Part 4 of the Crimes
(Sentencing) Procedure Act 1999 (NSW).
[873]
Section 19B(2) of the Crimes Act 1900, as
amended by section 3 of the Crimes Amendment (Murder of
Police Officers) Act 2011.
[874]
Section 18 of the Sentencing Act 1997 (T).
Section 18 sets out a list of matters which the court may have particular
regard to in making this determination.
[875]
Section 11 of the Sentencing Act 1991.
[876]
Section 53A of the Sentencing Act
(NT).
[877]
Section 181 of the Corrective Services
Act 2006 (Qld), as amended by section 7 of the Criminal Law Amendment
Act 2012.
[878]
Section 305(4) of the Criminal Code, as inserted by section 3 of the Criminal
Law Amendment Act 2012.
[879]
Section 32 of the Criminal Law
(Sentencing) Act 1988 (SA).
[880]
Section 90 of the Sentencing Act 1995
(WA), as amended by section 19 of the Criminal Law Amendment (Homicide) Act
2008.
[881]
Section 102(1) of the Sentencing Act
2002.
[882]
See: section 86A to section 86I of the Sentencing
Act 2002 regarding the classification of offences as “stage-1”, “stage-2”
and “stage-3” offences; the recording of judicial warnings; and the additional
consequences for repeat serious violent offending.
[883]
Section 84 of the Parole Act 2002
regarding “non-parole periods”.
[884] Section 61 of the Parole
Act 2002.
[885] Section 41(1) of the Parole
Act 2002.
[886] Finkelstein “Report
on Basic Aspects of the Law of Murder in the United States: The Examples of
California and New York” in The Law of Murder: Overseas Comparative Studies (Law
Commission, 2005) at 107.
[887]
Alaska (1957); Connecticut (2012); Hawaii
(1957); Illinois (2011); Iowa (1965); Maine (1887); Massachusetts (1984);
Michigan (1846); Minnesota (1911); New Jersey (2007); New Mexico (2009); New
York (2007); North Dakota (1973); Rhode Island (1984); Vermont (1964); West
Virginia (1965); Wisconsin (1853); and District of Columbia (1981). See:
the website of The Death Penalty Information Center, www.deathpenaltyinfo.org;
Ariosto “Connecticut becomes 17th state to abolish the death
penalty” CNN 25 April 2012. Available at: http://articles.cnn.com/2012-04-25/justice/justice_connecticut-death-penalty-law-repealed_1_capital-punishment-death-penalty-information-center-death-sentences?_s=PM:JUSTICE).
[Last accessed: 22 May 2013]; and “Connecticut abolishes the death penalty” RTE
26 April 2012. Available at: www.rte.ie/news/2012/0426/318516-connecticut-abolishes-the-death-penalty/
[Last accessed: 22 May 2013].
[888]
Northern Ireland, England and Wales,
Scotland, Canada and four Australian jurisdictions (Northern Territory,
Queensland, South Australia and Western Australia).
[889]
Five Australian jurisdictions
(Commonwealth of Australia, Australian Capital Territory, New South Wales,
Tasmania and Victoria) and New Zealand.
[890]
For example, Northern Ireland, England and
Wales, and Scotland.
[891]
For example, Canada (first degree murder)
and Australia (New South Wales, Northern Territory, Queensland, South
Australia, and Western Australia).
[892]
In Chapter 1, it was observed that it
would be unconstitutional to pursue incapacitation as a sentencing aim where to
do so would involve imprisoning a person for offences that he or she has not
yet committed.
[893]
As discussed in Chapter 2, this may be
down to the unique evolution of the mandatory life sentence, which was
introduced as a replacement for the death penalty for murder.
[894]
O’Malley Sentencing Law and Practice
(Thomson Round Hall, 2nd ed, 2006) at 34-35; Walker and Padfield Sentencing: Theory, Law and Practice
(Butterworths, 2nd ed, 1996) at 97.
[895]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 98.
[896]
Whelan and Lynch v
Minister for Justice, Equality and Law Reform [2010] IESC
34; [2012] 1 IR 1.
[897]
Ibid.
[898]
Section 4 of the Criminal Justice Act
1964.
[899]
Whelan and Lynch v Minister for Justice, Equality and Law Reform [2008] 2 IR 142; [2012] 1 IR 1.
[900]
See also the decision of the High Court in
Nascimento v Minister for Justice, Equality and Law Reform [2007] IEHC
358; [2011] 1 IR 1, discussed at paragraphs 2.79 to 2.85 above.
[901]
See also the Supreme Court decision in Caffrey
v Governor of Portlaoise Prison [2012] IESC 4; and the High Court decision
in Nascimento v Minister for Justice, Equality and Law Reform [2007]
IEHC 358; [2011] 1 IR 1.
[902]
Kafkaris v Cyprus (2009) 49 EHRR 35.
[903]
Wynne v
United Kingdom (1995) 19 EHRR 333.
[904]
Stafford v
United Kingdom (2002) 35 EHRR 32.
[905]
European Court of Human Rights 17 January
2012 (Application Nos 66069/09, 130/10 and 1396/10).
[906]
Whelan and Lynch v Minister for
Justice, Equality and Law Reform [2010] IESC
34; [2012] 1 IR 1 at 18.
[907]
Ibid.
[908]
Ibid. at
19.
[909]
Whelan and Lynch v Minister for Justice, Equality and
Law Reform [2007] IEHC 374; [2008] 2 IR 142.
[910]
See: Whelan and Lynch v Minister for Justice, Equality and Law Reform [2010] IESC 34; [2012] 1 IR 1 at 24-26.
[911]
See, for example, the Commission’s Report on Homicide: Murder and
Involuntary Manslaughter (LRC 87-2008) at paragraph 3.68ff. There, the Commission
noted that where, for example, a person sets fire to or shoots at an occupied
building and the building’s occupants die, this is likely to result in a murder
conviction. However, if the accused persuades the jury that he or she genuinely
(that is, from his or her subjective perspective) did not intend to kill or
seriously injure but only to frighten the occupants, a verdict of voluntary
manslaughter could also be reached (at paragraph 3.18). There followed a
discussion of whether, to deal with such borderline cases, murder should also be
defined to include “recklessness” comprising “extreme indifference to the value
of human life.” The Commission acknowledged that this proposed change to
the definition of murder had elicited mixed views among consultees, and that a
number of practitioners suggested that it could lead to a lack of clarity
regarding the elements of the offence of murder (at paragraph 3.23ff).
This discussion in the 2008 Report indicates that it may be difficult to find
complete consensus as to where a precise line can be drawn between murder and
manslaughter.
[912]
The People (DPP) v Conroy (No. 2) [1989] IR 161 at 163.
[913]
Article 5(1) and Article 5(2) of the Life
Sentences (Northern Ireland) Order 2001.
[914]
Article 5(3) of the Life Sentences
(Northern Ireland) Order 2001.
[915]
R v Candless [2004] NI 269.
[916]
Section 269(1) and Section 269(2) of the Criminal
Justice Act 2003.
[917]
Section 269(4) of the Criminal Justice
Act 2003.
[918]
R v Howell [2010] NICC
48.
[919]
R v Stewart [2011] NICC
10.
[920]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 222.
[921]
O’Malley Sentencing Law and Practice
(Thomson Round Hall, 2nd ed, 2006) at 540.
[922]
Whelan and Lynch v Minister for
Justice, Equality and Law Reform [2010] IESC
34; [2012] 1 IR 1.
[923]
See: Dáil Debates, Written Answers -
Parole Board, 18 April 2012, Vol 761, No 3.
[924]
Section 15A of the Misuse of Drugs Act 1977, as inserted by section 4 of
the Criminal Justice Act 1999.
[925]
Section 15B of the Misuse
of Drugs Act 1977, as inserted by section 82 of the Criminal Justice Act
2006.
[926]
Under section 1 of the Euro
Changeover (Amounts) Act 2001, the original figure of Ł10,000 was adjusted
to €13,000.
[927]
Section 27(3C) of the Misuse
of Drugs Act 1977.
[928]
Section 27(3D) of the Misuse
of Drugs Act 1977.
[929]
McAuley and McCutcheon Criminal
Liability (Round Hall, Sweet and Maxwell, 2000) at 208-209.
[930]
McAuley and McCutcheon Criminal
Liability (Round Hall, Sweet and Maxwell, 2000) at 208.
[931]
Minister for Posts
and Telegraphs v Campbell [1966] IR 69.
[932]
Ibid. Cited
with approval by the Court of Criminal Appeal in The People (DPP) v Foley
[1995] 1 IR 267 at 286.
[933]
The People (DPP) v Gallagher [2006]
IECCA 110.
[934]
The People (DPP) v Goulding [2010]
IECCA 85.
[935]
New Oxford Dictionary of
English (Oxford University Press, 2001) at 918.
[936]
Section 15A(5) and section
15B(5) of the Misuse of Drugs Act 1977.
[937]
Section 15A(3) and section
15B(2) of the Misuse of Drugs Act 1977.
[938]
The People (DPP) v Hanley [2010] IECCA 99
[939]
For a complete analysis, see:
Caulkins “Price and Purity Analysis for Illicit Drug: Data and Conceptual
Issues” (2005) Heinz Research Paper 25 at 4. Available at: http://repository.cmu.edu/heinzworks/25
[Last accessed: 22 May 2013]; and McDermott “Price and Purity of Illicit
Drugs”. Paper delivered at 13th Annual National Prosecutors’
Conference, Dublin Castle Conference Centre, 19 May 2012.
[940]
Ni Raifeartaigh “The Criminal
Justice System and Drug Related Offending: Some Thoughts on Procedural Reform”
(1998) 4(1) Bar Review 15.
[941]
The People (DPP) v Connolly [2011] IESC 6.
[942]
Ibid.
[943] The process
by which market value is determined was considered by the Supreme Court in The
People (DPP) v Connolly [2011] IESC 6; and the Court of Criminal
Appeal in The People (DPP) v Finnamore [2008]
IECCA 99.
[944]
Ni Raifeartaigh “The Criminal
Justice System and Drug Related Offending: Some Thoughts on Procedural Reform”
(1998) 4(1) Bar Review 15.
[945]
O’Malley “Further Observations
on DPP v Connolly (Part 1 of 3)” 22 February 2011. Available at: www.extempore.ie/2011/02/22/further-observations-on-dpp-v-connolly-part-1-of-3/
[Last accessed: 22 May 2013].
[946]
Ibid.
[947]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 340.
[948]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 340.
[949]
The People (DPP) v Connolly
[2011]
IESC 6.
[950]
O’Malley “Further Observations
on DPP v Connolly (Part 1 of 3)” 22 February 2011. Available at: www.extempore.ie/2011/02/22/further-observations-on-dpp-v-connolly-part-1-of-3/
[Last accessed: 22 May 2013].
[951]
O’Malley “Further Observations
on DPP v Connolly (Part 1 of 3)” 22 February 2011. Available at: www.extempore.ie/2011/02/22/further-observations-on-dpp-v-connolly-part-1-of-3/
[Last accessed: 22 May 2013].
[952]
The People (DPP) v Finnamore [2008]
IECCA 99.
[953]
Ibid.
[954]
The People (DPP) v Connolly
[2011]
IESC 6.
[955]
See: section 15A(3A) and
section 15B(3) of the Misuse of Drugs Act 1977.
[956]
Costello queries whether the
term “satisfied to the contrary” requires the accused to establish his or her
innocence as a possibility or on the balance of probabilities. See:
Irish Current Law Statutes Annotated 1999 at 10-05.
[957]
As amended by section 33 of
the Criminal Justice Act 2007; section 84 of the Criminal Justice Act
2006; and section 5 of the Criminal Justice Act 1999.
[958]
That the court may impose a
sentence greater than 10 years has been confirmed by the Court of Criminal
Appeal. See, for example: The People (DPP) v Hogarty Court
of Criminal Appeal 21 December 2001; and The People (DPP) v Gilloughly
Court of Criminal Appeal 7 March 2005.
[959]
The People (DPP) v Renald Court
of Criminal Appeal 23 November 2001.
[960]
Ibid.
[961]
See: The People (DPP) v
Botha [2004] 2 IR 375 at 383; and The People
(DPP) v Ducque [2005] IECCA 92.
[962]
The People (DPP) v Duffy Court
of Criminal Appeal 21 December 2001.
[963]
In subsequent cases, the Court
of Criminal Appeal has tended to advocate the approach in Duffy.
See: The People (DPP) v Farrell [2010] IECCA 116; and The People (DPP) v
Costelloe [2009] IECCA 28.
[964]
See: The People (DPP) v
Nelson Court of Criminal Appeal 31 July 2008.
[965]
Formerly, section 27(3C).
[966]
Formerly, section 27(3B).
[967]
The People (DPP) v Botha
[2004] 2 IR 375 at 384.
[968]
The People (DPP) v Rossi and
Hellewell Court of Criminal Appeal 18 November 2002.
[969]
The People (DPP) v Galligan
Court of Criminal Appeal 23 July 2003.
[970]
The People (DPP) v Henry
Court of Criminal Appeal 15 May 2002.
[971]
Formerly, section 27(3C)(a).
[972]
Section 27(3D)(b)(i)(I),
formerly section 27(3C)(a)(i).
[973]
Section 27(3D)(b)(i)(II),
formerly section 27(3C)(a)(ii).
[974]
See: The People (DPP) v
Godspeed Court of Criminal Appeal 13 July 2009; The People (DPP) v Coles
[2009] IECCA 144; The People (DPP) v Brodigan [2008]
IECCA 127; and The People (DPP) v Benjamin Court of
Criminal Appeal 14 January 2002.
[975]
The People (DPP) v Delaney [2010] IECCA 57; The People (DPP) v Anderson [2010] IECCA 46; The People (DPP) v Keogh [2009] IECCA 128; The People (DPP) v Nelson
Court of Criminal Appeal 31 July 2008; The People (DPP) v Kinahan [2008] IECCA 5; The People
(DPP) v Lernihan [2007] IECCA 21; The People (DPP) v
Ducque [2005] IECCA 92; The People (DPP) v
Galligan Court of Criminal Appeal 23 July 2003; The People (DPP) v Henry
Court of Criminal Appeal 15 May 2002; and The People (DPP) v Ormonde [2011]
IECCA 46.
[976]
The People (DPP) v Ducque [2005]
IECCA 92.
[977]
See: The People (DPP) v
Renald Court of Criminal Appeal 23 November 2001; The People (DPP) v
McGrane [2010] IECCA 8; The People (DPP) v Kinahan; [2008] IECCA 5; The People (DPP) v
Howard and McGrath Court of Criminal Appeal 29 July 2005; The People
(DPP) v Botha Court of Criminal Appeal 19 January 2004; The People (DPP)
v Galligan Court of Criminal Appeal 23 July 2003; The People (DPP) v
Alexiou [2003] 3 IR 513; The People (DPP) v Benjamin Court of Criminal
Appeal 14 January 2002; and The People (DPP) v Hogarty Court of Criminal
Appeal 21 December 2001.
[978]
The People (DPP) v Dermody
[2007] 2 IR 622.
[979]
The People (DPP) v Farrell
[2010]
IECCA 116.
[980]
Smith “Sentencing Section 15A
Offences” (2010) 20(1) ICLJ 8; and The People (DPP) v Duffy Court of
Criminal Appeal 21 December 2001. See also: The People (DPP) v Malric [2011]
IECCA 99.
[981]
The People (DPP) v Shekale [2008] IECCA 28; and The
People (DPP) v Byrne [2012] IECCA 72.
[982]
McEvoy Research for the
Department of Justice on the Criteria applied by the Courts in sentencing under
s.15A of the Misuse of Drugs Act 1977 (as amended) (Department of Justice,
2001).
[983]
McEvoy Research for the
Department of Justice on the Criteria applied by the Courts in sentencing under
s.15A of the Misuse of Drugs Act 1977 (as amended) (Department of Justice,
2001) at 11.
[984]
Formerly, section 27(3C)(b).
[985]
The People (DPP) v Davis [2008] IECCA 58.
[986]
The People (DPP) v Coles [2009] IECCA 144.
[987]
Ibid; and The People
(DPP) v Dermody [2007] 2 IR 622.
[988]
The People (DPP) v Sweeney Court
of Criminal Appeal 12 March 2009; The People (DPP) v Purcell [2010] IECCA 55; and The People (DPP) v Brodigan [2008]
IECCA 127. See also: The People (DPP) v Duffy
Court of Criminal Appeal 21 December 2001 in which the accused expressed a
desire to plead guilty to a charge on which he had yet to be returned; The
People (DPP) v Malric [2011] IECCA 99 in which the applicant named
persons who had previously travelled to Europe transporting drugs and the Court
of Criminal Appeal considered that her information would be of value to
European authorities and could lead to the apprehension of such persons in the
future; and The People (DPP) v Cleary and Brown [2012] IECCA 32 in which
the Court of Criminal Appeal deemed it important that the Gardaí had taken the
“unusual” step of furnishing and placing on the court file, a letter recording
that each of the applicants had afforded material assistance.
[989]
The People (DPP) v Coles [2009] IECCA 144.
[990]
The People (DPP) v McGrane [2010] IECCA 8.
[991]
The People (DPP) v Delaney [2010] IECCA 57; and The People (DPP) v Galligan
Court of Criminal Appeal 23 July 2003.
[992]
The People (DPP) v Renald
Court of Criminal Appeal 23 November 2001; The People (DPP) v Rossi and
Hellewell Court of Criminal Appeal 18 November 2002; and The People
(DPP) v Henry Court of Criminal Appeal 15 May 2002.
[993]
The People (DPP) v Anderson
[2010] IECCA 46.
[994]
Formerly, section 27(3C).
[995]
The People (DPP) v Kirwan [2010] IECCA 43; The People (DPP) v Spratt [2007]
IECCA 123; and The People (DPP) v Farrell [2010]
IECCA 116.
[996]
The People (DPP) v Alexiou
[2003] 3 IR 513; The People (DPP) v Sweeney Court of Criminal Appeal 12
March 2009; and The People (DPP) v Malric [2011]
IECCA 99.
[997]
The People (DPP) v Renald Court
of Criminal Appeal 23 November 2001; The People (DPP) v Farrell [2010]
IECCA 116; The People (DPP) v Nelson Court of Criminal Appeal 31
July 2008; The People (DPP) v Long [2008]
IECCA 133; The People (DPP) v Long [2006]
IECCA 49; and The People (DPP) v Gilligan (No 2) [2004] 3 IR 87 at
92.
[998]
The People (DPP) v Long [2008]
IECCA 133.
[999]
The People (DPP) v Alexiou
[2003] 3 IR 513 at 518-519; The People (DPP) v Botha [2004] 2 IR 375; and The People (DPP) v
Whitehead [2008]
IECCA 123. See: The People (DPP) v Long [2006]
IECCA 49; and The People (DPP) v Henry Court of Criminal Appeal 15
May 2002 in relation to offenders who have a high level of involvement in the
drugs trade. See also: The People (DPP) v Wall [2011]
IECCA 45 in which the Court of Criminal Appeal took into account the fact
that the role of the accused was as a courier and storeman and that he was “not
higher up the ladder of organisation of evil trade in contraband”.
[1000]
The People (DPP) v Hogarty Court
of Criminal Appeal 21 December 2001; and The People (DPP) v Farrell [2010]
IECCA 116.
[1001]
The People (DPP) v Galligan
Court of Criminal Appeal 23 July 2003; The People (DPP) v Duffy Court of
Criminal Appeal 21 December 2001; and The People (DPP) v Wall [2011]
IECCA 45.
[1002]
The People (DPP) v Galligan
Court of Criminal Appeal 23 July 2003; The People (DPP) v McGrane [2010]
IECCA 8; The People (DPP) v Keogh [2009]
IECCA 128; and The People (DPP) v Ormonde [2011]
IECCA 46.
[1003]
The People (DPP) v Botha
[2004] 2 IR 375; and The People (DPP) v
Purcell [2010] IECCA 55
[1004]
The People (DPP) v Anderson
[2010] IECCA 46; and The People (DPP) v
Ryan [2008] IECCA 63.
See also: The People (DPP) v Deans [2012] IECCA 11, in which the
Court of Criminal Appeal was “impressed” by the “significant steps” taken by
the appellant to deal with his addiction (particular emphasis was placed on a
series of clear urinalysis results obtained by the appellant over the course of
several months); and The People (DPP) v Murphy [2010] IECCA 44 in which
the Court was influenced by the fact that the applicant had not only “made
significant progress” in terms of his own rehabilitation but had become an
outreach coordinator and was facilitating the rehabilitation of others.
[1005]
The People (DPP) v Renald Court
of Criminal Appeal 23 November 2001; The People (DPP) v Malric [2011]
IECCA 99; and The People (DPP) v Wall [2011]
IECCA 45.
[1006]
The People (DPP) v Renald
Court of Criminal Appeal 23 November 2001; The People (DPP) v Foster
Court of Criminal Appeal 15 May 2002; The People (DPP) v Whitehead [2008]
IECCA 123; The People (DPP) v Malric [2011]
IECCA 99; and The People (DPP) v Harding [2011] IECCA 20.
[1007]
The People (DPP) v Kinahan [2008] IECCA 5; The People
(DPP) v Vardacardis Court of Criminal Appeal 20 January 2003; and The
People (DPP) v Harding [2011] IECCA 20.
[1008]
Formerly, section 27(3CC).
[1009]
Section 27(3B) provides: “The
court, in imposing a sentence on a person for an offence under section 15A or
15B of this Act, may, in particular, have regard to whether the person has a
previous conviction for a drug trafficking offence.”
[1010]
See, for example: The
People (DPP) v Coles [2009] IECCA 144; and
The People (DPP) v Farrell [2010] IECCA 116.
[1011]
Smith “Sentencing Section 15A
Offences” (2010) 20(1) ICLJ 8.
[1012]
The People (DPP) v Gilligan [2004]
3 IR 87.
[1013]
Ibid at 91. See also: The
People (DPP) v Long [2006] IECCA 49; The People (DPP) v
Delaney Court of Criminal Appeal 28 February 2000; and The People (DPP)
v McDonnell [2009]
IECCA 16.
[1014]
Select Committee on Justice,
Equality, Defence and Women’s Rights Debate, Criminal Justice Bill 2004,
Committee Stage, 11 May 2006.
[1015]
Irish Current Law Statutes
Annotated 2006 at 26-84.
[1016]
Smith “Sentencing Section 15A
Offences” (2010) 20(1) ICLJ 8. See also: The People (DPP) v McGinty
[2007] 1 IR 633 in which the Court of
Criminal Appeal noted that where there were “special reasons of a substantial
nature and wholly exceptional circumstances”, a suspended sentence might be
appropriate in the interests of justice.
[1017]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 333.
[1018]
Formerly, section 27(3E).
[1019]
Formerly, section 27(3D).
[1020]
Formerly, section 27(3F).
[1021] O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 333.
[1022]
Now section 15(3J) after the
enactment of section 33 of the Criminal Justice Act 2007.
[1023]
Formerly, section 27(3B).
[1024]
Section 27(3F) provides that where a
person has been convicted of a second or subsequent offence under section 15A
or section 15B, the court must impose a 10-year sentence.
[1025]
Section 27(3J)(a) of the Misuse
of Drugs Act 1977, as amended.
[1026]
Section 27(3J)(b) of the Misuse
of Drugs Act 1977, as amended.
[1027]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 102.
[1028]
Formerly, section 27(3H).
[1029]
The People (DPP) v Finn [2001] 2 IR 25.
[1030]
The People (DPP) v Dunne [2003] 4
IR 87.
[1031]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 334.
[1032]
Ibid.
[1033]
As inserted by section 84 of the Criminal
Justice Act 2006 and re-numbered by section 33 of the Criminal Justice
Act 2007.
[1034]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 340-341.
[1035]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 103.
[1036]
Most of this case law emanates from
the Court of Criminal Appeal.
[1037]
“A definition of ‘drug mules’ for
use in a European context” (European Monitoring Centre for Drugs and Drug
Addiction, 2012) at 10.
[1038]
“A definition of ‘drug mules’ for
use in a European context” (European Monitoring Centre for Drugs and Drug
Addiction, 2012) at 3.
[1039]
Section 42 of the Criminal
Justice Act 2006.
[1040]
McAuley and McCutcheon Criminal
Liability (Round Hall, Sweet and Maxwell, 2000) at 208-209.
[1041]
Section 57 of the Criminal
Justice Act 2006.
[1042]
Section 26 of the Criminal
Justice Act 2006.
[1043]
Section 1 of the Firearms Act
1925 provides that the term “prohibited weapon” means and includes “any
weapon of whatever description designed for the discharge of any noxious
liquid, noxious gas, or other noxious thing, and also any ammunition (whether
for any such weapon as aforesaid or for any other weapon) which contains or is
designed or adapted to contain any noxious liquid, noxious gas, or other noxious
thing.”
[1044]
The People (DPP) v Clail [2009] IECCA 13.
[1045]
Section 58 of the Criminal
Justice Act 2006.
[1046] The meaning of
the terms “firearm” and “imitation firearm” have been considered at paragraphs
4.65 and 4.66 and will not be considered again here.
[1047]
Section 27(1)(a) of the Firearms
Act 1964, as amended.
[1048]
Section 27(1)(b) of the Firearms
Act 1964, as amended.
[1049]
The New Oxford Dictionary of English
(Oxford University Press, 2001) at 2038.
[1050]
The People (DPP) v Curtin [2010] IECCA 54.
[1051]
The New Oxford Dictionary of English
(Oxford University Press, 2001) at 1479.
[1052]
Section 59 of the Criminal
Justice Act 2006.
[1053]
The meaning of the terms
“possession” and “control” have been considered at paragraphs 4.57 and 4.58 and
will not be considered again here.
[1054]
The People (DPP) v Barry
Court of Criminal Appeal 23 June 2008; The People (DPP) v Clail [2009] IECCA 13; The People (DPP) v Dwyer
Court of Criminal Appeal 9 February 2009; The People (DPP) v Walsh Court
of Criminal Appeal 17 December 2009; The People (DPP) v Curtin [2010] IECCA 54; The People (DPP) v Fitzgerald
[2010] IECCA 53; The People (DPP) v Kelly
Court of Criminal Appeal 28 June 2010; and The People (DPP) v Purcell [2010] IECCA 55.
[1055]
Section 60 of the Criminal
Justice Act 2006.
[1056]
The meaning of the terms “firearm”
and “imitation firearm” have been considered at paragraphs 4.65 to 4.66 and
will not be considered again here.
[1057]
The People (DPP) v Heelan [2008] IECCA 73; The
People (DPP) v Kelly Court of Criminal Appeal 9 November 2009; and The
People (DPP) v Donovan Court of Criminal Appeal 28 June 2010.
[1058]
It is arguable, however, that the
provision is broad enough to cover situations in which the offender has a
firearm or imitation firearm and an unconnected intention to commit an
indictable offence or resist or prevent arrest.
[1059] Section 65 of the
Criminal Justice Act 2006.
[1060]
Section 12A(1)(a) of the Firearms
and Offensive Weapons Act 1990, as amended.
[1061]
Section 12A(1)(b) of the Firearms
and Offensive Weapons Act 1990, as amended.
[1062]
The Court of Criminal Appeal has
considered section 12A in The People (DPP) v Kelly Court of Criminal
Appeal 24 November 2008; and The People (DPP) v McCann [2008]
IECCA 129.
[1063]
Section 26 of the Firearms Act
1964, as substituted by section 57 of the Criminal Justice Act
2006.
[1064]
Section 27A of the Firearms Act
1964, as substituted by section 59 of the Criminal Justice Act 2006.
[1065]
Section 27B of the Firearms Act
1964, as substituted by section 60 of the Criminal Justice Act 2006.
[1066]
Section 12A of the Firearms and
Offensive Weapons Act 1990, as substituted by section 65 of the Criminal
Justice Act 2006.
[1067]
Section 26(2)(a) of the Firearms
Act 1964, as amended; section 27A(2)(a) of the Firearms Act 1964, as
amended; and section 27B(2)(a) of the Firearms Act 1964, as amended.
[1068]
Section 12A of the Firearms and
Offensive Weapons Act 1990, as amended.
[1069]
Section 15 of the Firearms Act
1925, as substituted by section 42 of the Criminal Justice Act 2006.
[1070]
Section 27 of the Firearms Act
1964, as substituted by section 58 of the Criminal Justice Act 2006.
[1071]
Section 15(2)(a) of the Firearms
Act 1925, as amended; and section 27(2)(a) of the Firearms Act 1964,
as amended.
[1072]
The People (DPP) v Fitzgerald [2010] IECCA 53.
[1073]
The People (DPP) v McCann [2008]
IECCA 129.
[1074]
Subsection (5) of each provision and
subsection (10) of section 12A of the Firearms and Offensive Weapons Act
1990.
[1075]
Subsection (10)(a) of section 12A of
the Firearms and Offensive Weapons Act 1990.
[1076]
The People (DPP) v Barry
Court of Criminal Appeal 23 June 2008; and The People (DPP) v Curtin. [2010] IECCA 54
[1077]
The People (DPP) v Clail [2009] IECCA 13; The People (DPP) v Dwyer
Court of Criminal Appeal 9 February 2009; and The People (DPP) v Walsh
Court of Criminal Appeal 17 December 2009.
[1078]
The People (DPP) v Barry
Court of Criminal Appeal 23 June 2008.
[1079]
Subsection (10)(b) of section 12A of
the Firearms and Offensive Weapons Act 1990.
[1080]
In The People (DPP) v Curtin [2010] IECCA 54 for instance, the Court of Criminal
Appeal referred to the fact that the accused had admitted that he had
pressurised his two co-accuseds into taking part in the offence.
[1081]
Subsection (10) of section 12A of
the Firearms and Offensive Weapons Act 1990.
[1082]
The People (DPP) v Barry
Court of Criminal Appeal 23 June 2008.
[1083]
The People (DPP) v Kelly
Court of Criminal Appeal 23 June 2009.
[1084]
The People (DPP) v Fitzgerald [2010] IECCA 53.
[1085]
The People (DPP) v Barry
Court of Criminal Appeal 23 June 2008; and The People (DPP) v Purcell [2010] IECCA 55.
[1086]
The People (DPP) v Barry
Court of Criminal Appeal 23 June 2008.
[1087]
The People (DPP) v Kelly
Court of Criminal Appeal 23 June 2009.
[1088]
Subsection (11) of section 12A of
the Firearms and Offensive Weapons Act 1990.
[1089]
Subsection (8) and (11)(a) of
section 12A of the Firearms and Offensive Weapons Act 1990.
[1090]
See: The People (DPP) v Dwyer
Court of Criminal Appeal 9 February 2009.
[1091]
The People (DPP) v Donovan
Court of Criminal Appeal 28 June 2010; and The People (DPP) v Kelly Court
of Criminal Appeal 29 June 2012.
[1092]
The courts do not, in general,
distinguish between real and imitation firearms. See: The People (DPP) v
Clail [2009] IECCA 13. However, the
Court of Criminal Appeal does distinguish between shotguns and other firearms
on the basis that shotguns come “towards the top end” of the “hierarchy of
weapons”. See: The People (DPP) v Walsh Court of Criminal Appeal
17 December 2009.
[1093]
The People (DPP) v Fitzgerald [2010] IECCA 53; and The People (DPP) v Curtin [2010] IECCA 54.
[1094]
The People (DPP) v Kelly
Court of Criminal Appeal 24 November 2008.
[1095]
The People (DPP) v Purcell [2010] IECCA 55.
[1096]
Section 27C(1) provides that section
27C applies to section 15 of the Firearms Act 1925; sections 26 to 27B
of the Firearms Act 1964; and section 12A of the Firearms and
Offensive Weapons Act 1990.
[1097]
The Misuse of Drugs Act 1971 applies
to Northern Ireland. (The Criminal Justice Act 2003 does not apply
in this regard). Section 25 of the Misuse of Drugs Act 1971
provides that the punishments applicable to offences under the Act are set out
in Schedule 4. Section 25(2) clarifies, however, that the periods and
sums of money referred to in Schedule 4 are maximum terms of imprisonment and
maximum fines. It would thus appear that drug offences in Northern
Ireland do not attract mandatory minimum penalties.
[1098]
See: Schedule 2 to the Violent Crime
Reduction Act 2006.
[1099]
Article 70(2) - (4) of the Firearms (Northern Ireland) Order
2004.
[1100]
Article 3(1)(a) of the Firearms
(Northern Ireland) Order 2004.
[1101]
Section 45(1)(a), section 45(1)(aa),
section 45(1)(b), section 45(1)(c), section 45(1)(d), section 45(1)(e), section
45(1)(g), and section 45(2)(a) of the Firearms (Northern Ireland) Order 2004.
[1102]
Section 58 of the Firearms
(Northern Ireland) Order 2004.
[1103]
Section 59 of the Firearms
(Northern Ireland) Order 2004.
[1104]
Section 60 of the Firearms
(Northern Ireland) Order 2004.
[1105]
Section 61(1) of the Firearms
(Northern Ireland) Order 2004.
[1106] Section 62(1) of
the Firearms (Northern Ireland) Order 2004.
[1107]
Explanatory Memorandum to the Firearms
(Northern Ireland) Order 2004.
[1108]
Review of the Sentencing
Framework in Northern Ireland (Northern Ireland Office, 2004.
[1109]
Review of the Sentencing
Framework in Northern Ireland (Northern Ireland Office, 2004) at 1-2.
[1110]
Public Inquiry into the Shootings
at Dunblane Primary School on 13 March 1996 Cm 3386 (1996).
[1111]
Schedule 1 to the Criminal
Justice (Northern Ireland) Order 2008 sets out an extensive list of
“serious offences” for the purposes of this regime. All of the offences
listed are violent and/or sexual offences.
[1112]
Article 13(2) of the Criminal
Justice (Northern Ireland) Order 2008.
[1113]
Article 13(3) of the Criminal
Justice (Northern Ireland) Order 2008.
[1114]
Ibid.
[1115]
Article 18(3) of the Criminal Justice
(Northern Ireland) Order 2008.
[1116]
Article 18(4) of the Criminal Justice
(Northern Ireland) Order 2008.
[1117]
Article 13(7) of the Criminal
Justice (Northern Ireland) Order 2008.
[1118]
Proposed Draft Criminal Justice
(Northern Ireland) Order 2007 - Equality Screening Forms (Northern Ireland
Office, 2007) at 7.
[1119]
Ibid at 8.
[1120]
The Management of Life and
Indeterminate Sentence Prisoners in Northern Ireland (Criminal Justice
Inspection Northern Ireland, 2012) at vi.
[1121]
A “specified violent offence” is an
offence listed in Part 1 of Schedule 2 to the Order.
[1122]
A “specified sexual offence” is an
offence listed in Part 2 of Schedule 2 to the Order.
[1123]
Article 14(1) of the Criminal
Justice (Northern Ireland) Order 2008.
[1124]
Article 14(4) of the Criminal
Justice (Northern Ireland) Order 2008.
[1125]
Article 14(8) of the Criminal
Justice (Northern Ireland) Order 2008.
[1126]
Article 14(9) of the Criminal
Justice (Northern Ireland) Order 2008.
[1127]
Article 18(2) of the Criminal
Justice (Northern Ireland) Order 2008.
[1128]
Article 14(12) of the Criminal
Justice (Northern Ireland) Order 2008.
[1129]
Mandatory Sentences of
Imprisonment in Common Law Jurisdictions (Department of Justice, Canada) at
14.
[1130]
Inserted by section 287 of the Criminal
Justice Act 2003.
[1131]
Section 30 of the Violent Crime
Reduction Act 2006.
[1132]
Section 51A(4)(a) of the Firearms
Act 1968, as modified by Article 2 of The Firearms (Sentencing) (Transitory Provisions) Order 2007 (SI 2007/1324). An offender
aged 18, 19 or 20 years will receive a minimum sentence of five years’
detention in a young offender institution (section 51A(4)(a), as modified by Article
2 of The Firearms
(Sentencing) (Transitory Provisions) Order 2007 (SI 2007/1324)). An offender under the
age of 18 years will receive a minimum sentence of three years’ detention in a
young offender institution (section 51A(5)(ii) of the Firearms Act
1968).
[1133]
Section 5(1) and section 5(1A) of
the Firearms Act 1968.
[1134]
Section 29 of the Violent Crime
Reduction Act 2006.
[1135]
Section 16 of the Firearms Act
1968.
[1136]
Section 16A of the Firearms Act
1968.
[1137]
Section 17 of the Firearms Act
1968.
[1138]
Section 18 of the Firearms Act
1968.
[1139]
Section 19 of the Firearms Act
1968.
[1140] Section 20(1) of
the Firearms Act 1968.
[1141]
It has been noted that this ground for not
imposing the presumptive minimum term was taken from section 109 of the Powers
of Criminal Courts (Sentencing) Act 2000, which formerly imposed an
automatic life sentence for a second serious offence. By contrast,
section 110 or section 111 of the 2000 Act, which impose a three-year term for
a third Class A drug trafficking offence or domestic burglary, permit the court
to not impose the minimum term if it would be unjust to do so in all the
circumstances. Arguably, the concept of exceptional circumstances which
would justify the court not imposing the minimum sentence is a lower threshold
than exceptional circumstances which would make the minimum term unjust in all
the circumstances: Current Law Statutes (Sweet and Maxwell, 2003) at
44-262.
[1142]
Richardson, ed, Archbold 2010
(Sweet and Maxwell, 2010) at 5-261.
[1143]
Ashworth Sentencing and Criminal Justice (Cambridge University Press, 5th
ed, 2010) at 27
[1144]
Inserted by section 142 of the Legal
Aid, Sentencing and Punishment of Offenders Act 2012.
[1145]
Where the offender is 16 or 17 years
of age, section 1A(6) of the Prevention of Crime Act 1953 (inserted by
section 142 of the Legal Aid, Sentencing and Punishment of Offenders Act
2012) requires the court to impose a detention and training order of at
least four months.
[1146]
Under section 1A of the Prevention
of Crime Act 1953 (inserted by section 142 of the Legal Aid, Sentencing
and Punishment of Offenders Act 2012), this offence is committed where an
individual: (a) has an offensive weapon with him or her in a public place; (b)
unlawfully and intentionally threatens another person with the weapon; and (c)
does so in such a way that there is an immediate risk of serious physical harm
to that other person.
[1147]
Section 1A(5) of the Prevention
of Crime Act 1953, inserted by section 142 of the Legal Aid, Sentencing
and Punishment of Offenders Act 2012.
[1148]
Inserted by section 142 of the Legal
Aid, Sentencing and Punishment of Offenders Act 2012.
[1149]
Where the offender is 16 or 17 years
of age, section 139AA(8) of the Criminal Justice Act 1988 (inserted by
section 142 of the Legal Aid, Sentencing and Punishment of Offenders Act
2012) requires the court to impose a detention and training order of
at least four months.
[1150]
Under section 139AA of the Criminal
Justice Act 1988 (inserted by section 142 of the Legal Aid, Sentencing
and Punishment of Offenders Act 2012) this offence is committed
where a person: (a) has an article to which the
section applies with him or her in a public place or on school premises, (b)
unlawfully and intentionally threatens another person with the article, and (c)
does so in such a way that there is an immediate risk of serious physical harm
to that other person.
[1151]
Section 142 of the Criminal
Justice Act 2003, as amended by paragraph 16 of Schedule 26 to the Legal
Aid, Sentencing and Punishment of Offenders Act 2012.
[1152]
Hansard, House of Commons, Legal
Aid, Sentencing and Punishment of Offenders Bill, 2 December 2011, Column 1044,
Kenneth Clarke MP.
[1153]
In particular, see commentary from Michael Turner QC: “Tougher Prison
Sentences for Violent Crime in Force” BBC 3 December 2012. Available at: www.bbc.co.uk/news/uk-20576580
[Last Accessed: 22 May 2013]. See also: Hansard, House of
Commons Public Bill Committee, Legal Aid, Sentencing and Punishment of
Offenders Bill, 12 July 2011, Column 16, Frances Crook, Chief
Executive of the Howard League for Penal Reform.
[1154]
Hansard, House of
Commons Public Bill Committee, Legal Aid, Sentencing and Punishment of
Offenders Bill, 12 July 2011, Column 16, Frances Crook, Chief
Executive of the Howard League for Penal Reform.
[1155]
Inserted by section 287 of the Criminal
Justice Act 2003.
[1156]
Inserted by section 30 of the Violent
Crime Reduction Act 2006.
[1157]
Section 16 of the Firearms Act
1968.
[1158]
Section 16A of the Firearms Act
1968.
[1159]
Section 17 of the Firearms Act
1968.
[1160]
Section 18 of the Firearms Act
1968.
[1161]
Section 19 of the Firearms Act
1968.
[1162]
Section 20(1) of the Firearms Act
1968.
[1163]
Section 16 of the Criminal
Justice and Licensing (Scotland) Act 2010, which does not appear to have
been commenced, proposes to raise the term to 15 days.
[1164]
§13A-12-232(b) provides that the court may suspend or reduce the mandatory
minimum prison term required by statute, but only if: (1) the mandatory minimum
required by statute is not life without parole; (2) the prosecuting attorney
files a motion requesting a reduced or suspended sentence; and (3) the offender
provides substantial assistance in the arrest or conviction of any accomplices,
accessories, co-conspirators or principals. In addition, §15-18-8(a)(1)
(any prison sentence under 20 years except for Class A and B felony child sex
offences) permits (but does not require) judges to impose a split sentence in
which only part of the sentence is served and the rest of the sentence is
suspended, if “the judge presiding over the case is satisfied that the ends of
justice and the best interests of the public as well as the defendant will be
served” by splitting the sentence.
[1165]
§32-5A-191f(h).
[1166]
§32A-5A-191(j).
[1167]
§13A-8-51(2) and §13A-8-52.
[1168]
§13A-6-130 and §13A-6-131.
[1169]
§13A-10-152.
[1170]
§15-20-21(5); §13A-5-6(4) and (5);
§13A-5-110; and §13A-6-111.
[1171]
§13A-5-13.
[1172]
§13A-11-11.
[1173]
§13A-7-44.
[1174]
Habitual Felony Offender Act.
[1175]
§1252(5-A)(B)-(C) provides that the courts may depart from the mandatory
minimum sentences if they find substantial evidence for all three of the
following elements: (1) Imposition of the mandatory term will result in
substantial injustice to the defendant; (2) failure to impose the mandatory
term will not have an adverse effect on public safety; and (3) failure to
impose the mandatory term will not appreciably impair the deterrent effect of
the mandatory sentence. Then the court must find two additional elements:
(1) the defendant is an appropriate candidate for an intensive supervision
programme, but would be ineligible if given a mandatory sentence; and (2) based
on the defendant’s background, attitude and prospects for rehabilitation and
the nature of the victim and offence, imposing the mandatory sentence would
frustrate the general purpose of sentencing.
[1176]
§18.2-248 provides that if the defendant has no prior conviction, did
not use violence or the threat of violence, the offence did not result in death
or serious bodily injury and the defendant was not a central figure in the
criminal enterprise and provided substantial assistance to the government prior
to sentencing, the five and 20 year mandatory minimums will not apply for
manufacturing. §18.2-248.1 provides that if the individual can prove that
he or she trafficked marijuana only with the intent to assist an individual and
not to profit, he or she will be sentenced for committing a class 1
misdemeanour.
[1177]
§3.2-4212(D,i) and §3.2-4212(D,ii).
[1178]
§18.2-51.1; §18.2-57(A); §18.2-57(B); §18.2-57(C); and §18.2-57(D).
[1179]
§53.1-203(1).
[1180]
§18.2-186.4.
[1181]
§18.2-46.2.
[1182]
§18.2-36.1(B) and §18.2-36.2(B).
[1183] §18.2-374.1:1(C); §18.2-374.1(B,1);
§18.2-374.1(B,2); §18.2-374.1(B,3); §18.2-374.1(B,4); §18.2-374.3(C); and
§18.2-374.3(D).
[1184]
§16.1-253.2.
[1185]
§18.2-61(A,iii); §18.2-67.1(A,1); §18.2-67.2(A,1); §18.2-67.5:2; and
§18.2-67.5:3.
[1186]
§18.2-266; §46.2-341.24; §46.2-357(B,1); §46.2-357(B,2); and
§46.2-357(B,3).
[1187]
§46.2-301; §46.2-391(D,1); §46.2-391(D,2a, i); §46.2-391(D,2a,ii); and
§46.2-391(D,3).
[1188]
§46.2-865.1(A,2).
[1189]
§18.2-121; §18.2-57(A); and §18.2-57(B).
[1190]
§18.2-154.
[1191]
§19.2-297.1.
[1192]
§1324(a)(2)(B)(i) and §2L1.1;
§1324(a)(2)(B)(ii) and §2L1.1; and §1326(b)(3) and §2L1.2.
[1193]
§1028A(a)(1) and §2B1.6; and
§1028A(a)(2) and §2B1.6.
[1194]
§1591(b)(1), §2G1.1, §2D2.1 and
§2G1.3; §1591(b)(2), §2G1.1, §2D2.1 and §2G1.3; §2251A(a) and §2G2.3; §2251A(b)
and §2G2.3; §2241(c) and §2A3.1; §2250(c) and §2A3.6; §1466A(a), §1466A(b) and
§2G2.2; §2251(a), §2251(e) and §2G2.1; §2251(b), §2251(e) and §2G2.1; §2251(c),
§2251(e), §2G2.1 and §2G2.2; §2251(d), §2251(e) and §2G2.2; §2252(a)(1),
§2252(a)(3) and §2G2.2; §2252(a)(2) and §2G2.2; §2252(a)(4) and §2G2.2;
§2252A(a)(1) to §2252A(a)(4), §2252A(a)(6) and §2G2.2; §2252A(a)(5) and §2G2.2;
§2252A(g) and §2G2.2; §2257(i) and §2G2.5; §2260(a) and §2G2.1; §2260(b) and
§2G2.2; §2260A and §2A3.5; §2422(b), §2G1.1 and §2G1.3; §2423(a) and §2G1.3;
§2423(e) and §2G1.3; §3599(e)(1); and §3599(c)(1).
[1195]
§1245(b); §229A(a)(2); §33(b),
§2A2.1, §2A2.2, §2B1.1 and §2K1.4; §844(f)(1), §2K1.4 and §2X1.1; §844(h),
§2K1.4 and §2K2.4; §844(i) and §2K1.4; §844(o) and §2K2.4; and §2272(b) and
§2M6.1.
[1196]
§46502(a)(2)(A), §2A5.1 and §2X1.1; §46502(a)(2)(B),
§2A5.1 and §2X1.1; §46502(b)(1)(A), §2A5.1 and §2X1.1; §46502(b)(1)(B), §2A5.1
and §2X1.1; and §46506(1) and §2A5.3.
[1197]
§192; §390; §13a and §2B1.1; §13b;
§15b(k); and §195(3) and §2N2.1.
[1198]
§2024(b)(1) and §2B1.1; and §2024(c)
and §2B1.1.
[1199]
§1201(g)(1) and §3559(f)(2).
[1200]
§1203(a), §2A4.1 and §2X1.1.
[1201]
§225(a), §2B1.1 and §2B4.1; §1956(h)
and §2S1.1; and §2113(e), §2A1.1 and §2B3.1.
[1202]
§4221 and §2B1.1; §622 and §2C1.1;
§447; §220(e); §617; §630; and §8.
[1203]
§1651; §1652; §1653; §1655;
§1658(b); and §1661.
[1204]
§1389.
[1205]
§1917.
[1206]
§2261(b)(6) and §2M1.1.
[1207]
§2381 and §2A6.2.
[1208]
§283 and §2T3.1.
[1209]
§212.
[1210]
§410
[1211]
§411 and §2Q1.3.
[1212]
§441.
[1213]
§58109(a).
[1214]
§13.
[1215]
§1122.
[1216]
§414
[1217] §3559(c)(1).
[1218]
Report to Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System (United States
Sentencing Commission, 2011).
[1219]
Crutcher “Mandatory Minimum Penalties of Imprisonment: An Historical Analysis”
(2000-2001) 44 Crim. L.Q. 279 at 280.
[1220]
Ibid at 279.
[1221]
Section 39 - section 46 of the Safe Streets and Communities Act.
[1222]
Section 5(1) of the Controlled Drugs and Substances Act.
Schedule I lists the following
substances, as well as their preparations, derivatives, alkaloids
and salts: (i) opium poppy; (ii) coca; (iii) phenylpiperidines; (iv)
phenazepines; (v) amidones; (vi) methadols; (vii) phenalkoxams; (viii)
thiambutenes; (ix) moramides; (x) morphinans; (xi) benzazocines; (xii)
ampromides; (xiii) benzimidazoles; (xiv) phencyclidine; (xv) piritramide; (xvi)
fentanyls; (xvii) tilidine; (xviii) methylenedioxypyrovalerone; and (xix)
methamphetamine. The substance referred to in Schedule 2 to the Act is cannabis, including its
preparations, derivatives and similar synthetic preparations. Not
included are non-viable cannabis seed, with the exception of its derivatives,
or mature cannabis stalks that do not include leaves, flowers, seeds or
branches; and fiber derived from such stalks.
Section 5(3)(a.1) of the Controlled Drugs and Substances Act, as
inserted by section 39 of the Safe Streets and Communities Act, further specifies that this
regime will not apply where the subject matter of the offence is a substance
included in Schedule II in an amount not more than that set out for that
substance in Schedule VII.
[1223]
Section 5(2) of the Controlled
Drugs and Substances Act.
[1224]
Section 5(3)(a)(i) of the Controlled
Drugs and Substances Act, as amended by section 39 of the Safe Streets and Communities Act.
[1225]
Section 5(3)(a)(ii) of the Controlled
Drugs and Substances Act, as amended by section 39 of the Safe Streets and Communities Act.
[1226]
Section 6(1) of the Controlled
Drugs and Substances Act.
[1227]
Section 6(2) of the Controlled
Drugs and Substances Act.
[1228]
Section 6(3)(a) of the Controlled
Drugs and Substances Act, as amended by section 40 of the Safe Streets and Communities Act.
[1229]
Section 6(3)(a.1) of the Controlled
Drugs and Substances Act, as amended by section 40 of the Safe Streets and Communities Act.
[1230]
Section 7(1) of the Controlled
Drugs and Substances Act.
[1231]
Section 7(2)(a) of the Controlled
Drugs and Substances Act, inserted by section 41 of the Safe Streets
and Communities Act.
[1232]
Section 7(3) of the Controlled
Drugs and Substances Act, inserted by section 41 of the Safe Streets
and Communities Act.
[1233]
Section 7(1) of the Controlled
Drugs and Substances Act.
[1234]
Section 7(a.1)(i) of the Controlled
Drugs and Substances Act, inserted by section 41 of the Safe Streets
and Communities Act.
[1235]
Section 7(a.1)(ii) of the Controlled
Drugs and Substances Act, inserted by section 41 of the Safe Streets
and Communities Act.
[1236]
Section 7(2)(b) of the Controlled
Drugs and Substances Act, inserted by section 41 of the Safe Streets
and Communities Act.
[1237]
Dupuis Legislative Summary of Bill S-10: An Act to Amend the
Controlled Drugs and Substances Act and to make related and consequential
Amendments to other Acts (Parliament, No 40-3-S10E, 2010) at 15. Available
at:
www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=s10&source=library_prb&Parl=40&Ses=3&Language=E#fn20.
[Last accessed: 22 May 2013].
[1238]
See also: McLemore “Why Canada should reject the Bill S-10” (Human Rights
Watch, 2011).
[1239]
Bernstein and Drake “In Canada’s
‘war on drugs,’ aboriginals are the biggest victims” National Post 6 November
2012; Everett-Green “Law and Disorder: What Bill C-10 could mean for Canada’s
native people” The Globe and Mail 17 February 2012; and Sewrattan “Apples,
Oranges and Steel: The Effect of Mandatory Minimum Sentences for Drug Offences
on the Equality Rights of Aboriginal Peoples” (2013) 46(1) UBC Law Review 121.
[1240]
Section 85(1) and Section 86(3)(a)
of the Criminal Code.
[1241]
Section 85(2) and Section 86(3)(b)
of the Criminal Code.
[1242]
Section 96(1) and Section 96(2) of
the Criminal Code.
[1243]
Section 99(1) and Section 99(2)(a)
of the Criminal Code.
[1244]
Section 100(1) and Section 100(2)(a)
of the Criminal Code.
[1245]
Section 102(1) and Section 102(2) of
the Criminal Code.
[1246]
Section 103(1) and Section 102(3)(a)
of the Criminal Code.
[1247]
Section 95(1) and Section
95(2)(a)(i) of the Criminal Code.
[1248]
Section 99(1) and Section 99(2)(a)
of the Criminal Code.
[1249]
Section 100(1) and Section 100(2)(a)
of the Criminal Code.
[1250]
Section 103(1) and Section 103(2)(a)
of the Criminal Code.
[1251]
Section 220(a) of the Criminal
Code.
[1252]
Section 236(a) of the Criminal
Code.
[1253]
Section 239(a.1) of the Criminal
Code.
[1254]
Section 244.2(1) and Section
244.3(b) of the Criminal Code.
[1255]
Section 272(1) and Section 272(2)(a.1)
of the Criminal Code.
[1256]
Section 279(1) and Section
279(1.1)(a.1) of the Criminal Code.
[1257]
Section 279.1(1) and Section
279.1(a.1) of the Criminal Code.
[1258]
Section 344(1)(a)(i) and Section
344(a.1) of the Criminal Code.
[1259]
Section 346(1) and Section
346(1.1)(a.1) of the Criminal Code.
[1260]
Section 239(1)(a)(i) of the Criminal
Code.
[1261]
Section 244.2(1) and Section
244.2(3)(a)(i) of the Criminal Code.
[1262]
Section 272(1) and Section
272(2)(a)(i) of the Criminal Code.
[1263]
Section 273(1) and Section
273(2)(a)(i) of the Criminal Code.
[1264]
Section 279(1) of the Criminal
Code.
[1265]
Section 279.1(1) and Section
279.1(2)(a)(i) of the Criminal Code.
[1266]
Section 344(1)(a)(i) of the Criminal
Code.
[1267]
Section 346(1) and Section
346(1.1)(a)(i) of the Criminal Code.
[1268]
Section 272(1) and Section
272(2)(a.2) of the Criminal Code.
[1269]
Section 273(1) and Section
273(2)(a.2) of the Criminal Code.
[1270]
See: “Toronto shootings prompt
Toews to criticize courts” CBC News 18 July 2012. Available at: www.cbc.ca/news/politics/story/2012/07/18/pol-cp-toews-toronto-shooting-political-reaction.html
[Last accessed: 22 May 2013].
[1271]
See, for example: Editorial
“Responding to Gun Violence” (2006) 51(2) The Criminal Law Quarterly
129.
[1272]
See, for example: Submission
of the National Criminal Justice Section of the Canadian Bar Association “Bill
C-2 - Tackling Violent Crime Act” November 2007 at 5. Available at: www.cba.org/cba/submissions/pdf/07-56-eng.pdf
[Last accessed: 22 May 2013].
[1273] See: Humphreys “Tory
gun laws in jeopardy after judge rejects ‘outrageous’ mandatory sentence”
National Post 13 February 2012.
[1274]
See: O’Toole “Ontario judge
strikes down mandatory minimum sentence for first-offence gun trafficking”
National Post 6 July 2012.
[1275]
See: Seymour “Judge refuses to
sentence man to ‘grossly disproportionate’ mandatory minimum” Ottawa Citizen 1
May 2013.
[1276]
Section 171(1)(a) of the Criminal
Code.
[1277]
Section 171.1(1) and Section
171.1(2) of the Criminal Code. A minimum sentence of 90 days
applies where the offender is convicted on indictment. If convicted
summarily, the offender will attract a minimum sentence of 30 days.
[1278]
Section 173(2) of the Criminal
Code. A minimum sentence of 90 days applies where the offender is
convicted on indictment. If convicted summarily, the offender will
attract a minimum sentence of 30 days.
[1279]
Section 163.1(4) of the Criminal
Code. A minimum sentence of six months applies where the offender is
convicted on indictment. If convicted summarily, the offender will
attract a minimum sentence of 90 days.
[1280]
Section 163.1(4.1) of the Criminal
Code. A minimum sentence of six months applies where the offender is
convicted on indictment. If convicted summarily, the offender will
attract a minimum sentence of 90 days.
[1281]
Section 170(b) of the Criminal
Code.
[1282]
Section 171(b) of the Criminal
Code.
[1283]
Section 212(4) of the Criminal
Code.
[1284]
Section 151 of the Criminal Code.
A minimum sentence of one year applies where the offender is convicted on
indictment. If convicted summarily, the offender will attract a minimum
sentence of 90 days.
[1285]
Section 152 of the Criminal Code.
A minimum sentence of one year applies where the offender is
convicted on indictment. If convicted summarily, the offender will
attract a minimum sentence of 90 days.
[1286]
Section 153(1) and Section 153(1.1)
of the Criminal Code. A minimum sentence of one year applies where
the offender is convicted on indictment. If convicted summarily, such an
offender will attract a minimum sentence of 90 days.
[1287]
Section 160(3) of the Criminal
Code. A minimum sentence of one year applies where the offender is
convicted on indictment. If convicted summarily, such an offender will
attract a minimum sentence of six months.
[1288]
Section 163.1(2) of the Criminal
Code. A minimum sentence of one year applies where the offender is
convicted on indictment. If convicted summarily, such an offender will
attract a minimum sentence of six months.
[1289]
Section 163.1(3) of the Criminal
Code. A minimum sentence of one year applies where the offender is
convicted on indictment. If convicted summarily, such an offender will
attract a minimum sentence of six months.
[1290]
Section 170(a) of the Criminal
Code.
[1291]
Section 172.1(1) and Section 172.1(2)
of the Criminal Code. A minimum sentence of one year applies where
the offender is convicted on indictment. If convicted summarily, such an
offender will attract a minimum sentence of 90 days.
[1292]
Section 172.2(1) and Section
172.2(2) of the Criminal Code. A minimum sentence of one year
applies where the offender is convicted on indictment. If convicted
summarily, the offender will attract a minimum sentence of 90 days.
[1293]
Section 271 of the Criminal Code.
A minimum sentence of one year applies where the offender is
convicted on indictment. If convicted summarily, the offender will
attract a minimum sentence of 90 days.
[1294]
Section 212(2) of the Criminal
Code.
[1295]
Section 155(1) and Section 155(2) of
the Criminal Code.
[1296]
Section 212(2.1) of the Criminal
Code.
[1297]
Section 279.011(1) of the Criminal
Code.
[1298]
Section 279.011(1) of the Criminal
Code.
[1299]
Hansard, House of Commons, Bill
C-22, An Act respecting the
mandatory reporting of Internet child pornography by persons who provide an
Internet service, 3 December 2010, col 1034.
[1300]
Ibid.
[1301]
See, for example: Canadian Criminal
Justice Association “Brief to the Standing Committee on Justice and Human Rights
... An Act to Amend the Criminal Code (Sexual Offences Against Children)”
(January 2011). Available at: www.ccja-acjp.ca/en/c54en.html
[Last accessed: 22 May 2013].
[1302]
Ibid.
[1303]
Inserted by section 2 of the Standing
up for Victims of White Collar Crime Act.
[1304]
Wong, Aagaard and Shapiro “Minimum
Mandatory Jail Sentence for Fraud over C€1 Million” (5 July 2011).
Available at:
www.blakes.com/English/Resources/Bulletins/Pages/Details.aspx?BulletinID=1355
[Last accessed: 22 May 2013].
[1305]
Roche “Mandatory Sentencing” No 138
Trends & Issues in Crime and Criminal Justice, (Australian Institute of
Criminology, 1999) at 1.
[1306]
Ibid.
[1307]
Ibid.
[1308]
Ibid at 1-2.
[1309]
Same Crime, Same Time Report
103 (Australian Law Reform Commission, 2006) at 539.
[1310]
See for example: Bagaric &
Pathinayake
“Mandatory Harsh Penalties for People Smugglers in Australia: Time for Reform”
(2012) 76(6) Journal of Criminal Law 493; Williams “Minimum sentence,
maximum injustice” Sydney Morning Herald 6 December 2011; “Bid to end
Australian mandatory sentencing for people smugglers” Radio Australia 20
January 2012. Available at: www.radioaustralia.net.au/international/radio/onairhighlights/bid-to-end-australian-mandatory-sentencing-for-people-smugglers
[Last accessed: 22 May 2013]; and “Lawyers Speak out against mandatory
sentencing” The New Lawyer 20 August 2012. Available at: www.thenewlawyer.com.au/comment---debate/lawyers-speak-out-against-mandatory-sentencing
[Last accessed: 22 May 2013].
[1311]
See: Marcus “People smuggler
given minimum sentence” ABC News 16 August 2012. Available at: www.abc.net.au/news/2012-08-16/people-smuggler-given-minimum-sentence/4202688
[Last accessed: 22 May 2013]; Flatley “Judge slams mandatory sentence for
people smugglers” Sydney Morning Herald 11 January 2012; and Dodd “People
smuggling laws in the dock” The Australian 23 March 2012.
[1312]
Mandatory Sentences of
Imprisonment in Common Law Jurisdictions (Department of Justice, Canada) at
29.
[1313]
As noted at paragraph 3.35, however,
New South Wales has recently introduced an entirely mandatory life sentence for
the murder of a police officer in certain circumstances.
[1314]
Roche “Mandatory Sentencing” No 138
Trends & Issues in Crime and Criminal Justice (Australian Institute of
Criminology, 1999) at 1-2.
[1315]
Mandatory Sentences of
Imprisonment in Common Law Jurisdictions (Department of Justice, Canada) at
25.
[1316]
A “violent offence” is defined by
subdivision 1 of Division 6A of the Sentencing Act (as replaced by
section 6 of the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013)
as: (a) an offence against a provision of the Criminal Code listed in
Schedule 2; or (b) an offence which substantially corresponds to such an
offence under (i) a law that has been repealed; or (ii) a law of another
jurisdiction (including a jurisdiction outside Australia). The offences
listed in Schedule 2 include terrorism, manslaughter, attempted murder, common
assault, unlawful stalking and
robbery.
[1317]
A “Level 5” offence is defined as
including the following offences under the Criminal Code: (a) causing serious
harm under section 181; or (b) causing harm under section 186; common assault
under section 188 (if the offence is committed in circumstances mentioned in
section 188(2), other than paragraph (k)), assault on a worker under 188A;
assault on police officer under section 189A; assault on administrator or judge
or magistrate under section 190; assault on member of aircraft crew under
section 191; assault with intent to commit an offence under section 193; or
assault with intent to steal under section 212, if (i) commission of the
offence involves the actual or threatened use of an offensive weapon; and (ii)
the victim suffers physical harm as a result of the offence.
[1318]
Section 78D of the Sentencing Act,
inserted by section 6 of the Sentencing Amendment (Mandatory Minimum
Sentences) Act 2013.
[1319]
A “Level 4” offence is defined as: an
offence against section 188A [assault on a worker] or section 189A [assault on
administrator or judge or magistrate] of the Criminal Code if: (a) the
victim suffers physical harm as a result of the offence; and (b) the offence is
not a “Level 5” offence.
[1320]
Section 78DB of the Sentencing Act,
inserted by section 6 of the Sentencing Amendment (Mandatory Minimum
Sentences) Act 2013.
[1321]
A “Level 3” offence is defined as an
offence against section 188 of the Criminal Code [common assault] if the
offence: (a) is committed in circumstances mentioned in section 188(2), other
than paragraph (k); and (b) the offence is not a “Level 5” offence.
[1322]
Section 78DC of the Sentencing Act,
inserted by section 6 of the Sentencing Amendment (Mandatory Minimum
Sentences) Act 2013.
[1323]
A “Level 2” offence is defined as an
offence against section 186 of the Criminal Code [causing harm] if: (a) the
victim suffers physical harm as a result of the offence; and (b) the offence is
not a “Level 5” offence.
[1324]
Section 78DE of the Sentencing Act,
inserted by section 6 of the Sentencing Amendment (Mandatory Minimum
Sentences) Act 2013.
[1325]
See: section 78DG(c) and section 78DH(c)
of the Sentencing Act, inserted by section 6 of the Sentencing
Amendment (Mandatory Minimum Sentences) Act 2013.
[1326]
Section 78DI of the Sentencing Act,
inserted by section 6 of the Sentencing Amendment (Mandatory Minimum
Sentences) Act 2013.
[1327]
Ibid.
[1328]
Ibid.
[1329]
See: section 78DH(2) of the Sentencing
Act, inserted by section 6 of the Sentencing Amendment (Mandatory
Minimum Sentences) Act 2013.
[1330]
See: section 78DI(2)(b) and section
78DH(2)(b) of the Sentencing Act, inserted by section 6 of the Sentencing
Amendment (Mandatory Minimum Sentences) Act 2013.
[1331]
Section 78DH of the Sentencing Act,
inserted by section 6 of the Sentencing Amendment (Mandatory Minimum
Sentences) Act 2013.
[1332]
Legislative Assembly of the Northern
Territory, Sentencing Amendment (Mandatory Minimum Sentences) Bill 2012, Second
Reading, 29 November 2012, Mr Elferink. See: http://notes.nt.gov.au/lant/hansard/hansard12.nsf/WebbySubject/4F84E713E3F06F1F69257B2700054889?opendocument
[Last accessed: 22 May 2013].
[1333]
Thompson “Mandatory sentencing regime
draws more flak” ABC News 15 February 2013. Available at: www.abc.net.au/news/2013-02-15/mandatory-sentencing-law-reaction/4521380
[Last accessed: 22 May 2013]; “NT’s new sentencing laws attacked” Nine
News 15 February 2013. Available at: www.news.ninemsn.com.au/national/2013/02/15/18/01/nt-s-new-sentencing-laws-attacked
[Last accessed: 22 May 2013]; and “Prescribed minimum mandatory sentences are
the very antithesis of just sentences” Criminal Lawyers Association of the
Northern Territory Press Release. Available at: www.clant.org.au/index.php/news
[Last accessed: 22 May 2013].
[1334]
Section 78BB of the Sentencing
Act. This sentencing regime will be triggered by the following
sexual offences, specified under Schedule 3 to the Act: (i) an offence against
section 125B [possession of child abuse material] or 125C [publishing indecent
articles] of the Criminal Code, where the offender is an
individual; (ii) an offence against section 127 [sexual intercourse or
gross indecency involving child under 16 years], 128 [sexual intercourse of
gross indecency with child over 16 years under special care], 130 [sexual
intercourse or gross indecency by provider of services to mentally ill or
handicapped person], 131 [attempts to procure child under 16 years], 131A
[sexual relationship with child], 132 [indecent dealing with child under 16
years], 134 [incest] or 138 [bestiality] of the Criminal Code; (iii) an
offence against section 188 [common assault] of the Criminal Code, where
the circumstance of aggravation specified in section 188(2)(k) exists [indecent
assault]; and (iv) an offence against section 192 [sexual intercourse and gross
indecency without consent] or section 192B [coerced sexual self-manipulation]
of the Criminal Code.
[1335]
Section 78BB(b) of the Sentencing Act.
[1336]
Weapons and Other Legislation Amendment Act 2012.
[1337]
A minimum sentence of 9 months will
apply where an offender unlawfully possesses a category A, B or M weapon and
uses the firearm to commit an indictable offence. Weapons are categorised
under the Weapons Categories Regulation 1997.
[1338]
A minimum sentence of 18 months will
apply where an offender: (i) unlawfully possesses 10 or more weapons at least
five of which are category D, E, H or R; (ii) unlawfully possesses 10 or more
weapons; or (iii) unlawfully possesses a category C or E weapon, and uses the
firearm to commit an indictable offence. Weapons are categorised under the Weapons
Categories Regulation 1997.
[1339]
Section 50(1) of the Weapon Act
1990, as amended by section 15 of the Weapons and Other Legislation Amendment Act 2012.
[1340]
A minimum sentence of six months will apply where the offender unlawfully
possesses a category A, B or M weapon for the purpose of committing or
facilitating an indictable offence.
[1341]
A minimum sentence of one year will
apply where the offender (i) unlawfully possesses 10 or more weapons at least
five of which are category D, E, H or R; (ii) unlawfully possesses 10 or more
weapons; or (iii) unlawfully possesses a category C or E weapon, for the
purpose of committing or facilitating an indictable offence. Weapons are
categorised under the Weapons Categories Regulation 1997.
[1342]
Section 50(1) of the Weapon Act 1990, as
amended by section 15 of the Weapons
and Other Legislation Amendment Act 2012.
[1343]
Ibid.
[1344]
A minimum sentence of two and
a half years will apply if the offender: (i) unlawfully supplies a
category D, H or R weapon; (ii) the weapon is a short firearm; and (iii) the
person does not have a reasonable excuse for unlawfully supplying the weapons.
Weapons are categorised under the Weapons Categories Regulation 1997.
[1345]
A minimum sentence of three years
will apply if the offender: (i) unlawfully supplies five or more weapons
at least one of which is a category D, E, H or R weapon; (ii) at least one of
the weapons is a short firearm; and (iii) the person does not have a reasonable
excuse for unlawfully supplying the weapons. Weapons are categorised
under the Weapons Categories Regulation 1997.
[1346]
Section 50B(1) of the Weapons Act 1990,
as amended by section 16 of the Weapons and Other Legislation Amendment Act 2012.
[1347] A minimum
sentence of three and a half years will apply if the offender: (i) unlawfully
trafficks a category A, B, C, D or E weapon, a category M crossbow or
explosives; (ii) at least one of the weapons is a firearm; and (iii) the
offender does not have a reasonable excuse for carrying on the business.
Weapons are categorised under the Weapons Categories Regulation 1997.
[1348]
A minimum sentence of five years
will apply if the offender: (i) unlawfully trafficks a category H or R weapon;
(ii) at least one of the weapons is a firearm; and (iii) the offender does not
have a reasonable excuse for carrying on the business. Weapons are categorised
under the Weapons Categories Regulation 1997.
[1349]
Section 65(1) of the Weapons Act 1990,
as amended by section 17 of the Weapons and Other Legislation Amendment Act
2012.
[1350]
Inserted by Part 2 of the Weapons
and Other Legislation Amendment Act 2012.
[1351]
Dixon Proposed Changes to Offence
Provisions in the Weapons Act 1990 (Qld) (Queensland Parliamentary Library
and Research Service, 2012) at 1.
[1352]
Ibid.
[1353]
“Newman Government tough on firearms”
Press Release 28 November 2012. Available at: http://statements.qld.gov.au/Statement/2012/11/28/newman-government-tough-on-firearms
[Last accessed: 22 May 2013].
[1354]
See: Withey and Howells
“Newman’s mandatory sentencing plan a ‘knee-jerk reaction’” ABC News 1 May
2012. Available at: www.abc.net.au/news/2012-05-01/newmans-mandatory-sentencing-plan-a-kneejerk-reaction/3982560
[Last accessed: 22 May 2013].
[1355]
Queensland Law Society “Weapons and
Other Legislation Amendment Bill 2012” 8 November 2012. Available at:
www.parliament.qld.gov.au/documents/committees/LACSC/2012/Weapons/submissions/002-QldLawSociety.pdf
[Last accessed: 22 May 2013].
[1356]
Ibid.
[1357]
Specifically, section 297(8) of the Criminal
Code provides that this sentencing regime will apply where: (a) the victim is a police officer,
prison officer or security officer performing a function of his or her office
or employment; (b) the offence is committed against a police officer, prison
officer or security officer on account of his or her being such an officer, or
on account of his or her performance of a function of his or her office or
employment; (c) the victim is an ambulance officer performing his or her duties
as such; (d) the victim is a contract worker who is providing court security
services or custodial services under the Court Security and Custodial
Services Act 1999 (WA); or (e) the victim is a contract worker
providing services under Part IIIA of the Prison Act 1981 (WA).
[1358]
Specifically, section 318(5) of the Criminal Code provides that this
sentencing regime will apply where the victim, who suffers bodily harm as a
result of an assault, is a police officer, prison officer or security
officer who is: (i) performing a function of his or her employment; (ii)
assaulted on account of being such an officer or on account of his or her
performance of such a function; or (iii) performing a function of a
public nature conferred on him or her by law, or assaulted on account of his or
her performance of such a function. The minimum sentence also applies
where an assault resulting in bodily harm is committed against: (i) an
ambulance worker who is performing his or her duties as such; (ii) a contract
worker who is providing court security services or custodial services; or (iii)
a contract worker who is performing functions under Part IIIA of the Prisons
Act 1981.
[1359]
“Reported assaults against
police continue to decline” Press Release 23 June 2011. Available at: www.mediastatements.wa.gov.au/pages/StatementDetails.aspx?listName=StatementsBarnett&StatId=4369
[Last accessed: 22 May 2013]
[1360]
Sentencing Advisory Council Assaults
on Emergency Service Workers (Consultation Paper No. 2, June 2012) at 27.
[1361]
Ibid at 28.
[1362]
Ibid.
[1363]
Ibid.
[1364]
Banks “‘Backroom deals’ letting thugs off
lightly” The West Australian 29 October 2012.
[1365]
Ibid.
[1366]
Ibid.
[1367]
Ibid.
[1368]
The People (DPP) v Byrne [2012]
IECCA 72.
[1369]
Mascharka “Mandatory Minimum
Sentences: Exemplifying the Law of Unintended Consequences” (2001) 28(4) Florida
State University Law Review 935 at 948; Odeh “Emerging from the Haze of
America’s War on Drugs and Examining Canada’s New Half-Baked Laws” (2013) 36(1)
Fordham International Law Journal 198 at 211-212.
[1370]
Mascharka “Mandatory Minimum
Sentences: Exemplifying the Law of Unintended Consequences” (2001) 28(4) Florida
State University Law Review 935 at 948.
[1371]
Overview 3: Drugs and Crime in
Ireland (Health Research Board, 2006) at 109. See also: Tonry Sentencing
Matters (Oxford University Press, 1996) at 141. Tonry observes that
due to the economic deprivation of many potential drug mules, practitioners and
researchers consider this form of criminality to be “uniquely insensitive to
the deterrent effects of sanctions.” He notes that despite risks of
arrest, imprisonment, injury and death, drug trafficking is perceived to offer
disadvantaged people economic and other rewards which far outweigh any
available in the legitimate economy.
[1372]
See: Vincent and Hofer “The
Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings”
(Federal Judicial Center, 1994) at 13.
[1373]
The People (DPP) v Dunne
[2003] 4 IR 87; and O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at 334.
[1374]
O’Malley Sentencing - Towards a Coherent
System (Round Hall, 2011) at 103.
[1375]
Overview 3: Drugs and Crime in Ireland
(Health Research Board, 2006). Available at:
www.hrb.ie/uploads/tx_hrbpublications/Drugs_and_crime_in_Ireland-Overview_3.pdf.
[Last accessed: 22 May 2013]
[1376]
The psycho-pharmacological model
proposes that the effects of intoxication cause criminal (especially violent)
behaviour or that aggression and crime can be caused, for example, by the
effects of withdrawal or sleep deprivation. In this regard, the HRB
indicated that international evidence was inconclusive and Irish research
limited. (See: Overview 3: Drugs and Crime in Ireland (Health Research
Board, 2006) at 12)
[1377]
The economic-compulsive model assumes that drug users need to
generate illicit income from crimes such as robbery, burglary and prostitution
to support their drug habit. In this regard, the HRB indicated that Irish
research supports the argument that there is an economic motivation to commit
crime to purchase drugs. (See: Overview 3: Drugs and Crime in Ireland
(Health Research Board, 2006) at 12)
[1378] The systemic model explains
drug-related crime as resulting from activities associated with the illegal
drug market. In this regard, the HRB indicated that local studies show
that there is a connection between local drug markets and significant levels of
community disturbance and anti-social behaviour. (See: Overview 3: Drugs and
Crime in Ireland (Health Research Board, 2006) at 12)
[1379]
The common-cause model suggests that there
is no direct causal link between drugs and crime but that both are related to
other factors including socio-economic deprivation. In this regard, the
HRB indicated that Irish research has consistently revealed that underlying
social factors, such as educational disadvantage, poverty and inequality
contributed to both problematic drug use and crime. (See: Overview 3: Drugs
and Crime in Ireland (Health Research Board, 2006) at 12)
[1380]
Overview 3: Drugs and Crime in Ireland
(Health Research Board, 2006) at 110.
[1381]
Ibid at 109.
[1382]
See: “Communiqué of the British Irish
Council Meeting 13-01-12”. Available at: www.taoiseach.gov.ie/eng/News/Archives/2012/Taoiseach's_Press_Releases_2012/Communiqu%C3%A9_of_the_British_Irish_Council_Meeting_13-01-12.html
[Last accessed: 22 May 2013]
[1383]
See: www.britishirishcouncil.org/areas-work/misuse-drugs
[Last accessed: 22 May 2013]
[1384]
Campbell “Responding to Gun Crime in
Ireland" (2010) 50 Brit J Criminology 414 at 422.
[1385]
Ibid at 429.
[1386]
O’Malley “Further Observations on
DPP v Connolly (Part 1 of 3)” 22 February 2011. Available at: www.extempore.ie/2011/02/22/further-observations-on-dpp-v-connolly-part-1-of-3/
[Last accessed: 22 May 2013].
[1387]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 104. O’Malley suggests that
this may be grounds for a constitutional challenge to the Misuse of Drugs
Act 1977. See: O’Malley Sentencing - Towards a Coherent System
(Round Hall, 2011) at 105.
[1388]
See: Vincent and Hofer “The
Consequences of Mandatory Minimum Prison Terms: A Summary of Recent Findings”
(Federal Judicial Center, 1994) at 25.
[1389]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 66. The Sentencing Advisory
Council of Victoria makes a similar point, noting that:
“where mandatory sentencing is applied only to select offences (as is generally
the case), it may actually interfere with the hierarchy of sanctions. It
may artificially increase the severity of sanctions for some types of conduct
while not doing so for conduct of similar blameworthiness that is not targeted
by the regime.”
[Sentencing Matters: Mandatory Sentencing (Sentencing Advisory Council
of Victoria, 2008) at 12].
[1390]
Deaton v Attorney General
[1963] IR 170, 181; and State (P Woods) v Attorney General [1969] IR
385, 403-404.
[1391]
O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at 340.
[1392] O’Malley
“Time Served: The Impact of Sentencing and Parole Decisions on the Prison
Population” at 4 (Paper delivered to the Irish Penal Reform Trust, Morris
Hotel, Dublin, 28 June 2010). Available at: www.iprt.ie/files/Tom_OMalley_Presentation_IPRT_Open_Forum_28062010.pdf
[Last accessed: 22 May 2013].
[1393]
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at
103.
[1394]
This risk of disproportionality
received judicial acknowledgement in The People (DPP) v Heffernan Court
of Criminal Appeal 10 October 2002. In that instance, the Court
observed that:
“It has to be
realised that the effect of the statute is to trammel judicial discretion in a
case such as this and that the Oireachtas have, for reasons that seem to them
sufficient, indicated a minimum sentence of a substantial nature in respect of
these offences. They have presumably in doing so considered the fact that
such sentence might be regarded as harsh in certain circumstances and on
certain individuals.” (own emphasis).
[1395]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 103.
[1396]
Rand Corporation “Are Mandatory
Minimum Drug Sentences Cost-Effective?” 1997. See also: Irish Penal
Reform Trust Mandatory Sentencing (IPRT Position Paper 3, 2009).
[1397]
Smith “Sentencing Section 15A
Offences” (2010) 20(1) ICLJ 8. See also: O’Malley “Presumptive Minimum
Sentences for Assault Offences found Constitutional in France” (15 March 2011).
Available at: www.extempore.ie/2011/03/15/presumptive-minimum-sentences-for-assault-offences-found-constitutional-in-france/
[Last accessed: 22 May 2013].
[1398]
Law Reform Commission Consultation Paper on Mandatory Sentences
(LRC CP 66-2011) at paragraph 1.66.
[1399]
Law Reform Commission Consultation
Paper on Mandatory Sentences (LRC CP 66-2011) at paragraph 4.04.
[1400]
As amended by section 22
of the Criminal Justice Act 2007.
[1401]
Fitzgerald
“Californication of Irish Sentencing Law” (2008) ICLJ 42 at 45.
[1402]
McIntyre “Criminal
Justice Act 2007 (Annotated)” (2007) ICLSA.
[1403]
The offences listed in
Schedule 2 to the Criminal Justice Act 2007 are: (i) murder; (ii)
causing serious harm; (iii) threats to kill or cause serious harm; (iv) false
imprisonment; (v) causing explosion likely to endanger life or damage property;
(vi) possession, etc., of explosive substances; (vii) making or possessing explosives
in suspicious circumstances; (viii) possession of firearm with intent to
endanger life; (ix) possession of firearms while taking vehicle without
authority; (x) use of firearms to assist or aid escape; (xi) possession of
firearm or ammunition in suspicious circumstances; (xii) carrying firearm with
criminal intent; (xiii) shortening barrel of shotgun or rifle; (xiv) aggravated
burglary; (xv) drug trafficking offence within the meaning of section 3(1) of
the Criminal Justice Act 1994; (xvi) offence of conspiracy; (xvii)
organised crime; (xviii) commission of offence for criminal organisation; (xix)
blackmail; (xx) extortion; and (xxi) demanding money with menaces.
[1404]
Section
1 of the Bail Act 1997 defines a “serious offence” as an “offence
specified in the Schedule for which a person of full capacity and not
previously convicted may be punished by a term of imprisonment for a term of 5
years or by a more serious penalty.”
[1405]
Section 2 of the Criminal
Law Act 1997 defines an “arrestable offence” as “an offence for which a
person of full capacity and not previously convicted may, under or by virtue of
any enactment, be punished by imprisonment for a term of five years or by a
more severe penalty... .”
[1406]
Section 25(5)(a)
of the Criminal Justice Act 2007.
[1407]
Section 25(5)(b)
of the Criminal Justice Act 2007.
[1408]
Section 25(6) of the Criminal
Justice Act 2007.
[1409]
Section 25(2) of the Criminal
Justice Act 2007.
[1410]
O’Malley “Sentencing
Recidivist Sex Offenders: A Challenge for Proportionality” (2008). Paper
delivered at Conference on Recent Developments in Criminal Law, Trinity College
Dublin, December 2008 and subsequently published in Bacik and Heffernan, eds, Criminal
Law and Procedure: Current Issues and Emerging Trends (Firstlaw, 2009) at
106-132.
[1411]
Collins “And Throw Away the
Key” (2007) 101(7) Law Society Gazette 36 at 38-39.
[1412]
This power is granted by section 2
of the Criminal Justice Act 1960.
[1413]
Section 27(3F) was substituted
by section 33 of the Criminal Justice Act 2007.
[1414]
Section 27(3E) of the Misuse of
Drugs Act 1977
[1415]
Section 15(8) of the Firearms
Act 1925; section 26(8) of the Firearms Act 1964; section 27(8) of
the Firearms Act 1964; section 27A(8) of the Firearms Act 1964; section
27B(8) of the Firearms Act 1964; and section 12A(13) of the Firearms
and Offensive Weapons Act 1990, as inserted by section 42, section 57,
section 58, section 59, section 60 and section 61 of the Criminal Justice
Act 2006.
[1416]
The People (DPP) v Clail [2009] IECCA 13.
[1417] Subsection
(12) of section 12A of the Firearms and Offensive Weapons Act 1990.
[1418]
Section 27C was inserted by
section 61 of the Criminal Justice Act 2006.
[1419]
Class A drugs are defined in
Part 1 of Schedule 2 to the Misuse of Drugs Act 1971. The term
“drug trafficking offence” is defined by section 1 of the Drug Trafficking
Act 1994.
[1420]
See also section 144 of the Criminal
Justice Act 2003.
[1421]
Section 152(1) of the Powers
of Criminal Courts (Sentencing) Act 2000.
[1422]
Current Law Statutes (Sweet
and Maxwell, 2000) at 6-105.
[1423]
Section 152(2) of the Powers
of Criminal Courts (Sentencing) Act 2000.
[1424]
Section 111(1) of the Powers
of Criminal Courts (Sentencing) Act 2000.
[1425]
Section 111(2) of the Powers
of Criminal Courts (Sentencing) Act 2000.
[1426]
See also: section 144 of the Criminal
Justice Act 2003.
[1427]
Section 152(1) of the Powers
of Criminal Courts (Sentencing) Act 2000.
[1428]
Current Law Statutes
(Sweet and Maxwell, 2000) at 6-105.
[1429]
Section 152(2) of the Powers
of Criminal Courts (Sentencing) Act 2000.
[1430]
Hope “Four-Fifths of Repeat
Burglars do not receive Minimum Jail Term, say Tories” The Telegraph 4 February
2009.
[1431]
Wasik “Dimensions of Criminal
History” in Roberts and von Hirsch, eds, Previous Convictions at Sentencing:
Theoretical and Applied Perspectives (Oxford: Hart, 2010) at 176.
[1432]
Inserted by section 122 of the
Legal Aid, Sentencing and Punishment of Offenders Act 2012.
[1433]
Part 1 of Schedule 15B lists
44 offences, many of which relate to terrorism, the use of firearms, homicide,
and sexual crimes (particularly against children).
[1434]
Section 224A(3) of the
Criminal Justice Act 2003.
[1435]
Subject to certain conditions,
section 226A permits the imposition of extended sentences upon certain violent
or sexual offenders who are aged at least 18 years.
[1436]
Thomas “The Legal Aid, Sentencing
and Punishment of Offenders Act 2012: The Sentencing Provisions” (2012) 8
Criminal Law Review 572 at 573.
[1437]
In addition to the 44 offences
listed in Part 1, Schedule 15B lists under Part 2, the crime of murder and any
offence that was abolished (with or without savings) prior to the Schedule
coming into force and which would, if committed on the relevant day, have
constituted an offence specified in Part 1 of the Schedule. For the purposes of
section 224A(4), the ‘relevant day’ is that on which the offender was convicted
of the offence referred to in section 224A(1)(a). Part 3 of the Schedule
further lists an array of offences under service law, while Part 4 includes any
offence for which the person was convicted in Scotland, Northern Ireland or a
member state other than the United Kingdom and which, if committed in England
and Wales at the time of conviction, would have constituted an offence specified
in Part 1 or Part 2 of the Schedule.
[1438]
Section 224A(4) of the Criminal
Justice Act 2003.
[1439]
Section 224A(6) of the Criminal
Justice Act 2003.
[1440]
Section 224A(8) of the Criminal
Justice Act 2003.
[1441]
Thomas “The Legal Aid, Sentencing
and Punishment of Offenders Act 2012: The Sentencing Provisions” (2012) 8
Criminal Law Review 572 at 573. See also: Picton “The Effect of the
Changes in Sentencing of Dangerous Offenders Brought About by the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 and the Mystery of Schedule
15B” (2013) 5 Criminal Law Review 406 at 408.
[1442]
Anthony Lloyd “Two strikes and
then a mandatory life sentence? No” The Guardian 19 March 2012.
[1443]
See: Hansard, House of
Commons, Legal Aid, Sentencing and Punishment of Offenders Bill, 1 November
2011, Column 788.
[1444]
Anthony Lloyd “Two strikes and
then a mandatory life sentence? No” The Guardian 19 March 2012.
[1445]
In order for an extended
sentence to be imposed, the following criteria must be fulfilled: (i) the
court must consider that there is a significant risk to members of the public of
serious harm occasioned by the commission by the offender of further specified
offences; (ii) the court must not be required by section 224A or section 225(2)
of the Criminal Justice Act 2003 to impose a life sentence for the
offence; and (iii) “condition A” or “condition B” must be met. “Condition
A” is that, at the time the offence was committed, the offender must have been
convicted of an offence listed in Schedule 15B to the Act. “Condition B”
is that, if the court were to impose an extended sentence of imprisonment, the
term that it would specify as the appropriate custodial term would be at least
four years.
[1446]
Inserted by section 124 of the
Legal Aid, Sentencing and Punishment of Offenders Act 2012.
[1447]
Section 226B of the Criminal
Justice Act 2003 provides for a comparable extended detention regime which
is applicable to offenders under the age of 18 years, who are convicted of a
specified violent or sexual offence.
[1448]
A “specified violent offence”
is defined by section 224 of the Criminal Justice Act 2003 as an offence
specified in Part 1 of Schedule 15 to the Act. Among the offences listed
in that Part are: (i) manslaughter; (ii) false imprisonment; (iii)
threats to kill; (v) robbery or assault with intent to rob; and (v) attempted
murder or conspiracy to commit murder. Section 226A(10) and Section
226B(8) of the Criminal Justice Act 2003 clarify that references to a
“specified violent offence” include an offence that was abolished before 4
April 2005, and which would have constituted such an offence if committed on
the day on which the offender was convicted of the offence.
[1449]
A “specified sexual offence”
is defined by section 224 of the Criminal Justice Act 2003 as an offence
specified in Part 2 of Schedule 15 to the Act. Among the offences listed
in that Part are: (i) rape; (ii) intercourse with girl under 16; (iii) incest;
(iv) indecent assault; and (v) keeping a brothel. Section 226A(10) and
Section 226B(8) of the Criminal Justice Act 2003 clarify that references
to a “specified sexual offence” include an offence that was abolished before 4
April 2005, and which would have constituted such an offence if committed on
the day on which the offender was convicted of the offence.
[1450]
The Act specifies that the
extension period must be a period of such length as the court considers
necessary for the purpose of protecting members of the public from serious harm
occasioned by the commission by the offender of further specified
offences. However, in the case of a specified violent offence, the
extension period may not exceed five years, while in the case of a specified
sexual offence it may not exceed 8 years. Furthermore, the term of an
extended sentence of imprisonment must not exceed the term that, at the time
the offence was committed, was the maximum term permitted for the offence.
[1451]
Inserted by section 125 of the
Legal Aid, Sentencing and Punishment of Offenders Act 2012.
[1452]
Thomas “The Legal Aid, Sentencing
and Punishment of Offenders Act 2012: The Sentencing Provisions” (2012) 8
Criminal Law Review 572 at 576; and Picton “The Effect of the Changes in
Sentencing of Dangerous Offenders Brought About by the Legal Aid, Sentencing
and Punishment of Offenders Act 2012 and the Mystery of Schedule 15B” (2013) 5
Criminal Law Review 406 at 409.
[1453]
Inserted by section 2(1) of
the Crime and Punishment (Scotland) Act 1997.
[1454]
Section 205B(2) of the Criminal
Procedure (Scotland) Act 1995.
[1455]
Section 205B(1)(b)(iii) of the
Criminal Procedure (Scotland) Act 1995.
[1456]
Section 205(B)(1)(c) of the Criminal
Procedure (Scotland) Act 1995.
[1457]
Section 205(B)(3) of the Criminal
Procedure (Scotland) Act 1995.
[1458]
Bazelon “Arguing Three
Strikes” New York Times 21 May 2010; and Chemerinsky “Cruel and Unusual: The
Story of Leandro Andrade” (2003-2004) 52(1) Drake Law Review 1 at 5.
[1459]
Stemen, Rengifo and Wilson Of
Fragmentation and Ferment: The Impact of State Sentencing Policies on
Incarceration Rates, 1975-2002 (Vera Institute of Justice, 2005) at 107.
[1460]
Schiraldi, Colburn and Lotke, Three
Strikes and You’re Out: An Examination of the Impact of 3-Strike Laws 10 Years
after their Enactment (Justice Policy Institute, 2004) at 4. The authors
note that as of 2004, California, Georgia and Florida were the only states to
have imprisoned more than 400 people under their three-strikes provisions.
[1461]
RCW 9.94A.030 provides, at
paragraph (32), that more than 20 felonies - and attempts to commit these
felonies - may qualify as strike offences. These include various forms of
assault (including assault in the second degree and assault of a child in the
second degree), homicide offences (including first degree and second degree
manslaughter and controlled substance homicide), sexual offences (including
third degree rape and sexual exploitation), and vehicular offences (including
certain forms of vehicular homicide and vehicular assault).
[1462]
RCW 9.94A.570 specifies that a
mandatory life sentence without the possibility of release is the penalty
applicable to ‘persistent offenders’ (as defined by RCW 9.94A.030, see below).
[1463]
RCW 9.94A.030, at paragraph
(32), sub-paragraph (u).
[1464]
Ibid.
[1465]
RCW 9.94A.030, paragraph
(37)(a)(ii).
[1466]
Austin, Clark, Hardyman and
Henry Three Strikes and You’re Out: The Implementation and Impact of Strike
Laws (National Criminal Justice Reference Service, 2000) at 15.
[1467]
RCW 9.94A.030, paragraph (37),
sub-paragraph (b)(i) lists the relevant sexual offences as follows: (a) rape in
the first degree; (b) rape of a child in the first degree; (c) child
molestation in the first degree; (d) rape in the second degree; (e) rape of a child
in the second degree; and (e) indecent liberties by forcible compulsion.
Where a finding of sexual motivation is made, the following offences also
qualify: (a) murder in the first degree; (b) murder in the second degree; (c)
homicide by abuse; (d) kidnapping in the first degree; (e) kidnapping in the
second degree; (f) assault in the first degree; (g) assault in the second
degree; (h) assault of a child in the first degree; (i) assault of a child in
the second degree; (j) burglary in the first degree; and (k) an attempt to
commit any of the foregoing crimes.
[1468]
RCW 9.94A.030, paragraph
(37)(b)(i) and paragraph (37)(b)(ii).
[1469]
RCW 9.94A.570.
[1470]
O’Hagan “Three-strikes life
terms fewer than expected” Seattle Times 17 August 2004.
[1471]
Ibid; and McCarthy Recent
Developments on Washington’s “Three Strikes” Law (Office of Legislative
Research, 2009).
[1472]
McCarthy Recent
Developments on Washington’s “Three Strikes” Law (Office of Legislative
Research, 2009); Shapiro “Life in Prison for Stealing
$48?: Rethinking Second-Degree Robbery as a Strike Offense in Washington State”
(2010-2011) 34(3) Seattle University Law Review 935; and Lee and Colgan Washington's
Three Strikes Law: Public Safety & Cost Implications of Life Without Parole
(Columbia Legal Services, 2011).
[1473]
This sentencing regime is also
provided for by section 1170.12 of the Penal Code. The latter contains a
nearly identical version of the ‘strike law’ enacted by the legislature, and
was enacted by voters under Proposition 184 on 8 November 1994.
[1474]
For the purposes of this
regime, more than 23 “violent felonies” are listed in section 667.5(c) of the Penal
Code.
[1475]
For the purposes of this
regime, more than 40 “serious felonies” are listed in section 1192.7(c) of the Penal
Code.
[1476]
Section 667(e)(1) of the Penal
Code.
[1477]
Section 667(c)(5) of the Penal
Code.
[1478]
Section 2933.1 of the Penal
Code.
[1479]
Section 667(e)(2A) of the Penal
Code.
[1480]
See, for example: Lockyer v
Andrade 583 US 63 (2003) in which the United States Supreme Court upheld a
sentence of 50 years’ imprisonment , imposed for a third strike offence which
consisted of the theft of five children’s video tapes. For critical commentary,
see: Chemerinsky “Cruel and Unusual: The Story of Leandro Andrade”
(2003-2004) 52(1) Drake Law Review 1; Grosskreutz “Strike Three: Even Though
California’s Three Strikes Law Strikes out Andrade, There are no Winners in
this Game” (2003-2004) 43 Washburn Law Journal 429; and Trevino “Andrade v
Attorney General of California: Gross Disproportionality in Sentencing - A
Standard for Reviewing Eighth Amendment Challenges on Cruel and Unusual
Punishments” (2004) 29(1) Oklahoma City University Law Review 463.
[1481]
See, for example: Goldin
“California Three Strikes Law: A Violation of International Law and a Possible
Impediment to Extradition” (2009) 15(2) Southwestern Journal of International
Law 327 at 330; Samaha Criminal Law (Cengage Learning, 2010) at
67; and Mackey and Levan Crime Prevention (Jones and Bartlett
Publishers, 2011) at 240.
[1482]
Sankin “California Prop 36,
Measure Reforming State’s Three Strikes law Approved by Wide Majority of
Voters” 7 November 2012. Available at: www.huffingtonpost.com/2012/11/07/california-prop-36_n_2089179.html
[Last accessed: 22 May 2013].
[1483]
Section 667(e)(C) of the Penal
Code.
[1484]
Section 667(c) of the Penal
Code.
[1485]
Section 667(c) of the Penal
Code.
[1486]
California Department of
Corrections and Rehabilitation: Inmates Sentenced under the Three Strikes Law
and a Small Number of Inmates Receiving Specialty Health Care Represent
Significant Costs (California State Auditor, 2010) at 27.
[1487]
See, for example: Grosskreutz
“Strike Three: Even Though California’s Three Strikes Law Strikes out Andrade,
There are no Winners in this Game” (2003-2004) 43 Washburn Law Journal 429 at
454-455; and California Department of Corrections and Rehabilitation: Inmates
Sentenced under the Three Strikes Law and a Small Number of Inmates Receiving
Specialty Health Care Represent Significant Costs (California State
Auditor, 2010) at 30.
[1488]
California Department of
Corrections and Rehabilitation: Inmates Sentenced under the Three Strikes Law
and a Small Number of Inmates Receiving Specialty Health Care Represent
Significant Costs (California State Auditor, 2010) at 21.
[1489] Section
667.7(a) lists at least 20 offences which may trigger this regime. These
include: various homicide offences (including murder and manslaughter); sexual
offences (including various forms of rape); assault offences (including assault
with intent to commit murder and assault with a deadly weapon); and violent
property offences (including robbery involving the use of force or a deadly
weapon and carjacking involving the use of a deadly weapon).
[1490]
The following offences are
listed under section 667.71: “(a)
rape… ; (b) spousal rape… ; (c) rape, spousal rape, or sexual penetration, in
concert, in violation of section 264.1; (4) Lewd or lascivious act… ; (5)
sexual penetration, in violation of subdivision (a) or (j) of Section 289; (6)
continuous sexual abuse of a child… (7) sodomy… (8) oral copulation, in
violation of subdivision (c) or (d) of Section 288a; (9) kidnapping, in
violation of subdivision (b) of section 207; (10) kidnapping… to commit
specified sex offenses… ; (11) kidnapping… with the intent to commit a
specified sexual offense ; (12) aggravated sexual assault of a child… ; and
(13) an offense committed in another jurisdiction that includes all of the
elements of an offense specified in this subdivision.”
[1491]
See: Bill Lockyer,
Attorney General, Opinion No. 99-322 (22 December 1999) at 2-3.
[1492]
Heyer “Comparing the Strike Zones of “Three Strikes
and You’re Out” Laws for California and Georgia, the Nation’s Two
Heaviest Hitters” (2012) 45 Suffolk University Law Review 1217 at 1237.
[1493]
Ibid at 1238.
[1494]
A “serious violent felony”
means: (i) a Federal or State offence, by whatever
designation and wherever committed, consisting of murder...; manslaughter other
than involuntary manslaughter...; assault with intent to commit murder...;
assault with intent to commit rape; aggravated sexual abuse and sexual
abuse...; abusive sexual contact...; kidnapping; aircraft piracy...; robbery
[subject to subsection 3559(c)(3)(A)]...; carjacking...; extortion; arson [subsection
3559(c)(3)(B)]; firearms use; firearms possession...; or
attempt, conspiracy, or solicitation to commit any of the above offenses; and (ii)
[subject to subsection 3559(c)(3)(A)] any other offense
punishable by a maximum term of imprisonment of 10 years or more that has as an
element the use, attempted use, or threatened use of physical force against the
person of another or that, by its nature, involves a substantial risk that
physical force against the person of another may be used in the course of
committing the offense.
[1495]
A “serious drug offence” means: (i) an offense that is punishable under section 401(b)(1)(A) or 408
of the Controlled Substances Act (21 U.S.C. 841 (b)(1)(A), 848)
or section 1010(b)(1)(A) of the Controlled Substances Import and Export Act (21 U.S.C. 960 (b)(1)(A)); or (ii)
an offense under State law that, had the offense been
prosecuted in a court of the United States, would have been punishable under
section 401(b)(1)(A) or 408 of the Controlled Substances Act (21 U.S.C. 841 (b)(1)(A), 848)
or section 1010(b)(1)(A) of the Controlled Substances Import and Export Act (21 U.S.C. 960 (b)(1)(A)).
[1496]
The term
“Federal sex offence” means an offense under section 1591 (relating to sex trafficking of children); section 2241
(relating to aggravated sexual abuse); section 2242 (relating to sexual abuse);
section 2244(a)(1) (relating to abusive sexual contact); section 2245 (relating
to sexual abuse resulting in death); section 2251 (relating to sexual
exploitation of children); section 2251A (relating to selling or buying of
children); section 2422(b) (relating to coercion and enticement of a minor into
prostitution) [subject to section 3559(e)(3)]; or section 2423(a) (relating to
transportation of minors) [subject to section 3559(e)(3)].
[1497]
A conviction for any of
the offences listed above in paragraphs 5.62 to 5.64 will be recognised as a
‘previous conviction’ where an offender is being sentenced for an offence
listed in paragraphs 5.62 - 5.63. However, where an offender is being
sentenced for using a firearm in the commission of one of the violent offences
listed in the paragraph 5.64, only a prior conviction for using a firearm in
the commission of such an offence will constitute a ‘previous conviction.’
[1498]
Section 92(1) of the Criminal
Code.
[1499]
Section 92(2) of the Criminal
Code.
[1500]
Section 85(1) of the Criminal
Code.
[1501]
Section 85(2) of the Criminal
Code.
[1502]
Section 95(1) of the Criminal
Code.
[1503]
Section 99(1) of the Criminal
Code.
[1504]
Section 100(1) of the Criminal
Code.
[1505]
Section 103(2) of the Criminal
Code.
[1506]
Raaflaub Legislative Summary
LS-525E: Bill C-10: An Act to Amend the Criminal Code (Minimum Penalties for
Offences involving Firearms) and to Make a Consequential Amendment to another
Act (Parliamentary Information and Research Service, 2007) at 10.
Available at: www.parl.gc.ca/Content/LOP/LegislativeSummaries/39/1/c10-e.pdf
[Last accessed: 22 May 2013].
[1507]
Section 239 of the Penal Code.
[1508]
Section 244 of the Penal Code.
[1509]
Section 244.2 of the Penal Code.
[1510]
Section 272 of the Penal Code.
[1511]
Section 273 of the Penal Code.
[1512]
Section 279 of the Penal Code.
[1513]
Section 279.1 of the Penal Code.
[1514]
Section 344 of the Penal Code.
[1515]
Section 346 of the Penal Code.
[1516]
Section 4(2) clarifies that this
regime may also apply in respect of an offender convicted summarily of an
indictable offence punishable summarily only with his or her consent (provided
that the other necessary criteria are fulfilled). Where such an offender
is convicted summarily before a Magistrate, the Magistrate may - in addition to
passing sentence for the instant crime - direct that an application be made by
a registrar of the District Court to a judge to have the offender pronounced to
be an habitual offender.
[1517]
Section 4(3) of the Habitual
Criminals Act 1957 clarifies that this sentencing regime may apply
regardless of whether the previous convictions or terms of imprisonment took
place in New South Wales and regardless of whether they occurred before or
after the commencement of the Act. The regime may also apply irrespective
of whether any previous term of imprisonment was served as a consequence of a
conviction for an indictable offence committed before or after any previous
pronouncement of the individual as a habitual offender under this Act, or the Habitual
Criminals Act 1905–1952. For the purposes of this regime, “indictable
offences” will not, however, include indictable offences that were dealt with
summarily without the consent of the offender.
[1518]
Judicial Commission of New South
Wales Sentencing Bench Book at paragraph 2-250. Available at: www.judcom.nsw.gov.au/publications/benchbks/sentencing/purposes_of_sentencing.html#content
[Last accessed: 22 May 2013].
[1519]
A “violent offence” is defined by
subdivision 1 of Division 6A of the Sentencing Act (as replaced by
section 6 of the Sentencing Amendment (Mandatory Minimum Sentences) Act 2013)
as: (a) an offence against a provision of the Criminal Code listed in
Schedule 2; or (b) an offence which substantially corresponds to such an
offence under (i) a law that has been repealed; or (ii) a law of another
jurisdiction (including a jurisdiction outside Australia). The offences
listed in Schedule 2 include terrorism, manslaughter, attempted murder, common
assault, unlawful stalking and robbery.
[1520]
A “Level 5” offence is defined as
including the following offences under the Criminal Code: (a) causing serious
harm under section 181; or (b) causing harm under section 186; common assault
under section 188 (if the offence is committed in circumstances mentioned in
section 188(2), other than paragraph (k)), assault on a worker under 188A;
assault on police officer under section 189A; assault on administrator or judge
or magistrate under section 190; assault on member of aircraft crew under
section 191; assault with intent to commit an offence under section 193; or
assault with intent to steal under section 212, if (i) commission of the
offence involves the actual or threatened use of an offensive weapon; and (ii)
the victim suffers physical harm as a result of the offence.
[1521]
Section 78DA of the Sentencing Act,
inserted by section 6 of the Sentencing Amendment (Mandatory Minimum
Sentences) Act 2013.
[1522]
A “Level 3” offence is defined as an
offence against section 188 of the Criminal Code [common assault] if the
offence: (a) is committed in circumstances mentioned in section 188(2), other
than paragraph (k); and (b) the offence is not a “Level 5” offence.
[1523]
Section 78DD of the Sentencing Act,
inserted by section 6 of the Sentencing Amendment (Mandatory Minimum
Sentences) Act 2013.
[1524]
A “Level 1” offence is defined as “any
other violent offence” which does not fall within the scope of the definitions
provided for “Level 5”, “Level 4”, “Level 3” and “Level 2” offences.
[1525]
Section 78DF of the Sentencing Act,
inserted by section 6 of the Sentencing Amendment (Mandatory Minimum
Sentences) Act 2013.
[1526] See: section 78DG(c)
and section 78DH(c) of the Sentencing Act, inserted by section 6 of the Sentencing
Amendment (Mandatory Minimum Sentences) Act 2013.
[1527]
Section 78DI of the Sentencing Act,
inserted by section 6 of the Sentencing Amendment (Mandatory Minimum
Sentences) Act 2013.
[1528]
Ibid.
[1529]
Ibid.
[1530]
See: section 78DH(2) of the Sentencing
Act, inserted by section 6 of the Sentencing Amendment (Mandatory
Minimum Sentences) Act 2013.
[1531]
See: section 78DI(2)(b) and section
78DH(2)(b) of the Sentencing Act, inserted by section 6 of the Sentencing
Amendment (Mandatory Minimum Sentences) Act 2013.
[1532]
Section 121(3) of the Domestic
and Family Violence Act 2007. This provision came into force on 1 July 2008.
Under previous legislation there was no proviso regarding the non-application
of the presumptive minimum sentence.
[1533]
Inserted by Part 3 of the Criminal
Law (Two Strike Child Sex Offenders) Amendment Act 2012.
[1534]
The offences listed in Schedule 1A
are: (i) unlawful sodomy; (ii) owner etc. permitting abuse of children on
premises; (iii) carnal knowledge with or of children under 16; (iv) taking
child for immoral purposes; (v) incest; (vi) maintaining a sexual relationship
with a child; (vii) rape; (viii) sexual assaults; (ix) unlawful anal
intercourse; (x) incest by man; and (xi) carnal knowledge of girls under
16.
[1535]
Section 161D of the Penalties and
Sentences Act 1992, inserted by Part 9B of the Criminal Law (Two Strike
Child Sex Offenders) Amendment Act 2012.
[1536]
Section 161E of the Penalties and
Sentences Act 1992, inserted by Part 9B of the Criminal Law (Two Strike
Child Sex Offenders) Amendment Act 2012.
[1537]
Section 161E(1)(a) of the Penalties
and Sentence Act 1992, inserted by Part 9B of the Criminal Law (Two
Strike Child Sex Offenders) Amendment Act 2012.
[1538]
Section 161E(2) of the Penalties
and Sentence Act 1992, inserted by Part 9B of the Criminal Law (Two
Strike Child Sex Offenders) Amendment Act 2012.
[1539]
See: Legal Affairs and
Community Safety Committee Criminal Law (Two Strike Child Sex Offenders)
Amendment Bill 2012 Report No 2 (July 2012) at 4. Available at: www.parliament.qld.gov.au/documents/committees/LACSC/2012/CriminalLawChildSexOffenders/rpt2-July2012.pdf
[Last accessed: 22 May 2013].
[1540]
Ibid.
[1541]
Ibid at 25-26.
Available at: www.parliament.qld.gov.au/documents/committees/LACSC/2012/CriminalLawChildSexOffenders/rpt2-July2012.pdf
[Last accessed: 22 May 2013].
[1542]
Queensland Police Service Submission
on the Criminal Law (Two Strikes Child Sex Offenders) Amendment Bill
2012 (28 June 2012). Available at: www.parliament.qld.gov.au/documents/committees/LACSC/2012/CriminalLawChildSexOffenders/submissions/016-QPS.pdf
[Last accessed: 22 May 2013].
[1543]
See: Legal Affairs and
Community Safety Committee Criminal Law (Two Strike Child Sex Offenders)
Amendment Bill 2012 Report No 2 (July 2012) at 40-42. Available at: www.parliament.qld.gov.au/documents/committees/LACSC/2012/CriminalLawChildSexOffenders/rpt2-July2012.pdf
[Last accessed: 22 May 2013].
[1544]
Division 2A also establishes a
parallel sentencing regime whereby a youth may be declared to be a “recidivist
young offender.”
[1545]
Section 20A of the Criminal Law
(Sentencing) Act 1988 defines a “serious offence” as: (a) a serious drugs
offence; (ab) an offence against a law of the Commonwealth dealing with the
unlawful importation of drugs into Australia; (b) one of the following
offences: (i) an offence under Part 3 of the Criminal Law Consolidation Act
1935; (ii) robbery or aggravated robbery; (iii) home invasion; (iv) damage
to property by fire or explosives; (v) causing a bushfire; (vi) an offence
against a corresponding previous enactment substantially similar to any of the
foregoing offences; (v) a conspiracy or attempt to commit any of the foregoing
offences; (c) an offence that is committed in circumstances in which the
offender uses violence or a threat of violence for the purpose of committing
the offence, in the course of committing the offence, or for the purpose of
escaping from the scene of the offence; or (d) an offence against the law of
another State or a Territory that would, if committed in this State, be a
serious offence.
[1546]
Section 20A of the Criminal Law
(Sentencing) Act 1988 defines a “serious sexual offence” as any of the
following serious offences: (i) an offence against section 48, 48A, 49, 50, 56,
58, 59, 60, 63, 63B, 66, 67, 68 or 72 of the Criminal Law Consolidation Act
1935; (ia) an offence against a corresponding previous enactment
substantially similar to any of the aforementioned offences; (ii) an attempt to
commit or an assault with intent to commit any of those offences; or (b) an
offence against the law of another State or a Territory corresponding to any of
the aforementioned offences.
[1547]
Section 6D of the Sentencing Act
1991.
[1548]
Morgan, Blagg and Williams Mandatory Sentencing in Western
Australia and the Impact on Aboriginal Youth (Aboriginal Justice Council, December 2001).
[1549]
Section 86A to section 86I of the Sentencing
Act 2002, inserted by section 6 of the Sentencing and Parole Reform Act
2010.
[1550]
Under
section 86A, a “serious violent offence” is defined as including 40 separate offences. Among those listed
are various serious sexual offences (including forms of sexual violation and
indecent assault); homicide offences (including murder and manslaughter);
assault offences (including wounding with intent to injure and aggravated
injury); and property offences (including aggravated burglary and
robbery).
[1551]
The Sentencing and Parole Reform
Act 2010 was passed with 63 votes in favour and 58 votes against. The
Labour, Green, Maori and United Future Parties opposed the legislation while
the National and ACT Parties supported it. Oleson “New Zealand’s
Three-Strikes Law”. Presentation delivered at Stockholm Criminology Symposium,
13 June 2012. Overview available at: www.criminologysymposium.com/download/18.4dfe0028139b9a0cf4080001588/WED11+Oleson,+James.pdf
[Last accessed: 22 May 2013].
[1552]
Hansard, Questions to Ministers,
“Three Strikes Legislation” - Reasons for Government Support, 4 May 2010, Vol
662, Page 10653.
[1553]
See, for example: Rethinking
Crime and Punishment “Submission on the Sentencing and Parole Reform Bill”
March 2010. Available at: www.rethinking.org.nz/images/newsletter%20PDF/Issue%2070/06%20Final%20Second%20Submission%20Sentencing%20and%20Parole%20Reform%20%20Bill.pdf
[Last accessed: 22 May 2013]; New Zealand Law Society “Submission on Sentencing
and Parole Reform Bill (Revised)” March 2010. Available at: www.lawsociety.org.nz/__data/assets/pdf_file/0018/20817/sentencing-and-parole-reform-bill.pdf
[Last accessed: 22 May 2013]; and New Zealand Human Rights Commission
“Submission on the Sentencing and Parole Reform Bill” 5 March 2010.
Available at: www.hrc.co.nz/hrc_new/hrc/cms/files/documents/19-Mar-2010_15-38-41_Sentencing_and_Parole_Reform_Submission_2__Final.pdf
[Last accessed: 22 May 2013].
[1554] See: Oleson
“New Zealand’s Three-Strikes Law”. Presentation delivered at Stockholm
Criminology Symposium, 13 June 2012. Overview available at: www.criminologysymposium.com/download/18.4dfe0028139b9a0cf4080001588/WED11+Oleson,+James.pdf
[Last Accessed: 22 May 2013]; and Collins “Maori, Pacific offenders high
on three-strikes watch” The New Zealand Herald 3 December 2012.
[1555]
Kazemian “Assessing the Impact of a
Recidivist Sentencing Premium” in Roberts and von Hirsch, eds, Previous
Convictions at Sentencing: Theoretical and Applied Perspectives (Oxford:
Hart, 2010) at 241.
[1556]
O’Malley Sentencing - Towards a
Coherent System (Round Hall, 2011) at 66.
[1557]
See: Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System (United
States Sentencing Commission, 2011) at 346.
[1558]
Rand Corporation “Are Mandatory
Minimum Drug Sentences Cost-Effective?” 1997. See also: Irish Penal
Reform Trust Mandatory Sentencing (IPRT Position Paper 3, 2009).
[1559]
Law Reform Commission Consultation Paper on Mandatory Sentences
(LRC CP 66-2011) at paragraph 1.66