CONSULTATION PAPER
(LRC CP 66 - 2011)
© Copyright
Law Reform Commission
FIRST PUBLISHED
December 2011
ISSN 1391-3140
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 160 documents (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 2008-2014 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 also works on specific matters
referred to it by the Attorney General under the 1975 Act.
The
Commission’s role also involves making legislation more accessible through
three other related areas of activity, Statute Law Restatement, the Legislation
Directory and the Classified List of Legislation in Ireland. Statute Law
Restatement involves the administrative consolidation of all amendments to an
Act into a single text, making legislation more accessible. Under the Statute
Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on
as evidence of the law in question. The Legislation Directory - previously
called the Chronological Tables of the Statutes - is a searchable annotated
guide to legislative changes. The Classified List of Legislation in Ireland is
a list of all Acts of the Oireachtas that remain in force, organised under 36
major subject-matter headings.
Membership
The Law Reform Commission consists of a President, one
full-time Commissioner and three part-time Commissioners.
The Commissioners at present are:
President:
Vacant at the time of going to print (December
2011)
Full-time Commissioner:
Patricia T. Rickard-Clarke, Solicitor
Part-time Commissioner:
Professor Finbarr McAuley
Part-time Commissioner:
Marian Shanley, Solicitor
Part-time Commissioner:
The Hon Mr Justice Donal O’Donnell, Judge of the
Supreme Court
Law Reform Research Staff
Director
of Research:
Raymond
Byrne BCL, LLM (NUI), Barrister-at-Law
Legal
Researchers:
Kate Clancy, LLB (Hons) (TCD)
Conor Cunningham BCL (Clinical) (NUI), LLM (UCL)
Dannie Hanna BCL (NUI), LLM (Cantab)
Donna Lyons LLB (Dub), LLM (NYU), Attorney at Law
(NY)
Tara Murphy BCL (Law with French Law) (NUI), LLM
(Essex), Barrister-at-Law
Máire Reidy BCL (NUI), LLM (NUI), Barrister-at-Law
Statute
Law Restatement
Project
Manager for Restatement:
Alma
Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
Legal
Researcher:
Elaine
Cahill, BBLS, LLM Eur Law (NUI), Dipl. IP & IT, Solicitor
Legislation
Directory
Project
Manager for Legislation Directory:
Heather
Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law
Legal
Researchers:
Aoife Clarke BA (Int.), LLB, LLM (NUI)
Barbara Brown BA (Int.), LLB, Attorney-at-Law (NY)
Rachel Kemp BCL (Law and German) LLM (NUI)
Aileen O’Leary BCL, LLM, AITI, Solicitor
Administration Staff
Head of Administration and Development:
Ciara
Carberry
Executive
Officer:
Ann
Byrne
Legal
Information Manager:
Conor
Kennedy BA, H Dip LIS
Cataloguer:
Eithne
Boland BA (Hons), HDip Ed, HDip LIS, LLB
Clerical Officers:
Ann Browne
Liam
Dargan
Principal legal researcherS for this Consultation
Paper
Tara
Murphy BCL (Law with French Law), LLM (Essex), Barrister-at-Law
John
P Byrne, BCL, LLM, PhD (NUI), Barrister-at-Law
CONTACT DETAILS
Further information can be obtained from:
Head of Administration and
Development
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:
Liam
Herrick, Director,
Irish Penal Reform Trust
Ian
O’Donnell,
Institute of Criminology, University College Dublin
Jane
Mulcahy, Irish
Penal Reform Trust
Tom
O’Malley, Senior
Lecturer in Law, NUI Galway
Full
responsibility for this publication lies, however, with the Commission.
Table of Legislation xiii
Table of Cases xix
A Background: Request by the Attorney General on
Mandatory Sentences
C Scope of the Attorney General’s Request: “Mandatory
Sentences”
D Outline of the Consultation Paper
CHAPTER
1 CONCEPTUAL
FRAMEWORK FOR criminal sanctions and Sentencing
C Principles of Criminal Sanctions
D Deficiencies in the Irish Sentencing System
(2) Potential Breach of the Humanitarian Principle
(3) Potential Breach of the Justice Principle
(4) Potential Breach of the Economic Principle
E The Current Position in Ireland on Structured
Sentencing and Sentencing Guidelines
(2) The Irish Sentencing Information System (ISIS)
G Conclusions and the Commission’s General Approach
CHAPTER
2 Entirely
Mandatory Sentences
B Abolition of the Death Penalty
C Section 2, Criminal Justice Act 1990
(2) Constitutionality of Section 2 of the Criminal
Justice Act 1990
(3) Constitutionality of Temporary Release
(4) Compatibility with the European Convention on Human
Rights
D Section 4, Criminal Justice Act 1990
F Conclusions and Provisional Recommendations
(1) Extension of the mandatory sentence
(2) The mandatory sentence for murder and a specific
minimum term at sentencing stage
CHAPTER
3 MANDATORY
MINIMUM SENTENCES SUBJECT TO EXCEPTIONS
B Offences under the Misuse of Drugs Act 1977
E Conclusions and Provisional Recommendations
(1) Possible extension of presumptive sentencing regimes
(2) Provisional recommendations on drugs and firearms
presumptive sentencing regimes
CHAPTER
4 MANDATORY
SENTENCES FOR SECOND OR SUBSEQUENT OFFENCES
B Increased Penalties for Second or Subsequent
Offences
H Conclusions and Provisional Recommendations
CHAPTER
5 Summary
of PROVISIONAL Recommendations
|
|
|
Pg No. |
|
|
1989 No 119 |
NZ |
147 |
|
|
Acts Amendment (Abolition of Capital Punishment) Act 1984 (WA) |
No 52 of 1984 |
Aus |
145 |
|
Annotated Code of Montana |
|
US |
137 |
|
Australia Act 1986 (CW) |
No 142 of 1985 |
Aus |
147 |
|
Bail Act 1997 |
No 16 of 1997 |
Irl |
273 |
|
Code of Arkansas |
|
US |
137 |
|
Code of Criminal Procedure of Alaska |
|
US |
140 |
|
Code of Delaware |
|
US |
137 |
|
Code of Georgia |
|
US |
137 |
|
Code of Indiana |
|
US |
137 |
|
Code of Iowa |
|
US |
140 |
|
Code of Laws of South Carolina |
|
US |
137 |
|
Code of Maryland |
|
US |
137 |
|
Code of Mississippi |
|
US |
137 |
|
Code of Tennessee |
|
US |
137 |
|
Code of the United States |
|
US |
137 |
|
Code of Virginia |
|
US |
137 |
|
Code of Wyoming |
|
US |
137 |
|
Codified Laws of South Dakota |
|
US |
137 |
|
Compiled Statutes of Illinois |
|
US |
137 |
|
Consolidated Statutes of Pennsylvania |
|
US |
137 |
|
Constitution Act 1867 |
c 3 |
UK |
142 |
|
Controlled Drugs and Substances Act 1996 |
SC 1996, c 19 |
Can |
250 |
|
Convention Rights (Compliance) Scotland Act 2001 |
2001 asp 7 |
Scot |
135 |
|
Corrections and Conditional Release Act 1992 |
c 20 |
Can |
143 |
|
Corrective Services Act 2006 (QL) |
|
Aus |
146 |
|
Courts (No 2) Act 1986 |
No 26 of 1986 |
Irl |
36 |
|
Courts of Justice Act 1924 |
No 10 of 1924 |
Irl |
163 |
|
Crime (Sentence Administration) Act 2005 (ACT) |
No 59 of 2005 |
Aus |
147 |
|
Crime (Sentences) Act 1997 |
c 43 |
UK |
133 |
|
Crime and Punishment (Scotland) Act 1997 |
c 48 |
Scot |
135 |
|
Crimes (Amendment) Act 1955 (NSW) |
No 16 of 1955 |
Aus |
145 |
|
Crimes (Appeal and Review) Act 2001 (NSW) |
No 120 of 2001 |
Aus |
147 |
|
Crimes (Capital Offences) Act 1975 (V) |
No 8679 of 1975 |
Aus |
145 |
|
Crimes (Sentencing Procedure) Act 1999 (NSW) |
No 92 of 1999 |
Aus |
92 |
|
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) |
No 90 of 2002 |
Aus |
254 |
|
Crimes (Sentencing) Act 2005 (ACT) |
No 58 of 2005 |
Aus |
146 |
|
Crimes Act 1900 |
No 40 of 1900 (NSW) |
Aus |
146 |
|
Crimes Act 1900 (ACT) |
A1900-40 |
Aus |
146 |
|
Crimes Act 1914 (CW) |
No 12 of 1914 |
Aus |
147 |
|
Crimes Act 1958 (V) |
No 6231 of 1958 |
Aus |
146 |
|
Crimes Act 1961 |
1961 No 43 |
NZ |
147 |
|
Crimes Amendment Act 1941 |
1941 No 10 |
NZ |
147 |
|
Criminal Appeal Act 1907 |
|
Irl |
3 |
|
Criminal Assets Bureau Act 1996 |
No 31 of 1996 |
Irl |
208 |
|
Criminal Code Act (NT) |
|
Aus |
146 |
|
Criminal Code Act 1899 (QL) |
|
Aus |
146 |
|
Criminal Code Act 1924 (T) |
No 69 of 1924 |
Aus |
146 |
|
Criminal Code Act 1968 (T) |
|
Aus |
145 |
|
Criminal Code Act 1995 (CW) |
No 12 of 1995 |
Aus |
146 |
|
Criminal Code Act Compilation Act 1913 (WA) |
No 28 of 1913 |
Aus |
146 |
|
Criminal Code Amendment Act 1922 (QL) |
13 Geo V No 2 |
Aus |
145 |
|
Criminal Code of Alabama 1975 |
|
US |
137 |
|
Criminal Code of Arizona |
|
US |
137 |
|
Criminal Code of Canada |
c C-46 |
Can |
100 |
|
Criminal Code of Colorado |
|
US |
137 |
|
Criminal Code of Illinois |
|
US |
137 |
|
Criminal Code of Maine |
|
US |
140 |
|
Criminal Code of New Hampshire |
|
US |
137 |
|
Criminal Code of Utah |
|
US |
137 |
|
Criminal Justice (Community Service) (Amendment) Act 2011 |
No 24 of 2011 |
Irl |
36 |
|
Criminal Justice (Community Service) Act 1983 |
No 23 of 1983 |
Irl |
36 |
|
Criminal Justice (Drug Trafficking) Act 1996 |
No 29 of 1996 |
Irl |
159 |
|
Criminal Justice (Miscellaneous Provisions) Act 1997 |
No 4 of 1997 |
Irl |
109 |
|
Criminal Justice (Northern Ireland) Order 2008 |
No 1216 of 2008 (NI 1) |
NI |
131 |
|
Criminal Justice (Scotland) Act 2003 |
2003 asp 7 |
Scot |
135 |
|
Criminal Justice (Temporary Release of Prisoners) Act 2003 |
No 34 of 2003 |
Irl |
110 |
|
Criminal Justice (Terrorist Offences) Act 2005 |
No 2 of 2005 |
Irl |
224 |
|
Criminal Justice (Theft and Fraud Offences) Act 2001 |
No 50 of 2001 |
Irl |
43 |
|
Criminal Justice Act 1951 |
No 2 of 1951 |
Irl |
108 |
|
Criminal Justice Act 1960 |
No 27 of 1960 |
Irl |
109 |
|
Criminal Justice Act 1964 |
No 5 of 1964 |
Irl |
106 |
|
Criminal Justice Act 1984 |
No 22 of 1984 |
Irl |
263 |
|
Criminal Justice Act 1990 |
No. 16 of 1990 |
Irl |
40 |
|
Criminal Justice Act 1991 |
c 53 |
UK |
231 |
|
Criminal Justice Act 1999 |
No 10 of 1999 |
Irl |
58 |
|
Criminal Justice Act 2003 |
c 44 |
UK |
90 |
|
Criminal Justice Act 2006 |
No 26 of 2006 |
Irl |
74 |
|
Criminal Justice Act 2007 |
No 29 of 2007 |
Irl |
74 |
|
Criminal Justice and Immigration Act 2008 |
c 4 |
UK |
229 |
|
Criminal Justice and Licensing (Scotland) Act 2010 |
asp 13 of 2010 |
Scot |
242 |
|
Criminal Law (Sentencing) Act 1988 (SA) |
|
Aus |
94 |
|
Criminal Law Act 1976 |
No 32 of 1976 |
Irl |
263 |
|
Criminal Law Act 1997 |
No 14 of 1997 |
Irl |
273 |
|
Criminal Law Consolidation Act 1935 (SA) |
|
Aus |
146 |
|
Criminal Procedure (Scotland) Act 1995 |
c 46 |
Scot |
135 |
|
Criminal Records Act 1985 |
c C-47 |
Can |
144 |
|
Criminal Reform Amendment Act (No 2) 2006 (NT) |
No 34 of 2006 |
Aus |
146 |
|
Death Penalty Abolition Act 1973 (CW) |
No 100 of 1973 |
Aus |
145 |
|
Defence Act 1954 |
No 18 of 1954 |
Irl |
106 |
|
Domestic and Family Violence Act (NT) |
|
Aus |
255 |
|
Drug Trafficking Act 1994 |
c 37 |
UK |
229 |
|
Drugs Act 2005 |
c 17 |
UK |
230 |
|
Euro Changeover (Amounts) Act 2001 |
No 16 of 2001 |
Irl |
156 |
|
European Convention on Human Rights Act 2003 |
No 20 of 2003 |
Irl |
115 |
|
Fines Act 2010 |
No 8 of 2010 |
Irl |
36 |
|
Firearms (Amendment) (Northern Ireland) Order 2005 |
No 1966 of 2005 (NI 16) |
NI |
226 |
|
Firearms (Northern Ireland) Order 1981 |
No 3267 of 1992 |
NI |
227 |
|
Firearms (Northern Ireland) Order 2004 |
No 702 of 2004 (NI 3) |
NI |
226 |
|
Firearms Act 1925 |
No 17 of 1925 |
Irl |
206 |
|
Firearms Act 1964 |
No 1 of 1964 |
Irl |
205 |
|
Firearms Act 1968 |
c 27 |
UK |
234 |
|
Firearms and Offensive Weapons Act 1990 |
No 12 of 1990 |
Irl |
206 |
|
General Laws of Massachusetts |
|
US |
140 |
|
General Statutes of North Carolina |
|
US |
137 |
|
Habitual Felony Offender Act (Alabama) |
|
US |
244 |
|
Health and Safety etc at Work Act 1974 |
c 37 |
UK |
53 |
|
Human Rights Act 1998 |
c 42 |
Eng |
131 |
|
Human Rights Commission Act 2000 |
No 9 of 2000 |
Irl |
269 |
|
Judiciary Act 1903 (CW) |
No 6 of 1903 |
Aus |
97 |
|
Letters Patent Constituting the Office of Governor-General of New Zealand |
No 225 of 1983 |
NZ |
149 |
|
Life Sentences (Northern Ireland) Order 2001 |
No 2564 of 2001 (NI 2) |
NI |
131 |
|
Migration Act 1958 (CW) |
|
Aus |
256 |
|
Miscellaneous Acts (Death Penalty Abolition) Amendment Act 1985 (NSW) |
No 59 of 1985 |
Aus |
145 |
|
Misuse of Drugs Act (NT) |
|
Aus |
255 |
|
Misuse of Drugs Act 1971 |
c 38 |
1971 |
226 |
|
Misuse of Drugs Act 1977 |
No 12 of 1977 |
Irl |
58 |
|
Misuse of Drugs Act 1984 |
No 18 of 1984 |
Irl |
156 |
|
Murder (Abolition of the Death Penalty) Act 1965 |
c 71 |
UK |
132 |
|
Northern Ireland (Emergency Provisions) Act 1973 |
c 53 |
UK |
131 |
|
Northern Ireland Act 1998 |
c 48 |
UK |
132 |
|
Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 |
No 976 of 2010 |
NI |
132 |
|
Offences Against the Person Act 1861 |
c 100 |
Eng |
105 |
|
Offences Against the State (Amendment) Act 1972 |
No 26 of 1972 |
Irl |
224 |
|
Offences Against the State (Amendment) Act 1985 |
No 3 of 1985 |
Irl |
224 |
|
Offences Against the State (Amendment) Act 1998 |
No 39 of 1998 |
Irl |
224 |
|
Offences Against the State (Forfeiture) Act 1940 |
No 27 of 1940 |
Irl |
224 |
|
Offences Against the State (Forfeiture) Act 1941 |
No 21 of 1941 |
Irl |
224 |
|
Offences Against the State (Forfeiture) Act 1942 |
No 16 of 1942 |
Irl |
224 |
|
Offences Against the State Act 1939 |
No 13 of 1939 |
Irl |
39 |
|
Parole Act 2002 |
2002 No 10 |
NZ |
148 |
|
Penal Code of Connecticut |
|
US |
137 |
|
Penal Code of Hawaii |
|
US |
140 |
|
Penal Code of Kentucky |
|
US |
137 |
|
Penal Code of Oklahoma |
|
US |
137 |
|
Penal Code of Texas |
|
US |
137 |
|
Penalties and Sentences Act 1992 (QL) |
|
Aus |
255 |
|
Persistent Offender Accountability Act 1994 |
c 1 |
US |
291 |
|
Piracy Act 1837 |
7 Will 4 & 1 Vict c 88 |
Irl |
105 |
|
Powers of the Criminal Courts (Sentencing) Act 2000 |
c 6 |
Eng |
72 |
|
Prisoners and Criminal Proceedings (Scotland) Act 1993 |
c 9 |
UK |
135 |
|
Prisons (Ireland) Act 1907 |
7 Edw 7 c 19 |
Irl |
109 |
|
Prisons Act 2007 |
No 10 of 2007 |
Irl |
109 |
|
Probation of Offenders Act 1907 |
|
Irl |
3 |
|
Proceeds of Crime Act 1996 |
No 30 of 1996 |
Irl |
160 |
|
Proceeds of Crime Act 1996 |
No 30 of 1996 |
Irl |
208 |
|
Revised Code of Ohio |
|
US |
137 |
|
Revised Code of Washington |
|
US |
137 |
|
Revised Statutes of Florida |
|
US |
137 |
|
Revised Statutes of Idaho |
|
US |
137 |
|
Revised Statutes of Kentucky |
|
US |
137 |
|
Revised Statutes of Missouri |
|
US |
137 |
|
Revised Statutes of Nebraska |
|
US |
137 |
|
Revised Statutes of Nevada |
|
US |
137 |
|
Revised Statutes of New Hampshire |
|
US |
137 |
|
Revised Statutes of Oregon |
|
US |
137 |
|
Road Traffic Act 1961 |
No 24 of 1961 |
Irl |
212 |
|
Safety, Health and Welfare at Work Act 1989 |
No 7 of 1989 |
Irl |
52 |
|
Safety, Health and Welfare at Work Act 2005 |
No 10 of 2005 |
Irl |
52 |
|
Scotland Act 1998 |
c 46 |
UK |
136 |
|
Sentencing (Amendment) Act 2007 |
No 27 of 2007 |
NZ |
98 |
|
Sentencing Act (NT) |
|
Aus |
93 |
|
Sentencing Act (NT) |
|
Aus |
254 |
|
Sentencing Act 1991 (V) |
No 49 of 1991 |
Aus |
95 |
|
Sentencing Act 1995 (WA) |
No 76 of 1995 |
Aus |
96 |
|
Sentencing Act 1997 (T) |
No 59 of 1997 |
Aus |
94 |
|
Sentencing Act 2002 |
No 9 of 2002 |
NZ |
98 |
|
Sentencing and Parole Reform Act 2010 |
No 33 of 2010 |
NZ |
147 |
|
Statutes Amendment (Capital Punishment Abolition) Act 1976 (SA) |
No 115 of 1976 |
Aus |
145 |
|
Statutes of Alaska |
|
US |
140 |
|
Statutes of Kansas |
|
US |
137 |
|
Transfer of Sentenced Persons Act 1995 |
No 16 of 1995 |
Irl |
2 |
|
Treason Act 1939 |
No 10 of 1939 |
Irl |
105 |
|
Twenty-First Amendment of the Constitution Act 2001 |
|
Irl |
33 |
|
Unified Code of Corrections of Illinois |
|
US |
137 |
|
Violent Crime Reduction Act 2006 |
c 38 |
UK |
226 |
|
Youth Criminal Justice Act 2002 |
c 1 |
Can |
101 |
TABLE OF CASES
|
|
|
Pg No. |
|
|
Cox v Ireland |
[1992] 2 IR 503 |
Irl |
41 |
|
Deaton v Attorney General |
[1963] IR 170 |
Irl |
117 |
|
Dunne v Judge Coughlan |
High Court 25 April 2005 |
Irl |
46 |
|
English v Emery Reimbold & Strick Ltd |
Eng |
68 |
|
|
Garcia Ruiz v Spain |
21 January 1999 |
ECHR |
69 |
|
Heaney v Ireland |
[1994] 3 IR 593 |
Irl |
40 |
|
Helle v Finland |
ECHR |
69 |
|
|
Higgins v France |
ECHR |
69 |
|
|
Hussain v United Kingdom |
ECHR |
126 |
|
|
In the Matter of Article 26 of the Constitution and in the matter of the Employment Equality Bill 1996 |
Irl |
41 |
|
|
Kafkaris v Cyprus |
ECHR |
120 |
|
|
Kinahan v Minister for Justice, Equality and Law Reform |
Irl |
114 |
|
|
McAlister v Minister for Justice, Equality and Law Reform |
[2003] 4 IR 35 |
Irl |
67 |
|
Minister for Posts and Telegraphs v Campbell |
[1966] IR 69 |
Irl |
172 |
|
Mulligan v Governor of Portlaoise Prison |
Irl |
35 |
|
|
Murray v Ireland |
[1985] IR 532 |
Irl |
35 |
|
O'Mahony v District Judge Ballagh and DPP |
Irl |
66 |
|
|
O'Neill v Governor of Castlerea Prison |
Irl |
67 |
|
|
People (Attorney General) v Poyning |
[1972] IR 402 |
Irl |
11 |
|
People (Attorney General) v O'Callaghan |
[1966] IR 501 |
Irl |
31 |
|
People (Attorney General) v O'Driscoll |
(1972) 1 FREWEN 351 |
Irl |
43 |
|
People (DPP) v Harty |
Court of Criminal Appeal 19 February 2008 |
Irl |
43 |
|
People (DPP) v Alexiou |
[2003] 3 IR 513 |
Irl |
187 |
|
People (DPP) v Anderson |
Court of Criminal Appeal 18 May 2010 |
Irl |
185 |
|
People (DPP) v Barry |
Court of Criminal Appeal 23 June 2008 |
Irl |
219 |
|
People (DPP) v Benjamin |
Court of Criminal Appeal 14 January 2001 |
Irl |
185 |
|
People (DPP) v Black |
[2010] IECCA 91 |
Irl |
53 |
|
People (DPP) v Botha |
[2004] 2 IR 375 |
Irl |
181 |
|
People (DPP) v Brodigan |
Court of Criminal Appeal 13 October 2008 |
Irl |
185 |
|
People (DPP) v Carmody |
[1988] ILRM 370 |
Irl |
32 |
|
People (DPP) v Charles |
Circuit Criminal Court 13 July 2004 |
Irl |
167 |
|
People (DPP) v Clail |
Court of Criminal Appeal 19 February 2009 |
Irl |
218 |
|
People (DPP) v Coles |
Court of Criminal Appeal 7 December 2009 |
Irl |
185 |
|
People (DPP) v Connolly |
Irl |
175 |
|
|
People (DPP) v Connolly |
Irl |
176 |
|
|
People (DPP) v Cooney |
Irl |
66 |
|
|
People (DPP) v Costelloe |
Court of Criminal Appeal 2 April 2009 |
Irl |
182 |
|
People (DPP) v Crowe |
[2010] 1 IR 129 |
Irl |
45 |
|
People (DPP) v Curtin |
Court of Criminal Appeal 21 June 2010 |
Irl |
218 |
|
People (DPP) v Davis |
Court of Criminal Appeal 19 February 2008 |
Irl |
189 |
|
People (DPP) v Delaney |
Court of Criminal Appeal 21 June 2010 |
Irl |
186 |
|
People (DPP) v Dermody |
Irl |
187 |
|
|
People (DPP) v Dillon |
Court of Criminal Appeal 17 December 2008 |
Irl |
46 |
|
People (DPP) v Donovan |
Court of Criminal Appeal 28 June 2010 |
Irl |
220 |
|
People (DPP) v Ducque |
Irl |
181 |
|
|
People (DPP) v Duffy |
Court of Criminal Appeal 21 December 2001 |
Irl |
182 |
|
People (DPP) v Dunne |
Court of Criminal Appeal 17 October 2002 |
Irl |
207 |
|
People (DPP) v Dwyer |
Court of Criminal Appeal 9 February 2009 |
Irl |
219 |
|
People (DPP) v Farrell |
Irl |
179 |
|
|
People (DPP) v Finn |
Irl |
206 |
|
|
People (DPP) v Finnamore |
Irl |
176 |
|
|
People (DPP) v Finnamore |
Irl |
178 |
|
|
People (DPP) v Fitzgerald |
Court of Criminal Appeal 21 June 2010 |
Irl |
219 |
|
People (DPP) v Foley |
[1995] 1 IR 267 |
Irl |
172 |
|
People (DPP) v Foster |
Court of Criminal Appeal 15 May 2002 |
Irl |
201 |
|
People (DPP) v Gallagher |
Irl |
172 |
|
|
People (DPP) v Galligan |
Court of Criminal Appeal 23 July 2003 |
Irl |
183 |
|
People (DPP) v Gilligan (No 2) |
[2004] 3 IR 87 |
Irl |
195 |
|
People (DPP) v Gilloughly |
Court of Criminal Appeal 7 March 2005 |
Irl |
181 |
|
People (DPP) v GK |
Irl |
33 |
|
|
People (DPP) v Godspeed |
Court of Criminal Appeal 13 July 2009 |
Irl |
185 |
|
People (DPP) v Goulding |
Irl |
173 |
|
|
People (DPP) v H |
Irl |
43 |
|
|
People (DPP) v Halligan |
Court of Criminal Appeal 15 February 2010 |
Irl |
45 |
|
People (DPP) v Hanley |
Court of Criminal Appeal 15 October 2010 |
Irl |
174 |
|
People (DPP) v Heaphy |
Court of Criminal Appeal 18 May 2010 |
Irl |
206 |
|
People (DPP) v Heelan |
Court of Criminal Appeal 14 April 2008 |
Irl |
220 |
|
People (DPP) v Heffernan |
Court of Criminal Appeal 10 October 2002 |
Irl |
207 |
|
People (DPP) v Henry |
Court of Criminal Appeal 15 May 2002 |
Irl |
184 |
|
People (DPP) v Hogarty |
Court of Criminal Appeal 21 December 2001 |
Irl |
181 |
|
People (DPP) v Howard and McGrath |
Court of Criminal Appeal 29 July 2005 |
Irl |
187 |
|
People (DPP) v Jackson |
Court of Criminal Appeal, 26 April 1993 |
Irl |
33 |
|
People (DPP) v Keane |
Irl |
43 |
|
|
People (DPP) v Kelly |
[2003] 1 ILRM 19 |
Irl |
43 |
|
People (DPP) v Kelly |
Court of Criminal Appeal 28 June 2010 |
Irl |
219 |
|
People (DPP) v Kelly |
Court of Criminal Appeal 9 November 2009 |
Irl |
220 |
|
People (DPP) v Kelly |
Court of Criminal Appeal 24 November 2008 |
Irl |
221 |
|
People (DPP) v Keogh |
Court of Criminal Appeal 23 November 2009 |
Irl |
186 |
|
People (DPP) v Kinahan |
Court of Criminal Appeal 14 January 2008 |
Irl |
186 |
|
People (DPP) v Kirwan |
Court of Criminal Appeal 17 May 2010 |
Irl |
193 |
|
People (DPP) v Lernihan |
Court of Criminal Appeal 18 April 2007 |
Irl |
186 |
|
People (DPP) v Long |
Irl |
195 |
|
|
People (DPP) v Long |
Court of Criminal Appeal 31 October 2008 |
Irl |
195 |
|
People (DPP) v Loving |
Irl |
45 |
|
|
People (DPP) v M |
[1994] 3 IR 306 |
Irl |
16 |
|
People (DPP) v Maguire |
Court of Criminal Appeal 19 February 2008 |
Irl |
45 |
|
People (DPP) v McCann |
Court of Criminal Appeal 13 October 2008 |
Irl |
221 |
|
People (DPP) v McDonnell |
Court of Criminal Appeal 3 March 2009 |
Irl |
204 |
|
People (DPP) v McGinty |
Irl |
204 |
|
|
People (DPP) v McGrane |
Court of Criminal Appeal 8 February 2010 |
Irl |
182 |
|
People (DPP) v MS |
[2000] 2 IR 592 |
Irl |
269 |
|
People (DPP) v Mullen |
Court of Criminal Appeal 17 December 2002 |
Irl |
156 |
|
People (DPP) v Murphy |
Court of Criminal Appeal 18 May 2010 |
Irl |
183 |
|
People (DPP) v Murray |
[1977] 1 IR 360 |
Irl |
134 |
|
People (DPP) v Nelson |
Court of Criminal Appeal 31 July 2008 |
Irl |
182 |
|
People (DPP) v O'C |
Court of Criminal Appeal 15 November 2009 |
Irl |
43 |
|
People (DPP) v O'Dwyer |
[2005] 3 IR 134 |
Irl |
43 |
|
People (DPP) v Pakur Pakurian |
Court of Criminal Appeal 10 May 2010 |
Irl |
48 |
|
People (DPP) v Peyton |
Court of Criminal Appeal 14 January 2002 |
Irl |
197 |
|
People (DPP) v Power |
[2007] 2 IR 509 |
Irl |
167 |
|
People (DPP) v Power |
Court of Criminal Appeal 22 May 2006 |
Irl |
167 |
|
People (DPP) v Princs |
Irl |
46 |
|
|
People (DPP) v Purcell |
Court of Criminal Appeal 21 June 2010 |
Irl |
190 |
|
People (DPP) v Redmond |
[2001] 3 IR 390 |
Irl |
55 |
|
People (DPP) v Renald |
Court of Criminal Appeal 23 November 2001 |
Irl |
181 |
|
People (DPP) v Roseberry Construction Ltd and McIntyre |
[2003] 4 IR 338 |
Irl |
54 |
|
People (DPP) v Rossi and Hellewell |
Court of Criminal Appeal 18 November 2002 |
Irl |
184 |
|
People (DPP) v Ryan |
Court of Criminal Appeal 28 April 2008 |
Irl |
200 |
|
People (DPP) v Sheedy |
[2000] 2 IR 184 |
Irl |
43 |
|
People (DPP) v Shekale |
Court of Criminal Appeal 25 February 2008 |
Irl |
179 |
|
People (DPP) v Smyth |
Court of Criminal Appeal 18 May 2010 |
Irl |
179 |
|
People (DPP) v Spratt |
Court of Criminal Appeal 10 December 2007 |
Irl |
193 |
|
People (DPP) v Sweeney |
Court of Criminal Appeal 12 March 2009 |
Irl |
190 |
|
People (DPP) v Tiernan |
[1988] IR 251 |
Irl |
43 |
|
People (DPP) v Ulrich |
Court of Criminal Appeal 18 February 2010 |
Irl |
180 |
|
People (DPP) v Vardacardis |
Court of Criminal Appeal 20 January 2003 |
Irl |
201 |
|
People (DPP) v Walsh |
Court of Criminal Appeal 17 December 2009 |
Irl |
219 |
|
People (DPP) v WC |
[1994] 1 ILRM 321 |
Irl |
43 |
|
People (DPP) v WD |
Irl |
47 |
|
|
People (DPP) v Whitehead |
Court of Criminal Appeal 20 October 2008 |
Irl |
197 |
|
People (DPP) v Woods |
Court of Criminal Appeal 10 December 2010 |
Irl |
43 |
|
Pudliszewski v District Judge Coughlan and DPP |
[2006] IEHC 304 |
43 |
|
|
R v F Howe & Sons (Engineers) Ltd |
Eng |
55 |
|
|
R v Higher Education Funding Council, ex p. Institute of Dental Surgery |
[1994] 1 WLR 242 |
Eng |
68 |
|
R v Howells |
UK |
50 |
|
|
R v King |
(1986) 82 Cr App R 120 |
Eng |
61 |
|
R v Latimer |
[2001] 1 SCR 3 |
Can |
19 |
|
R v M (CA) |
[1996] 1 SCR 500 |
Can |
15 |
|
R v McInerney |
[2003] 2 Cr App R (S) 39 |
Eng |
156 |
|
R v Oliver |
(2003) 1 Cr App R 28 |
Eng |
56 |
|
R v Veregrin |
[1933] 2 DLR 362 |
Can |
113 |
|
Re Royal Prerogative of Mercy upon Deportation Proceedings |
[1933] SCR 269 |
Can |
113 |
|
Ruiz Torija v Spain |
ECHR |
69 |
|
|
Ryan v Attorney General |
[1965] IR 345 |
Irl |
35 |
|
Stafford v United Kingdom |
ECHR |
127 |
|
|
State (C) v Frawley |
[1976] IR 365 |
Irl |
35 |
|
State (Healy) v Donoghue |
[1976] IR 325 |
Irl |
111 |
|
State (P Woods) v Attorney General |
[1969] IR 385 |
Irl |
153 |
|
Thynne, Wilson and Gunnell v United Kingdom |
ECHR |
125 |
|
|
V and T v United Kingdom |
ECHR |
127 |
|
|
Van de Hurk v The Netherlands |
ECHR |
69 |
|
|
W v Ireland |
Irl |
35 |
|
|
Weeks v United Kingdom |
ECHR |
124 |
|
|
Whelan and Another v Minister for Justice, Equality and Law Reform |
Irl |
33 |
|
|
Wynne v United Kingdom |
(1995) 19 EHRR 333 |
ECHR |
124 |
1.
This Consultation Paper arises from a request made to the Commission on
12 October 2009 by the then Attorney General, under section 4(2)(c) of the Law
Reform Commission Act 1975, in which the Attorney General 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.
The key matters arising from this request are, therefore, that the
Commission is to examine and research existing legislation in the State
concerning “mandatory sentences”, and to consider whether to recommend reforms
as to the offences in which it may be “appropriate or beneficial” to provide in
legislation for mandatory sentences.
3.
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 Consultation Paper therefore begins in
Chapter 1 with a discussion of those aims and objectives before progressing to
a detailed review of existing legislation on mandatory sentences.
4.
The first matter addressed by the Commission in preparing this
Consultation Paper was to determine the scope of the term “sentences” in the
Attorney General’s request. In this respect, the Commission notes that this can
be given a narrow or a broad interpretation. In its 1996 Report on
Sentencing,[1] the Commission
defined the term by reference to the judicial role:[2]
“Sentencing
is the judicial determination of a legal sanction to be imposed on a person
found guilty of an offence.”
5.
Used in this sense, “sentencing” involves a decision by a court
as to what sanction the criminal justice system may impose on a person found
guilty of an offence. By contrast, in 2006 O’Malley[3]
set out a broader interpretation, noting that each branch of government
has an important role in the sentencing process:
“The Legislature,
which has sole and exclusive power to make laws for the State,[4]
is responsible for the creation and definition of offences, and the enactment
of laws to govern various aspects of the sentencing and penal processes. The
Judiciary is responsible for the selection of punishment in each case, unless
the offence or conviction carries a mandatory sentence... The Executive is
responsible for the implementation of sentences. It has significant
constitutional and statutory powers to commute or remit any punishment imposed
by the courts, and to grant temporary release to prisoners.”[5]
6.
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 as:
“any
punishment or measure involving deprivation of liberty ordered by a court or
tribunal for a limited or unlimited period of time on account of the commission
of an offence.”
7.
The 1995 Act therefore limits “sentence” to mean “sentence of
imprisonment.” This may be contrasted with, for example, section 106 of the Criminal
Justice Act 2006, which provides:
“Where 2 or
more sentences, one of which is a restriction on movement order, are passed on
an offender by the District Court and are ordered to run consecutively, the
aggregate of the period during which the order in respect of the offender is in
force and the period of any term or terms of imprisonment imposed on him or her
shall not exceed the maximum period of the aggregate term of imprisonment
specified in section 5 of the Criminal Justice Act 1951.”
8.
Section 106 of the 2006 Act therefore 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. This broader interpretation is also evident
in another aspect of the Commission’s 1996 definition of “sentencing” which
refers to “a legal sanction to be imposed on a person found guilty of an
offence”. 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.[6]
The Commission notes that this very 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.[7]
9.
The Attorney General’s request also refers to “offences” without any
apparent limitation. In the context of this Consultation Paper, however, and in
particular the request to consider whether mandatory sentences are “appropriate
or beneficial,” the Commission considers that the Attorney General did not
envisage a consideration of this by reference to all criminal offences. In this
regard, 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;[8] 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).
10.
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 concluded at an early stage of its deliberations 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). This focus would ensure that the
Commission could respond to the Attorney General’s request within a reasonable
period of time. 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.
11.
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,[9] 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, the Commission considered, 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.
12.
In addition to focusing on certain offences, the Commission also
considered that, in preparing this Consultation Paper, 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 can 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 stated and
specific exceptions, 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 defined “tariffs” based on binding sentencing
guidelines, as had been the case at one time at federal level in the United
States.
13.
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.
14.
The first and clearest example of a mandatory sentence is the mandatory
life sentence for murder (and treason).[10] Similarly,
in the case of a person convicted for “capital murder” (the form of murder for
which the death penalty formerly applied), a minimum sentence of 40 years
imprisonment applies, and in the case of an attempt to commit capital murder a
minimum sentence of 25 years imprisonment applies.[11]
15.
A second type of mandatory sentence is probably more accurately
described as a “presumptive” mandatory sentence.[12]
This is the type that applies to certain drugs offences[13]
and firearms offences[14] and which
requires a court to apply a minimum sentence, but which also allows the court,
by taking account of exceptional and specific circumstances, to impose as
sentence below the presumptive minimum sentence.
16.
Another type of presumptive sentence the Commission has considered in
the context of the Attorney General’s request is where an individual commits a
second or subsequent serious offence in a 7 year period following a first
serious offence, and for which the person received a sentence of 5 years or
more. Irish law currently provides that, in such a case, a presumptive sentence
for the second or subsequent offence is to be three quarters of the maximum
sentence provided by law, or 10 years if the maximum is life imprisonment.[15]
17.
A third category of mandatory sentence considered by the Commission is
one that applies, without exception, in the case of an offender who commits a
second or subsequent offence, such as the “presumptive” drugs offence already
mentioned.[16] 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.
18.
The Commission now turns to outline the content of the Consultation
Paper.
19.
In Chapter 1, the Commission considers the general aims of criminal
sanctions, as well as the principles of sentencing, in order to provide a conceptual
framework for the analysis of the different forms of mandatory sentences that
are reviewed in detail in Chapters 2 to 4.
20.
In this regard, the Commission identifies four main aims of criminal
sanctions, namely (a) punishment, (b) deterrence, (c) reform and rehabilitation
and (d) reparation. The Commission also identifies three key principles of
sentencing, namely (a) the humanitarian principle (which incorporates respect
for constitutional and international human rights), (b) the justice principle
(including proportionality) and (c) the economic principle.
21.
The Commission notes that the justice principle is of particular
importance because it incorporates the concept of proportionality, which
requires an individualised approach to sentencing, namely, that the sentencing
court must have 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 Chapter 1) 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 of a custodial sentence on
conviction for manslaughter and rape. These are clearly intended to provide
principled-based clarity around likely sentencing outcomes, and 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 and rape, for which the sentence can range from
no custodial sentence to a maximum of life imprisonment.
22.
The Commission also discusses in Chapter 1 the extensive case law in
Ireland which indicates that sentencing courts are also conscious of the need
to consider a wide range of aggravating factors, and mitigating factors, as
well as the individual circumstances of the offender, which directly affect
both the seriousness of the offence and the severity of the sentence to be
imposed in an individual case. The Commission notes that this has built on the
list of aggravating factors and mitigating factors, and the individual
circumstances of the offender, set out in the Commission’s 1996 Report on
Sentencing.[17] It is, equally, clear that the courts have also had
regard to comparable case law and developments in other jurisdictions since
1996 in connection with the ongoing development of such factors.
23.
The Commission also notes, however, in Chapter 1 that in spite of the
development and recognition of the general aims of criminal sanctions and
principles of sentencing, there remain some 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 the 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,
as well as the principles of sentencing, discussed in Chapter 1. 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 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, which
has been developed using experience with comparable databases from other
jurisdictions (as discussed in Chapter 1), could in time be regarded as a
leading model of its type.[18]
24.
In Chapter 2, the Commission considers entirely mandatory sentences, of
which there are only two examples in Ireland. These are the penalty for murder,
under section 2 of the Criminal Justice Act 1990, and the penalty for
murder of designated persons, under section 4 of the Criminal Justice Act
1990. The Commission notes that entirely mandatory sentences are applicable
only to an offence considered to be at the highest end of the criminal
calendar, namely, murder, and to which the death penalty would have formerly
applied. The Commission considers that a mandatory life sentence for such a
limited group of serious offences is consistent with the aims of criminal
sanctions and the sentencing principles discussed in Chapter 1.
25.
Having regard, however, to those general aims and principles, and more
particularly to the decisions of the European Court of Human Rights concerning
the European Convention on Human Rights (discussed in detail in Chapter 2),
specific aspects of the current mandatory sentencing regime for murder are open
to question on at least two grounds. First, the mandatory life sentence applies
to all persons convicted of murder regardless of his or her particular
circumstances or the particular circumstances of the case. In this respect,
once imposed, it is unclear – bearing in mind the possibility of release by the
Minister for Justice (on foot of a recommendation of the Parole Board) – how
long a person serving a mandatory life sentence will, in fact, spend in prison.
Second, having regard to the decisions of the European Court of Human Rights,
it is difficult to see how a decision regarding release that is made by the
Executive without any input from the sentencing court, often many years after
the decision regarding sentencing has been made, is fully compatible with the
European Convention on Human Rights. For these reasons, the Commission has
provisionally concluded that the mandatory sentencing regime for murder should
be amended to provide that, on the date of sentencing, the court should be
empowered to indicate or recommend that a minimum specific term of imprisonment
should be served by the defendant, having regard to the particular
circumstances of the offence and of the offender.
26.
In Chapter 3 the Commission considers “presumptive” mandatory minimum
sentences, subject to exceptions in specified circumstances. There are two
examples of this type of provision in Irish law. One provides the penalty for
certain offences under the Misuse of Drugs Acts and the other provides
the penalty for certain offences under the Firearms Acts. The Commission
accepts that presumptive sentencing regimes may be suitable in narrowly
prescribed circumstances where the offences have a particularly serious impact
on society, such as with certain drugs offences and certain firearms offences.
Having regard to the general aims and principles set out in Chapter 1, however,
the Commission observes that there is a particular need to ensure that these
presumptive sentencing regimes are achieving their stated objectives. The
Commission notes in Chapter 3 that one objective was to increase the severity
of sentencing and that another objective was to deter offenders. While the
presumptive sentencing regimes may have succeeded in increasing the severity of
sentencing for certain drugs and firearms offences, the Commission concludes
that it is arguable, at least in respect of the regime under the Misuse of
Drugs Acts, that it has not reduced the level of criminality.
27.
The Commission has, therefore, concluded that the presumptive sentencing
regime, as it applies in the case of certain drugs and firearms offences,
should not be extended to any other offences but should be reviewed because,
while it has succeeded in one objective, namely, an increased severity in
sentencing for certain drugs and firearms offences, it has not been established
that it has achieved another general aim of the criminal justice system, namely
reduced levels of criminality. The Commission notes that, instead, the
presumptive drugs offences regime (on which the effects in practice are, in
particular, clear) has had the following results: a discriminatory system of
sentencing where all cases are treated alike regardless of differences in the
individual circumstances of the offenders; the adaptation of the illegal drugs
industry to the sentencing regime by using expendable couriers to hold and
transport drugs; that these relatively low-level offenders, rather than those
at the top of the drugs industry, are being apprehended and dealt with under
the presumptive regime; a high level of guilty pleas in order to avoid the
presumptive minimum sentence; and a consequent bulge in the prison system
comprising low-level drugs offenders.
28.
In Chapter 4 the Commission considers mandatory sentences for second or
subsequent offences. There are three examples of this type of provision in
Irish law. These concern convictions for second or subsequent offences under
the Criminal Justice Act 2007, the Misuse of Drugs Act 1977 and
the Firearms Acts. In addition, the Commission considers similar
provisions under the Criminal Justice Act 1984 and the Criminal Law
Act 1976, which mandate consecutive sentencing for recidivist offenders.
The Commission considers that there are significant reasons to lead to the
conclusion that there should be no extension of the existing statutory
framework concerning the imposition of mandatory sentences (and, where
relevant, presumptive mandatory sentences) for second or subsequent offences.
Indeed, these reasons are comparable to those already discussed by the
Commission in connection with the presumptive regime for drugs and firearms
offences. Nonetheless, the Commission also considers that, as a general
proposition, a statutory framework that takes account in sentencing of repeat
offending is consistent with the general aims of the criminal justice system
and principles of sentencing set out in Chapter 1.
29.
Chapter 5 contains a summary of the provisional recommendations made in
the Consultation Paper.
30.
This Consultation Paper is intended to form the basis for discussion and
therefore all the recommendations are provisional in nature. The Commission
will make its final recommendations on the subject of mandatory sentences
following further consideration of the issues and consultation. Submissions on
the provisional recommendations included in this Consultation Paper are
welcome. To enable the Commission to proceed with the preparation of the
Report, which will contain the Commission’s final recommendations in this area,
those who wish to do so are requested to make their submissions in writing to
the Commission or by email to info@lawreform.ie by 30 April 2012.
1.01
The Commission’s review of mandatory sentences in response to the
Attorney General’s request requires an examination of the conceptual framework
for criminal sanctions in general. Thus, in this chapter, the Commission
considers the aims of criminal sanctions and the principles which regulate how
these aims may be pursued. In this regard, it is useful to begin with an
examination of the leading Irish case on sentencing, the 1972 decision of the
Court of Criminal Appeal in The People (Attorney General) v Poyning[19].
1.02
In Poyning the defendant was arraigned in the Circuit Court on an
indictment of which the first count charged him with having committed an armed
robbery, contrary to section 23(1)(a) of the Larceny Act 1916, and the
fifth count charged him with having taken a motor car without authority, on the
same occasion, contrary to section 112 of the Road Traffic Act 1961. He
pleaded guilty to both counts and he was sentenced to four years’ imprisonment
on the first count and 6 months’ imprisonment on the fifth count. He was also
disqualified from holding a driving licence for 10 years. Two other men were
also charged with having committed armed robbery with the defendant and their
trial was transferred to the Central Criminal Court where each of them pleaded
guilty and was sentenced to 6 years’ imprisonment. However, in the case of both
of those defendants the term of imprisonment was suspended upon condition that
the defendants entered into a bond to keep the peace for five years and each of
them was released. In those circumstances the defendant appealed against the
sentences imposed on him.
1.03
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 unjust.”[20] (emphasis added)
1.04
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.”[21]
1.05
In effect, therefore, Poyning establishes the principle that
sentencing must be individualised in so far as a criminal sanction must be
proportionate to the particular circumstances of (a) the crime and (b) the
convicted person. Thus 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. In Poyning, the Court also referred, in
passing, to a number of aims of the sentencing process, including “a chance of
reform”, “the public interest” and “the deterring effect”.
1.06
The Commission observes that while Poyning provides a useful
insight into the conceptual framework for criminal sanctions, it does not,
however, provide a complete picture. There are many other matters which should
be considered as forming part of the conceptual framework, both in terms of the
aims of criminal sanctions and the principles which delimit the means by which
these aims may be pursued. Each will be considered in turn.
1.07
Just as the debate regarding mandatory sanctions cannot be examined
without regard being had to the conceptual framework for criminal sanctions,
the aims of criminal sanctions cannot be examined without regard being had to
the broader aims of the criminal justice system. At a theoretical level, the
criminal justice system replaces private retaliation with public adjudication so
that criminal sanctions may be imposed by reference to objective criteria
rather than the desires of individual victims.[22]
At a practical level, the criminal justice system seeks to reduce prohibited or
unwanted conduct, namely, crime.[23] These
broader aims provide the backdrop against which the Commission examines the
more specific aims of criminal sanctions.
1.08
The Commission notes that there are divergent views as to why a criminal
sanction should pursue any aim at all. Walker and Padfield assert that it is
because societies which value individuals’ freedom regard the infliction of
something to which a person objects as morally wrong unless it can be morally
justified.[24] Cavadino and
Dignan, on the other hand, assert that it is because deliberately inflicted
punishment, which is invariably harmful, painful or unpleasant, is prima
facie immoral and thus requires special justification.[25]
There is also the constitutional and international human rights dimension under
which any interference with a person’s human rights should be limited in so far
as it must be defined by law, pursue a legitimate aim and be necessary
in a democratic society. The Commission observes that the reason why a criminal
sanction should pursue one or more aims may derive from a combination of these
reasons.
1.09
As was observed in the Commission’s 1996 Report on Sentencing,
the aims of sentencing may be divided into two broad categories: the moral
category and the utilitarian category.[26] The moral
category, with which retributivism is traditionally associated, covers those
aims which concentrate on past activity and argue that justice requires
retribution to be exacted for blameworthy conduct. By contrast, the utilitarian
category, with which rehabilitation, deterrence and incapacitation are
traditionally associated, covers those aims which concentrate on future
beneficial consequences of the imposition of sanctions and promote themselves
in terms of social utility including crime prevention and control. In addition,
the Commission notes that reform, rehabilitation and reparation may be
distinguished from punishment and deterrence in so far as reform,
rehabilitation and reparation derive from the religious view of redemption
which provides that a person who breaks the law must be punished but also
saved. These categories are, broadly speaking, aligned with the broader aims of
the criminal justice system, namely, the prevention of unofficial retaliation
and the reduction of crime.
1.10
Bearing these factors in mind and having regard to the Department of Justice
and Equality’s 2010 Discussion Document on Criminal Sanctions,[27] the Commission has identified a number
of aims of criminal sanctions which will form the basis for its analysis of
mandatory sentences in Chapters 2, 3 and 4. These include punishment,
deterrence, reform and rehabilitation, and reparation.[28]
Reference will also be made to incapacitation which is not, strictly speaking,
considered to be a purpose of Irish sentencing law.
1.11
In its 2010 Discussion Document on Criminal Sanctions[29]
the Department of Justice and Equality listed “punishment” as an aim of
criminal sanctions and defined it as “to inflict some kind of loss on the
offender and give formal public expression to the unacceptability of the
behaviour in the community”.[30] Thus
“punishment” is understood as the infliction of loss and the
public expression of disapproval. By using the conjunction “and”, the
Department indicates that two separate ideas are at issue. In this regard, the
Commission notes that the term “loss” is indicative of retributivist theories
while “public expression” must refer to denunciation. Retribution and
denunciation will now be considered in turn.
1.12
The original meaning of retribution was to “pay back” a debt or tax.[31]
Later it came to mean rewarding a good act with a benefit and a bad one with
harm.[32]
Within the conceptual framework of criminal sanctions the retributive
justification for a penalty is linked to what a person has done rather than
what he will do, as in the case of deterrence. The “re” in retribution points
to the past and it must be reflected in what is being done now. Thus there must
be some sort of equivalence between the gravity of the harm and the penalty
imposed.[33]
However, a retributive theory of punishment does not necessarily indicate with
any degree of precision how much punishment should be imposed for any
particular offence.[34] It is mainly
concerned with why punishment should be imposed - because it is deserved.
1.13
In this regard, however, retribution should be distinguished from
vengeance. O’Malley refers to the judgment of Lamer CJ in the Canadian Supreme
Court decision of R v M (CA):[35]
“Vengeance, as I understand it,
represents an uncalibrated act of harm upon another, frequently motivated by
emotion and anger, as a reprisal for harm upon oneself by that person.
Retribution in a criminal context, by contrast, represents an objective,
reasoned and measured determination of an appropriate punishment which properly
reflects the moral culpability of the offender, having regard to the
intentional risk-taking of the offender, the consequential harm caused by the
offender, and the normative character of the offender’s conduct. Furthermore,
unlike vengeance retribution incorporates a principle of restraint; retribution
requires the imposition of a just and appropriate punishment and nothing more.”[36]
1.14
Furthermore, in the Supreme Court decision in People (DPP) v M[37]
Denham J observed:
“Sentencing is neither an exercise in
vengeance, or retaliation by victims on a defendant. However, the general
impact on victims is a factor to be considered by the Court in sentencing...
The nature of the crime and the personal circumstances of the appellant are the
kernel issues to be considered and applied in accordance with the principles of
sentencing, for this is an action between the State and the appellant and not
an action between the appellant and the victims.”[38]
1.15
The majority of the Commission made a similar observation in its 1996 Report
on Sentencing,[39] which was to
the effect that retribution may, in fact, prevent victims from taking the law
into their own hands by providing them with a “safety-valve”.[40]
This accords with the theory that a criminal justice system should prevent
unofficial retaliation and reduce unwanted or prohibited conduct. It also links
in with the idea that punishment should have an expressive or denunciatory
dimension.
1.16
It should be noted, however, that there are several versions of
retributivism.[41] In its most
basic form, retributivism asserts that the penal system should be designed to
ensure that offenders atone by suffering for their offences.[42]
Compromising retributivism asserts that the penal system should be designed to
exact atonement in so far as this would not impose excessive unofficial
retaliation or inhumane suffering, and in so far as it would not increase the
incidence of the offences.[43] Limiting
retributivism asserts that criminal sanctions should not be designed with atonement
in mind but their severity should be limited by retributive considerations.[44]
In other words, the unpleasantness of a criminal sanction should not exceed the
limit that is appropriate to the culpability of the offence. Thus the length of
a period of imprisonment should be such as to maximise the prospects of an
offender’s reform, or protect society against the offender if his or her
prospects of reform are small, so long as it is not too heavy a price to pay for
the offence.[45] A fourth
version, which surrenders the idea that penal measures should be designed with
atonement in mind and the idea that there should be a retributively appropriate
limit to their severity, asserts that society has no right to apply an
unpleasant measure to someone against his or her will unless he or she has
intentionally done something prohibited.[46]
1.17
It is the third version of retribution that is closest to the modern
theory of “just deserts”, which asserts that punishment should be
proportionate, rather than equal, to the crime.[47]
It has been observed, however, that one should be realistic about the extent to
which just deserts may successfully limit punishment.[48]
In this regard, it has been asserted that in the absence of sentencing
guidelines or formal standards, it is difficult to determine when a sentence is
actually proportionate to the particular crime or the circumstances of the
particular offender.[49]
1.18
A further weakness of the retributive theory is that it justifies the
imposition of criminal sanctions on the basis of two presuppositions.[50]
The first presupposition is that the criminal is free in the criminal act and
has a choice, and that he or she can thus be held responsible. The second
presupposition is that the crime disturbs a social order which is just in
relevant respects and that the imposition of a criminal sanction restores the
balance of rights disrupted by the crime. It has been noted, however, that
there are many situations in which one or both of these conditions is not met -
either the criminal cannot be held responsible or the order or relations in
society is not just.[51] In this
regard, it has been recognised that social disadvantage is at the root of much
offending[52] and that
there is thus a “dilemma of justice in an unjust world”.[53]
1.19
The Commission observes that retribution is an important aspect of the
debate regarding mandatory sentencing provisions. In its 1993 Consultation
Paper on Sentencing[54] the Commission considered “just deserts” within the
particular context of mandatory sentencing.[55] It observed that support for mandatory
minimum sentences had been “fuelled by distrust of judges” whose sentencing
practice appeared to give more weight to mitigating factors than just deserts.[56] The Commission observed that this was a
particularly galling prospect for rape victims who had undergone the impersonal
ordeal of a rape trial in order to ensure that rapists were seen to get their
“just deserts”, before stating:
“[t]hese concerns underline the importance of securing the
primacy of the ‘just deserts’ approach by statute, with due regard for
mitigating factors, at the heart of a new sentencing scheme and of supporting
this approach by giving the prosecution the right of appeal against inadequate
sentences.”[57]
The Commission concluded that the mandatory sentence was a blunt
instrument which could not be tolerated in any sentencing scheme with the
slightest sensitivity to a just deserts approach.[58] It should be noted, however, that while
this was the view of the Commission in 1993, it does not necessarily follow
that the Commission today would hold the same view on the primacy of
retribution within the conceptual framework for criminal sanctions.
1.20
To explain the term “denunciation”, O’Malley[59] cites the Canadian Supreme Court decision in R v M (CA):[60]
“The objective of denunciation
mandates that a sentence should communicate society’s condemnation of that
particular offender’s conduct. In short, a sentence with a denunciatory element
represents a symbolic, collective statement that the offender’s conduct should
be punished for encroaching on our society’s basic code of values as enshrined
in our substantive criminal law.”[61]
Thus, by virtue of the principle of denunciation, the imposition
of criminal sanctions is understood to be a medium through which society may
collectively express its intolerance of certain types of behaviour.
1.21
There is debate, however, as to whether denunciation is a means to an
end or an end in itself.[62] As a means
to an end, it is asserted that denunciation deters offenders and potential
offenders from committing the same or similar offences. As an end, it is
asserted that denunciation provides members of society with an expressive
safety valve so that they will not feel the need to take the law into their own
hands. While one must be realistic as to the extent to which denunciation might
achieve either of these results,[63] the
Commission observes that these aspects of the theory accord with the idea that
a criminal justice system should prevent unofficial retaliation and reduce
unwanted or prohibited conduct.
1.22
A weakness of the theory of denunciation is that it does not necessarily
engender proportionality considerations.[64]
Thus a relatively severe criminal sanction might conceivably be used to express
society’s abhorrence of a relatively minor offence. Denunciation and
proportionality are not, however, entirely incompatible, at least to the extent
that the Oireachtas, in stipulating maximum penalties, is entitled to have
regard to the need for denunciation. Similarly, the courts, when imposing
sentences having regard to that maximum, are effectively implementing this
denunciation policy. That said, criminal sanctions that are excessive in light
of the gravity of the offence and the circumstances of the offender should not
be imposed solely for the purpose of denouncing the conduct constituting the
offence.
1.23
The Commission observes
that denunciation is an important aspect of the debate regarding mandatory
sentencing provisions. The offences for which mandatory provisions have been
enacted tend to be those offences which have a particularly deleterious impact
on society, for example murder, drug trafficking, firearms offences and repeat
offences. Confronted by such offences, individual members of society often feel
victimised and powerless. It is thus understandable that individuals should
wish to collectively express their condemnation of such offences.
1.24
In its 2010 Discussion Document on Criminal Sanctions[65]
the Department of Justice and Law Reform listed “deterrence” as an aim of
criminal sanctions and defined it as “to impose a penalty to either deter the
individual from committing further crimes or to deter others from imitating
criminal behaviour”. In other words, deterrence may be specific or general in
nature. A penalty motivated by a policy of specific deterrence is concerned
with the particular offender and aims to impress upon him or her the punishment
he or she will suffer if he or she re-offends.[66]
By contrast, a penalty motivated by a policy of general deterrence aims to
demonstrate to potential offenders and society at large that painful
consequences will result from any offending.[67]
In this regard, in particular, the aim of deterrence accords with the broader
aims of the criminal justice system, namely, the prevention of unofficial
retaliation and the reduction of crime.
1.25
McAuley and McCutcheon assert that punishment and deterrence are
inherently linked.[68] Deterrence
is not one of several competing aims any one of which, depending on prevailing
policy considerations, might be given preference. Rather, punishment is by
nature deterrent such that what is done to offenders in the name of punishment
must be deterrent if it is to be considered punishment at all. The authors
assert that this conclusion withstands even the claim that the high rate of
recidivism proves that deterrent penalties are not, in fact, effective. They
argue that the effectiveness of deterrent penalties should be measured in terms
of their impact on those at whom it is directed, the population as a whole,
rather than on those who repeatedly break the law.[69]
They cite Kenny in support of this argument:
“Those who commit even a first crime have thereby shown themselves
to be less deterrable than the rest of the population: they are therefore a
biased sample to choose for study. The only empirical way to study the
deterrent effect of punishment would be to compare the effects of two laws in
parallel jurisdictions on the same type of subject matter, one of which had a
sanction attached and the other did not. Naturally, it is difficult to find
legislatures foolish enough to provoke circumstances in which such statistics
can be collected… [Similarly] sceptics about deterrence have often concentrated
their attention on particular crimes such as murder and particular punishments
such as the death penalty. Murder appears to be an uncharacteristic crime in
being less affected than other offences by variations in penal practice.
Naturally, there are no statistics for jurisdictions where murder goes
unpunished; hence the murder statistics can at most tell us about the
effectiveness of different penalties, not about the effectiveness of punishment
as such”.[70]
1.26
A question arises as to which aspect of a criminal sanction is more
likely to deter: the certainty of punishment or the severity of
punishment. In its 1993 Consultation Paper on Sentencing[71]
the Commission indicated that the certainty of punishment was more
likely to have a deterrent effect than the severity of punishment.[72]
The Commission notes, however, that there are a number of other factors which
may affect the extent to which a criminal sanction deters.[73]
These include the nature of the crime;[74] the target
group of the particular criminal sanction;[75]
the extent to which the offending behaviour attracts moral condemnation;[76]
the extent to which the public has knowledge of the criminal sanction; the
swiftness of punishment;[77] and
perceptions as to the risk of incurring the criminal sanction.[78]
Gabor and Crutcher observe that it is thus not possible to make “simplistic,
sweeping generalizations affirming the presence or absence of a deterrent
effect”.[79]
1.27
Like the aim of punishment, however, it has been observed that
deterrence does not necessarily engender proportionality considerations.[80]
Thus a severe criminal sanction might conceivably be imposed for a relatively
minor offence in order to deter. It has also been noted that deterrence, to the
extent that it relates to general deterrence, may succumb to the criticism that
it treats offenders instrumentally rather than as autonomous beings entitled to
respect for their individual rights.[81]
1.28
The Commission observes that deterrence is an important aspect of the
debate regarding mandatory sentencing provisions. Deterrence is often advanced
as a justification for the enactment of mandatory sentencing provisions. It is
unclear, however, to what extent, if any, mandatory sentences actually deter.
Some writers assert that mandatory sentences are ineffective as deterrents.
Mandatory death sentences, for instance, have never been fully effective in
preventing murder.[82]
Other writers note, however, that crimes like murder are exceptional in so far
as they often committed in “the heat of the moment when the perpetrators are in
no mood to contemplate the legal consequences”.[83] In its 1993 Consultation Paper on
Sentencing[84]
the Commission stated that it found no evidence to suggest that mandatory
minimum sentences acted as a deterrent.[85]
Tonry cites research which, he asserts, establishes that mandatory sentences
have either no demonstrable deterrent effects or short-term effects that are
quickly extinguished.[86]
Furthermore, he observes that there has been little impact on the crime rates
of the states in the United States in which mandatory sentences have been
introduced.[87]
In its 2010 Discussion Document on Criminal Sanctions[88] the Department of Justice and Equality listed
“rehabilitation” as an aim of criminal sanctions and defined it as “designed to
include measures which might contribute to the person desisting from future
offences and to assist in their reintegration into society”. Rehabilitation
thus asserts that an offender detained in prison can be reformed and
re-introduced into society. In this regard, the aim of reform and
rehabilitation accords with the aim of the criminal justice system that crime
be reduced.
1.29
While support for this concept has waxed and waned, the judicial mood
regarding the effectiveness of rehabilitation in the 1990s was summarised in
the judgment of Egan J. in People (DPP) v M:[89]
“[A]n 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 into society after a period of imprisonment.”[90]
As will be discussed at paragraph 1.129, this judgment also
supports the view that the possibility of rehabilitation is a factor which
should be considered by a sentencing court when determining the severity of a
sentence to be imposed.
1.30
Rehabilitation has been described as “an idea and an ideal; it is a
theory and it is a practice”.[91]
At one level, the macro level, there is a clash of ideologies between
punishment and reform. In the United States of America and in England and Wales
that argument has been settled comprehensively in favour of punitive responses
to crime – in other words, in favour of the punishment of the offender as
opposed to the reform of the offender.[92]
At the other level, the micro level, there have been disagreements within the
rehabilitation camp itself as to how best to achieve the ideal – increasingly
the arguments have centred on questions of evidence that rehabilitation actually
works.[93]
In its 1996 Consultation Paper on Sentencing,[94]
for instance, the Commission noted that there was serious doubt as to whether
or not rehabilitation worked.[95]
1.31
In the 2009 Report of the Sentencing Advisory Panel (England and
Wales) on public attitudes to the principles of sentencing, a public survey
rated rehabilitation fourth on a scale of importance of sentencing objectives,
behind public protection, preventing crime, and punishing offenders[96] - though 73% of respondents rated
rehabilitation of high importance.[97]
The Advisory Panel observed that, while the level of public support for
different sentencing purposes changes according to the nature and seriousness
of the offence, support for rehabilitation remained high even for serious
offences.[98] The report concluded that, while public protection emerged
as the sentencing purpose to which the highest proportion of people attached
primacy, no particular sentencing objective could be singled out as attracting
significantly higher levels of support than others. The findings demonstrated
the need – from the perspective of the public at least – to have multiple
sentencing objectives so that these may be tailored to the specific
circumstances of individual cases.[99]
1.32
It has been asserted that there is now substantial evidence that
rehabilitation programmes, such as “prison-based therapeutic community
treatment of drug-involved offenders” and “in-prison therapeutic communities
with follow-up community treatment”, work with at least some offenders in some
situations.[100]
These programmes are intensive, behaviour-based programmes that target an
offenders’ drug use, a behaviour that is clearly associated with criminal activities.
Programmes which, apparently, did not work included correctional programmes
such as those which increase control and surveillance in the community, for
example intensive, supervised probation or parole; home confinement; community
residential programs; and urine testing. Collectively these sanctions are
described as “alternative punishments” or “intermediate sanctions”.[101]
1.33
Some commentators have been less enthusiastic about the rehabilitative
ideal, saying that “it is generally accepted that rehabilitation does not work”[102] and even to the extent that it could be shown to work
it cannot be “rationally defended as a legitimate aim of punishment.”[103]
In this regard, it has been argued that the principle of rehabilitation, to the
extent that it holds that punishment should be tailored to the needs of
reforming offenders, cannot be justified.[104]
The history of the criminal law illustrates that punishment - the object of
which is to prevent people from becoming criminals - is essentially a
transaction between the State and citizens generally.[105] Thus the rehabilitative theory, which regards punishment as
a transaction between society and those who have already become
criminal, is inconsistent with this theory.[106]
1.34
In any event, in their much quoted article, Feeley and Simon argue that
the “old penology” with its emphasis on the rehabilitation of individual
offenders is being replaced with the “new penology”, otherwise described as
actuarial justice, embracing forms of risk assessment aimed at the control of
aggregate populations and including the expansion of the prison sector and the
growing network of sanctions.[107]
1.35
Reform and rehabilitation are rarely, if ever, advanced as
justifications for mandatory sentencing provisions. On the contrary, they are
often submitted as “exceptional and specific circumstances” justifying a
sentence lower than the presumptive sentence prescribed by the Misuse of
Drugs Act 1977 and the Firearms Acts. Having said that, it should be
considered whether rehabilitation should play any role in reaching conclusions
on mandatory sentencing. On the one hand the view may be taken that a mandatory
sentence structure could be ordered in such a way as to take account of the
benefits of rehabilitation. On the other, it may be considered that the
advantages of rehabilitation are not such as could distinguish mandatory
sentences from sentences of imprisonment which are not mandatory in nature.
1.36
In its 2010 Discussion Document on Criminal Sanctions[108]
the Department of Justice and Equality lists “reparation” as an aim of criminal
sanctions and defines it by reference to “penalties [which] involve direct or
indirect compensation for the harm caused to victims by crime”. Reparation thus
asserts that people who have offended should do something to “repair” the wrong
they have done and, in so doing, acknowledge the wrongness of their actions.[109]
This can take the form of compensating the victim of the offence or doing
something else to assist the victim. If there is no individual or identifiable
victim or, indeed, the victim is unwilling to accept it, reparation can be made
to the community as a whole by performing community service or paying a fine
into public funds. The concept of reparation is associated with the wide notion
of “restorative justice”, which seeks to restore and repair relations between
offenders, victims and the community as a whole. In this regard, the aim of
reparation accords with the broader aim of the criminal justice system that
unofficial retaliation be prevented.
1.37
It has been observed that a number of benefits may flow from reparation.[110]
Reparation - in so far as it aims to repair relations - may have a lot to
contribute to policies aimed at the reintegration of offenders.[111]
In addition, it has been asserted that if punishment is to be inflicted at all
it is desirable that it should directly benefit the victim or society rather
than merely hurt or restrict the offender.[112] Other commentators observe, however, that the concept is not
free of difficulties. Where a sentencer discriminates between an offender who
can afford to make reparation and an offender who cannot, particularly where
the alternative is imprisonment, his or her policy may be regarded as
inequitable.[113]
1.38
In England, victims of personal violence, who fulfil certain eligibility
criteria, are compensated by the Criminal Injuries Compensation Authority.[114]
Otherwise, the sentencer is supposed to consider the victim’s case for
compensation and, if the case is clear, order the offender to pay.[115]
While this has proven to be a valuable corrective measure on some occasions, it
has served only to create or increase the offender’s grievance against the
victim or the system on other occasions.[116]
Furthermore, the situation often arises where an offender is either unable to
pay the full compensation due or only able to pay it in small instalments. The
victim in both situations receives less than he or she deserves.[117]
1.39
While there is no Irish equivalent to the Criminal Injuries Assessment
Authority, the concept of reparation is not alien to the Irish justice system.
The Irish courts have the power to make community service orders and impose
fines. The Commission acknowledges the role that reparation may play in the
context of reintegration but cautions against the creation of an inequitable
system where offenders with the financial means may escape imprisonment while
offenders without the means may not.
1.40
Reparation is rarely,
if ever, asserted as a justification for mandatory sentencing provisions. This
may be due to the fact that criminal sanctions which pursue the purpose of
reparation are usually an alternative to imprisonment. Thus reparation may not
be of direct relevance to sentencing provisions which mandate prison sentences.
1.41
In its 2010 Discussion Document on Criminal Sanctions[118]
the Department of Justice and Equality defines “incapacitation” as “to restrain
the offender so as to limit their opportunities to commit further crime”.
Incapacitation may be a relevant consideration regarding both non-custodial and
custodial sentences. Thus a traffic offence which merits disqualification from
driving is as likely to hamper the future commission of traffic offences as a
period of detention is likely to hamper the future commission of, for instance,
burglaries. It is noted, however, that while some sentences serve
incapacitative purposes more often than not any incapacitative effect is
incidental rather than directed.
1.42
The Commission observes that incapacitation may be advanced as a general
aim of sentencing but that it is usually aimed at particular groups such as
dangerous offenders, career criminals or other persistent offenders.[119]
In this regard, custodial sentences, such as life imprisonment or lengthy terms
of imprisonment, are often advocated as the best means of depriving offenders
of the opportunities to engage in crime for the duration of their
incarceration.[120] Such
custodial sentences are likely to have a greater impact on the rights of
offenders and are, therefore, more controversial than non-custodial sentences
serving incapacitative purposes. For this reason, the Commission proposes to
focus mainly on the purpose of incapacitation in the context of custodial
sentences.
1.43
There are a number of objections to the concept of incapacitation.
First, it has been asserted that incapacitation runs counter to the principle
of proportionality.[121] The
principle of proportionality determines that a sentence should be based on the
gravity of the offence and the personal circumstances of the offender rather
than any prediction as to the risk of the offender re-offending if released.[122]
Second, it has been observed that predictions of future behaviour are
notoriously difficult to make.[123]
Thus the principle of incapacitation - in so far as it relies on such
predictions - may lead to unjust results. Third, it has been argued that the
incapacitative effects of imprisonment are, at best, modest.[124]
In this regard, it has been noted that most criminal careers are relatively
short so that by the time offenders are incarcerated they may be about to
renounce crime or reduce their offending anyway.
1.44
The Commission notes that there is also the constitutional objection
that a person should not be deprived of his or her liberty on the basis of anticipated
rather than proven offending.[125]
In this regard, O’Malley asserts that the principle established in People
(Attorney General) v O'Callaghan[126] - that a person should
not be deprived of liberty on account of an apprehension that he or she will
commit a further offence if released on bail - is based on the broader
principles of the presumption of innocence and the right to personal liberty.
Regarding the presumption of innocence, Ó Dálaigh C.J. stated:
“The reasoning underlying this
submission is, in my opinion, a denial of the whole basis of our system of law.
It transcends respect for the requirement that a man shall be considered
innocent until he is found guilty and seeks to punish him in respect of
offences neither completed nor attempted.”[127]
Regarding the right to liberty, Walsh J stated:
“[T]he likelihood of commission of
further offences while on bail, is a matter which is in my view quite
inadmissible. This is a form of preventative justice which has no place in our
legal system and is quite alien to the true purposes of bail...
In this country, it would be quite
contrary to the concept of personal liberty enshrined in the Constitution that
any person should be punished in respect of any matter upon which he has not
been convicted or that in any circumstances he should be deprived of his
liberty upon only the belief that he will commit offences if left at liberty,
save in the most extraordinary circumstances carefully spelled out by the
Oireachtas and then only to secure the preservation of public peace and order
or the public safety and the preservation of the State in a time of national
emergency or in some situation akin to that.”[128]
1.45
While the O’Callaghan principle has been reversed by
constitutional amendment,[129] in so far
as it relates to bail, it has been asserted that it may remain intact in
relation to sentencing.[130] In support
of this proposition, O’Malley refers to the decision of the Court of Criminal
Appeal in People (DPP) v Carmody.[131] In Carmody,
the applicants were habitual criminals, the first applicant having convictions
beginning in 1968 and the second applicant having convictions dating back to
1961. They had served numerous terms of imprisonment imposed by the District
Court, primarily for periods of up to 12 months. In the instant case, they were
charged with burglary and pleaded guilty to the charges in the Circuit Court.
The trial judge, Murphy J, imposed a sentence of six years imprisonment on each
applicant, stating that the applicants were:
“... not amenable in
any manner to the ordinary constrictions of the society in which they live and
they are preying on innocent people and my primary duty is to protect those
people.”[132] [Emphasis added].
The applicants applied for leave to appeal against sentence.
1.46
The Court of Criminal Appeal, per McCarthy J, observed that the
only justification for the radical departure from the previous measures of
imprisonment was an “understandable attempt to procure reform by prevention”. In
the absence of appropriate statutory provisions, however, he considered
that this was an unacceptable basis for the particular sentence and substituted
a sentence of three years’ imprisonment in respect of each of the applicants.[133]
It is argued, therefore, that McCarthy J did not reject the possibility of
preventative sentencing outright and that it might be permissible where
appropriate statutory provisions were in place.
1.47
As noted above, however, incapacitation may run counter to the principle
of proportionality and interfere with the right to personal liberty and the
presumption of innocence. If O’Malley is correct in his argument, the
Commission observes that legislation pursuing an incapacitative purpose might
only be justified in circumstances which were - in the words of Walsh J in People
(DPP) v O’Callaghan - “extraordinary”. Such circumstances might include the
preservation of public peace and order; the public safety; or the preservation
of the State in a time of national emergency.
1.48
While the Commission distinguished between incapacitation in the context
of bail and incapacitation in the context of sentencing in its 1993 Consultation
Paper on Sentencing,[134] it took a
different view to O’Malley in its 1995 Report on Bail.[135]
It observed that the judgment in Carmody was brief and did not clarify
whether a statute could, in fact, render preventative sentencing valid or
whether any such legislative provision would run into constitutional
difficulty. It indicated that the more likely option was that the legislative
provision would run into constitutional difficulty. It then referred to the
case of People (DPP) v Jackson,[136]
in which the trial judge had imposed life sentences in respect of two rapes,
saying that he did so to protect women against the accused until such time as
in the judgment of the authorities the accused was fit to be released. On
appeal to the Court of Criminal Appeal, Hederman J stated that preventative
detention was not known to the Irish judicial system and reduced the sentences
to 15 years and 18 years respectively.
1.49
The view that
preventative detention is not known to the Irish judicial system has been
supported by a number of recent decisions. In People (DPP) v GK,[137] for
instance, the Court of Criminal Appeal indicated that incapacitation might be
justified to a limited extent by the need to deter offenders and protect
society. In this regard, however, incapacitation should be “consistent with the
proportionality principle and must not be conflated with a form of general
preventive incarceration which is not part of our jurisprudence”. More
recently, in Whelan and Another v Minister for Justice, Equality and Law
Reform,[138] the Supreme Court concluded that a life
sentence was a sentence of a wholly punitive nature and did not incorporate any
element of preventative detention.
1.50
The Commission thus
observes that the authorities lean against preventative detention in Ireland.
This observation is of particular relevance to mandatory sentencing provisions
which tend to target the most dangerous and persistent offenders. A common
refrain in support of mandatory sentencing provisions has been the need to take
and keep certain criminals off the streets. While such an argument may carry
political weight, it would appear, in light of the foregoing analysis, to risk
constitutional challenge.
1.51
There are many means by which the criminal justice system seeks to
achieve its aims of displacing unofficial retaliation and reducing crime,
including by education, social inclusion and policing. This Consultation Paper
is not concerned with these aspects of the criminal justice system but rather
with that aspect which relates to the imposition of criminal sanctions, in
other words, sentencing. The Commission identifies a number of principles which
constrain sentencing, namely, the humanitarian principle, the justice principle
and the economic principle.[139] These
principles safeguard citizens against excessive behaviour by the State and
shape the way in which the criminal justice system operates, specifically, the
manner in which the aims of criminal sanctions are pursued. Along with the aims
of criminal sanctions, the principles of criminal sanctions inform the
Commission’s analysis of mandatory sentences in Chapters 2, 3 and 4.
1.52
The humanitarian principle provides that the criminal justice system
should be such as to cause the minimum of suffering (whether to offenders or
others) by its attempts to achieve its aims.[140]
The humanitarian principle, in its strongest form, prohibits the use of certain
criminal sanctions, and, in its milder form, constrains the use of other
sanctions. Each form will be considered in turn.
1.53
In its strongest form the humanitarian principle asserts that there are
some criminal sanctions are so inhuman that they should not to be imposed even
if they represent the minimum of suffering needed to reduce the incidence of a
given type of offence.[141] As
perceptions evolve over time, the humanitarian principle requires a “current
evaluation as to what constitutes unacceptably inhumane punishment”.[142]
The result is that many types of criminal sanction - such as the death penalty,
corporal punishment and gross humiliation - which would have been tolerated in
former times, are now prohibited. By contrast, criminal sanctions - such as
fines, community service orders and imprisonment - continue to be acceptable.
1.54
Accordingly, Article 15.5.2 of the Irish Constitution now provides that
“[t]he Oireachtas shall not enact any law providing for the imposition of the
death penalty”,[143] while
Article 28.3.3 provides that this prohibition may not be derogated from even in
time of war or national emergency.[144]
The inspiration for these provisions was Article 1 of the Sixth Protocol to the
European Convention on Human Rights which provides for the abolition and
prohibition of the death penalty. Article 2 of the Thirteenth Protocol
prohibits any derogations from this provision while Article 3 prohibits any
reservations.
1.55
Article 40.3.1 of the Irish Constitution contains the State’s guarantee
to respect, defend and vindicate the “personal rights” of the citizen,
including the right to bodily integrity.[145]
In State (C) v Frawley,[146]
the High Court recognised that freedom from torture was a corollary of the
right to bodily integrity. Finlay P thus stated:
“If the unspecified personal rights guaranteed by Article 40
follow in part or in whole from the Christian and democratic nature of the
State, it is surely beyond argument that they include freedom from torture, and
from inhuman or degrading treatment and punishment.”[147]
This is very similar to Article 3 of the European Convention on
Human Rights which provides that “[n]o one shall be subjected to torture or to
inhuman or degrading treatment or punishment”.[148]
1.56
In its milder form the humanitarian principle permits any measure that
can be shown to be an effective deterrent or corrective, but insists that their
severity should be kept to the necessary minimum.[149]
This is otherwise known as the principle of parsimony. Ashworth indicates that the principle of
parsimony provides that all punishment is pain and should, therefore, be
avoided or minimised where possible.[150]
By contrast, O’Flaherty states that the principle of parsimony provides that
punishment should not impinge upon the personal rights of the offender beyond
the amount necessary to exact retribution for the offence.[151]
This explanation evokes Ireland’s obligations under the European Convention
on Human Rights, which permits interference with specified human rights
where the interference has been prescribed by law, pursues a legitimate aim and
is necessary in a democratic society. The Commission observes that from
these explanations a common thread may be discerned: punishment should only be
imposed where it is necessary and it is the least invasive, sufficient option.
1.57
The principle of
parsimony is commonly discussed in relation to custodial sanctions. Since
custodial sanctions are the most severe and expensive criminal sanction
available in Ireland, the theory is that they should be reserved for cases
involving the most serious offences (“custody threshold”[152]),
where no other sanction would be appropriate in the circumstances (“last
resort”[153]).[154]
1.58
While the principle of
parsimony applies to sentencing in general, the Commission notes its particular
relevance to mandatory sentencing. Mandatory sentencing provisions have the
potential to impinge on the rights of the accused to a greater extent than
discretionary sentencing provisions. Thus their use should be limited to
situations in which they are, strictly speaking, necessary.
1.59
The so-called “custody
threshold”[155] and the
“last resort”[156] principle
will now be considered in turn.
1.60
While the concept of
the “custody threshold” has received some attention in England and Wales,[157]
it has received little in Ireland. At a very general level, it would appear to
relate to the seriousness of the particular offence.
1.61
Nevertheless, it has
been asserted that the term “custody threshold” is unhelpful in so far as it
gives a false sense of security by implying clarity where none exists.[158]
There is no definite line between those offences which should attract a
custodial sanction and those which should attract a non-custodial sanction.
Indeed many offences straddle the so-called custody threshold such that they
might equally, depending on the circumstances of the case, attract a custodial
or a non-custodial sanction.[159] There is
little guidance, if any, as to how sentencers should deal with such “cusp”
offences.
1.62
In addition, the
custody threshold, in so far as it exists, is not static but varies between
sentencers and over time.[160] Sentencers
may have different perspectives, which evolve over time, on a number of matters
including: the extent to which an offence is sufficiently serious to cross the
custody threshold; the weight to be attributed to various aggravating or
mitigating factors; the significance of other factors such as previous
convictions; and the appropriateness of various custodial and non-custodial
sanctions.[161]
1.63
Furthermore, the
custody threshold may move. The custody threshold may move upwards - thus
making it more difficult to imprison an offender - where a lack of prison
spaces is coupled with the availability of a range of appropriate non-custodial
alternatives. By contrast, the threshold may move downwards - thus making it easier
to imprison an offender - where the availability of prison spaces is coupled
with a lack of appropriate non-custodial alternatives.[162]
1.64
That custody should be a
sanction of last resort seems to reflect current penal philosophy.[163]
In this regard, it may be noted that section 3 of the Criminal Justice
(Community Service) Act 1983,
as amended,[164] provides
that where a sentencing court is of the opinion that the appropriate sentence
would be one of imprisonment for a period of 12 months or less, it must
consider making a community service order instead. In addition, section 2 of
the Courts (No 2) Act 1986,
as amended,[165] provides
that a fine defaulter may only be imprisoned where he or she has not complied
with a community service order.
1.65
The “last resort”
principle has not, however, been defined in Ireland.[166]
At a very general level, however, it would appear to relate to the sparing use
of custody as a sanction for offences which meet the custody threshold.
However, while some offences are so serious that custody is the only resort,
there is a vast array of less serious offences for which a non-custodial
sanction might be an appropriate option, in the first instance at least.
1.66
In addition, as with
the custody threshold, the extent to which a custodial sanction may be
considered the last resort may vary between sentencers and over time.
Sentencers may have different views, evolving over time, regarding various
matters including the seriousness of the offence; the significance of previous
convictions; and the appropriateness of various non-custodial and custodial
sanctions. Furthermore, the extent to which a custodial sanction may be
considered the last resort may vary depending on the availability of
non-custodial alternatives.
1.67
The justice principle relates to constraints on the manner in which
criminal sanctions may be imposed.[167]
Legality, proportionality, consistency and transparency are subsets of this
principle. Each will now be considered in turn.
1.68
The legality principle
requires that sentencing decisions be made in accordance with the law, declared
in advance.[168] A
prerequisite to this is that sentencing law, no less than criminal law, should
be clear, predictable and certain. The reason for this is that individuals
should be on notice not only of the fact that they will be subject to some criminal
sanction if they transgress the law,[169]
but also of the nature and degree of that criminal sanction. (As noted
at paragraph 1.26, the level of knowledge that individuals have regarding the nature
and degree of a criminal sanction may also influence the extent to which that
criminal sanction may be said to have a deterrent effect). The Commission
observes, however, that sentencing law, in its current state, cannot be
described as clear, predictable or certain.
1.69
Ashworth asserts that
proportionality is one of the main contributions of the “just desert” theory.[170]
In this regard, he argues that proportionality may be understood in two senses
- ordinal proportionality and cardinal proportionality.[171]
Ordinal proportionality concerns the relative seriousness of offences among
themselves, while cardinal proportionality relates the ordinal ranking of
offences to a scale of punishments.[172]
1.70
In Whelan and
Another v Minister for Justice, Equality and Law Reform[173] the High Court (Irvine
J), distinguished between constitutional proportionality and proportionality in
the context of sentencing. On appeal, this distinction was upheld by the
Supreme Court.[174] Referring
to the judgment of Costello J in Heaney v Ireland,[175]
Murray CJ observed 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.
1.71
Thus constitutional
proportionality is applicable to acts of the Oireachtas. In the High Court
decision Heaney v Ireland, 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...”[176]
1.72
The Supreme Court
adopted a similar test in In re the Employment Equality Bill 1996:[177]
“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?”[178]
1.73
Heaney and In re the Employment Equality
Bill 1996 were preceded by the Supreme Court decision in Cox v
Ireland[179],
which has been identified as an important landmark in modern judicial thinking
on mandatory sentences.[180] 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.
1.74
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 plaintiff’s personal rights. 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.
1.75
More recently, in Whelan
and Another v Minister for Justice, Equality and Law Reform[181]
the Supreme Court applied the 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”.
The decision in Cox
may be contrasted with the decision in Whelan and Another. 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 Another,
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, the same.
1.76
As mandatory sentencing
provisions have the potential to infringe on the rights of the accused to a
greater extent than discretionary sentencing provisions, the Commission
believes that the doctrine of constitutional proportionality should be
stringently applied to all mandatory sentencing provisions with the possible
exception of that provision relating to murder. The doctrine of constitutional
proportionality thus requires that, first, 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.
1.77
Proportionality in the
context of sentencing is a different species entirely. In this sense,
proportionality requires that a sentence be proportionate to the gravity of the
offence and - as is generally accepted - the circumstances of the offender.[182]
The Irish courts have reaffirmed this aspect of proportionality on
numerous occasions.
1.78
In People (Attorney General) v O'Driscoll,[183]
for instance, Walsh J 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.”[184]
1.79
Similarly, in People
(DPP) v Tiernan[185]
the Supreme Court was asked to consider a point of law of exceptional public
importance,[186] 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.”[187]
1.80
Likewise, in People
(DPP) v M[188] 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.”[189]
1.81
There are numerous
examples of this principle being applied by the Irish courts.[190]
1.82
For the purpose of
formulating proportionate sentences, the courts have adopted a two-tiered
approach by which they, first, locate where on the range of applicable
penalties a particular case should lie, and, then, consider the factors which
aggravate and mitigate the sentence.[191]
1.83
Thus, in the Supreme
Court decision in People (DPP) v M[192]
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.”[193]
Given that Egan
J was considering the following 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 the seriousness of an offence.[194]
1.84
The Commission notes,
however, that it may be slightly misleading to describe Egan J’s approach to
formulating a proportionate sentence as a “two-tiered” approach when, in fact,
it involves three inter-related steps:[195]
(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.
1.85
To determine the range
of penalties applicable to the particular offence, the courts will consider
whether the Oireachtas has provided any guidance by means of, for instance, a
statutory maximum or minimum sentence.[196] 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 0 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 serious robbery should be considered, as does the direction
that an accused charged with robbery should be tried on indictment.[197] It is thus
fair to assume that robbery, which is “liable on conviction on indictment to
imprisonment for life”,[198] is a
serious offence.
1.86
For some serious
offences, excluding those to which 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 People (DPP) v Tiernan[199]
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.”[200] [Emphasis
added]
Thus a person
convicted of rape should ordinarily expect to receive a substantial custodial
sentence save where it is shown that there are “wholly exceptional”
circumstances.
1.87
Similarly, in the Court
of Criminal Appeal decision in People (DPP) v Princs[201]
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 should 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.
1.88
In general, however,
the courts should not, however, constrain their discretion in sentencing by
following a fixed policy where none has been prescribed by law. In People
(DPP) v WC[202] 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.”[203]
1.89
Thus in People (DPP)
v Kelly,[204] where the
trial judge had indicated that on the basis of a policy of deterrence he would
impose a sentence of 20 years 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.[205]
1.90
In some cases, the
courts have gone further by setting out the ranges of penalties applicable to
various combinations of facts. In People (DPP) v WD,[206]
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.[207]
1.91
In the category of
lenient punishments, the Court considered cases in which a suspended sentence
had been imposed.[208] 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.”[209]
1.92
In the category of
ordinary punishments, the Court considered cases in which a sentence range of
three to 8 years had been applied.[210]
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.”[211]
An offender could expect a sentence of five years where he or she had pled
“guilty to rape in circumstances which involve no additional gratuitous
humiliation or violence beyond those ordinarily involved in the offence,”[212]
whereas he or she could expect a sentence of 6 or 7 years where there was no
early admission, remorse or early guilty plea.[213]
1.93
In the category of
severe punishments, the Court considered cases in which a sentence range of 9
to 14 years had been applied.[214]
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.[215]
It noted that previous convictions for a sexual offence were an aggravating
factor which would normally result in the imposition of a severe sentence.[216]
A sentence of 10 or 11 years was unusual, even after a plea of not guilty,
unless there were circumstances of unusual violence or premeditation.[217]
A sentence range of 9 to 14 years was more likely where the degree to which the
offender chose to violate and humiliate the victim warranted it.[218]
1.94
In the category of condign
punishments, the Court considered cases in which a sentence range of 15 years
to life imprisonment had been imposed.[219]
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.[220]
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.[221]
A life sentence had been imposed where there had been a need to protect the
community, where very serious, vicious and degrading sexual crimes had been
committed against a victim over a period of years.[222]
The abuse of trust[223] and the
pursuit of a campaign of rape, for instance, against prostitutes[224]
were also seen as aggravating factors.
1.95
Similarly, in People
(DPP) v H[225] 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.
1.96
In People (DPP) v
Pakur Pakurian[226]
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.”[227]
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.[228]
1.97
Bearing in mind the
humanitarian principle, in particular, the custody threshold and the last
resort principle, and the other aspects of the legality principle, the
Commission is of the view that it is appropriate that certain offences at the
high end of the scale of gravity should attract an immediate, substantial
custodial sentence, save in exceptional circumstances.
1.98
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 People (DPP) v GK[229]
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.”[230]
[Emphasis added]
It is
interesting to note that these three indicia - namely, (i) culpability of the
offender, (ii) harm caused and (iii) behaviour of the offender - had previously
been highlighted by O’Malley, who cited 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[231]
in his research.[232] It is also
interesting to note the extent to which these indicia draw attention to the
individual circumstances of the case and the offender.
1.99
Regarding culpability,
O’Malley asserts that 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.[233] He thus
observes:
“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.”[234]
Thus on a scale
of culpability, intention ranks highest, negligence ranks lowest and
recklessness ranks somewhere in between.
1.100
In People (DPP) v
O’Dwyer,[235] for
example, a case concerning 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.”[236]
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.
1.101
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.”[237]
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.
1.102
Regarding harm,
O’Malley asserts that the greater the harm caused the more serious the offence
is likely to be considered.[238] Arguably,
as illustrated by People (DPP) v O’Dwyer[239],
the level of harm risked should also be a relevant factor.[240]
O’Malley observes that difficulties may arise where it appears that the offence
had more serious consequences than the offender intended, but that consequences
that were reasonably foreseeable and that actually occurred should be taken
into account when assessing harm.[241]
1.103
Thus in People (DPP)
v WD[242] the
Central Criminal Court referred to the effect of the rape 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:[243]
“[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.”[244]
1.104
In People (DPP) v GK[245]
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.”
1.105
Regarding offender behaviour,
O’Malley indicates that an offence will be considered more serious where there
are aggravating factors arising from the offender’s behaviour when committing
the offence.[246] These
include the use of a weapon (and the more dangerous the weapon, the more
serious the factor),[247]
the deliberate procurement of a weapon to commit the offence,[248]
the targeting of vulnerable victims,[249]
intrusion into a victim’s home,[250]
premeditation and planning,[251]
participation in a criminal gang,[252]
abuse of trust or power,[253] infliction
of deliberate and gratuitous violence or degradation over and above that needed
to commit the offence,[254] commission
of the offence for profit or other personal gain, or evidence of hostility
towards the victim on racial, religious or other grounds.
1.106
Thus, for example, in People
(DPP) v Tiernan,[255] a case
concerning the sentence 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.”[256]
In light of
these factors, the Supreme Court concluded that this was a particularly serious
case of rape.
1.107
This approach was
applied by the Court of Criminal Appeal in People (DPP) v Roseberry
Construction Ltd and McIntyre,[257] 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[258]
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 (£200,000) for failure to have a safety statement under section 12 of
the 1989 Act (now section 20 of the 2005 Act) and the managing director was
fined €50,800 (£40,000) for managerial neglect under section 48(19) of the 1989
Act (now section 80 of the 2005 Act).
1.108
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 People (DPP) v Redmond[259] that a fine is neither lenient,
nor harsh, in itself but only in terms of 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, although 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.”
1.109
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[260]
to be taken into account in the level of fines to be imposed in prosecutions
under the equivalent British Health and Safety at Work Act 1974.
1.110
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.[261]
1.111
The mitigating factors
included:
·
prompt admission of
responsibility and a timely plea of guilty,
·
steps to remedy the
deficiencies and
·
a good safety record.[262]
1.112
The Court in Roseberry
also quoted the following comment of the English Court of Appeal in the Howe
case:[263]
“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.”[264]
1.113
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 “Well 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; that 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.”[265]
1.114
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.
1.115
Similarly, in People
(DPP) v Loving[266]
a child pornography case, the Court of Criminal Appeal referred approvingly to
the categorisation of child pornography made by the English Court of Appeal in R
v Oliver,[267] where the court suggested the following
graduated levels of seriousness in respect of images of child pornography:[268]
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.
1.116
The Court in Loving also
cited with approval the following comments of Rose LJ in the Oliver case,
where he had suggested the following elements as being relevant to the
offender's proximity to and responsibility for, the original abuse:[269]
“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 ...”[270]
These examples
indicate the influence of developments in other jurisdictions concerning
sentencing principles and the appropriate grading of sentences within an
offence.
1.117
In its 1996 Report
on Sentencing,[271]
the Commission identified a number of factors which would aggravate the
seriousness of an offence:
“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.”[272]
1.118
The Commission also
identified a number of factors which would mitigate the seriousness of an
offence:
“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.”[273]
1.119
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 in statutory
form.
1.120
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,[274] 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.”[275]
1.121
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.”[276]
To this list
could be added factors such as “previous good character” and “the possibility
of rehabilitation”.
1.122
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 3 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.
1.123
The courts have provided more detailed guidance regarding the factors
which mitigate the severity of a sentence. In People (DPP) v Tiernan,[277] 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.”[278]
1.124
In R v King[279] 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.”[280]
1.125
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.[281]
In People (DPP) v Princs,[282]
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.”
1.126
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.[283]
Similarly, in People (DPP) v H,[284]
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.”
1.127
In People (DPP) v GK[285]
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.”
1.128
In People (DPP) v Kelly,[286]
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.”[287]
1.129
Regarding the possibility
of rehabilitation, the Supreme Court in People (DPP) v M[288]
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...”[289]
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 should be reduced to 12 years.
1.130
The principle of
consistency has traditionally been explained in terms of like cases being
treated alike and different cases being treated differently.[290]
The corollary of this is that inconsistency can be explained in terms of like
cases being treated differently and different cases being treated alike. It
should be noted, however, that when we refer to consistency we are referring to
consistency of approach rather than consistency of outcomes.[291]
In the Halliday Report, it was observed that consistency could be
recognised in terms of 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.”[292] [Emphasis
added]
1.131
In its 2004
Consultation Paper on Prosecution Appeals from Unduly Lenient Sentences in the
District Court,[293] 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.”[294]
1.132
The need for a
consistent approach becomes all the more obvious when one considers the
numerous factors which may influence sentencers.[295]
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. These factors may influence sentencers to
varying degrees. 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.
1.133
Furthermore, sentencing
is not an exact science so the principle of consistency cannot be applied in
absolute terms and some degree of variation is inevitable.[296]
Indeed, it has been argued that this is a small price to pay for a justice
system which guarantees individualised punishment.[297]
However, this argument should not be taken too far as a system which tolerates
gross inconsistency is manifestly unfair and risks losing public confidence.[298]
In such circumstances, the Oireachtas may feel compelled to respond by
circumscribing judicial discretion through the imposition of mandatory
sentences or rigid sentencing guidelines.[299]
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.”[300]
1.134
Arguably, the principle
of openness/transparency is a constitutional principle.[301]
It requires that sentencing be fair and be seen to be fair.[302]
Sentencing should be transparent in the context of particular sentencing
decisions and in the context of sentencing practice. Thus, it is observed in
the Halliday Report that reasons should be given for sentencing
decisions, in a language that will be understood by everyone involved, and
retained in a form which enables them to be retrieved for later reference.[303]
Furthermore, information regarding sentencing theory and practice should be
made available to the public and any public misconceptions should be addressed
directly with the aim of increasing public knowledge.[304]
The Commission observes that this enables members of the public to make
informed contributions to debates on the issue of sentencing. This, in turn,
may filter through to the sentencing-decisions being made by the Oireachtas and
the Executive.
1.135
O’Malley asserts that
the principle of openness/transparency requires sentencing decisions to be
announced in open court and supported by announced reasons.[305]
The provision of reasons serves both a normative and an instrumental goal.[306]
From a normative perspective, it is argued that a person affected by a decision
has a moral right to know the reasons for it. From an instrumental perspective,
an obligation to give reasons serves several purposes. First, it encourages
sentencers to critically assess their decisions to ensure that they have
considered all the relevant factors and given the appropriate weight to those factors.
Second, it assists with the development of the law by ensuring that the factors
and principles relevant to a particular decision have been recorded. Third, it
enables sentenced persons to assess whether there are valid grounds for appeal
or review and judges to determine whether a particular decision is compatible
with the governing rules and principles.
1.136
While it is desirable
that reasons be given for sentencing-decisions, the case law suggests that
there is no duty to do so under Irish law.[307]
In O'Mahony v District Judge Ballagh and DPP,[308]
the District Court judge, Ballagh J, had convicted and sentenced the applicant
without ruling on his submissions for a non-suit. The applicant sought to
judicially review the decision but the High Court refused to grant an order of certiorari
against the conviction. The applicant appealed to the Supreme Court and
Murphy J, with whom Hardiman and Geoghegan JJ concurred, stated:
“I would be very far from suggesting that judges of the District Court
should compose extensive judgments to meet some academic standard of
excellence. In practice it would be undesirable - and perhaps impossible - to
reserve decisions even for a brief period. On the other hand it does seem...
that every trial judge hearing a case at first instance must give a ruling in
such a fashion as to indicate which of the arguments he is accepting and which
he is rejecting and, as far as is practicable in the time available, his
reasons for so doing... [T]here is no suggestion that Judge Ballagh conducted
the case otherwise than with dignity and propriety. It does seem to me,
however, that in failing to rule on the arguments made in support of the
application for a non-suit he fell ‘into an unconstitutionality’...”[309]
1.137
In People (DPP) v
Cooney[310]
the applicant, who had been convicted of manslaughter and sentenced to 14 years’
imprisonment by the Central Criminal Court, sought leave to appeal the severity
of the sentence. Leave was sought on the grounds that Carney J had erred in
principle by failing to provide cogent reasons for his sentencing-decision and
to consider any of the matters raised on behalf of the applicant in his plea of
mitigation. Regarding the provision of reasons, the Court of Criminal Appeal
stated:
“It cannot be said that as the law stands at present a sentencing judge
is under an obligation to give reasons for the particular sentence which he
imposes. It is, however, in our opinion fair to say that it is a desirable
practice.”
1.138
In O'Neill v
Governor of Castlerea Prison[311]
the applicants applied to judicially review the decision of the Minister for
Justice, Equality and Law Reform to exclude them from consideration for release
under the Good Friday Agreement. The High Court rejected their application and
they appealed to the Supreme Court. One of their arguments was that the
Minister, in responding to the application for judicial review, had failed to
make full disclosure of the documents on which he had relied to exclude the
applicants from the category of “qualified prisoners”. Keane CJ, with whom Denham,
Murray, McGuinness and McCracken JJ concurred, stated:
“The authorities both in this court and the High Court accordingly
support the proposition that, while it cannot be said that reasons must be
given in the case of every administrative decision, such a duty may arise in
circumstances where, unless such reasons are provided, the legitimate interests
of a person may be affected. The authorities demonstrate that a failure to give
reasons may invalidate the decision in cases where the decision maker is not
exercising a quasi-judicial function, but is at the least required to observe
fair procedures...”[312]
1.139
In McAlister v
Minister for Justice, Equality and Law Reform,[313]
the applicant, who was serving a prison sentence, requested and was refused
compassionate temporary release in order to visit his sick mother. The
applicant sought an order quashing the decision of the Minister for Justice
refusing temporary release and a declaration that he was entitled to reasons as
to why his application had been refused. The High Court, per Finnegan P,
observed:
“It has long been recognised that it is desirable that a quasi-judicial
or administrative decision be capable of judicial review or appeal should be
accompanied by reasons. That is not to say that a discursive judgment is
required.”[314]
1.140
In a similar vein,
O’Malley observes that it would not be practical to require sentencing courts
to provide reasons for every sentence.[315]
He notes, however, that the possibility of requiring sentencing courts to
provide reasons for “certain sentences, say prison sentences of less than six
months which might be replaced with community-based penalties” is worth
discussing.[316]
1.141
This accords, in
general, with the approach taken by the English courts. In R v Higher
Education Funding Council, ex p. Institute of Dental Surgery,[317]
Sedley J considered whether an administrative body was obliged to furnish
reasons for the rating it had awarded the Institute of Dental Surgery for the
purpose of funding. He concluded that there was no general duty to give reasons
for a decision but that there were classes of case for which such a duty
existed.[318] One such
class was where the subject matter was an interest so highly regarded by the
law - for example, personal liberty - that fairness required reasons to be
given as of right.
1.142
O’Malley observes that
this case was decided before the European Convention on Human Rights
became part of English law and that a more relevant English precedent would be English
v Emery Reimbold & Strick Ltd,[319]
which was decided after incorporation. Lord Phillips of Worth Matravers MR
observed that while there was a general recognition at common law that it was
desirable for judges to give reasons for their decisions it was not universally
accepted as a mandatory requirement.[320]
He noted, however, that justice would not be done if it were not apparent to
the parties why one had won and the other had lost.[321]
As to the extent of reasons which should be given, he stated:
“[I]f the appellate process is to work satisfactorily, the judgment must
enable the appellate court to understand why the judge reached his decision.
This does not mean that every factor which weighed with the judge in his
appraisal of the evidence has to be identified and explained. But the issues
the resolution of which were vital to the judge’s conclusion should be
identified and the manner in which he resolved them explained. It is not
possible to provide a template for this process. It need not involve a lengthy
judgment. It does require the judge to identify and record those matters which
were critical to his decision.”[322]
1.143
The European Court of
Human Rights has taken a similar approach regarding its interpretation of
Article 6 (right to a fair trial) of the European Convention on Human Rights:
“The Court reiterates that, according to its established case law
reflecting a principle linked to the proper administration of justice,
judgments of courts and tribunals should adequately state the reasons on which
they are based. The extent to which this duty to give reasons applies may vary
according to the nature of the decision and must be determined in the light of
circumstances of the case. Although Article 6(1) obliges courts to give reasons
for their decisions, it cannot be understood as requiring a detailed answer to
every argument. Thus, in dismissing an appeal, an appellate court may, in
principle, simply endorse the reasons of the lower court’s decision.”[323]
1.144
The Commission
concludes that while reasons might be desirable for certain sentences, it would
not be practical to require sentencing courts to provide reasons for all
sentences. To that extent, a requirement to provide reasons would enhance the
value of the Irish Sentencing Information System; facilitate the conduct of
future analytical research; contribute to the production of high-quality,
consistent sentencing decisions; encourage informed public debate; and attract
public confidence in the Irish sentencing system.
1.145
The Commission
provisionally recommends that the justice principle, comprising legality,
proportionality, consistency, transparency/openness is a key principle of
criminal sanctions and sentencing.
1.146
The economic principle relates to constraints on the financial resources
available to the criminal justice system.[324]
As a result of financial constraints it is not possible, for instance, to
allocate a member of the Garda Síochána to each citizen. Thus, the criminal
justice system - and, indeed, the sentencing system - must consider which
measures, within those financial constraints, are likely to be the most effective
in terms of achieving the aims of criminal justice system/criminal sanctions.
This is the principle of effectiveness.
1.147
There are three limbs
to the principle of effectiveness. First, a process should be objective-led -
the objectives being clear and achievable. Second, the process should be
monitored in order to determine whether the process is meeting the particular
objectives. Third, the assumptions underlying the objectives should be clear.
1.148
In the context of
sentencing, the first limb of the principle requires that sentencing be
objective-led. In this regard, the Commission recalls the general aims of
criminal sanctions, namely, punishment, deterrence, reform and rehabilitation,
and reparation. As to whether these objectives are as clear and achievable as
the principle of effectiveness requires is a matter for debate. There are a
number of issues in this regard. The Commission notes, in the first place, that
the general purposes of sentencing quite often appear to be aspirational rather
than obtainable. Second, it is unclear whether they are of equal importance or
whether one purpose should supersede the others.[325]
Third, the role of each branch of government in determining the purpose to be
pursued in a given case is unclear. It has been argued, for instance, that the
power to select from among the various purposes is a power to determine policy
and should, therefore, be reserved to the Executive and/or Oireachtas rather
than the judiciary. [326]
1.149
The second limb of the
principle of effectiveness requires that sentencing be monitored to assess its
performance in meeting the stated objectives. To facilitate such an assessment,
the Commission notes that it would be necessary to identify the purpose or
purposes being pursued by each sentencing option - custodial or non-custodial -
and to agree on a system of benchmarks against which the performance of each
option could be reviewed. The Commission acknowledges the work done to
establish the Irish Sentencing Information System and observes that this
collection may prove to be a useful resource for any future assessment. The
Commission is not aware of any assessments having been conducted to date.
1.150
The third limb of the
principle of effectiveness requires that the assumptions underlying the
particular objective be clear. These are the important events, conditions or
decisions outside the sentence that must prevail for the objective to be
achieved. Thus, for example, if the purpose of rehabilitation is pursued, there
must be facilities in place to support rehabilitation; or, if a provision is
enacted to deal with a particular situation, that situation must prevail if the
provision is to be justified; or, if a provision is enacted as part of a
programme to deal with a particular type of offending, the other aspects of the
programme must be in operation as well.
1.151
The Commission observes
that an effective sentencing system attracts public confidence. The Irish
sentencing system is objective-led but more research is required to assess how
the system is meeting these objectives. Such research should consider whether
the objectives pursued by sentencing are clear and achievable and whether the
assumptions underlying the objectives prevail. While the principle of
effectiveness is important to the sentencing system in general, the Commission
notes that it is of particular relevance to mandatory sentencing. As noted
above, mandatory sentencing provisions have the potential to impinge on the
rights of the accused to a greater extent than discretionary sentencing
provisions. Thus it is crucial that their use should be limited to situations
in which it can be shown that they effectively pursue defined objectives which
are based on clear and prevailing assumptions.
1.152
It is thus clear that criminal sanctions and sentencing are framed by a
number of factors including the overarching aims of the criminal justice
system; the aims of criminal sanctions; and the principles which safeguard
citizens against excessive behaviour by the State.
1.153
Bearing these factors in mind one can expect a structured sentencing
system 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.
1.154
There are, however, a number of significant deficiencies in the Irish
sentencing system - not least of which is the fundamental lack of consensus
regarding the aims and principles which frame the sentencing process, their
relative significance and how they should be implemented.
1.155
There is a fundamental
lack of consensus regarding: (a) which aims and principles should frame the
sentencing process; (b) their relative significance; and (c) the manner in
which they should be implemented. The current approach, the “cafeteria approach”,[327]
leaves the determination of these matters to individual sentencing courts. As
the outcome of such a determination can vary from court to court, there are
inevitable implications for the humanitarian principle, the justice principle
and the economic principle. These will be considered in greater detail below.
1.156
Thus in People (DPP)
v GK,[328] for
example, the Court of Criminal Appeal, per Finnegan J, indicated:
“This Court has to consider what is the appropriate sentence for this
particular crime because it was committed by this particular offender... In
discharging this function, the Court examines the matter from three aspects in
the following order of priority, rehabilitation of the offender, punishment and
incapacitation from offending and, individual and general deterrence.”
Thus, in order
of priority, rehabilitation comes first, punishment and incapacitation come
second, and deterrence comes third.
1.157
By contrast, in People
(DPP) v WD,[329] the Court
of Criminal Appeal, per Charleton J, indicated:
“The function of a court in imposing sentence is manifold. It involves
punishing the offender, protecting society and offering the possibility of
rehabilitation through the humane disposal within the penal system of a violent
perpetrator.”[330]
While the court
does not specify any order of priority, it might be inferred from the order in
which the aims are mentioned that punishment comes first, the protection of
society comes second and rehabilitation comes third.
1.158
In addition, it has
been asserted that it is one thing to agree that sentencing courts should have
discretion to tailor sentences to the individual circumstances of particular
cases but quite another to suggest that sentencing courts should be free to
choose a sentencing aim in particular cases.[331]
The freedom to select from among the various sentencing aims, it is argued, is
a freedom to determine policy, not a freedom to respond to unusual
circumstances.[332] In this
regard, it may be noted that the determination of policy is a role generally
reserved to the Oireachtas.
1.159
The Commission observes
that this issue might be addressed by agreeing to certain aims and principles
being set out in statute.[333] As
illustrated in Section F, this is the approach that has been adopted by a
number of common law countries. In the Irish context, there are, at least,
three ways in which this approach might work.[334]
First, the statute might set out the aims and principles but leave it to the
courts to determine the particular aim to be pursued in individual cases.[335]
The problem with this approach is that while the Oireachtas determines policy
at a very general level, sentencing courts are still permitted to determine
policy in individual cases. Second, the statute might declare one aim as taking
priority over all other aims.[336]
The problem with this approach is that it might be too rigid in light of the
wide range of offences and offenders which appear before the sentencing courts.
Third, the statute might declare a primary aim but provide that in certain
types of case one or other aim might be given priority.[337]
This approach seems to succeed where the others have failed in so far as it
seeks to ensure that sentencing policy is determined by the Oireachtas while
avoiding the rigidity that could interfere with the role of sentencing courts
in individual cases.
1.160
As noted at paragraph
1.53, the humanitarian principle, in its strongest form, prohibits the use of
criminal sanctions which are considered to be inhumane by current standards.
Bearing in mind constitutional and human rights safeguards, the Commission
observes that there is a low risk of the Irish sentencing system running afoul
of this aspect of the principle.
1.161
There is, however, a
greater risk of the Irish sentencing system running afoul of the humanitarian
principle in its milder form, namely, where it constrains the use of permitted
criminal sanctions. In respect of the most severe criminal sanctions, namely,
custodial sanctions, it has been asserted that the “most fundamental deficiency
in the present system is the absence of anything remotely approximating to a
consensus on who should be sent to prison and why they should be sent there.”[338]
A major contributory factor is the use of concepts such as the “custody
threshold” and the “last resort” principle, which are, at best, ill-defined and
difficult to interpret.
1.162
The Commission observes
that this issue might be addressed by statutory definitions of the custody
threshold and the last resort principle.[339]
This might usefully be accompanied by a statutory declaration of the range of
non-custodial and custodial sanctions available in Ireland.
1.163
In England and Wales,
section 79(2) of the Powers of the Criminal Courts (Sentencing) Act 2000, which defines the custody threshold, provides that a
court must not pass a custodial sentence unless it is of the opinion that the offence,
or a combination of the offence and one or more offences, is so serious that
only a custodial sentence can be justified for it.
1.164
The American Bar
Association Criminal Justice Standards go further by combining a definition of
the custody threshold and the last resort principle:
“(a) A sentencing court should prefer sanctions not involving total
confinement in the absence of affirmative reasons to the contrary. A court may
select a sanction of total confinement in a particular case if the court
determines that:
(i) the offender caused or threatened serious bodily harm in the
commission of the offence,
(ii) other types of sanctions imposed upon the offender for prior
offences were ineffective to induce the offender to avoid serious criminal
conduct,
(iii) the offender was convicted of an offence for which the sanction of
total confinement is necessary so as not to depreciate unduly the seriousness
of the offence and thereby foster disrespect for the law, or
(iv) confinement for a very brief period is necessary to impress upon
the offender that the conduct underlying the offence of conviction is unlawful
and could have resulted in a longer term of total confinement;
(b) A sentencing court should not select a sanction of total confinement
because of community hostility to the offender or because of the offender’s
apparent need for rehabilitation.”[340]
1.165
As noted at paragraph
1.68, the legality principle requires that sentencing law be declared in
advance and be clear, predictable and certain. The Commission observes that
Irish sentencing law does not always meet these requirements.
1.166
Arguably, the situation
is worst in relation to the aims and principles of criminal sanctions. At a
very basic level, there is a lack of consensus regarding: (a) which aims and
principles should frame the sentencing process; (b) their relative
significance; and (c) the manner in which they should be implemented.[341]
It is thus left to individual sentencing courts to use their discretion to
determine each of these matters in individual cases.[342]
In the absence of any form of guidance, however, the results of these
determinations can vary from court to court, and case to case. This, in turn,
gives rise to a lack of (public) understanding regarding: (a) the aims and principles
which frame the sentencing process; (b) their relative significance; and (c)
the manner in which they are implemented.
1.167
The situation is not
much better in relation to statutory sentencing provisions. True, the legality
principle, at times, may require no more than compliance with a statutory
provision which prescribes a mandatory sentence or, where applicable, the
jurisdictional limits of a sentencing court.[343]
In the majority of cases, however, the task may not be as clear-cut. Statutes
do not provide the basis for many aspects of sentencing law. Where statutory
sentencing provisions exist, they are dispersed among a wide variety of
statutes, making them difficult to locate. In addition, statutory sentencing
provisions tend to be sparse on detail - setting out the basic aspects of a
particular sentence without elaborating on the specifics, such as aggravating
and mitigating factors. Statutory sentencing provisions are developed in
virtual isolation of each other and tend to be crime-specific. This causes
statutory sentencing law to be unclear, at best, and incoherent or
inconsistent, at worst.
1.168
The situation regarding
sentencing case law is equally problematic. In the absence of a comprehensive
set of principles and aims or body of law, sentencing policy varies from court
to court, and case to case. Indeed, it is not always clear from the sentencing
decision - where it has been reported - what policy approach has been adopted
by the court or the extent to which aggravating or mitigating factors have been
taken into account. While the Irish Sentencing Information System is an
important development, it cannot be described as a comprehensive collection of
sentencing decisions. Sentencing courts, for the most part, operate
independently of each other and are not obliged to consider each other’s
sentencing decisions. Thus, individual sentencing courts tend to develop their
own approaches to sentencing decisions.[344]
As a result, sentencing case law can be unclear, incoherent and inconsistent.
1.169
As will be illustrated
throughout this Consultation Paper, the Commission observes that many of these
problems arise in respect of the relatively confined area of mandatory
sentencing. It is not clear which principles and aims of criminal sanctions are
relevant in cases where a mandatory sentencing provision applies. Mandatory
sentencing provisions are crime-specific and dispersed among a variety of
statutes. As a result, there is a lack of coherency and consistency in
mandatory sentencing.[345] In addition, given the
low level of judicial interpretation of some mandatory sentencing provisions,
they can be difficult to interpret.
1.170
There is thus something
to be said for the suggestion that a sentencing act be introduced to satisfy
the legality requirement.[346] The
purpose of this act would be to set out in one legal instrument the law related
to sentencing. This would involve a consolidation and, no doubt, some
clarification of existing sentencing law.
1.171
As noted at paragraph
1.70, the proportionality principle comprises constitutional proportionality
and sentencing proportionality.
1.172
Regarding
constitutional proportionality, the Commission has observed that the
Oireachtas’s power to enact statutory sentencing provisions is subject to the
test of constitutional proportionality. As statutory sentencing provisions tend
to be developed in isolation of each other, there is a risk that a statutorily
prescribed sentence might appear proportionate to a particular offence but be
disproportionate when assessed against the sentences prescribed for other
offences. Thus, for instance, it has been asserted that it does not make sense
to prescribe a presumptive sentence of five years for certain firearms offences
when a presumptive sentence of 10 years has been prescribed for certain drugs
offences.[347]
1.173
Regarding sentencing
proportionality, the Commission has observed that this requires sentencing
courts to impose a sentence that is proportionate to the gravity of the offence
and the circumstances of the offender. There is little guidance or, at most,
conflicting guidance, as to how the courts are supposed to determine the
gravity of the offence or the relevant circumstances of the offender. As noted
in paragraph 1.82, the two-tiered approach to sentencing has been advocated by
the Supreme Court. This requires, at one level, the assessment of factors
relating to the seriousness of the offence and, at another level, the
assessment of factors relating to the severity of the sentence. In spite of
this, however, it has been the tendency of the courts to list the aggravating
and mitigating factors without any overt distinction as to whether they relate
to seriousness or severity.
1.174
For instance, in People
(DPP) v Princs,[348] a case
concerning the sentence for manslaughter, the Court of Criminal Appeal upheld
the trial judge’s list of mitigating factors, namely:
· “[The respondent] co-operated with the Gardaí
in the investigation and admitted to them his part in the offence.
· He indicated at an early stage his willingness
to plead guilty to the crime of manslaughter which in fact was the crime on
which the Jury found him guilty.
· He showed immediate genuine remorse for the
crime. He tried to save the deceased by the application of bandages which in
any event could not be successful as immediate skilled medical attention would
have been required.
· The Respondent was a person of good character
with no previous convictions in this country or his home country.
· The offence was not ‘in any sense a
premeditated act, but it was something which erupted spontaneously against a
background of drink on both sides’.
· The extra burden which imprisonment in a
foreign environment imposes on a foreign national including the increased sense
of isolation which such persons may suffer due to limited English language
skills and the fact that the Respondent has no family in this country who can
give him some support by visiting him in prison.”
Arguably, most
of these factors are relevant to the severity of sentence whereas “premeditation”
is a matter more appropriately considered in relation to the seriousness of the
offence.
1.175
Similarly, in People
(DPP) v H[349] a case
concerning the sentence for sexual offences which had been committed 30 years
before, the Court of Criminal Appeal indicated:
“The ordinary principles of mitigation and aggravation should be applied
to the circumstances of the case. For instance, if there was a plea of guilt or
if there were circumstances in the offender’s own background which might
explain the depraved behaviour, then such circumstances might mitigate the
penalty. If the offences were systematic; involved an abuse of trust; or
involved predatory behaviour over a period of years; or multiple victims, then
the tariff must reflect this.”
Arguably, a
guilty plea and the offender’s background are matters relevant to the severity
of sentence whereas the extent to which the offence is systematic, involves an
abuse of trust etc is a matter relevant to the seriousness of the offence.
1.176
As noted at paragraph
1.120, the Commission observed in its 1996 Report on Sentencing[350]
that a failure to observe the distinction between factors relating to the
seriousness of an offence and factors relating to the severity of a sentence
could lead to disproportionate sentencing.[351]
1.177
In England and Wales,
the former Sentencing Guidelines Council issued a sentencing guideline entitled
Overarching Principles: Seriousness.[352]
The guideline refers to culpability and harm as the determinant factors of
seriousness and lists the most important and most commonly occurring
aggravating and mitigating factors. Sentencing guidelines in respect of
particular offences provide more detailed guidance regarding the aggravating
and mitigating factors which are likely to arise in respect of those offences.
1.178
The Commission observes
that the development of a statutory sentencing framework would necessitate the
collation and, at times, consolidation of sentencing law. This process would
facilitate the development of a coherent sentencing policy which would guard
against the enactment of incoherent or disproportionate sentencing provisions.
And, the result of this process - a clear and coherent statement of the law -
would guard against the imposition of disproportionate criminal sanctions. Such
a statutory framework might usually set out and distinguish factors which
relate to the seriousness of an offence and the factors which relate to the
severity of a sentence. Sentencing guidelines might provide more detailed
guidance regarding the process by which a proportionate sentence is to be
determined.
1.179
The Commission observes
that sentencing in Ireland is perceived to be highly inconsistent, in
particular, with regard to the implementation of mandatory sentencing.[353]
O’Malley attributes inconsistency 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”.[354]
Maguire, on the other hand, identifies the individualised sentencing system,
the multiplicity of sentencing aims, and judicial variability as being the root
causes.[355] A couple
of recent studies support the assertion that there is inconsistency in
sentencing.[356]
1.180
In a 2007 study,[357]
a number of District Court judges were interviewed and asked to respond to
several sentencing vignettes.[358]
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.
1.181
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.[359] While most
judges indicated that there was no tariff or “going rate”,[360]
some indicated that judges developed their own views of things or their own
particular approaches to certain types of cases and penalties.[361]
Some judges rejected the idea that consistency in sentencing was possible in an
individualised system.[362] It would
appear, however, that “consistency” in this context referred to consistency of
outcomes rather than consistency of approach.
1.182
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.[363]
The degree of inconsistency in sentencing outcomes varied according to the
seriousness of the offence.[364] 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.[365] 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.
1.183
At the same time,
several general patterns in sentencing were identified.[366]
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.[367] 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.[368]
In addition, a uniform rationale emerged in respect of the imprisonment of
persistent offenders.[369] Many
judges indicated that they would impose an immediate prison sentence
principally because the offender had had previous chances and had refused to
change.
1.184
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.[370] 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”.[371]
1.185
In 2003, the Irish
Penal Reform Trust undertook a study into sentencing patterns in the Dublin
District Court.[372] 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.
1.186
By setting out the
principles and aims, and providing guidance as to how they should be
implemented, the Commission observes that a statutory sentencing framework
would reduce the current level of inconsistency in sentencing. Sentencing
guidelines might provide more detailed guidance regarding the procedure to be
followed by sentencing courts.
1.187
The Commission observes
that sentencing law could be more open/transparent. The aims and principles
which frame the sentencing process are not set out in a comprehensive manner.
In addition, statutory sentencing provisions tend to be developed in virtual
isolation of each other and dispersed among a wide variety of statutes.
Furthermore, sentencing courts are not required, nor should they be, to provide
reasons for every decision. As a result, it can be difficult for members of the
public, including the offender, to identify the factors which have informed
particular sentencing decisions.
1.188
The Commission observes
that a statutory sentencing framework, comprising a comprehensive statute and a
judicial council empowered to develop sentencing guidelines, would alleviate
this problem by making available reliable and accessible information on sentencing
in the public domain. This would give the public greater clarity regarding -
and, arguably, greater confidence in - the Irish sentencing system. It would
also encourage members of the public to engage in and assess public debates on
sentencing by reference to reliable information rather than rhetoric.[373]
In particular, it would assist the public to weigh up the costs and benefits of
various proposals, including their fiscal and resource implications. This
would, in turn, help to distil those situations in which sentencing reform, in
the form of more mandatory or more punitive criminal sanctions, is really
necessary from those situations in which it is not.
1.189
Bearing in mind the
economic constraints on the choice of criminal sanctions, the Commission
observes that more could be done to ensure that the criminal sanctions being
imposed are effective. The aims of criminal sanctions could be clearer, in
terms of being set out in a comprehensive manner, and it is debatable as to
whether they are, in all circumstances, achievable. Furthermore, there has been
little, if any, analysis as to whether the criminal sanctions being employed
are achieving these aims or, indeed, the discrete aim of the particular piece
of legislation.
1.190
The fact that there are
a number of significant deficiencies in the Irish sentencing system seems to
suggest that there is a need for more structure in sentencing. Before dealing
with how that structure might be achieved, it is useful to begin with an
examination of the current position in Ireland on structured sentencing and
guidelines.
1.191
It has been noted that
Ireland, by contrast with most common law jurisdictions, has a largely
unstructured sentencing system[374] in which the courts exercise a
relatively broad sentencing discretion.[375] Sentencing discretion is, of course,
constrained by the sentencing aims and principles discussed in this chapter,
but in practice sentencing judges have a wide measure of discretion in
individual cases. In this section, the Commission considers the extent to which
appellate review might contribute to a structured approach. The Commission also
discusses the extent to which the courts in Ireland have developed some
elements of a structured approach, including the use of general guidance or
guidelines. Finally, the Commission considers the development, under the
auspices of the Courts Service, of the Irish Sentencing Information System
(ISIS).
1.192
In its 1993
Consultation Paper on Sentencing,[376] the Commission observed that the
“ability of the courts to formulate a coherent sentencing policy is to a large
degree determined by the structure within which they must operate”.[377]
In particular, the principle of co-ordinate jurisdiction means that judges of
the same court are, by and large, free to disregard each other’s sentencing
decisions. As a result, it is in the appellate courts where sentencing policy
is primarily shaped. The obvious advantage of this approach is that appellate
courts are uniquely situated to offer effective guidance on many key aspects of
sentencing.[378]
The Commission observes, however, that there are a number of significant
disadvantages of relying on appellate review to provide sentencing guidance.
1.193
First, the appellate
courts lack a sufficient volume of sentencing appeals from which to develop
considered and principled sentencing guidance.[379] Having said that, the volume of cases
being appealed today is larger than the volume of cases being appealed at the
time the Commission’s Consultation Paper and Report were published. By contrast
to the situation which prevailed in 1993 and 1996, the defence and the
prosecution may now appeal against a sentencing decision. However, the fact
that appeals are confined to situations in which there has been an “error of
principle”[380]
means that there are relatively few opportunities for appellate courts to
develop sentencing guidance.
1.194
Second, even when the
opportunity does arise to develop sentencing guidance, appellate courts are
limited to a case-by-case consideration.[381] Thus sentencing guidance develops in
fragments over a protracted period of time.[382] Guidance will more than likely be
limited to the particular circumstances of the case. Furthermore there may be
more guidance in relation to indictable offences and imprisonment than in
relation to more commonly-prosecuted offences, in particular those which are
disposed of summarily.[383]
In addition, while this may lead to greater cohesion in sentencing for
particular offences it provides little room to generate cohesion in overall
sentencing patterns.[384]
1.195
Third, appellate courts
operate in an information vacuum.[385] They lack the full range of
perspectives, experience and expertise.[386] By and large, they will be dependent on
the information submitted by counsel and any other presentence reports. As
these will inevitably relate to the circumstances of the particular offence and
the particular offender, they do not, in general, provide the basis for wider
analysis of sentencing and its impact.[387] In any case, courts are subject to time
constraints such that even if it was provided with adequate resources it would
not have the time to consider them all.[388] It is also debatable as to whether the
courts would be a proper forum for conducting such research.[389]
1.196
Fourth, the
dissemination of appellate decisions is somewhat unstructured. As the
Commission observed in its 1993 Consultation Paper:
“[T]here is no satisfactory system of dissemination of appellate policy
decisions to the lower courts and to those involved in the sentencing process.
A high proportion of the sentencing judgments of the Court of Criminal Appeal
are delivered extemporaneously - so it is unlikely that many other than those
present at the hearing will learn of their import. But even written judgments
of the Court of Criminal Appeal are not well reported... The systematic
reporting of sentencing judgments would be of some assistance in the
development of sentencing policy...”[390]
1.197
It is clear
that the courts in Ireland have been reluctant to set out rigid sentencing
guidelines that would completely constrain sentencing discretion or which would
establish a sentencing “tariff” in specific cases. It is equally clear that the
courts have developed some indicative guidelines for specific offences.
1.198
In People (DPP) v
Tiernan[391]
the Supreme Court was asked to consider the “guidelines which the courts should
apply in relation to sentences for the crime of rape”.[392] The Supreme Court decided that, having
regard to its appellate jurisdiction, the Court should deal only with issues
arising in individual cases and should not set down a standard or tariff of
penalties of general application. In this regard, Finlay CJ observed:
“Having regard to the absence of any statistics or information before
this Court in this appeal concerning any general pattern of sentences imposed
for the crime of rape within this jurisdiction, general observations would not
be appropriate. Furthermore, having regard to the fundamental necessity for
judges in sentencing in any form of criminal case to impose a sentence which in
their discretion appropriately meets all particular circumstances of the case
(and very few criminal cases are particularly similar), and the particular
circumstances of the accused, I would doubt that it is appropriate for an
appellate court to appear to be laying down any standardisation or tariff of
penalty for cases.”[393]
It is not clear
from this whether the Supreme Court was more influenced by the lack of
statistical data or its perception that to establish a tariff would be incompatible
with an individualised system of sentencing.
1.199
In any case, it would
appear that the Supreme Court had greater reservations in relation to
guidelines in the form of sentencing tariffs than guidelines in the form of
sentencing principles. Thus, despite its reluctance to establish a sentencing
tariff, the Supreme Court articulated a number of general principles in
relation to sentencing for rape,[394] the most basic one being that save in
exceptional circumstances rape should always attract “a substantial immediate
custodial sentence”.[395]
1.200
The decision in Tiernan
clearly indicates an antipathy to any sentencing tariff that would remove
sentencing discretion in an individual case. At the same time the Court
indicated that, given the clear labelling by the Oireachtas of the seriousness
of the offence of rape as carrying a maximum sentence of life imprisonment, it
also indicated that a substantial immediate custodial sentence was appropriate
except in exceptional circumstances. This is somewhat different to the approach
taken by the Oireachtas to drugs and firearms offences where a specified
minimum sentence of 10 or five years is prescribed, but it is notable that in Tiernan,
the Misuse of Drugs Act 1977 and the Firearms Acts there are
references to a presumption of custodial sentences, subject to exceptional
circumstances. This might be seen as an attempt to preserve judicial discretion
in individual cases.
1.201
As noted at paragraphs
1.89-1.129, a number of decisions since the Tiernan case suggest that
the courts are prepared to provide further guidance, in particular by reference
to aggravating and mitigating factors
1.202
The Irish Sentencing Information System (ISIS) is a relatively new
development in Ireland which, in time, may contribute significantly to a more
structured sentencing system. The ISIS, which is broadly similar to systems in
New South Wales and Scotland,[396]
is a searchable database of the sentencing decisions of the Dublin and Cork
Circuit Criminal Courts.[397] It is
intended that the extent to which, and the way in which, a judge uses the ISIS
is a matter entirely within the judge’s discretion.[398]
It has been noted, however, that the ISIS in its ultimate form might assist judges
to form preliminary views as to appropriate sentences, deal with unusual
features of cases; and locate offences on the spectrum of sentences.[399]
1.203
The Commission notes that, at present, ISIS is a relatively limited
information tool in a number of respects. The database refers to a selection of
sentencing decisions from the Circuit Criminal Court in Dublin and, to a lesser
extent, Cork. In addition, the
database does not provide any formal analysis of the sentencing decisions. Furthermore,
the database’s potential is hampered by the principle of co-ordinate
jurisdiction, which provides that judges of the same court are, by and large,
free to disregard each other’s sentencing decisions.
1.204
Bearing in mind that
ISIS is based on comparable sentencing databases developed in New South Wales
and Scotland, the Commission acknowledges that this, together with the
developments in case law already noted, indicates that the sentencing system in
Ireland has already been influenced by developments in other countries.
1.205
It is clear from this
that the appeal courts, the courts and the Irish Sentencing Information System
each have a role in enhancing the structure of the Irish sentencing system. It
is equally clear, however, that they alone cannot achieve the structure
necessary to deal with the deficiencies in the system. There is thus a need for
an additional mechanism to supplement the existing level of structure while
ensuring that vital aspects of the current system, namely, judicial
independence and discretion, are preserved. As to the form that this mechanism
should take, the Commission considers a number of recent reports which deal
with the issue of sentencing.
1.206
The Thornton Hall
Project Review Group was set up to examine the need for prison accommodation
and the development at Thornton Hall of a new prison. In its 2011 Report,[400]
the Review Group made a number of recommendations which are relevant to this
Consultation Paper. It found that prison conditions could not be improved
without an “all encompassing strategic review of penal policy” including, but
not limited to, “sentencing policies”.[401]
It also found that there was a lack of statistical information on sentencing
practice in the courts and suggested that it would be desirable to extend the
collection of sentencing information through the ISIS or a similarly structured
system.[402] It also
raised the possibility of “judicially framed guidelines” forming part of the
programme for the proposed Judicial Council[403]
and expressed its hope to create a penal system that was both “principled and
sustainable”.[404]
1.207
The Working Group on the Jurisdiction of the Courts[405]
did not examine the issue of sentencing in sufficient depth to make concrete
recommendations. It did, however, find that there was a need for some system of
objective guidance for sentencing judges and discussed the option of creating a
statutory body charged with providing statutory guidelines.[406]
1.208
Following a recommendation of the Working Group on a Courts Commission,
considered at paragraph 1.209, the Committee on Judicial Conduct and Ethics
(The Keane Committee) was established by the Chief Justice in 1999 to, among
other matters:
“[A]dvise on... the establishment of a
judicial body which would contribute to high standards of judicial conduct,
establish a system for the handling of complaints of judicial conduct, and
other activities such as are taken by similar bodies elsewhere...”[407]
1.209
In its 2000 Report[408] the Keane
Committee 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.”[409]
Among its responsibilities, the Report recommended that the Judicial Council,
through a Judicial Studies Committee, should:
“...undertake responsibility for
the establishment of a sentencing information system similar to that already in
existence in New South Wales. This takes the form of a computerised data base
containing legally and statistically relevant information on sentencing... This
might in turn form part of a judicial information system which would not be
restricted to sentencing and would seek to meet the research requirements of all
the courts.”[410]
1.210
The establishment of the Keane Committee had been inspired by the 1998
Report of the Working Group on a Courts Commission[411]
which had recommended the establishment of a Committee:
“(d) to advise on and prepare the
way, if determined appropriate, for the establishment of a judicial body which
would contribute to high standards of judicial conduct and establish a system
for the handling of complaints of judicial conduct...”[412]
1.211
The 1998 Report had, in turn, been preceded by the Commission’s 1996
Report on Sentencing.[413]
1.212
In its 1996 Report on Sentencing,[414] the Commission unanimously recommended
that statutory sentencing guidelines should not be introduced in Ireland.[415]
By a majority the Commission recommended that non-statutory guidelines be
introduced to link the severity of the sentence to the seriousness of the
offending behaviour.[416] Dissenting
from this recommendation, the minority considered that while there was room for
further identification and refinement of the criteria by which judicial
discretion should be exercised, the task should continue to be the
responsibility of the judiciary itself.[417]
1.213
The tenor of the
recommendations contained in the more recent reports and, indeed, the minority
view of the Commission’s 1996 Report on Sentencing,[418]
is that a Judicial Council should be established with responsibility for
developing sentencing guidelines. In furtherance of these recommendations, in
2010, the General Scheme of the Judicial Council Bill was
published[419] and, in
2011, an interim Judicial Council was established.[420] The
Commission supports these developments and observes that the Judicial
Council would be an appropriate body to develop and publish suitable guidance
or guidelines on sentencing that are consistent with the sentencing principles
already discussed.
1.214
Part 12 of the Criminal
Justice Act 2003 deals with sentencing. It
starts by setting out the purposes of sentencing which include the punishment
of offenders; the reduction of crime (including by deterrence); the reform and
rehabilitation of offenders; the protection of the public; and the making of
reparation by offenders to persons affected by their offences.[421]
1.215
It proceeds to provide
guidance regarding the determination of the seriousness of an offence.[422]
In considering the seriousness of any offence, the court must consider
the offender’s culpability in committing the offence and any harm which the
offence caused, was intended to cause or might foreseeably have caused.[423]
In considering the seriousness of an offence (“the current offence”) committed
by an offender who has one or more previous convictions, the court must treat
each previous conviction as an aggravating factor if (in the case of that
conviction) the court considers that it can reasonably be so treated having
regard, in particular, to (a) the nature of the offence to which the conviction
relates and its relevance to the current offence, and (b) the time that has
elapsed since the conviction.[424]
In considering the seriousness of any offence committed while the offender was
on bail, the court must treat the fact that it was committed in those
circumstances as an aggravating factor.[425]
1.216
It provides guidance as to how guilty pleas should be treated for the
purpose of reducing sentences.[426]
In determining what sentence to pass on an offender who has pleaded guilty to
an offence in proceedings before that or another court, a court must take into
account (a) the stage in the proceedings for the offence at which the offender
indicated his intention to plead guilty, and (b) the circumstances in which
this indication was given.[427] In the
case of an offence the sentence for which falls to be imposed under subsection
(2) of section 110 or 111 of the Sentencing Act, nothing in that
subsection prevents the court, after taking into account any matter referred to
in subsection (1) of this section, from imposing any sentence which is not less
than 80 per cent of that specified in that subsection.[428]
1.217
In addition it refers to certain aggravating factors such as racial or
religious aggravation[429] and
aggravation related to disability or sexual orientation.[430]
1.218
It outlines restrictions on community sentences;[431] restrictions on discretionary
custodial sentences;[432]
procedural requirements for imposing community sentences and discretionary
custodial sentences;[433]
fines;[434]
community orders;[435]
prison sentences of less than 12 months;[436] intermittent custody;[437]
custody plus orders;[438]
suspended sentences;[439]
electronic monitoring;[440]
dangerous offenders;[441]
effect of remand in custody or on bail;[442] release on licence;[443] consecutive or concurrent terms;[444]
effect of life sentence;[445]
deferment of sentence;[446]
drug treatment;[447]
alteration of penalties for offences;[448] minimum sentence for certain firearms
offences;[449]
offenders transferred to mental hospital;[450] disqualification from working with
children.[451]
1.219
Section 3A of the Crimes
(Sentencing Procedure) Act 1999
sets out the purposes of sentencing, namely, punishment; deterrence; protection
of the community; rehabilitation; accountability; denunciation; and recognition
of the harm done to the victim of the crime and the community. Part 2 sets out
the penalties that may be imposed, namely, custodial sentences, non-custodial
alternatives, fines, and restriction orders. In addition to setting out the
general sentencing procedures, the Act also sets out the sentencing procedure
for imprisonment, intensive correction orders, home detention orders, community
service orders, good behaviour orders, restriction orders and intervention
programme orders.[452]
1.220
Part 2 of the Sentencing
Act sets out some general
principles. Section 5 establishes some sentencing guidelines. These include the
purposes of sentencing, namely, punishment, rehabilitation, deterrence,
denunciation, and protection of the community;[453] and several matters to which a
sentencing court must have regard, including, the maximum and any minimum
penalty prescribed for the offence, and the nature and severity of the offence.[454]
Section 6 sets out the factors to be considered in determining an offender’s
character while section 6A sets out the aggravating factors. Part 3 deals with
non-custodial and custodial sentences. Part 4 deals with mental health orders.
Part 5 deals with orders in addition to sentence, such as restitution and
compensation orders, and restriction orders. Part 6 deals with the procedure
for making of sentencing and other orders.
1.221
Part 2 of the Penalties
and Sentences Act 1992 sets out the governing principles of sentencing.
Section 9 establishes sentencing guidelines. These include the purposes of
sentencing, namely, punishment, rehabilitation, deterrence, denunciation, and
protection of the community;[455]
and certain matters to which a sentencing court must have regard, including the
principle that imprisonment should be a sentence of last resort, the maximum
and minimum penalty prescribed for the offence, and the nature and severity of
the offence.[456]
Among other matters, Part 2 also sets out the matters to be considered in
determining the offender’s character;[457] and provides that a guilty plea[458]
and cooperation with law enforcement authorities[459] must be taken into account. Part 3
deals with releases, restitution and compensation. Part 3A deals with
non-contact orders and Part 3A deals with banning orders. Part 4 deals with
fines. Part 5 deals with intermediate orders such as probation orders and
community service orders. Part 6 deals with intensive correction orders. Part 8
deals with orders of suspended imprisonment and Part 9 deals with imprisonment.
Part 9A deals with convictions for serious violent offences. Part 10 deals with
indefinite sentences.
1.222
The Criminal Law
(Sentencing) Act 1988 provides some guidance in
relation to sentencing. Part 2 sets out the general sentencing provisions.
Division 1 of Part 2 sets out the procedural provisions. Division 3 sets out
the general sentencing powers of the courts. Division 2A deals with serious
repeat adult offenders and recidivist young offenders. Division 3 deals with
sentences of indeterminate duration. Division 4 deals with sentencing
guidelines. This provides that the Full Court may give a judgment establishing
sentencing guidelines.[460]
A sentencing court should have regard to relevant sentencing guidelines but is
not bound to follow a particular guideline if, in the circumstances of the
case, there are good reasons for not doing so. The Full Court may establish or
review sentencing guidelines on its own initiative, or on application by the
Director of Public Prosecutions, the Attorney General or the Legal Services
Commission.[461]
Division 5 deals with sentencing standards for offences involving paedophilia.
Part 3 deals with imprisonment, including non-parole periods and dangerous
offenders. Part 4 deals with fines. Part 5 deals with bonds. Part 6 deals with
community service and supervision. Part 7 deals with restitution and
compensation. Part 9 deals with enforcement.
1.223
The Sentencing Act
1997 provides some guidance.
Section 3 sets out the purposes of the Act. These are to amend and consolidate
the State’s sentencing law; promote the protection of the community as a
primary consideration in sentencing offenders; promote consistency in sentencing
offenders; establish fair procedures for imposing sentences on offenders
generally, on offenders in special cases and dealing with offenders who breach
the conditions of sentences; help prevent crime and promote respect for law by
allowing courts to impose sentences aimed at deterring offenders and other
persons from committing offences, the rehabilitation of offenders, and that
denounce the conduct of offenders; promote public understanding of sentencing
practices and procedures; set out the objectives of sentencing and related
orders; and recognise the interests of victims of offences.
1.224
Part 2 deals with
general sentencing powers. Part 3 deals with custodial sentences, including
parole, dangerous criminals and suspended sentences. Part 3A deals with drug
treatment orders. Part 4 deals with community service orders. Part 5 deals with
probation orders. Part 6 deals with fines. Part 6A deals with rehabilitation
programmes. Part 7 deals with driving disqualification orders. Part 8 deals
with adjournments, discharges and dismissals. Part 9 deals with orders in
addition to sentence including restitution, compensation and area restriction.
Part 10 deals with assessment, continuing care, supervision and restriction
orders. Part 11 deals with sentencing procedure.
1.225
In its 2008 Report on
Sentencing,[462]
the Tasmania Law Reform Institute recommended that the Sentencing Act 1997
include separate sections for the purposes of the Act and the purposes of
sentencing.[463]
It also recommended that the purposes of sentencing should include punishment;
deterrence; rehabilitation; protection of the community; denunciation;
restoration of relations.[464]
The Institute had recommended the establishment of an independent statutory
sentencing advisory council.[465]
It further recommended that guideline judgments should not be introduced in the
absence of broad judicial and professional support for them from the legal
profession.[466]
1.226
Part 2 of the Sentencing
Act 1991, as amended, sets out the
governing principles. Section 5 sets out sentencing guidelines. These include
the purposes of sentencing, namely, punishment, deterrence, rehabilitation,
denunciation, and protection of the community;[467] and certain matters to which a
sentencing court must have regard, including the maximum penalty prescribed for
the offence, current sentencing practices, and the nature and gravity of the
offence.[468]
Section 6 sets out the factors to be considered in determining an offender’s
character and section 6AAA provides for a sentence discount for a guilty plea.
Part 2A deals with serious offenders. Part 2B deals with continuing criminal
enterprise offenders. Part 3 deals with custodial and non-custodial sentences,
including community service orders, fines, dismissals, discharges and
adjournments, and special conditions for intellectually disabled offenders.
Part 4 deals with orders in addition to sentence including restitution,
compensation. Part 4A deals with identity crime certificates. Part 5 deals with
mentally ill offenders. Part 6 deals with the procedure of making of sentencing
and other orders.
1.227
The Sentencing Act
1995 provides some guidance. Part
2 deals with general matters. Section 6 sets out the principles of sentencing.
Thus a sentence imposed on an offender must be commensurate with the
seriousness of the offence. The seriousness of an offence must be determined by
taking into account the statutory penalty for the offence; the circumstances of
the offence, including the vulnerability of the victim; any aggravating
factors; and any mitigating factors. This does not prevent the reduction of a
sentence because of any mitigating factors or any rule of law as to the
totality of sentences. A court must not impose a sentence of imprisonment on an
offender unless it decides that the seriousness of the offence is such that
only imprisonment can be justified or the protection of the community requires
it. A sentencing court must take into account any relevant guidelines in a
guideline judgment. Section 7 sets out aggravating factors and section 8 sets
out mitigating factors. Part 3 deals with matters preliminary to sentencing.
Part 3A deals with pre-sentence orders. Part 4 deals with the sentencing
process. Part 5 deals with sentencing options. Part 6 deals with the release of
an offender without sentence. Part 7 deals with conditional release orders.
Part 8 deals with fines. Part 9 deals with community-based orders. Part 10
deals with intensive supervision orders. Part 11 deals with suspended
imprisonment. Part 12 deals with conditional suspended imprisonment. Part 13
deals with imprisonment, including release. Part 14 deals with indefinite
imprisonment. Part 15 deals with other forms of sentence including
disqualification orders. Part 16 deals with reparation orders. Part 17 deals
with other orders not forming part of a sentence.
1.228
There is no Sentencing
Act at the federal level. Part IB (sentencing, imprisonment and release of
federal offenders) of the Crimes Act 1914 does, however, provide some
guidance. Division 2 deals with general sentencing principles. Section 16A
deals with the matters to which a sentencing court must have regard.
Accordingly, the court must impose a sentence that is of a severity appropriate
in all the circumstances of the offence. In addition, the court must take into
account other matters including the nature and circumstances of the offence,
the personal circumstances of the victim, any injury, loss or damage resulting
from the offence; the degree to which the person has shown contrition for the
offence; any guilty plea; any co-operation with law enforcement agencies;
deterrence; punishment; character, antecedents, age, means and physical or
mental condition of the person; prospect of rehabilitation. Division 3 deals
with sentences of imprisonment. Division 4 deals with the fixing of non-parole
periods and the making of recognisance release orders. Division 5 deals with
conditional release on parole or licence. Division 8 deals with summary
disposition and Division 9 deals with sentencing alternatives for persons
suffering from mental illness or intellectual disability.
1.229
The Australian Law
Council observed:
“Although these provisions provide some guidance to sentencing courts,
State courts exercising federal jurisdiction must also apply their particular
State and Territory procedures when determining the sentence to be imposed on a
federal offender.[469]
As a result, differences arise in the way federal offenders are dealt
with from one jurisdiction to another. In addition, the options available for sentencing
federal offenders (ranging from fines and imprisonment to community service
orders and home detention) vary across Australia.”[470]
1.230
In its 2006 Report,[471]
the Australian Law Reform Commission recommended that the Australian Parliament
should enact a separate federal Sentencing Act that incorporated those
provisions of the Crimes Act 1914 that deal with the sentencing,
administration and release of federal offenders. In addition, provisions
currently located in Parts I (Preliminary), IA (General), IB, III (offences
relating to the administration of justice) and VIIC (Pardons, quashed
convictions and spent convictions) of the Crimes Act and in other
federal legislation, that are relevant to the sentencing, administration and
release of federal offenders should be consolidated in the new act.[472]
In addition, the Commission recommended that the federal sentencing legislation
should set out the purposes of sentencing, namely, punishment, deterrence,
rehabilitation, protection of the community, denunciation and restoration of
relations between the community, the offender and the victim.[473]
Furthermore, the Commission recommended that the federal sentencing legislation
should set out the principles of sentencing, namely, proportionality,
parsimony, totality, consistency and parity, and individualised justice.[474]
The Commission also recommended that the federal sentencing legislation should
set out sentencing factors such as those likely to aggravate or mitigate a
sentence.[475]
1.231
Section 8 of the Sentencing Act 2002,
as amended,[476] sets out
the purposes and principles of sentencing. The purposes of sentencing are to
hold the offender accountable for harm done to the victim and the community; to
promote in the offender a sense of responsibility for, and an acknowledgement
of, that harm; to provide for the interests of the victim of the offence; to
provide reparation for harm done;[477]
to denounce the conduct in which the offender was involved; to deter the
offender or other persons from committing the same or a similar offence; to
protect the community from the offender; and/or to assist in the offender’s
rehabilitation and reintegration.[478]
1.232
The principles of sentencing oblige the court to take into account the
gravity of the offending in the particular case, including the degree of
culpability; to take into account the seriousness of the type of offence in
comparison with other types of offences;[479]
to impose the maximum penalty prescribed for the offence if the offending is
within the most serious of cases for which that penalty is prescribed;[480]
to impose a penalty near to the maximum prescribed for the offence if the
offending is near to the most serious of cases for which that penalty is
prescribed;[481] to take
into account the general desirability of consistency with appropriate
sentencing levels and other means of dealing with offenders, in respect of
similar offenders committing similar offences in similar circumstances; to take
into account any information provided to the court concerning the effect of the
offending on the victim; to impose the least restrictive outcome that is
appropriate in the circumstances; to take into account any particular
circumstances of the offender that mean that a sentence or other means of
dealing with the offender that would otherwise be appropriate would, in the
particular instance, be disproportionately severe; to take into account the
offender’s personal, family, whanau, community and cultural background in
imposing a sentence or other means of dealing with the offender with a partly
or wholly rehabilitative purpose; and to take into account any outcomes of
restorative justice processes that have occurred, or that the court is
satisfied are likely to occur.[482]
1.233
The Act sets out the aggravating and mitigating factors.[483]
It also provides that the court must take into account any offer, response or
measure to make amends.[484]
1.234
The Act sets out a hierarchy of sentences from the least to the most
restrictive.[485] These
include discharges or orders to come up for sentence if called on; sentences of
a fine and reparation; community-based sentences of community work and
supervision; community-based sentences of intensive supervision and community
detention; sentences of home detention; and sentences of imprisonment.
1.235
When considering the imposition of a sentence of imprisonment for any
particular offence, the court must have regard to the desirability of keeping
offenders in the community as far as that is practicable and consonant with the
safety of the community.[486] The court
must not impose a sentence of imprisonment unless it is satisfied that: a
sentence is being imposed for all or any of the purposes of sentencing; those
purposes cannot be achieved by a sentence other than imprisonment; and no other
sentence would be consistent with the application of the principles of
sentencing.[487] Nothing
limits the discretion of the court to impose a sentence of imprisonment on an
offender if the court is satisfied on reasonable grounds that the offender is
unlikely to comply with any other sentence that it could lawfully impose and
that would otherwise be appropriate.[488]
1.236
When sentencing an offender, a court must impose a sentence that
is consistent with any sentencing guidelines that are relevant in the
offender’s case, unless the court is satisfied that it would be contrary
to the interests of justice to do so.[489]
Furthermore, if sentencing guidelines indicate that a sentence of a particular
kind, or within a particular range, would normally be appropriate for the
offence, a court must give reasons for deciding on a sentence of a different
kind or outside that range.[490]
1.237
The Canadian Criminal Code,
aside from prescribing mandatory penalties for certain offences,[491]
sets out the purposes and principles of sentencing.[492]
Accordingly, the fundamental purpose of sentencing is to contribute, along with
crime prevention initiatives, to respect for the law and the maintenance of a
just, peaceful and safe society by imposing just sanctions that have one or
more of the following objectives: to denounce unlawful conduct; to deter the
offender and other persons from committing offences; to separate offenders from
society, where necessary; to assist in rehabilitating offenders; to provide
reparations for harm done to victims or to the community; and/or to promote a
sense of responsibility in offenders, and acknowledgment of the harm done to
victims and to the community.[493]
1.238
The fundamental principle is that a sentence must be proportionate to
the gravity of the offence and the degree of responsibility of the offender.[494]
In addition, the courts must take into consideration the following principles:
a sentence should be increased or reduced to account for any relevant
aggravating or mitigating circumstances relating to the offence or the
offender; a sentence should be similar to sentences imposed on similar
offenders for similar offences committed in similar circumstances; where
consecutive sentences are imposed, the combined sentence should not be unduly
long or harsh; an offender should not be deprived of liberty, if less
restrictive sanctions may be appropriate in the circumstances; and all
available sanctions other than imprisonment that are reasonable in the
circumstances should be considered for all offenders. [495]
1.239
The Criminal Code also deals with the use of alternative
measures;[496] sentencing
of organisations;[497] punishment
generally;[498] absolute
and conditional discharges;[499] probation;[500]
fines and forfeiture;[501]
restitution;[502]
conditional sentences of imprisonment;[503]
imprisonment;[504]
eligibility for parole;[505]
imprisonment for life;[506] and
pardons and remissions.[507]
1.240
In addition, the Youth
Criminal Justice Act 2002 sets out the purposes and
principles relevant to the sentencing of young offenders.[508] Accordingly, the purpose of youth
sentencing is to hold a young person accountable for an offence through the
imposition of just sanctions that have meaningful consequences for the young
person and that promote his or her rehabilitation and reintegration into
society, thereby contributing to the long term protection of the public.[509]
1.241
A youth justice court
determines the sentence in accordance with the following principles: the
sentence must not result in a punishment that is greater than the punishment that
would be appropriate for an adult who has been convicted of the same offence
committed in similar circumstances; the sentence must be similar to the
sentences imposed in the region on similar young persons found guilty of the
same offence committed in similar circumstances; the sentence must be
proportionate to the seriousness of the offence and the degree of
responsibility of the young person for that offence; all available sanctions
other than custody that are reasonable to in the circumstances should be
considered for all young persons; and the sentence must be the least
restrictive sentence that is capable of achieving the purpose of youth
sentences, be one that is most likely to rehabilitate the young person and
reintegrate him or her into society, and promote a sense of responsibility in
the young person, and an acknowledgement of the harm done to victims and the
community.[510]
1.242
The youth court must
also consider the following factors: the degree of participation by the young
person in the commission of the offence; the harm done to victims and whether
it was intentional or reasonably foreseeable; any reparation made by the young
person to the victim in the community; the time spent in detention by the young
person as a result of the offence; the previous findings of guilt of the young
person; and any other aggravating and mitigating circumstances related to the
young person or the offence that are relevant to the purpose and principles of
youth sentencing.[511]
1.243
A youth justice court
must not commit a young person to custody unless: the young person has
committed a violent offence; the young person has failed to comply with
non-custodial sentences; the young person has committed an indictable offence
for which an adult would be liable to imprisonment for a term of more than two
years and has a history that indicates a pattern of findings of guilt; or in
exceptional cases where the young person has committed an indictable offence,
the aggravating circumstances of the offence are such that the imposition of a
non-custodial sentence would be inconsistent with the purposes and principles
of youth sentences.[512]
Even if one or more of these circumstances apply, a youth justice court must
not impose a custodial sentence unless the court has considered all
alternatives to custody that are reasonable in the circumstances and determined
that there is not a reasonable alternative, or combination of alternatives,
that is in accordance with the purpose and principles of youth sentences.[513]
In this regard, the court must consider: the alternatives to custody that are
available; the likelihood that the young person will comply with a
non-custodial sentence, taking into account his or her compliance with previous
non-custodial sentences; and the alternatives to custody that have been used in
respect of young persons for similar offences committed in similar
circumstances.[514]
If a youth justice court imposes a youth sentence that includes a custodial
portion, the court must state the reasons why it has determined that a
non-custodial sentence is not adequate to achieve the purpose of youth
sentencing.[515]
1.244
In this Chapter, the
Commission has considered the general aims of criminal sanctions as well as the
principles of sentencing in order to provide a conceptual framework for the
analysis of the different forms of mandatory sentences that will be reviewed in
detail in Chapters 2 to 4. In this regard, the Commission identified four main
aims of criminal sanctions, namely (a) punishment, (b) deterrence, (c) reform
and rehabilitation and (d) reparation. The Commission also identified three key
principles of sentencing, namely (a) the humanitarian principle (which
incorporates respect for constitutional and international human rights), (b)
the justice principle (including proportionality) and (c) the economic
principle.
1.245
The Commission notes that the justice principle is of particular
importance because it incorporates the concept of proportionality, which
requires an individualised approach to sentencing, namely, that the sentencing
court must have 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 of a custodial sentence on
conviction for manslaughter and rape. These are clearly intended to provide
principle-based clarity around likely sentencing outcomes, and 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 and rape, for which the sentence can range from
no custodial sentence to a maximum of life imprisonment.
1.246
The Commission has also discussed in the 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 factors, and mitigating factors,
as well as the individual circumstances of the offender, which directly affect
both the seriousness of the offence and the severity of the sentence to be
imposed in an individual case. The Commission notes that this has built on the
list of aggravating factors and mitigating factors, and the individual
circumstances of the offender, set out in the Commission’s 1996 Report on
Sentencing.[516] It is, equally, clear that the courts have also had
regard to comparable case law and developments in other jurisdictions since
1996 in connection with the ongoing development of such factors.
1.247
The Commission also notes, however, that in spite of the development and
recognition of the general aims of criminal sanctions and principles of
sentencing, there remain some 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 the 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, as well as the 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, which
has been developed using experience with comparable databases from other
jurisdictions (as discussed in this Chapter), could in time be regarded as a leading
model of its type.[517]
1.248
In conclusion, therefore, the Commission supports the recommendations
made in 2000, and reiterated in 2011, that the proposed 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 Consultation Paper. The Commission has also concluded, and
provisionally recommends, that such guidance or guidelines should have regard to: the sentencing guidance
and guidelines available from decisions of the Supreme Court and the Court of Criminal Appeal,
including those discussed in this Consultation Paper; the aggravating and
mitigating factors, and individual offender characteristics, identified in the
Commission’s 1996 Report on Sentencing, as developed by the
courts since 1996; and information in relevant databases, notably the Irish
Sentencing Information System (ISIS).
1.249
The Commission supports the recommendations made in 2000, and reiterated
in 2011, that the proposed 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 Consultation Paper.
The Commission also provisionally recommends that such guidance or guidelines
should have regard to:
the sentencing guidance and guidelines available from decisions of the
Supreme Court and the Court
of Criminal Appeal, including those discussed in this Consultation Paper; the
aggravating and mitigating factors, and individual offender characteristics,
identified in the Commission’s 1996 Report on Sentencing, as developed by the
courts since 1996; and information in relevant databases, notably the Irish
Sentencing Information System (ISIS).
1.250
In Chapters 2 to 4, the
Commission employs the general aims and principles discussed here, and the
approach expressed in the preceding paragraphs, in order to review whether the
mandatory sentences discussed in those chapters are, in accordance with the
Attorney General’s request, “appropriate or beneficial.”
2
2.01
In this Chapter the Commission considers the first type of mandatory
sentence identified in the Introduction, entirely mandatory sentences, of which
there are only two examples in Ireland. These are the mandatory life sentence
for (a) murder[518] and (b)
murder of designated persons such as a member of the Garda Síochána.[519]
As the Commission notes, these entirely mandatory sentences are reserved for
offences which formerly attracted the death penalty.
2.02
While the death penalty had been progressively abolished throughout the
first half of the 19th century,[520]
section 2 of the Offences Against the Person Act 1861 retained it as the
penalty for murder.[521]
Section 2 provided that “Upon every Conviction for Murder the Court shall pronounce
the Sentence of Death”. In theory, the provision applied to all persons who had
reached the age of 17 years and been convicted of murder. In reality, however,
the death penalty was commuted to imprisonment or some other form of detention
in many cases.
2.03
From the 1930s onwards, disquiet regarding the existence of the death
penalty became evident and pressure to remove it from the statute book grew. It
is clear, however, that the Constitution of 1937 envisaged its retention, as it
vested the power to commute a sentence in the President, subject to the advice
and consent of the Government.[522]
In 1951 Sean MacBride tabled a motion in the Dáil, proposing that a Select
Committee be appointed to examine the desirability of abolishing the death
penalty. In 1956 Professor Stanford proposed in the Seanad that the Government
consider abolishing the death penalty or suspending it for a trial period. On
both occasions the standard abolitionist arguments were advanced: the
inhumanity of execution, the lack of firm evidence as to its deterrent effect
and the possibility of error. The last execution in Ireland was of Michael
Manning and took place on 20th April 1954, in Mountjoy Prison. No
woman had been executed since 1925.
2.04
The Criminal Justice Act 1964
abolished the death penalty for all crimes except treason, “capital murder”,
and certain offences subject to military law.[523]
Capital murder consisted of (i) murder of a member of the 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, the Criminal Justice
Act 1964 imposed a mandatory sentence of penal servitude for life.
2.05
Section 1 of the Criminal Justice Act 1990 abolished the death
penalty for all crimes. In 2001 the Constitution was amended at Article 15.5.2
to impose a constitutional ban on the death penalty.[524]
O’Malley observes that the enactment of the 1990 Act “was widely viewed as
having brought the debate on sentencing for murder to a satisfactory
conclusion”.[525]
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, as will be discussed below, in effect. As
Hardiman J noted in People (DPP) v Kelly,[526]
a case involving manslaughter:
“In cases where there has been a death and especially a death caused by
an intentional as opposed to a 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.”[527] [Emphasis added]
2.06
Section 2 of the Criminal
Justice Act 1990 replaced the death penalty for murder with a mandatory
life sentence. While the abolition of the death penalty is to be lauded, it has
been observed that the mandatory life sentence is not without its difficulties.
The fact that “life” does not mean that an offender will spend the rest of his
or her natural days behind bars has been highlighted as a major source of
confusion. In addition, the constitutionality of section 2, as well as its
compatibility with the European Convention of Human Rights, has recently
been challenged before the Supreme Court. Each of these aspects will now be
considered in greater detail.
2.07
It has been noted that a “life sentence is not to be taken literally”.
O’Malley observes that most life sentence prisoners are released after serving
a certain number of years and that this has been the practice for a long time.[528]
In 2010, for instance, the Minister for Justice, Equality and Law Reform
indicated that during the period 2004 to 2010 the average time spent in custody
by life sentence prisoners was 17 years.[529]
He further observed that:
“This compares to an average of just
over 7 ½ years for releases dating from 1975 to 1984, just under 12 years for
the period dating from 1985 to 1994 and just under 14 years for the period
dating from 1995 to 2004. As is clear from these figures life sentence
prisoners are serving longer terms in custody.”[530]
Thus, while the life sentence prisoner might anticipate release
from detention at some stage during his or her life, he or she will likely
serve a lengthy sentence before that occurs.
2.08
The reason why a life sentence should not mean life behind bars is that
the Executive has at its disposal a number of means of granting early release.
O’Malley observes that there are three types of early release, namely, special
remission, standard remission and temporary release.[531]
2.09
The power to grant “special remission” is the power to commute or remit any
sentence. This power is vested in the Executive by Article 13.6 of the
Constitution and section 23 of the Criminal Justice Act 1951,[532] as amended.[533]
O’Malley describes this as an equivalent to the royal prerogative of mercy.[534] Special remission may be granted at any time at the
discretion of the Executive and prisoners have no legal entitlement to it.[535]
It would appear that 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.[536]
2.10
“Standard remission”, on the other hand, is the entitlement of
prisoners, excluding prisoners serving life sentences,[537]
under the Prison Rules to earn remission of up to one-fourth of their
sentence for good behaviour.[538] As with special remission, the effect of standard
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.[539]
2.11
The power to grant “temporary release” is vested in the Executive by
section 2 of the Criminal Justice Act 1960,[540]
as amended.[541]
It 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. Although it was originally envisaged that temporary release should
be granted for short periods for compassionate reasons or to facilitate
integration,[542] O’Malley observes
that the grant of temporary release came to function as an early release
mechanism for those serving life sentences. Prisoners serving life sentences
who are granted temporary release are released for a certain number of years
and, unless they commit further offences or breach their release conditions,
they can expect to remain at large indefinitely.[543]
2.12
There is thus an important distinction to be drawn between early release
prisoners who were serving life sentences and early release prisoners who were
serving determinate sentences. As noted at paragraphs 2.08 to 2.11, prisoners
serving life sentences are eligible for consideration under two of the early
release mechanisms: special remission, which causes the sentence to expire, and
temporary release, which, in effect, suspends the sentence. More often than
not, however, such prisoners are considered under the temporary release
mechanism. They are thus subject to recall at any stage of their natural lives
should they commit any further offence or breach the conditions of their
release. By contrast, prisoners serving determinate sentences are eligible for
consideration under the three early release mechanisms: special remission,
standard remission and temporary release. More often than not such prisoners
are considered under the standard remission mechanism which causes the sentence
to expire. Early release prisoners who had been serving determinate sentences
are thus free from recall.
2.13
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.[544] The Parole
Board can only review cases which have been referred to it by the Minister and,
in principle, concern prisoners serving sentences of 8 years or more. Usually
cases are reviewed at the half-way stage of the sentence or after 7 years,
whichever comes first.[545] Prisoners
convicted of certain offences, such as treason, murder contrary to section 3 of
the Criminal Justice Act 1990 or certain drugs offences,[546]
may not participate in the process. However, persons convicted of “ordinary”
murder may. When formulating its recommendations, the Parole Board is primarily
concerned with the risk to members of the community which the release of a
prisoner might pose. Factors which the Parole Board takes into account include:
· Nature
and gravity of the offence;
· Sentence
being served and any recommendations by the judge; [Emphasis added]
· 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 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 prospects.
Thus the Parole Board considers the individual circumstances of
each case before forming its recommendations
2.14
The factors considered by the Parole Board are broadly similar to the
factors to which the Minister for Justice must have regard before giving a
direction for temporary release.[547]
It is particularly interesting to note that section 2(2)(b) of the Criminal
Justice Act 1960, as amended,[548]
requires the Minister, before making an order for temporary release, to have
regard to “the sentence of imprisonment concerned and any recommendations of
the court that imposed that sentence in relation thereto.”[549]
2.15
As noted at paragraph
2.06, the fact that “life” does not mean that an offender will spend the rest
of his or her natural days behind bars has been a major source of confusion.
This has repercussions in terms of how the public perceives the law to work and
how offenders cope with the execution of their sentences. Without attempting to
change the current system of imposing a mandatory life sentence for murder, the
Commission observes that there are a number of ways in which the current system
could be improved.
2.16
First, there is nothing
to prevent a sentencing court from pronouncing in succinct terms the actual
effect of a life sentence. Thus a court might sentence an offender “to
imprisonment and to remain liable to imprisonment for his or her life” rather
than “to life imprisonment”.[550] This would
make clear that while the offender might not spend the rest of his or her days
within the confines of a prison building, he or she could be recalled at any
stage. No doubt this is the practice followed by many courts,
nevertheless, the Commission is of the view that greater clarity would be
provided if this was the practice followed by all courts.
2.17
Second, sentencing courts might be encouraged/required to indicate the
relative seriousness of individual cases and recommend a minimum term that
ought to be served before the offender became eligible for early release. As
noted at paragraphs 2.13 and 2.14, the power of sentencing courts to make
recommendations in respect of sentences has, to some extent, been recognised by
the procedures of the Parole Board and the legislation concerning temporary
release.[551] And, as
will be observed in the Section D, the practice of requiring an offender to
serve a minimum term has already been established by section 4 of the Criminal
Justice Act 1990.
2.18
The constitutionality of section 2 of the Criminal Justice Act 1990 was
recently upheld by the Supreme Court in Whelan and Another v Minister for
Justice, Equality and Law Reform.[552]
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.
2.19
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,[553] the
Supreme Court ruled 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.”[554]
[Emphasis added]
2.20
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 the 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.”[555]
2.21
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.
2.22
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.”[556]
Thus while it might be outside the jurisdiction of the Supreme
Court to introduce such a system, whereby the sentencing court would be
encouraged/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.
2.23
In Whelan and Another v Minister for Justice, Equality and Law Reform[557] 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.
2.24
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.”[558]
2.25
In line with this judgment, the Commission observes that there would be
less confusion regarding temporary release of offenders convicted of murder if
the mandatory sentencing regime were made more transparent. As noted at
paragraph 2.16, this could be achieved by encouraging/requiring sentencing
courts to clarify that a life sentence does not necessarily mean that an
offender will spend the rest of his or her days in the confines of a prison
building but may be released, subject to recall, after he or she has served a
certain period of time. Thus, from the moment the sentence is imposed, it is
made clear to everyone - members of the public and offenders alike - how the
mandatory life sentence is likely to operate.
2.26
In Whelan and Another v Minister for Justice, Equality and Law Reform[559] the appellants also sought a declaration[560]
that the Irish system of imposing mandatory life sentences for murder was
incompatible with the European Convention on Human Rights on three
grounds.
2.27
Their first submission relied on Article 3 of the European Convention
on Human Rights.[561] The
appellants 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 convictions of
murder. 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.
2.28
In response, the Supreme Court cited the European Court of Human Rights
decision of Kafkaris v Cyprus[562]
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.”[563]
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.
2.29
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)[564]
and Article 5(4).[565] 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).[566]
2.30
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 reasons, such as a breach of the temporary
release conditions, were found to exist. Citing the European Court of Human
Rights decision in Kafkaris v Cyprus[567]
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.[568]
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.
2.31
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 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.
2.32
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).[569] 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, inter alia, adversarial rights.
2.33
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.
2.34
Although the Supreme Court has ruled that mandatory sentencing in
respect of murder is, in essence, compatible with the European Convention on
Human Rights, the Commission notes that there a number of ways in which the
regime might be improved. While the imposition of a mandatory life sentence
carries with it a prospect of release in the form of an executive discretion, ,
the Commission observes that offenders serving life sentences have little way
of knowing when they might expect to be released. While cases may be referred
to the Parole Board for consideration after 7 years, a former Minister for
Justice indicated that he would not consider cases for early release until at
least 12 to 15 years had been served.[570]
Thus it would be of benefit to the regime if sentencing courts were
encouraged/required to recommend a minimum term to be served by the offender
before he or she becomes eligible for release. In addition, the fact that the
power to grant temporary release is an executive rather than a sentencing power
gives rise to much confusion. Thus it would be of benefit to the regime if
sentencing courts were encouraged/required to clarify that a life sentence will
not necessarily result in an offender spending the rest of his or her life
within the confines of a prison building.
2.35
In light of the Supreme Court decision in Whelan and Another v
Minister for Justice, Equality and Law Reform, it is worth considering a
number of the cases which have come before the European Court of Human Rights.[571]
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.”[572]
[Emphasis added].
2.36
It must be borne in mind, however, that many of these cases derive from
applications concerning the United Kingdom’s tariff system. It may be recalled
that this system provides that a life sentence 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.
2.37
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[573]
the applicant had received a discretionary life sentence for armed robbery on
the ground 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).[574]
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).[575] The
applicant was thus entitled to invoke Article 5(1). Referring to the
applicant’s disturbed and aggressive behaviour, the Court found, however, that
the decision to revoke his license and re-detain him had been neither arbitrary
nor unreasonable and was, therefore, compatible with Article 5(1).[576]
Once returned to custody and at reasonable intervals thereafter, however, the
Court ruled that that the applicant was entitled to have his continued
detention reviewed in accordance with Article 5(4).[577]
2.38
The European Court of Human Rights initially drew a distinction between
discretionary life sentences and mandatory life sentences.[578]
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[579] the
applicant had received a mandatory life sentence for murder. He had been
subsequently released on 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.[580]
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[581] 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.[582]
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.”[583]
2.39
In Thynne, Wilson and Gunnell v United Kingdom[584]
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).[585] 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.[586]
Thus the applicants were entitled to have their continued detention reviewed.
2.40
Over time the European Court of Human Rights began to question the
distinction between discretionary life sentences and mandatory life sentences.[587]
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[588]
the applicant contended that he was entitled to have his continued detention
periodically reviewed under Article 5(4).[589]
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.[590] 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 were convicted of
murder.[591] 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).[592]
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.[593]
The Court thus concluded that the applicant’s sentence, after the expiration of
his tariff, was more comparable to a discretionary life sentence.[594]
The decisive ground for the applicant’s detention had been and continued to be
his dangerousness to society.[595]
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 in accordance with Article 5(4).[596]
2.41
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.[597] In V
and T v United Kingdom[598] 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[599]
which required that the determination of civil rights and obligations be
conducted by an “independent and impartial tribunal”.[600]
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).[601]
2.42
The distinction between discretionary life sentences and mandatory life
sentences finally collapsed in Stafford v United Kingdom[602],
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.[603]
The applicant had received a mandatory life sentence for murder. He had been
subsequently released on licence which 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.
2.43
The applicant contended that his continued detention was in breach of
Article 5(1).[604] In this
regard, he argued that 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, was arbitrary.[605]
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.[606] 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.[607] 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).[608] 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.[609] 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.[610]
2.44
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.[611] 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.[612]
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.[613]
As these elements could change over time the Court held that the applicant was
entitled to have his detention reviewed under Article 5(4).
2.45
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.”[614]
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.[615]
2.46
In Kafkaris 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.
2.47
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.[616]
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.[617]
2.48
The Court emphasised that treatment must attain a minimum level of
severity if it was to fall within the scope of Article 3.[618]
In this regard, it noted that any suffering or humiliation must exceed the
level of suffering and humiliation inherent in legitimate punishment.[619]
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.[620]
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.[621]
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.[622]
Furthermore, while there was no parole board, the President could suspend,
remit or commute any sentence and order conditional release.[623]
As these constituted prospects for release, the Court found that there had been
no inhuman or degrading treatment contrary to Article 3.[624]
2.49
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.[625]
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.[626]
2.50
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”.[627]
It thus held that there was a clear and sufficient causal connection between
the conviction and the applicant’s continuing detention.[628] There was thus no breach of Article 5(1).
2.51
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).[629] The
Government submitted that the requirements of Article 5(4) had been
incorporated in the original sentence.[630]
2.52
The Court found that the Article 5(4) complaint was inadmissible and
thus refrained from ruling on the matter.[631]
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 may 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.
2.53
The Court emphasised that, in the absence of “a clear and commonly
accepted standard amongst the member States”,[632]
it is within the margin of appreciation of each member State to choose its own
“criminal justice system, including sentence review and release arrangements”.[633]
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.”[634]
2.54
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
that 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 provided that
the system was within the bounds of the Convention. 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.
2.55
Even in the absence of a definitive ruling regarding Article 5(4), a
number of observations may be made. As noted at paragraph 2.35, 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.
2.56
Section 4 of the Criminal Justice Act 1990 replaced section 3 of
the Criminal Justice Act 1964 which made the former offence of capital
murder punishable by the death penalty.[635]
Section 4 of the Criminal Justice Act 1990 prescribes the penalties for
murder contrary to section 3 of the 1990 Act and any attempt to commit such a
murder. While section 3 murder, like any other murder, is subject to a
mandatory life sentence,[636] section 4
stipulates that the offender must serve a minimum term of 40 years imprisonment
for a section 3 murder and 20 years for an attempt.
2.57
While it may seem curious that the Oireachtas would select a period of
40 years as the minimum term to be served in prison by a person convicted of a
section 3 offence, the then Minister for Justice explained the rationale 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.”[637]
2.58
In the absence of case law regarding section 4 of the 1990 Act, it is
interesting to note that similar comments were made by the Supreme Court in
respect of section 3 of the 1964 Act:
“I think it is a fair inference...
that the Oireachtas bore in mind when enacting this legislation that our police
force was an unarmed police force and had a special claim to whatever
additional protection the law could give its members by providing the deterrent
of the death penalty for violent criminals with whom members of the Garda
Síochána often have to contend. The same or similar circumstances probably
existed with regard to the murder of prison officers in the course of their
duty as the type of criminal likely to be involved in such an affair would
probably not be deterred by the threat of a prison sentence.”[638]
2.59
Section 5(1) of the 1990 Act precludes the possibility of commuting or
remitting the section 4 sentence until the minimum period specified by the
court has expired. However, section 5(2) permits the grant of standard
remission under the Prison Rules. Thus the minimum period ordered to be
served might be reduced by one-fourth. Furthermore, section 5(3) permits a
limited form of temporary release for “grave reasons of a humanitarian nature”.[639]
2.60
Regarding this aspect of the 1990 Act, the Minister stated:
“[I]t is my belief that once we have
determined to prescribe a heavy mandatory penalty as a deterrent to the murder
of Garda and prison officers, we must, if it is to have the desired deterrent
effect, make it abundantly clear that it will not be watered down. This is why
the Bill provides for the exclusion of the powers of remission and early
release normally exercisable by the Government or by the Minister. Of course,
it will still be possible for the President to exercise his constitutional
power to remit or commute a sentence on the advice of the Government. It could
be in a very rare and exceptional case that this avenue could be followed.”[640]
2.61
In Northern Ireland,
section 1(1) of the Northern Ireland (Emergency Provisions) Act 1973 abolished the death penalty for murder and replaced
it with the mandatory life sentence.
2.62
A review of Northern
Ireland’s criminal justice system was conducted,[641]
prior to the commencement of the United Kingdom Human Rights Act 1998,
and a review of Northern Ireland’s sentencing framework was conducted,[642]
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,[643] an order
was adopted to ensure that the punitive or tariff period of life
sentences was judicially determined[644] 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.[645]
2.63
Section 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”.[646]
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.[647]
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.[648]
2.64
Section 23 of the Northern
Ireland Act 1998, as amended,[649]
provides that the royal prerogative of mercy is exercisable on the Queen’s
behalf by the Northern Ireland Minister for Justice. The royal prerogative will
be considered in greater detail in the next section. It suffices to observe at
this juncture that its exercise has been mostly superseded by statutory
provisions.[650]
2.65
In England and Wales, section 1(1) of the Murder (Abolition of the
Death Penalty) Act 1965
abolished the death penalty for murder and replaced it with the mandatory life
sentence.[651] For an
offender who is less than 18 years of age, section 90 of the Powers of the
Criminal Courts (Sentencing) Act 2000 provides that the appropriate
sentence is one of detention during “Her Majesty’s pleasure”.
2.66
Section 269 of the Criminal Justice Act 2003 provides that the
sentencing court must specify a period to be served by the offender before he
or she may be considered for release by the Parole Board.[652] 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.[653] If the Parole Board considers this to
be the case, the Secretary of State must release the prisoner on licence.
2.67
It is interesting to note that the earliest precursor to section 269 is
section 1(2) of the Murder (Abolition of the Death Penalty) Act 1965.
Section 1(2), which remains in force, provides that where a court
sentences a person convicted of murder to life imprisonment, it may
recommend to the Secretary of State a minimum period which should elapse before
the Secretary of State can direct that the person be released on licence.[654]
It was noted that this power to recommend a minimum term was used sparingly
and, then, only to indicate a long period of imprisonment for the worst cases
of murder.[655]
2.68
In 1973, the Criminal Law Revision Committee published a report in which
it reviewed section 1(2) of the 1965 Act and made a number of recommendations.[656]
It concluded that the courts should not be required to exercise the power to
recommend a minimum term in every case;[657]
that any recommendation should not be binding;[658] that any recommendation should be considered part of the
sentence and, therefore, appealable;[659]
and that the court should not be required to give reasons for its
recommendation.[660] In
addition, the Committee compared the role of the judiciary in England and Wales
to the role of the judiciary in Scotland, prior to the enactment of the Murder
(Abolition of the Death Penalty) Act 1965. By contrast to Scotland, where
the judiciary had virtually no role, the judiciary in England and Wales had
always had some involvement in the determination of the length of sentences to
be served by those convicted of murder - three High Court Judges served on the
Parole Board and the Lord Chief Justice was consulted in every case before a
murderer was released, as was the trial judge where available.[661]
2.69
On rare occasions, a prisoner serving a life sentence might benefit from
the exercise of the royal
prerogative of mercy.[662] The royal prerogative of mercy is
the power by which the Queen, on the advice of the Secretary of State for
Justice, may intervene to mitigate or extinguish punishment for an offence.[663]
Traditionally, there have been three types of pardon, namely, the free,
conditional and remission pardons. A free pardon is usually granted
where new evidence has come to light to show that no crime has been committed or
that the particular individual is not the perpetrator.[664]
While it brings the sentence to an end, it does not quash or overturn the
conviction. A conditional pardon, on the other hand, substitutes one
type of sentence for another.[665]
During the twentieth century, it was used almost exclusively to replace the
death penalty for murder with a life sentence. A remission pardon is
usually granted for one of the following reasons:[666]
(i) compassionate grounds; (ii) information helping to bring others to justice;
(iii) the prevention of escape, injury or death; or (iv) mistakes surrounding a
prisoner’s release date. The remission pardon releases the prisoner from having
to serve all or a part of the remainder of his or her sentence. It has been
noted that the use of prerogative powers to grant free, conditional and
remission pardons has been largely superseded by statutory provisions.[667]
2.70
The Murder (Abolition of the Death Penalty) Act 1965 also applied
to Scotland.[668] 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 Scottish 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.
2.71
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,[669] provides
that the sentencing court must specify a “punishment part” to be served by the
offender “to satisfy the requirements of retribution and deterrence”.[670]
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.[671] If the Parole Board considers this to be the case, the
Secretary of State must release the prisoner on licence.[672]
2.72
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.[673] It
concluded that the courts should be required, save in exceptional
circumstances, to declare a minimum term;[674]
that any recommendation should be appealable;[675]
and that the courts should be required to provide reasons for a particular
recommendation or for refraining from making a recommendation.[676]
2.73
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.[677] As observed in respect of Northern
Ireland and England and Wales, the royal prerogative of mercy has been superseded in many instances
by statutory provisions.[678] The effect
of a pardon is to free the convicted person from the effects of the conviction,
but it does not quash the conviction.[679]
Pardons are only granted in exceptional circumstances where no other remedy is
open to the convicted person.
2.74
In the United States,
most states retain 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. [680] 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.[681]
The few remaining states have abolished the death penalty and require instead the
imposition of determinate sentences or life sentences with or without parole.[682]
2.75
Originally, there were
52 parole boards operating in the United States. These included a federal
parole board, a parole board for the District of Columbia and a parole board
for each of the 50 states.[683] However,
as Kinnevy and Caplan observe:
“Disparity of parole decisions across U.S. jurisdictions and among
individual prisoners, lack of support for prisoner rehabilitation, and public
perceptions that the criminal justice system was too lenient led to widespread
reform movements in the mid 1970s which sought to, among other things, reduce parole
releases. During this ‘get tough” movement U.S. states attempted to do away
with the individualization of offender punishment and release by reducing
parole officials’ discretion, creating mandatory fixed sentence lengths, and
making parole processes more actuarial. Almost simultaneously, many of these
same states and the federal government catered to the demands of a burgeoning
victims’ rights movement by legislatively authorizing victims to provide input
to judges and parole board members in order to explain how their crimes
affected them on a personal and individual basis.”[684]
As a result,
over a period of time a number of the parole boards abolished parole in respect
of criminal offences after a certain date.[685]
2.76
In the United States
executive clemency is the equivalent of the royal prerogative of mercy.[686]
Executive clemency derives from common law principles but is now enshrined in
statute.[687] The grant
of clemency may take different forms including the grant of a reprieve, stay,
commutation of a death sentence or full pardon.[688]
It is exercised by the President in respect of federal matters[689]
and the state governors in respect of all other matters. Many states allocate
some of the clemency power to state pardon boards or similar bodies.[690]
14 states give the governor sole authority without the advice and/or consent of
a board.[691] 10 states
allow the governor to make a pardon decision with the non-binding advice of a
board.[692] 11 states
have a shared power model where the governor sits on the pardon board with
other officials or is required to have a recommendation from a board or
advisory group.[693] 3 states
vest their pardon and parole boards with final pardon decision making
authority, by-passing the governor altogether.[694]
2.77
Under the Canadian
Constitution,[695]
criminal law is a matter within the federal legislative competence. Thus,
unlike the United States or Australia, Canada has one uniform system of
criminal law that applies across Canada.[696]
The law regarding homicide is contained in Part VIII of the Criminal Code.
2.78
In 1976,[697]
the House of Commons passed Bill C-84 which abolished the death penalty
for first and second degree murder and replaced it with a mandatory life
sentence.[698] Parole
eligibility requirements were also established. In the case of first degree
murder there is an automatic 25-year period of parole ineligibility.[699]
In the case of second degree murder the minimum period of parole ineligibility
is 10 years while the maximum is 25 years.[700]
The period of ineligibility is determined by the trial judge[701]
who may take into account any jury recommendations on the appropriate length.[702]
2.79
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.
2.80
In Canada,[703]
the power to exercise the royal prerogative of mercy was delegated to the
Governor General.[704] The
responsibility for the administration of the royal prerogative of mercy has
been delegated to the Solicitor General of Canada in accordance with the Corrections
and Conditional Release Act 1992. This aspect of the
Solicitor General’s role is carried out by the clemency division of the
National Parole Board.[705]
2.81
Trotter makes the
following observation in relation to the royal prerogative of mercy under
Canadian law:
“The Anglo-Canadian historical conception of RPM [Royal Prerogative of
Mercy] has conflated this distinction. The RPM has been used to lessen
punishment for reasons of pity and compassion, as well as for reasons related
to guilt or innocence of the individual.”[706]
Both the
compassionate and error-correction aspects of the royal prerogative of mercy
have been enshrined in various legislative provisions.[707]
Section 748 of the Criminal Code provides that the royal prerogative of
mercy may be extended to any person sentenced to a term of imprisonment[708]
and that a free pardon or conditional pardon may be granted to
any person convicted of an offence.[709]
Section 748.1 provides that an individual may obtain an order for remission of
a fine or forfeiture imposed under any Act of Parliament. An individual who is
granted a free pardon is deemed never to have committed the offence in
respect of which the pardon was granted.[710]
An individual who is granted a conditional pardon must satisfy certain
conditions before it takes effect.[711]
Remission is likely to be based on the perceived harshness of the original
sentence and brings the original sentence to an end. Section 749 of the Criminal
Code preserves the historical role of mercy at common law. The Criminal
Records Act 1985 provides for a distinct mechanism operated by the
National Parole Board whereby the stigma of a criminal conviction may be
removed. Section 4 provides that a convicted individual may apply for a pardon
10 years after completing a sentence for a serious personal injury offence,
five years after completing a sentence for an indictable offence and three
years after completing a sentence for a summary offence. To qualify for a
pardon the offender must be of good behaviour during the intervening period and
avoid conviction under federal legislation.[712]
In addition, section 696.1(1) of the Criminal Code provides that an
application for ministerial review on the grounds of miscarriage of justice may
be made to the Minister for Justice.[713]
If the Minister considers that there is a reasonable basis to conclude that a
miscarriage of justice occurred, he or she may direct that a new trial be had
or refer the matter to the court of appeal.[714]
2.82
In Australia, the death
penalty for murder was abolished on a jurisdiction-by-jurisdiction basis.[715]
In 1922 Queensland[716] became the
first jurisdiction to abolish the death penalty for murder and in 1984 Western
Australia[717] became the
last.[718]
The Commonwealth of Australia[719]
abolished the death penalty in respect of all federal offences in 1973.[720] Section 3 of the Death Penalty Abolition Act 1973
stated that the Act applied to the laws of the Commonwealth, the Territories and
the Imperial Acts.[721]
2.83
Today, the penalty for
murder varies from jurisdiction to jurisdiction.[722]
In five jurisdictions - the Commonwealth of Australia,[723]
the Australian Capital Territory,[724]
New South Wales,[725] Tasmania[726]
and Victoria[727] - the life
sentence is a maximum rather than a mandatory penalty.[728]
In four jurisdictions - the Northern Territory,[729]
Queensland,[730] South
Australia[731] and
Western Australia[732] - the life
sentence is a mandatory penalty for murder.
2.84
In all jurisdictions
the sentencing court is permitted or required to set a non-parole period[733]
that will, in normal circumstances, result in release before the entire
sentence is served.[734]
Leader-Elliott observes that in most, if not all, jurisdictions the courts are
under continuing governmental pressure to increase the severity of sentences.[735]
In some jurisdictions, the judicial discretion to specify a parole date or the
length of the non-parole period is increasingly circumscribed by legislative
guidelines or criteria.
2.85
Each State determines
the manner with which applications for the exercise of the royal prerogative of
mercy are dealt.[736] The common law power of pardon is exercised by the
State Governors, or other relevant executive body, who may issue a pardon or
refer the case to the Court of Appeal.[737] The pardon relieves the
individual from the consequences of the conviction but does not operate as an
exoneration. The cases referred to the Court of Appeal are reconsidered subject
to appellate restrictions regarding the consideration of evidence. New South
Wales provides for review by the Supreme Court.[738]
Western Australia provides that persons convicted of murder may not be pardoned
where the court has ordered that the offender never be released under section
90(1)(b) of the Sentencing Act 1995.[739]
2.86
In New Zealand, section
2 of the Crimes Amendment Act 1941 abolished the death
penalty for murder and replaced it with life imprisonment with hard labour. The
penalty for murder was revised in 1961 when section 172(1) of the Crimes Act
1961 replaced life imprisonment with hard labour with life
imprisonment.[740] Section 172(2) stipulates
that section 172(1) be read in conjunction with section 102 of the Sentencing
Act 2002,[741] as
amended.[742]
Section 102 of the Sentencing Act 2002 indicates that the penalty of
life imprisonment is a presumptive penalty. 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”.[743]
If a court does not impose a sentence of life imprisonment it must give written
reasons for not doing so.[744] Section
102(3) stipulates that section 102 be read in conjunction with section 86E(2)
of the Sentencing Act 2002. Section 86E(2)(a) of the 2002 Act provides
that the court must impose a life sentence where the murder is a stage-2 or
stage-3 offence.[745]
Furthermore, section 86E(b) provides that the court 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”.
2.87
Regarding parole,
section 20 of the Parole Act 2002 provides that offenders serving life sentences become
eligible for parole once they have served 10 years imprisonment, unless the
sentencing court has ordered a “non-parole period”.[746]
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.[747]
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.[748]
2.88
In New Zealand the prerogative of mercy is exercised by the
Governor-General.[749] The Governor-General may exercise the prerogative of
mercy by granting a free pardon, which wipes the conviction and
sentence;[750] a pardon
subject to conditions, which substitutes one form of sentence for another
but leaves the conviction standing; respite of the execution of sentence, which
reduces the sentence without changing its nature; and remitting in whole or in
part any sentence, penalty or forfeiture.[751]
In addition, section 406 of the Crimes Act 1961 provides that the
Governor-General may refer the question of the applicant’s conviction or
sentence to the Court, or to seek the Court of Appeal’s assistance on any point
arising in a case.
2.89
There have been recent calls for the Oireachtas to enact mandatory
sentencing provisions in respect of certain crimes other than murder, namely,
crimes against vulnerable people.[752]
It is clear that these calls contemplate custodial rather than non-custodial
sentences. The fact that these calls were made in the aftermath of an apparent
spate of burglaries committed against elderly home-owners is significant. It is
natural that such crimes should inspire public moral outrage and a heightened
desire to protect the most vulnerable members of society.
2.90
It is clear from the case law that the Oireachtas is entitled to enact
mandatory sentencing provisions in respect of crimes other than murder.[753]
In Whelan and Another v Minister for Justice, Equality and Law Reform,[754]
for instance, the Supreme Court stated that the Oireachtas could “choose in particular
cases to impose a fixed or mandatory penalty for a particular offence”.
The only proviso to which this was subject was that there should be a “rational
relationship” between the mandatory penalty and the offence. In the earlier
decision of State (P Woods) v Attorney General[755]
Henchy J had spoken of the right of courts to select and impose the sentence
where a selection was to be made.[756]
Indeed, in Deaton v Attorney General[757] Ó Dálaigh CJ had gone even further by
stating that:
“It is common ground that it is for
the Legislature, when it creates an offence, to prescribe what punishment shall
attach to the commission of such offence. It is also common ground that the
Legislature may for a particular offence prescribe a single or fixed penalty,
or a maximum penalty, or a minimum penalty, or alternative penalties, or a
range of penalties.”[758]
2.91
The question arises, however, as to whether it would be advisable for
the Oireachtas to extend the use of mandatory sentences to crimes other than
murder.
2.92
First, it should be recalled that the mandatory life sentence for murder
is, unquestionably, the most severe criminal sanction available in Ireland.
This severity derives from the combination of two aspects of the sanction - its
mandatory nature and its life-long duration. It makes sense, therefore, that
such a sanction should replace the former sanction for murder - the death
penalty. Indeed, this is what happened in Ireland and in virtually all other
countries which abolished the death penalty. And now, more than ever, it would
seem that there is a strong argument that the principle of proportionality
requires the mandatory life sentence to be exclusively reserved for the crime
of murder - a crime perceived to be alone at the top of the criminal calendar.
The question should thus be whether either aspect of the mandatory life
sentence - its mandatory nature or its life-long duration - could be used in
isolation to deal with other crimes.
2.93
Let us first consider mandatory sentences. In support of mandatory
sentences, it is often argued that mandatory sentences, by prescribing the
(minimum) level of punishment to be imposed in all cases, guarantee that
offenders convicted of certain offences will always receive appropriate
punishment. It is also argued that mandatory sentences, by increasing the
certainty and severity of punishment, deter offenders from re-offending and
others from committing the same or similar offences. Before deciding whether
these arguments are sufficiently compelling to justify the introduction of
mandatory sentences in respect of offences other than murder, the Commission
observes, however, that mandatory sentences also attract a number of
criticisms.
2.94
As against mandatory sentences, it is, first, argued that mandatory sentencing regimes
tend to overhaul and replace existing sentencing policy and practices which
have been developed over time. It is thus common for there to be resistance to
their application.
2.95
Second, it is
argued that mandatory sentences preclude judicial discretion and thus,
inevitably, give rise to disproportionate sentencing. The courts must impose
the sentence prescribed and may not have regard to any mitigating factors. As a
result, all offenders, irrespective of their level of culpability or personal
circumstances, are subject to the same level of punishment.
2.96
Third, on a related
note, mandatory sentences do not provide offenders with any incentive to plead
guilty. As a result, court proceedings regarding offences attracting a
mandatory sentence are likely to take longer and cost more. Furthermore,
because of the severe consequences which would flow from a finding of guilt, it
is like that there would be an increase in the number of appeals.
2.97
Fourth, it is argued
that mandatory sentences cause sentencing discretion to be transferred from the
courts to prosecutors. Thus prosecutors rather than courts decide, by means of
the charge preferred, whether a mandatory sentencing regime should or should
not apply. Any negotiations regarding the charge to be preferred, and thus the
sentencing regime to be applied, take place behind closed doors. This is
problematic terms of the constitutional doctrine of the separation of powers
and, potentially, Article 34 which requires that justice be administered in
public.
2.98
Fifth, the mandatory sentence for murder is a one-strike rule in so far
as it applies to first-time offenders. If a one-strike rule has been
contemplated in respect of crimes against vulnerable persons it is severe by
comparison to the two-strike and three-strike rules in other countries. The
experience of these countries has been that the mandatory sentencing regimes
have been applied unevenly, primarily because of measures taken to avoid their
application.
2.99
Sixth, because of the severe consequences which would flow from a
mandatory sentencing regime, it is likely that criminal bosses would distance
themselves from the offensive behaviour. It is thus likely that those who would
be caught by the mandatory sentence regime would be disposable and replaceable,
being at the lower end of the criminal ladder. As a result, the mandatory
sentencing regime would have little impact on the overall incidence of the
offence.
2.100
Seventh, it has been observed that the factor which triggers the
operation of a mandatory sentence should be clearly defined and unequivocal.[759]
In this regard, it may be noted that “victim vulnerability” is not likely to be
a factor capable of clear and unequivocal definition. As a result, it would be
difficult, if not impossible, to distinguish between those cases to which the
mandatory regime should apply and those to which the regular sentencing regime
should apply. There is thus a high risk that the application of such a
mandatory regime would give rise to disproportionate and inconsistent
sentencing.
2.101
The fact that a victim was vulnerable is undoubtedly an important
factor. However, it might be more appropriate to take account of it as a factor
which aggravates the seriousness of the offence.
2.102
Eighth, it has been observed that mandatory sentences are often an
attempt to eliminate a particular type of offence. It has been argued, however,
that mandatory sentences are not a sufficiently sophisticated response to the
myriad complex social issues which contribute to many offences. Thus, while a
mandatory sentence might ensure the punishment of one offender, it is unlikely
to have an impact on the overall incidence of the offence.
2.103
Ninth, on a related
noted, having regard to the particular link between social deprivation
and crime, it has been noted that mandatory sentences tend to
disproportionately affect certain socio-economic and ethnic groups.
2.104
Tenth, it has been
argued that mandatory sentencing regimes are only justifiable where they can be
shown to be better than the existing sentencing regime. The Commission observes
that the existing regime is by no means a lenient one. A person convicted of
burglary may be punished by a fine, a maximum term of 14 years’ imprisonment or
both,[760] while a
person convicted of aggravated burglary[761]
may be punished by a maximum sentence of life imprisonment.[762]
Furthermore, where the victim is vulnerable it is likely that the courts will
take this into account as an aggravating factor.[763]
2.105
Eleventh, on a related
note, it has been argued that mandatory sentences are not a cost-effective
response to crime. In this regard, it has been asserted that revenue
would be better invested in improving the existing sentencing regime than in
introducing a mandatory sentencing regime. This, in turn, affects the extent to
which imprisonment can deliver on the principles and purposes of sentencing,
outlined in Chapter 1, in particular, rehabilitation.
2.106
Twelfth, it has been
argued that mandatory sentences result in more people being sent to prison for
longer periods of time. The Commission notes that this argument is
particularly relevant in Ireland where the prison system is acutely overcrowded
and under-resourced.
2.107
Thirteenth, the
deterrent effect of mandatory sentences has been questioned. While mandatory
sentences generally increase the severity of punishment, due to the measures
taken to avoid their application, they generally do not increase the certainty
of punishment. Certainty and severity of punishment are considered to be
prerequisites to deterrence.
2.108
Finally, it has been
argued that mandatory sentences may be too rigid to evolve with changing penal
policy and developments in sentencing. They thus become subject to myriad
amendments. A more flexible format for sentencing offenders would be desirable.
2.109
While a comparative analysis of common law countries which have
introduced mandatory sentencing regimes is of interest, the Commission cautions
against relying too heavily on their example. In this regard, it may be
observed that the rationale for introducing mandatory sentencing regimes varies
from country to country but, for the most part, has been a reactionary response
to particularly egregious incidents, heinous crimes or persistent criminality.
While there has been near universal acceptance of mandatory sentencing for
drugs and firearms offences, only some countries have extended the use of
mandatory sentencing to burglary and even fewer states in the US have extended
the use to specific offences committed against vulnerable people. No country
has introduced mandatory sentencing for non-specified crimes committed against
vulnerable people.
2.110
The Commission has considered the only examples of entirely
mandatory sentences in the Irish sentencing system, namely, the mandatory life
sentence for murder, under section 2 of the Criminal Justice Act 1990,
and the mandatory life sentence for murder of designated persons, under section
4 of the Criminal Justice Act 1990. In this regard, the Commission has
observed that entirely mandatory sentences are applicable only to an offence
considered to be at the highest end of the criminal calendar, namely, murder,
and to which the death penalty would have formerly applied. The Commission
considers that a mandatory life sentence for such a limited group of serious
offences is consistent with the aims of criminal sanctions and the sentencing
principles discussed in Chapter 1.
2.111
Having regard, however, to the general aims and principles (set out
in Chapter 1), and more particularly to the decisions of the European Court of
Human Rights concerning the European Convention on Human Rights (discussed in
this Chapter), specific aspects of the current mandatory sentencing regime for
murder are open to question on at least two grounds. First, the mandatory life
sentence applies to all persons convicted of murder regardless of his or her
particular circumstances or the particular circumstances of the case. In this
respect, once imposed, it is unclear – bearing in mind the possibility of
release by the Minister for Justice (on foot of a recommendation of the Parole
Board) – how long a person serving a mandatory life sentence will, in fact,
spend in prison. Second, having regard to the decisions of the European Court
of Human Rights, it is difficult to see how a decision regarding release that
is made by the Executive without any input from the sentencing court, often
many years after the decision regarding sentencing has been made, is fully
compatible with the European Convention on Human Rights. For these reasons, the
Commission has provisionally concluded, and so recommends, that the mandatory sentencing
regime for murder should be amended to provide that, on the date of sentencing,
the court should be empowered to indicate or recommend that a minimum specific
term of imprisonment should be served by the defendant, having regard to the
particular circumstances of the offence and of the offender.
2.112
The Commission provisionally recommends that, while the use of the
entirely mandatory sentence may, having regard to the aims of criminal
sanctions and the principles of sentencing, be appropriately applied to the
offence of murder, the mandatory sentencing regime for murder should be amended
to provide that, on the date of sentencing, the court should be empowered to
indicate or recommend that a minimum specific term of imprisonment should be
served by the defendant, having regard to the particular circumstances of the
offence and of the offender.
3
3.01
This Chapter considers those provisions which provide for a mandatory
minimum sentence subject to exceptions in specified circumstances. There are
two examples of this type of provision in Irish law. One provides the penalty
for certain offences under the Misuse of Drugs Act 1977[764]
and the other provides the penalty for certain offences under the Firearms
Acts. In this Chapter, the Commission discusses the history of these
provisions, their application in practice and their effect, against the general
background of the aims and principles set out in Chapter 1.
3.02
Initially the Misuse
of Drugs Act 1977 provided for the sole offence of possessing a controlled
drug for the purpose of sale or supply,[765]
which attracted a fine and/or a maximum term of imprisonment of 14 years.[766]
In an effort to combat the worsening drug problem,[767]
the Government enacted the Misuse of Drugs Act 1984
which, among other matters, increased the maximum term to life imprisonment.[768]
3.03
In 1999 the Misuse
of Drugs Act 1977 was once again amended when the Criminal Justice Act
1999 inserted section 15A[769]
and amended section 27.[770] The effect
was to create a new offence of possessing controlled drugs having a value of
£10,000 or more,[771] for sale or supply which attracted a presumptive
sentence of 10 years.[772] Section 27(3C)
provided that the presumptive sentence would not apply where there were
“exceptional and specific circumstances”:
“Subsection (3B) of this section shall 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 imprisonment unjust in all the circumstances...”
3.04
It is clear that the
language used in the Criminal Justice Act 1999 was influenced to a great
extent by the language used in the Crime (Sentences) Act 1997. Section 3
of the 1997 Act, which stipulates the presumptive minimum penalty 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 -
(a)
relate to any of the
offences or to the offender; and
(b)
would make the prescribed
custodial sentence unjust in all the circumstances.”[773]
It suffices to
note at this juncture that a parallel debate regarding the use of mandatory
minimum sentences had been taking place in the UK at the time the Criminal
Justice (No 2) Bill 1997, enacted as the Criminal Justice Act 1999,
was first proposed in Ireland. This debate will be looked at in greater detail
in Section D.
3.05
In 2006 the provisions
of the Misuse of Drugs Act 1977 were further refined when the Criminal
Justice Act 2006 amended section 15A,[774]
inserted section 15B[775] and
amended section 27.[776] Section
15A, as amended, provided that mens rea regarding the value of the drugs was
not an element of the offence. Section 15B created the new offence of importing
controlled drugs having a value of €13,000 or more which, under section 27,
attracted a presumptive sentence of 10 years.
3.06
In 2007 the Criminal
Justice Act 2007 made amendments of a more aesthetic nature. Section 33 of
the Criminal Justice Act 2007 consolidated the numbering of the
subsections of section 27. In addition it inserted subsection (3D)(a)
which emphasised the social harm caused by drug trafficking:
“The purpose of this subsection is to proved that in view of the harm
caused to society by drug trafficking, a court, in imposing sentence on a
person (other than a person under the age of 18 years) for an offence under
section 15A or 15B of this Act, shall specify a term of not less than 10 years
as the minimum term of imprisonment to be served by the person, unless the
court determines that by reason of exceptional and specific circumstances
relating to the offence, or the person convicted of the offence, it would be
unjust to do so in all the circumstances.”
3.07
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
and capital murder - 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,[777]
the Oireachtas introduced the presumptive minimum sentences to address an
apparent rift which had developed between legislative intent and judicial
execution.
3.08
Drug misuse and drug
trafficking had proved to be longstanding and persistent problems.[778]
In the late 1960s young people had begun to experiment with soft drugs but the
situation deteriorated when, in the early 1980s, intravenous heroin use was
introduced. 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.[779]
Vast quantities of illicit drugs were being intercepted at Ireland’s frontiers.
In November 1995 the Garda Síochána made a record seizure of cannabis at
Urlingford, County Kilkenny.[780] Despite
the size of the seizure and a number of arrests nobody was ever prosecuted. The
Government and, indeed, several community groups made numerous attempts to
combat the growing drugs problem but to no apparent avail.[781]
3.09
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. [782] It was proposed that the law should reflect a minimum sentence of 10
years for an offence by an importer or pusher.[783]
An amended version of the motion proposed by the then Minister for Justice,
which excluded any reference to strengthening the law and penalties, was
adopted.
3.10
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 £10,000 or more.[784]
It was asserted that the proposed amendment would address the issue of the courts imposing sentences for drug
dealing which were not reflective of the legislative intent behind the Misuse
of Drugs Act 1977:
“In 1977, the Houses of the Oireachtas provided a maximum sentence for
drug pushers of 14 years (sic) imprisonment. That was in recognition of
a growing drugs subculture in the country. In 1984, the Oireachtas recognised
that this problem was getting worse and it increased the maximum sentence from
14 years to life imprisonment.
An examination of sentences handed down by the courts to drug pushers
shows that the true intent of the Oireachtas is not being reflected in the
sentences imposed on individuals by the courts. The most recent year for which
statistics are available is 1993. In that year, 71 people were convicted of
possession of a control (sic) drug with intent to supply. The following
were the sentences imposed by the courts: in three of the cases the sentence
handed down was less than three months; in six of the cases the sentence was
three to six months; in 20 of the cases the sentence was between six and 12
months; in 29 of the cases the sentence was between one and two years; in four
of the cases the sentence was between three and five years; in three of the
cases the sentence was between five and ten years; and in 1993, when it was
clear that drugs had become a major problem, there was only one case in which
the criminal courts imposed a sentence of more than ten years. It is abundantly
evident that this sends out the wrong message to drug dealers.”[785]
The proposed
amendment was defeated.
3.11
In June 1996 Veronica
Guerin, an investigative journalist who had written extensively about the
criminal figures involved in the drug trade, was assassinated.[786]
It was believed that one of the figures 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. In this
regard, Burke observes:[787]
“This murder, which reinforced popular fears that the government had
lost control of the illicit drugs scene, seemed to be the catalyst for a range
of legislative and policy responses aimed at tackling Dublin’s drug problem and
reassuring the public about the government’s determination in this regard.” [788]
While not
everyone was agreed as to the appropriate course of action,[789]
the Oireachtas responded by enacting the Proceeds of Crime Act 1996, arising out of which the Criminal Assets Bureau was
established on a statutory basis.[790]
3.12
In 1997 the Criminal
Justice (No 2) Bill 1997 was introduced[791]
and enacted as the Criminal Justice Act 1999. The Bill proposed to amend
the Misuse of Drugs Act 1977 by creating a new offence of possessing
drugs with a value of £10,000 or more with intent to supply, which would
attract a minimum sentence of 10 years.[792]
Elaborating on his rationale for introducing the new offence, the Minister
highlighted the “unique nature” of the drugs trade and the retributive and
deterrent policies being pursued by the Oireachtas to combat it:
“...[I]n view of the unique nature of the trade in illegal drugs, the
great misery inflicted on so many people by those who deal in that deadly trade
and to demonstrate ... our commitment as legislators to do all we can to rid us
of this scourge, I have provided that in such cases the court must specify that
the minimum period of imprisonment to be served upon conviction for the offence
shall be at least 10 years. This is undoubtedly a harsh punishment but I am satisfied
that it is warranted and proportional. It should 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 we can to eradicate this
blight.”[793]
It is
interesting to note the difference between this explanation and the explanation
proffered for the proposed amendment to the Criminal Justice (Drug
Trafficking) Act 1996 which was, for all intents and purposes, identical to
the mandatory sentencing provision in the Criminal Justice (No 2) Bill 1997.[794]
3.13
In 2001 the Department
of Justice commissioned a report on the criteria applied by the courts in
sentencing for offences under section 15A of the Misuse of Drugs Act 1977.[795]
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.
3.14
In 2004 the Government
introduced the Criminal Justice Bill 2004.[796]
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.[797]
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.[798]
Had he been sentenced to the “mandatory” term of 10 years rather than a term of
6 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,[799]
two of which are relevant to this consultation paper. First, it proposed to
create a new offence of importing drugs having a value of €13,000 or more,
which would attract 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.
3.15
First, it amended
section 15A by inserting subsection (3A).[800]
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. As section 15A(3A) could not apply retrospectively, however, a
question arose as to the burden of proof to be discharged by the prosecution in
proceedings brought before the section’s commencement date.[801]
The question was answered in People (DPP) v Power[802]
when the Supreme Court ruled that section 15A did not require the prosecution
to establish mens rea regarding the value of the drugs. In that case the trial
judge had refused the defence’s request to direct the jury that mens rea as to
the value of the drugs was a necessary element of the offence. On appeal, the
Court of Criminal Appeal upheld the trial judge’s ruling regarding mens rea.[803] Refusing leave to appeal the Court of Criminal Appeal
did, however, certify the issue as a point of law of exceptional public
importance.[804] Having considered the matter the Supreme Court
concluded that:
“...[B]y necessary implication and on its true construction, s. 15A as
to the constituents of the offence thereby created relating to the value of the
controlled drugs does not require the prosecution to establish knowledge on the
part of the accused of the market value of the controlled drugs in question.”[805]
The implication
of this was that the new section 15A(3A) had clarified rather than changed the
pre-existing law. 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.[806]
3.16
Second, the Criminal
Justice Act 2006 inserted section 15B[807]
and amended section 27.[808] The effect
was to create a new offence of importing controlled drugs having a value of
€13,000 or more, which would be subject to the same penalty provisions as
applied to offences under section 15A. Previously, the offence of importing
controlled drugs had been provided for in regulations made under section 5 of
the Misuse of Drugs Act 1977.[809]
Section 5 provided that the Minister for Health and Children could make
regulations relating to, among other matters, the importation or exportation of
controlled drugs. Regulation 4 of the Misuse of Drugs Regulations 1988 prohibited
the importation or exportation of a controlled drug other than in accordance
with the regulations. Section 27(6) of the Misuse of Drugs Act 1977 provided
that importation or exportation in contravention of the regulations was
punishable by a fine or term of imprisonment, not exceeding 14 years, or both.
The then Minister for Justice observed:
“In contrast, the corresponding penalty for possession of controlled
drugs for unlawful sale or supply is a fine of such amount as the court
considers appropriate and imprisonment for life. It therefore seems strange
that we have a situation whereby importing such drugs carries a penalty of a
maximum of 14 years - judges will work back from the maximum - whereas under
section 15A the exact opposite situation obtains with regard to certain
quantities of drugs for which the judge is supposed to operate between
penalties of ten years’ jail or life imprisonment, for a very similar offence.”[810]
Thus section 27
was amended to ensure that comparable sentences applied to offences under
section 15A and section 15B.
3.17
Third, the Criminal
Justice Act 2006 inserted subsection (3CC) into section 27.[811]
Section 27(3CC)[812] 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 it remained within judicial discretion to determine whether
regard should, in actual fact, be had to these factors and the weight to be
attributed to them, the Oireachtas’s intention to narrow the aperture through
which the judiciary could justify the imposition of lesser sentences was clear.
The Minister’s explanation for inserting subsection (3CC) reinforced this
point:
“By enacting the 1999 Act, the Oireachtas gave a clear statement to the
Judiciary that convictions for drug offences involving the sale or supply of
substantial quantities of drugs should attract significant custodial sentences.
The Oireachtas considered a quantity of drugs valued at €13,000 or more, irrespective
of whether they were hard or soft drugs, to be a substantial quantity
meriting a mandatory minimum sentence of not less than ten years (sic) imprisonment...
...[T]he wishes of the Oireachtas have not been reflected in practice.
For the first five years of its operation, the mandatory minimum sentence was
applied in only 6% of convictions. However, its application has recently
increased considerably and I understand that for the year 2004, after public
controversy grew, the figure was approximately 21%.”[813]
[Emphasis added]
3.18
In spite of an
acknowledged improvement in the statistics, however, the Minister felt
compelled to introduce subsection (3CC) as a “counterweight” to the mitigating
factors, which included guilty pleas and cooperation, of which the court could
already take account.[814] Whereas
the issue of previous convictions attracted little comment, the issue of public
interest - to the extent that it might prejudice the rights of the defendant -
demanded a fairly detailed justification:
“While sentencing is person-specific at one level, I propose to
reintroduce public interest to balance and remind the courts they are supposed
to take into account whether something is a repeat offence.
The reference to the public interest should ensure that, for example,
the corrosive effects of drugs on our community are taken into account. These
are the same irrespective of the circumstances of the offender...
I strongly support a system of justice that takes into account the
personal circumstances of the offender being dealt with by the court. It would
not be a system of justice if it did not. Nonetheless, the court must say that even
if the offender was effectively Mother Teresa, it does not matter because
people will be shooting up with heroin on the stairs of a flat the next day. One’s
circumstances or reasons do not matter as much as the social outcomes. We
are trying to rebalance the issue and make it less personal to the accused. If
the court departs from the minimum mandatory sentence, a warning light should
flash in the judge’s mind, who should ask whether he or she is becoming too
specific to the person and forgetting the effect of the offence on society.”[815]
[Emphasis added]
The Oireachtas
thus indicated that the sentencing regime applicable to certain drug
trafficking offences would differ from the regular sentencing regime in so far
as it would be less bound to the policy of individualised sentencing. The view
of the Oireachtas was that, when deciding whether or not to impose a 10-year
minimum sentence in a given case, a court should have 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.[816]
3.19
In 2007 the Government
introduced the Criminal Justice Bill 2007 which, as noted at paragraph
3.06, consolidated the numbering of the subsections of section 27 and inserted
subsection (3D)(a) which emphasised the social harm caused by drug trafficking.[817]
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.[818]
It is arguable that this approach did 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.[819]
3.20
The move towards a more
punitive system of sentencing corresponded to a similar trend which had been
developing in the United Kingdom at the same time.[820]
This will be discussed in greater detail in Section D.
3.21
To examine the application of the presumptive sentences applicable to
offences under section 15A and section 15B of the Misuse of Drugs Act 1977
it is necessary to consider first the elements of the offences under section
15A and section 15B and to consider next the relevant penalty provisions under
section 27. These will be considered in turn.
3.22
As discussed in
paragraph 3.03, section 15A of the Misuse of Drugs Act 1977 creates the
offence of possessing controlled drugs, having a value of €13,000 or more,[821]
with intent to sell or supply. In this section the elements of the offence
under section 15A will be considered.
3.23
The first element of
the offence under section 15A 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 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.[822]
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.[823]
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:[824]
“...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”.[825]
3.24
Thus, in theory, the
term “possession” in section 15A should be broad enough to describe the
activities of both the so-called drug barons and drug couriers. On the one
hand, the drug barons may be said to exercise constructive possession as they
have ultimate control over the drug couriers but will rarely have custody of
the drugs. On the other hand, the drug couriers may be said to have actual
possession as they have some level of control over the drugs of which they have
custody. The reality, however, is that it is easier to detect and prove actual
possession than it is to detect or prove constructive possession. As a result,
drug couriers are more likely to be caught for offences under section 15A than
drug barons.
3.25
The Court of Criminal
Appeal considered the element of possession in People (DPP) v Gallagher.[826]
The applicant sought to appeal his conviction on the ground that the evidence
did not establish that the accused 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 considered to have been in the possession of the accused. In
rejecting this argument, Murray J 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.”
3.26
In People (DPP) v
Goulding[827] 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 was
satisfied that there was sufficient evidence.
3.27
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 soft and hard drugs.
3.28
The second element of
the offence under section 15A is intention to sell or supply. 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 it
is satisfied to the contrary,[828]
that there was intention to sell or supply where, having regard to the quantity
of the controlled drug which the person possessed or to such other matters as
it considers relevant, it is satisfied that the controlled drug was not
intended for immediate personal use. Thus, while the accused is entitled to
rebut the presumption, the weight of the law is stacked against him or her.
3.29
The third element of
the offence under section 15A is that the controlled drug should 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.[829]
3.30
Evidence regarding the
market value of the drug may be given by a member of the Garda Síochána or an
officer of customs and excise who has knowledge of the unlawful sale or supply
of controlled drugs.[830] In People
(DPP) v Hanley[831]
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 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 section 15A(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.
3.31
The use of “market
value” as the standard for determining whether an offence is an offence under
section 15A and thus attracts the statutory minimum sentence is problematic in
a number of respects. 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. As a result, evidence regarding the market value of
drugs is, at best, an estimate.
3.32
Thus it may be argued
that “market value” is not capable of proof beyond a reasonable doubt. That
section 15A obliges the prosecution to establish the market value of the drugs
concerned beyond a reasonable doubt was recently emphasised by the Supreme
Court in People (DPP) v Connolly[832]:
“... [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 the court, in sentencing a convicted person, to impose a
penalty of a minimum of ten years’ 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.”[833]
[Emphasis added]
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.[834]
3.33
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.
3.34
For similar reasons,
O’Malley asserts that “market value” is an inappropriate triggering factor.[835]
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 the estimated street value of the
drugs it cannot be clearly defined or capable of unequivocal definition.[836]
3.35
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.[837] This, it
is argued, creates the risk of arbitrary and unjust consequences which is
mitigated only by the exercise of the limited judicial discretion accorded by
section 27.
3.36
The process by which
market value is determined was considered by the Supreme Court in the recent
case of People (DPP) v Connolly.[838]
The appellant had been charged with an offence under section 15A when 10 packs,
containing 10 kilograms 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% and 40%. On cross-examination it was conceded that
the presence of as little as 1% 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% of amphetamine in five of
the packs the value of the drugs would have been approximately €72,877.50 while
if there had only been 1% the value would have been €7,287.75 which would not
have triggered the statutory minimum sentence.
3.37
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.
3.38
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 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]
3.39
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% and 40%. 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%. The Supreme Court thus set
aside the conviction.
3.40
O’Malley commends the
Supreme Court for having “reached the right decision ... for the right reason”.[839]
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.”[840]
3.41
The process by which
market value is determined was considered by the Court of Criminal Appeal in
the earlier case of People (DPP) v Finnamore.[841]
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 power 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.
3.42
The applicant argued
that 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 found must inevitably be individually
analysed before a conviction can be considered safe.”[842]
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.
3.43
In People (DPP) v
Connolly[843] 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.
3.44
As noted in paragraph
3.15, section 15A(3A) of the Misuse of Drugs Act 1977, as amended,
provides that mens rea regarding the value of the drugs involved is not
necessary. This ensures that both the so-called drug barons, who undoubtedly
know the approximate value of the drugs, and the drug couriers, who are less
likely to know the value of the drugs, may be found guilty of an offence under
section 15A. However, as noted in paragraph 3.24, it is more likely that drug
couriers rather than drug barons will be caught for offences under section 15A.
3.45
As discussed in
paragraph 3.16, section 15B of the Misuse of Drugs Act 1977 creates the
offence of importing controlled drugs, having a value of €13,000 or more.[844]
In this section the elements of an offence under section 15B will be
considered.[845] This is
made difficult by the fact that most offenders are charged with offences under
section 15A alone even where the facts of the case appear to support a charge
under section 15B.[846]
The only case in which the Court of Criminal Appeal has dealt with an offence
under section 15B is People (DPP) v Ulrich.[847]
However, as the case is primarily concerned with the factors which may
aggravate a sentence the judgment sheds little light on the elements of an
offence under section 15B.
3.46
The first element of the offence under section 15B is importation
of a controlled drug. The term “import” is not defined by the Misuse of
Drugs Act 1977, the Criminal Justice Acts 1999-2007 or the Misuse
of Drugs Regulations 1988-2010. The ordinary meaning of the term is to
bring goods or services into the country for sale.[848]
3.47
It may be noted that although it is an offence under section 15B to import
controlled drugs it is not an offence under section 15B to export controlled
drugs. This gives rise to another “illogical conclusion” that a person found
importing controlled drugs with a value of €13,000 or more may face a
presumptive minimum sentence of 10 years whereas a person found exporting
controlled drugs with a value of €13,000 or more may not.
3.48
As noted in paragraph 3.27, the term “controlled drug” is defined by
section 2(1) of the Misuse of Drugs Act 1977, as amended. No distinction
is made between soft and hard drugs.
3.49
The third element of the offence under section 15B is that the
controlled drug should have a market value of €13,000 or more. Section 15B(5)
provides that the term “market value” is to have the meaning attributed to it
by section 15A(5) of the Misuse of Drugs Act 1977, as amended. Thus the
observations contained in paragraphs 3.29 to 3.44, regarding market value in
the context of offences under section 15A, are equally applicable to market
value in the context of offences under section 15B.
3.50
Section 27(3C) of the Misuse of Drugs Act 1977, as amended,[849]
provides that where a person is convicted of an offence under section 15A or
section 15B the court must impose a minimum sentence of not less than 10 years.[850]
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.
3.51
The 10-year minimum should not be used as a benchmark sentence but may
be a useful guide as to the gravity of offences under section 15A.[851]
In People (DPP) v Renald[852]
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, per
Murphy J, 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.”[853]
This passage has been endorsed by the courts on a number of
occasions.[854]
3.52
The Court of Criminal Appeal has also considered the method by which
courts determine the sentence to be imposed in individual cases. In People
(DPP) v Duffy[855] the applicant sought leave to appeal
against a sentence of 6 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 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.[856]
3.53
In terms of best practice, it would appear that the sentencing judge
should set out clearly the method by which he or she has determined the
appropriate sentence to be imposed. In People (DPP) v Nelson[857]
the Court of Criminal Appeal observed:
“[I]t is not possible to divine from
the judgment with certainty how the learned trial judge arrived at the sentence
and in particular how she dealt with the provisions of section 15A of the
Misuse of Drugs Act 1977... It is in itself an error in principle when this
court is not in a position to evaluate the thought processes which result in
the particular sentence...”[858]
3.54
As noted in Chapter 1, the sentencing judge should always have regard to
the principles and purposes of sentencing. In People (DPP) v Murphy[859]
Finnegan J observed that sentencing frequently involved the elements of
punishment, deterrence and rehabilitation. As the applicant had rehabilitated
himself and was unlikely to reoffend, however, Finnegan J concluded that the
Court of Criminal Appeal could confine its consideration to the punishment of
the applicant and the deterrence of others.
3.55
O’Malley asserts that there is room for the appeal courts to spell out
the factors relevant to determining the objective seriousness of offences under
section 15A.[860] That said, the Court of Criminal
Appeal has provided some guidance regarding the factors which may mitigate or
aggravate the seriousness of the offence or the severity of the sentence under
section 15A.[861]
3.56
Section 27(3D)[862] of the Misuse
of Drugs Act 1977, as amended, provides that section 27(3C)[863]
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 not less than 10 years’ imprisonment
unjust in all the circumstances.
3.57
In People (DPP)
v Botha[864] Hardiman J noted that section
27(3C) (now section 27(3D)) requires that the circumstances be both exceptional
and specific. Thus it would seem to follow that the circumstances contemplated by section
27(3D) are distinct
from the circumstances which would ordinarily figure in a plea of mitigation.[865] First, the circumstances contemplated by section 27(3D)
must satisfy the high threshold of being exceptional and specific
whereas the circumstances ordinarily pleaded in mitigation need not. Second,
only the circumstances contemplated by section 27(3D) may preclude the
application of the statutory minimum whereas the circumstances ordinarily
pleaded in mitigation may not. It would seem, however, that not all courts
distinguish between circumstances which are exceptional and specific and
circumstances which are merely mitigating.[866]
In People (DPP) v Galligan,[867] however,
Fennelly J interpreted section 27(3D) as obliging the judge to identify the
exceptional and specific circumstances upon which he or she relies to justify a
departure from the statutory minimum.
3.58
The extent to which
exceptional and specific circumstances may justify a downward departure from
the statutory minimum is not, however, a precise mathematical calculation. In People
(DPP) v Rossi and Hellewell[868]
the applicants sought leave to appeal against a sentence of 6 years. It was
asserted that the trial judge had not given adequate weight to the exceptional
and specific circumstances which existed in the case and, in particular, that
there should have been a three-year discount for an early plea of guilty. The
Court of Criminal Appeal, per Fennelly J, rejected this argument:
“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 other
headings...” [Emphasis added]
3.59
Even where there are exceptional and specific circumstances which
justify a downward departure from the statutory minimum, the sentence imposed
should reflect the gravity of the offence. In People (DPP) v Henry[869] the DPP sought leave to appeal against
a sentence of four years on the ground that it was unduly lenient. In this
regard, the Court of Criminal Appeal ruled that:
“It remains the case that even if a
court properly decides that it would be unjust to impose the mandatory minimum
sentence, the sentence it imposes must nonetheless reflect the gravity of
the offence committed by the respondent having regard to the very draconian
penalties which the Oireachtas has seen fit to impose reflecting its view of
the seriousness of the offence.” [Emphasis added]
3.60
Section 27(3D) indicates that 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.[870]
As noted in Chapter 1, a guilty plea and material assistance are, in general,
considered to be factors which mitigate the severity of sentence rather than
the seriousness of an offence.
3.61
Section 27(3D)(b)(i)[871] 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.
3.62
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 to the determination of whether or not
the statutory minimum should apply. Thus, in People (DPP) v Anderson [872] Finnegan J noted:
“An early plea of guilty is of value
in every case but the extent to which it is of value will depend on the
circumstances of the case and very often will depend on the nature of the
evidence available against an accused person. If he is caught red-handed such a
plea is of less value than it might be in other cases. There are also
particular cases, such as sexual assault, rape and so forth, where a plea
spares the victim the ordeal of giving evidence and appearing in court, where a
plea is almost always of value.”
3.63
Specifically, section 27(3D)(b)(i)(I)[873]
refers to the stage at which the accused indicates his or her intention to
plead guilty. An early guilty plea merits more credit than a late guilty plea.
Thus in People (DPP) v. Godspeed[874]
the Court of Criminal Appeal ruled that the statutory minimum should not apply
where there had been an early guilty plea and the applicant had cooperated with
the gardaí.[875]
By contrast, in People (DPP) v Coles[876]
the Court of Criminal Appeal noted that a guilty plea entered on the date of
trial merited less credit than an early plea.[877]
3.64
Section 27(3D)(b)(i)(II)[878]
refers to the circumstances surrounding the guilty plea. An accused who
voluntarily pleads guilty will be given more credit than an accused who pleads
guilty having been caught red-handed. Thus in People (DPP) v Nelson[879]
the Court of Criminal Appeal noted that it was well established that where
someone is caught red-handed, there is little by way of defence and thus a
guilty plea merits considerably less than might otherwise be the case.[880]
3.65
The Court of Criminal Appeal has, however, cautioned against treating a
guilty plea, in and of itself, as an exceptional and specific circumstance. In People
(DPP) v Ducque[881] the court
was of the view that a guilty plea could be taken into account when considering
whether to mitigate a sentence and not, without more, to prevent the
application of the statutory minimum. Geoghegan J 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.”
3.66
Thus the courts will generally consider whether there is some additional
factor which endows the guilty plea with exceptionality. Thus in People
(DPP) v Farrell[882] the Court
of Criminal Appeal observed that the early plea was a “welcome relief to an
already overcrowded list” and had assisted the prosecution case, which might
have been difficult as there was evidence that the respondent and his family
had been threatened. Similarly, in People (DPP) v Dermody[883]
the Court of Criminal Appeal appeared to accept the argument that
exceptionality arose out of the fact that the plea had been particularly early.
3.67
More often than not the courts will consider a guilty plea in addition
to other factors. Thus in People (DPP) v Renald,[884]
for instance, the court was asked to consider not only the fact that the
defendant had made a full admission regarding the offence but also the fact
that he had no previous convictions; had materially assisted the Gardaí in
their investigation; had a low level of involvement in the offence; was
unlikely to re-offend; was diligent and hard-working; had difficult personal
circumstances; and was a foreign national. The Court of Criminal Appeal
observed, however, that while the trial judge was satisfied that there were
exceptional and specific circumstances “she was not concerned to identify which
of the factors so satisfied her”. It is thus unclear which of these factors
would be exceptional and specific in their own right.[885]
3.68
There may be an overlap between a guilty plea and the provision of
material assistance. Where there is an overlap this should not necessarily
result in separate reductions of the sentence. In People (DPP) v Galligan[886]
the Court of Criminal Appeal observed that the trial judge had considered the
plea of guilty and material assistance together. In this regard, Fennelly J
observed:
“In some cases, sentencing judges
attribute separate values to individual mitigating factors. That may, on
occasion be justified to the extent that they can be clearly segregated. It is
to be noted that the ‘exceptional and specific circumstances’ may relate
either ‘to the offence, or the person convicted of the offence.’ The judge
should, however, bear in mind that there may be an element of overlap between
the specified circumstances.”
The court concluded that Galligan was such a case and that
the trial judge had been “correct to assess the extent of any mitigation in one
reduction, without differentiation”. In the circumstances of the case, the
guilty plea and the assistance provided to the Gardaí were “closely causally
linked” and both related to the offence rather than the offender.[887]
3.69
Similarly, in People (DPP) v McGrane[888] the Court of Criminal Appeal observed that a guilty plea
normally coincides with co-operation with the Gardaí. It emphasised, however,
that co-operation would not necessarily result in a separate discount unless,
for example, it entails the disclosure of information in relation to others
involved in the offence.
3.70
While a guilty plea may result in the statutory minimum not being
imposed, it is not the case that an accused who does not plead guilty or
co-operate will automatically receive a 10-year sentence.[889]
In the same vein, an accused who decides to fight his or her case should not be
penalised. In People (DPP ) v Shekale[890]
the Court of Criminal Appeal found that the trial judge had, in effect,
penalised the applicant for having fought his case “tooth and nail”. The court
thus reduced a sentence of 13 years with two years suspended to 10 years with
two years suspended.
3.71
In a 2001 Department of Justice report,[891]
McEvoy concluded that section 27 had been reasonably successful in its
operation in so far as it had encouraged a very high rate of guilty pleas.
During the period of 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.”
While there is no research to prove that this is still the case,
anecdotal evidence strongly suggests that it is.
3.72
Section 27(3D)(b)(ii)[892] 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.
3.73
Material assistance may take many forms. In People (DPP) v Davis[893] 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.”
Broadly speaking, therefore, an admission or the provision of
information, regarding the particular offence or other offences, may be
considered material assistance.
(aa)
Admission
3.74
The Court of Criminal Appeal has cautioned against treating an
admission, without more, as an exceptional and specific circumstance. In People
(DPP) v Coles[894]
Finnegan J emphasised that:
“[A]dmissions are not necessarily
matters to which regard can be had for the purposes of section 15A and in
particular where a sentence less than the presumptive statutory minimum is
being considered. What the court is concerned with is material assistance.
There are a number of cases where significant material assistance was given and
comparatively modest sentences then attached to the offender. In particular
assistance above and beyond one’s own involvement will be relevant and where
someone at risk of life or at risk of serious injury or exposing themselves to
danger co-operates and assists the Gardaí, clearly they should get every
consideration when it comes to sentence. But merely to admit one’s own part may
not merit a great deal of consideration in terms of sentence and particularly
as here, where the applicant is caught red-handed.”
Thus the crucial issue is whether or not the admission
constitutes material assistance. This is more likely to be the case where the
accused has inconvenienced himself or herself such as where the admission goes
beyond the accused’s own involvement or exposes the accused to a risk of death
or injury.
3.75
In general, an admission regarding the accused’s involvement, without
more, will not constitute material assistance. Thus in People (DPP) v
Dermody,[895] where the
applicant admitted to his own role but refused to provide information regarding
his suppliers, the Court of Criminal Appeal found that the admissions did not
amount to exceptional and specific circumstances. By contrast, in People
(DPP) v Sweeney[896]
the Court of Criminal Appeal referred to the fact that the applicant had “immediately
and frankly and totally accepted responsibility” in concluding that the
admission merited more credit than the sentencing judge had attributed to it.[897]
3.76
An admission which facilitates the investigation or prosecution of the
offence is more likely to constitute material assistance. In People (DPP) v
Purcell,[898] for instance, the Court of Criminal Appeal noted that
the applicant had facilitated the prosecution case by admitting to possession
of drugs found on property of which he was not the occupier. Similarly, in People
(DPP) v Brodigan[899] the Court
of Criminal Appeal observed that the applicant had facilitated the prosecution
case by admitting to possession of drugs found in a house in which she and a
number of others were residing.[900]
Likewise an admission which assists the investigation or prosecution of another
offence may constitute material assistance. Thus in People (DPP) v Duffy[901]
the court held that credit should be given to the applicant who had expressed a
desire to plead guilty to a charge on which he had yet to be returned.
3.77
A voluntary admission merits more credit than an admission where the
accused had been caught red-handed. In People (DPP) v McGrane[902]
the Court of Criminal Appeal appeared to accept that the applicant’s full and
frank admissions constituted exceptional and specific circumstances but noted
that they merited less credit as the applicant had been under surveillance and
caught red-handed.[903]
(bb)
Information
3.78
Information which assists the investigation or prosecution of an offence
may constitute material assistance. Thus in People (DPP) v Delaney[904]
the Court of Criminal Appeal found that the respondent had materially assisted
the investigation when he furnished a tick list of his customers and explained
a number of text messages on his mobile phone. By contrast, in People (DPP)
v Galligan[905] the Court
of Criminal Appeal found that the applicant had provided minimal assistance
when he disclosed the hiding place of a cache of drugs, the bulk of which had
already been found by the Garda Síochána.
3.79
Information regarding those in charge of the operation is particularly
sought after. Thus in People (DPP) v Renald[906]
and People (DPP) v Rossi and Hellewell,[907]
for instance, the applicants were given credit for information regarding the
individuals who had been running the operation. Conversely, in People (DPP)
v Henry[908]
the Court of Criminal Appeal increased a sentence from four years to 6 years because,
although the respondent had materially assisted, he had been given too much
credit by the sentencing judge in circumstances where he had refused to
indicate the other persons involved.[909]
The courts appear to have grown more sympathetic towards those who feel that
they cannot provide information for fear of retribution. In People (DPP) v
Anderson,[910] for
instance, the Court of Criminal Appeal observed that in cases of this type it
is often difficult for the accused to give full information to the Gardaí
because of the air of threat or fear which surrounds the drug industry.[911]
3.80
The fact that the provision of material assistance may warrant greater
leniency in sentencing gives rise to a number of problems. Aside from the fact
that an accused might be inclined to point the finger at someone in order to
benefit from a reduced sentence, the provision of material assistance appears
to be a mitigating factor of which low-level offenders, such as couriers, are
less likely to benefit. On the one hand, couriers are less likely to have
access to material information regarding the ringleaders of the operation. On
the other, couriers might prefer to risk a severe sentence where the
alternative is retribution by a criminal gang.[912]
Similarly, Smith has remarked on the failure of the legislation to provide for
a mechanism by which an accused might provide such information in camera.[913]
3.81
Section 27(3D)(b)[914]
also provides that the court may have regard to “any matters it considers
appropriate”. In People (DPP) v Renald[915]
the Court of Criminal Appeal observed:
“Subsection (3C) specifies certain matters which the Oireachtas
recognise may be material in determining whether the imposition of the minimum
sentence might be unjust. In addition, however, the Legislature permitted the
Court to ‘have regard to any matters it considers appropriate’.”
3.82
The matters to which a
court may have regard have not been exhaustively defined. However, there are a
number of matters to which the courts’ attention has been drawn on a frequent
basis. These include factors which mitigate the seriousness of the offence, in
terms of culpability, harm and/or offender behaviour while committing the
offence, and factors which mitigate the severity of the sentence.
(aa)
Factors which Mitigate
the Seriousness of the Offence
3.83
Factors which mitigate
the seriousness of the offence include duress, intellectual disability, a low
level of involvement and the type, nature and quantity of the drugs.
Duress - Culpability
3.84
The fact that an
offender was pressurised into carrying or holding drugs may be considered an
exceptional and specific circumstance. Thus in People (DPP) v Kirwan[916]
the Court of Criminal Appeal found that the sentencing judge had not attached
sufficient weight to the element of duress, namely, the fact that the applicant
had agreed to mind drugs for another person of whom the applicant had good
reason to fear, which was an “exceptional feature” of the case. It thus
increased the suspended portion of a 7-year sentence from one to three years. Similarly,
in People (DPP) v Spratt[917] the Court
of Criminal Appeal noted that a drug addict with an expensive drug habit might
be more readily “forced or encouraged” to deal in or carry drugs. In People
(DPP) v Farrell[918] it was
submitted that the applicant had had no choice but to act as a courier for drug
dealers to whom he was indebted and who had threatened his life. The
Court of Criminal Appeal noted the difficulty of ascertaining whether or not
such a submission was well-founded when it was based on the accused’s own
unverified submission. Similar
submissions have been made in a number of cases.[919]
Intellectual
Disability - Culpability
3.85
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. Thus in People (DPP) v. Alexiou[920] the Court of Criminal Appeal had regard
to the fact that the respondent was a person of limited intellectual abilities,
highly manipulable, suggestible and naïve. Similarly, in People (DPP) v Sweeney[921]
the court observed that the “truly exceptional and indeed highly unusual
element” was the fact that the applicant suffered from ADHD and Aspergers
Syndrome.
3.86
Regarding the type
of drugs, it may be observed that the Oireachtas has tended to distinguish
between soft and hard drugs for less serious offences[922]
but makes no such distinction for more serious offences.[923]
Thus an offence under section 15A or section 15B of the Misuse of Drugs Act
1977 will attract the presumptive minimum term of 10 years’ imprisonment
regardless of whether the drugs involved could be classified as soft or hard
drugs. The then Minister for Justice justified the decision not to distinguish
between types on the basis that:
“Gangs are not concerned primarily with the type of drugs in
which they deal. They are interested in profit. In those circumstances the
approach taken in the Bill is to link the new drug trafficking offence to
monetary amounts.”[924] [Emphasis
added]
3.87
The Court of Criminal
Appeal has ruled, however, that the courts may have limited regard to
the type of controlled drug involved. In People (DPP) v Renald[925]
the applicant appealed against a five-year sentence on the ground that, having
regard to the nature, value and quantity of the drugs involved, the sentence
was excessive. In this regard, Murphy J observed:
“In the Misuse of Drugs Act 1977-1984 the Oireachtas has drawn a
distinction, for some purposes, between cannabis or cannabis resin on the one
hand and other controlled drugs on the other. In a charge in summary proceedings
of possession of cannabis it is only on the third or subsequent convictions
that the maximum penalty equals that available on a charge on similar
procedures for other controlled drugs. To that extent and in that context it
may be said that offences relating to cannabis might be treated less severely
than those relating to other drugs. It is, however, an argument of very limited
value. In cases governed by the value of drugs rather than their nature the
distinction is irrelevant. However, it is a factor to which a sentencing judge
in his or her discretion might attach some limited significance.”[926]
[Emphasis added]
3.88
This view has been
endorsed by the Court of Criminal Appeal on a number of occasions.[927]
In People (DPP) v Long,[928]
for instance, Kearns J observed that the extent to which a particular drug
might be shown to be actually or potentially more harmful than another was a
factor of some value to which a sentencing judge might have regard.
3.89
Regarding the value
of the drugs, it may be noted that section 15A of the Misuse of Drugs Act
1977, as amended, refers specifically to value. It would thus seem
to follow that the courts should be entitled to consider the value and - by
necessary implication - the quantity of the drugs involved in order to
determine whether the statutory minimum sentence should apply. That the courts
were not entitled but obliged to consider the value and quantity
was confirmed by the Court of Criminal Appeal in People (DPP) v Long.[929]
In that case, the DPP had appealed against a two-year sentence on the ground
that it was unduly lenient. It was asserted that the Circuit Court had failed
to take into account the gravity of the offence having regard to the
substantial value of the drugs involved, namely cocaine to a value of €111,370.
In this regard, Kearns J stated:
“[T]he Court has no hesitation in concluding that the quantity
and value of drugs seized are critical factors to be taken into
account in evaluating the overall seriousness of the offence. That is implicit
from the terms of s.15(A) itself which provides a separate and more draconian
regime of sentencing for a person found in possession of controlled drugs which
exceed a certain value ... it is true that this Court has not specifically
stated until this case that the value of the drugs seized is an important
factor in sentencing but that is plainly to be inferred from a number of
pronouncements of this Court when dealing with drug cases.”[930]
[Emphasis added]
Thus, whereas
the type of drug may be considered a matter of limited significance, the
value and quantity of the drug are matters of critical importance.
Offender’s Level of Involvement - Offender
Behaviour
3.90
A low level of
involvement in the commission of an offence may be considered an exceptional
and specific circumstance. It is arguable that this approach conflicts with the
Oireachtas’s stated intention that the courts should focus on the social impact
of drug trafficking rather than the circumstances of the offender.[931]
3.91
Nevertheless, it has
been observed that the courts have shown a marked reluctance to impose the
statutory minimum sentence on low-level offenders for fear that it would result
in a disproportionate sentence in many cases.[932]
In People (DPP) v Alexiou[933]
Murray J observed that in many cases low-level offenders, such as couriers,
are vulnerable people who would not have become involved in the illegal drug
trade had they not been exploited by professional drug dealers.[934]
There has thus been a tendency to treat low-level offenders more leniently than
high-level offenders. In People (DPP) v Botha,[935]
for instance, Hardiman J stated:
“The position of [couriers] must of course be distinguished from those
who are more calculatedly involved in the supply of drugs. There is every scope
to do this, since the maximum sentence is life imprisonment. But it is clearly
the policy of the Oireachtas that severe deterrent sentences be imposed unless
it is positively unjust by reason of exceptional and specific circumstances to
do so.”[936]
3.92
Thus low-level
involvement may justify a downward departure from the statutory minimum where
there are exceptional and specific circumstances, whereas high-level
involvement may justify an upward departure of up to life imprisonment. In People
(DPP) v Whitehead,[937]
for instance, the Court of Criminal Appeal had regard to the fact that the
applicant had been used as a courier - in addition to the fact that she was a
foreign national with financial troubles and difficult personal circumstances -
to reduce her sentence from seven years with one year suspended to three and a
half years. By contrast, in People (DPP) v Long[938]
the Court of Criminal Appeal had regard to the fact that the applicant had been
an “important and essential cog” in the drugs venture to uphold a sentence of
14 years. Similarly, in People (DPP) v Henry[939]
the Court of Criminal Appeal had regard to the fact that the respondent had
played a significant role in the offence to increase his sentence from four to
6 years.
3.93
In addition, the Court
of Criminal Appeal has distinguished between offenders who are vulnerable and
offenders who willingly engage in the drug trade for financial gain. In People
(DPP) v Hogarty,[940]
for instance, Keane CJ observed that couriers who become involved in the drug
trade for financial gain could not “expect to receive anything but severe
treatment from the courts”.[941] The Court
of Criminal Appeal has also distinguished between couriers and transporters. In
People (DPP) v Farrell[942]
Finnegan J observed that the respondent could not be classified as a courier,
in terms of being a “person carrying controlled drugs in or on his person or in
his personal luggage”, but was rather a transporter of a large quantity of
drugs with a high market value.[943]
3.94
Notwithstanding motive,
the courts have recognised the essential role of couriers who shield those
higher up in the drug trade from the reaches of the law. In People (DPP) v
Costelloe,[944] for
instance, Finnegan J observed:
“[I]t must be
borne in mind that a mule plays an important part in the drugs industry and
without the mule’s involvement those involved at a more significant level would
be less likely to escape detection, prosecution and conviction. The role of the
mule is important and significant to those who operate at a higher level.”[945]
(bb)
Factors which Mitigate
the Severity of the Sentence
3.95
Factors which mitigate
the severity of the sentence include previous good character, rehabilitation,
the particular burden of a custodial sentence and, in one case, humanity.
3.96
The fact that an
offender was previously of good character may be considered an exceptional and
specific circumstance. In People (DPP) v Galligan[946]
the Court of Criminal Appeal observed that the fact that an offender was, or
given the nature of his or her other convictions should be treated as being, a
first offender could be an exceptional and specific circumstance. Thus in People
(DPP) v Duffy,[947] for
instance, the sentencing judge had regard to the absence of previous
convictions to reduce a sentence from 15 to 6 years.[948]
3.97
Where an offender has
minor previous convictions, which are not related to drug trafficking, he or
she may be treated as a first offender. Thus in People (DPP) v Galligan[949]
the Court of Criminal Appeal ruled that previous convictions for road traffic
offences could not be considered “previous convictions of a material kind”.[950]
Similarly, an offender who has previous convictions which date back some time
may have those offences disregarded. Thus in People (DPP) v Botha[951]
the Court of Criminal Appeal upheld the sentencing judge’s decision to
disregard a conviction for fraud in 1985 and a conviction for theft in 1986 on
the ground that they were remote in time.[952]
3.98
By contrast, an
offender who has numerous previous convictions may be treated more severely.
Thus in People (DPP) v Coles[953]
the Court of Criminal Appeal observed that while none of the applicant’s 63
previous convictions were serious he could not be described as “young in
crime”. Similarly, in People (DPP) v Farrell[954]
the Court of Criminal Appeal had regard to the fact that the applicant had a
large number of previous convictions, even though only one of those was for an
offence under the Misuse of Drugs legislation.
3.99
The existence of
previous drug trafficking convictions may justify an upward departure from the
statutory minimum. It suffices to note at this juncture that section 27(3B) and
section 27(3D)(c)(i) provide that the court may have regard to previous drug
trafficking convictions when determining whether the statutory minimum should
apply. This will be examined in greater detail in paragraphs 3.110 to 3.115.
3.100
The fact that an
offender has sought to overcome a drug addiction may be considered an
exceptional and specific circumstance. Thus in People (DPP) v Anderson[955]
the Court of Criminal Appeal observed that the sentence imposed by the trial
judge had not reflected the applicant’s efforts to rehabilitate himself:
“One matter which concerns the court and that is while there was some
consideration given to rehabilitation this court believes that the sentence
could have been constructed so as to enhance or reinforce the applicant’s
efforts in that regard by giving incentive to the applicant to continue to
rehabilitate, to clear himself of his drug habit and to stay away from criminal
pursuits. The sentence actually imposed is close to the minimum, perhaps even
below the minimum, which should have been imposed having regard to the
circumstances of the offence itself. However in order to give effect to the
objective in sentencing that offenders should be rehabilitated the court is of
the view that this objective was not sufficiently considered by the learned
trial judge and in that regard there was an error in her approach to sentencing
which will enable this court to substitute for that sentence imposed by the
learned trial judge its own sentence.”
3.101
Similarly in People
(DPP) v Ryan[956] the Court
of Criminal Appeal referred to the “exceptional circumstance” of the respondent
having remained drug-free for almost four years to uphold a five-year suspended
sentence. In People (DPP) v Murphy[957]
the Court of Criminal Appeal remarked on the “extraordinary and exceptional
circumstances” regarding the rehabilitation of the applicant. The applicant
had, between the time of the offence and the trial, attended Lifeline Recovery,
become an outreach co-ordinator, taken a diploma in addiction studies and
become a Sunday school teacher. He was completely clean of drugs at the time of
sentencing. The Court of Criminal Appeal increased the suspended portion of the
10-year sentence which had been imposed from three to 6 years. By contrast, in People
(DPP) v Keogh[958]
the Court of Criminal Appeal upheld the sentencing judge’s finding that there
were no exceptional or specific circumstances despite the fact that the
applicant had taken a number of steps towards tackling his alcohol and drug
abuse.[959]
3.102
On a related note, the
fact that an offender is unlikely to re-offend may be considered an exceptional
and specific circumstance. Thus in People (DPP) v Renald[960]
the court had regard to the fact that the applicant was unlikely to re-offend
in concluding that the statutory minimum should not apply.
Particular
Burden of Custodial Sentence
3.103
A custodial sentence
may constitute a particular burden for certain offenders such as those who are
foreign nationals or suffer from ill-health.
3.104
The fact that an
offender is a foreign national may be considered an exceptional and specific
circumstance. In this regard, the courts have recognised that a foreign national
may find it more difficult than an Irish national to serve a sentence in
Ireland. In People (DPP) v Renald,[961]
for instance, the Court of Criminal Appeal referred to the applicant’s “very
different cultural and political background”. In People (DPP) v Foster[962] the Court of Criminal Appeal had regard
to the fact that a custodial sentence would bear more heavily on the applicant
as he was a foreign national with no family, friends or connection to Ireland.
Similarly, in People (DPP) v Whitehead[963]
the Court of Criminal Appeal had regard to the fact that a custodial sentence
would separate the applicant from her young family, who would not be able to
visit her because of their impoverished circumstances in South Africa. Kearns J
concluded that this would constitute an “added penalty of significant
dimensions on the appellant”.
3.105
For similar reasons, the fact that an offender suffers from ill-health
may be considered an exceptional and specific circumstance. The courts have
recognised that a custodial sentence may be disproportionately severe for a
person who suffers from serious health problems. Thus in People (DPP) v Kinahan[964]
the Court of Criminal Appeal had regard to the fact that the applicant had
serious health problems to amend a sentence of 10 years with two years
suspended to 10 years with five years suspended. Finnegan J observed:
“[I]t is clear that imprisonment for this man will be very much harsher
in its effect than it would be for someone in the full of their health and so
this court has regard to the package of illnesses from which he unfortunately
suffers.”
3.106
Similarly, in People (DPP) v Vardacardis[965]
the Court of Criminal Appeal declined to increase an 8-year sentence, 6 and a
half years of which had been suspended, which had been imposed on a 65-year
old, South African woman who suffered from chronic health problems.[966]
3.107
By contrast, in People
(DPP) v Coles[967] the
applicant had sustained physical injuries following a road traffic accident and
had become depressed when faced with the prospect of serving a significant
period in prison. The court found, however, that there was “nothing in that to
lessen or interfere with the appropriate sentence which should be imposed in
this case”. The court upheld the 15-year sentence.
Humanity
3.108
In People (DPP) v
Farrell[968] the DPP
appealed against a sentence of 8 years with 6 years suspended on the ground
that it was unduly lenient. The Court of Criminal Appeal agreed that the
suspension of the final 6 years had been unduly lenient. It declined, however,
to reduce the suspended portion of the sentence as the respondent had already
served the custodial portion of the sentence and had been at large for almost
two years. The court concluded that in the “extraordinary, specific and, it is
hoped, never to be repeated circumstances” of the case it would be an
“unacceptable disregard for the humanity of the respondent” to direct that he
now serve the remainder of the 8-year sentence.
3.109
Section 27(3D)(c)[969]
of the Misuse of Drugs Act 1977, as amended, provides that the court,
when deciding whether or not to impose the statutory minimum sentence, may have
regard to (i) any previous drug trafficking convictions and (ii) the public
interest in preventing drug trafficking. Each of these factors will be
considered in turn. As noted in Chapter 1, previous convictions tend to
aggravate the seriousness of an offence. Arguably, also, where the public
interest lies in preventing drug trafficking this is an indication of how
serious the offence should be considered.
3.110
Section 27(3D)(c)(i)[970]
provides that the court may have regard to any previous drug trafficking
offences when determining whether the statutory minimum should apply.[971]
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 drug trafficking
convictions. The courts did, in any case, have regard to previous convictions
for the purpose of determining whether the statutory minimum should apply.
3.111
Smith observes that a
matter of greater concern is the extent to which evidence of previous involvement
in the drugs trade may be admissible. In People (DPP) v Gilligan (No 2),[972]
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 conviction.[973]
3.112
In People (DPP) v
Long[974] the
applicant sought leave to appeal against a sentence of 14 years. It was submitted
that the trial judge had erred in admitting evidence of admissions made by the
accused to offences with which he had not been charged. In this regard, the
Court of Criminal Appeal, per Macken J, ruled:
“A trial or sentencing judge is fully entitled in the case where an
accused has entered a plea of guilty to have regard to all background matters
arising which goes to clarify or explain the context of the crime in question
and which may be [of] assistance to the sentencing judge in reaching a decision
as to the appropriate sentence to be imposed in a given case. This includes
being able to look at and consider the entire (sic) of the Book of
Evidence, including any admissions which may have been made by an accused...
The real difficulty, recognised in the jurisprudence, arises when assessing
whether, even if a trial or sentencing judge is so permitted, that judge has in
fact overstepped the mark... and fallen into the trap of allowing the context
or the factors, especially admissions, to influence or be taken into account in
calculating the actual sentence to be imposed.”
The court
concluded that the sentencing judge had not “clearly and unambiguously” avoided
falling into this trap by making it clear that the admissions regarding prior
involvement in the importation of drugs had not influenced the manner in which
he had sentenced the applicant. It thus set aside the sentence imposed.
3.113
In People (DPP) v
Delaney[975] the trial
judge had asked a Garda witness as to how, if there was a hierarchy of drug
dealing or possession for supply, he would grade the offender on a scale of one
to 10. The Court of Criminal Appeal held that this was to invite opinion
evidence regarding facts entirely extraneous to the matter charged and to which
the plea of guilty had been entered. The response was thus inadmissible.
3.114
In People (DPP) v
McDonnell[976]
the sentencing judge had intervened during cross-examination to ask the Garda
witness how long the offender had been involved in the drugs trade. The Court
of Criminal Appeal held that the admission of hearsay evidence regarding
previous offences for which the accused had neither been charged nor convicted
and which the accused had not asked to be taken into account would infringe
Article 38 of the Constitution, which provides for trial in due course of law,
and Article 40.4., which provides that no citizen should be punished on any
matter on which he has not been convicted. However, hearsay evidence regarding
character, antecedents and background information of an offence, including the
extent of the role played by the accused might, at the discretion of the
sentencing judge, be admitted, subject to the requirement that if a particular
fact assumed specific significance or was disputed the court’s findings should
require strict proof. It was then a matter for the sentencing judge to decide
what weight should be attributed to the evidence as required.
3.115
Smith observes that
despite this jurisprudence the dividing line between admissible and
inadmissible evidence remains unclear.[977]
3.116
Section 27(3D)(c)(ii)[978]
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 then 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.[979]
It has been noted, however, that it may be difficult to determine what is in
the “public interest”.[980]
3.117
Smith observes that the
wording suggests that a court should consider that the public interest will not
always be served by committing an offender to prison.[981]
In People (DPP) v McGinty[982]
the DPP appealed against a suspended sentence of five years on the ground of
undue leniency. The Court of Criminal Appeal accepted that a term of imprisonment
should normally be imposed but 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.
3.118
In People (DPP) v
Purcell[983] the court
observed that the applicant was not only dealing in drugs in substantial
amounts but that he had also possessed guns and that it was the combination of
the two which was the real aggravating factor.
3.119
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. O’Malley observed that this reflected the “clear policy” of the
Oireachtas that the courts should, in the absence of special circumstances,
impose a prison sentence of ten years or longer and that such sentences should
be served in their entirety less remission.[984]
3.120
Section 27(3G)[985] of the Misuse
of Drugs Act 1977, as amended, provides that the powers of commutation and
remission conferred upon 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.
3.121
Section 27(3H)[986]
provides, however, 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-quarter of the total sentence.
3.122
Section 27(3I)[987]provides
that the power to grant temporary release, as 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”. Furthermore, the temporary release shall be for such
limited period of time as is justified by those reasons. O’Malley observes that
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.[988]
3.123
Section 27(3J)[989]
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)[990]
or section 27(3F).[991] To list a
sentence for review, the court must be satisfied that the offender was addicted
to drugs at the time of the offence[992]
and that the addiction was a substantial factor leading to the commission of
the offence.[993] Section
27(3K)[994]
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. It is interesting to note that in People
(DPP) v Finn[995] 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.
3.124
In People (DPP) v Heaphy[996] the
applicant had neither pleaded guilty nor cooperated with the Gardaí. In the
absence of any other exceptional or specific circumstance the sentencing judge
had imposed a sentence of 10 years. Having regard to the fact that the
applicant was a drug addict, the Court of Criminal Appeal held that the
sentencing judge had erred in failing to refer to section 27(3J) and ordered
that the applicant’s sentence be reviewed after five years.
3.125
In People (DPP) v Dunne[997]
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. O’Malley observes that 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.[998] He also
notes that the purpose of the review provision is rehabilitative and, as such,
should be available to all drug addicts irrespective of the length of the
sentence imposed on them.[999]
3.126
The review power remains following the amendment to section 27[1000]
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.
3.127
The application of a presumptive minimum sentence to offences under
section 15A has been criticised in a number of respects. While there has been
little by way of commentary on its application to offences under section 15B,
it is clear that many of these criticisms could equally apply to offences under
section 15B.
3.128
In the first respect, it has been asserted that the presumptive minimum
sentence severely constrains judicial discretion and thereby increases the risk
of disproportionate sentencing. In People (DPP) v Heffernan,[1001]
for instance, Hardiman J observed:
“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
sentences might be regarded as harsh in certain circumstances and on certain
individuals. In this Court we have to attend to the determination of the
Oireachtas as expressed in the statutory language and not permit it to be
gainsaid except in circumstances which the statute itself envisaged.”[1002]
[Emphasis added]
3.129
Second, it has been noted that mandatory sentencing causes sentencing
discretion to be transferred, in practice if not in terms of the language of
the legislation itself, from the courts to the prosecution and the defence.
This is problematic in so far as the DPP’s discretion is exercised behind
closed doors rather than in open court.
3.130
Third, it has been asserted that the presumptive minimum sentence is a “one-strike”
rule. In this regard, O’Malley observes that by contrast to the “three-strike”
laws enacted in some US states section 27 does not require the accused to have
a previous conviction for drug dealing or anything else before the presumptive
minimum may apply.[1003]
3.131
Fourth, it has been
observed that the majority of those being caught for offences under section 15A
are drug couriers rather than drug “barons.”[1004]
In this regard, O’Malley notes that the offenders are predominantly “victims of
circumstance” who are either impoverished individuals from African countries or
underprivileged Irish citizens.[1005]
In 2006, he argued that a comprehensive survey of those being sentenced for
offences under section 15A was urgently required.[1006]
To date there has been no such survey.
3.132
Fifth, it has been
asserted that mandatory sentencing regimes are not a justifiable means of
reducing drug consumption or drug-related crime in terms of cost-effectiveness.
In this regard, the Rand Corporation 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 of heavy drug-users.[1007]
3.133
Finally, it has been asserted that there is an 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 the exceptional and specific circumstances do 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.”[1008]
3.134
As Smith observes the issue is all the more concerning when one
considers that most of those being caught under section 15A are low-level
offenders rather than high-level offenders.[1009]
3.135
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;[1010]
possession of a firearm or ammunition in suspicious circumstances;[1011]
carrying a firearm or imitation firearm with intent to commit an indictable
offence or resist arrest;[1012] and
shortening the barrel of a shotgun or rifle.[1013] The offences which attract a 10-year sentence are
possession of firearms with intent to endanger life;[1014]
and using a firearm to assist or aid in an escape.[1015]
3.136
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.
3.137
In 2007, the Criminal
Justice Act 2007 inserted the following subsection[1016]
into the sections[1017] of the Firearms
Acts which had created the offences to which the presumptive sentences
applied:
“The purposes of subsections (5) and (6)[1018]
of this section is to provide that in view of the harm caused to society by
the unlawful possession and use of firearms, a court, in imposing sentence
on a person (except a person under the age of 18 years) for an offence under
this section, shall specify as the minimum term of imprisonment to be served by
the person a term of not less than 10 years, unless the court determines that
by reason of exceptional and specific circumstances relating to the offence, or
the person convicted of it, it would be unjust in all the circumstances to do
so.” [Emphasis added]
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 Oireachtas’s intention that the presumptive minimum sentence
was to be imposed in all but the most exceptional cases.[1019]
3.138
There had been calls to
introduce mandatory sentencing for firearms offences long before the enactment
of the Criminal Justice Act 2006. Calls for “mandatory minimum”
sentences for firearms offences were first heard by the Dáil in 1986[1020]
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.[1021]
3.139
In July 1996, following
the murders of Garda Gerry 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.[1022] The
murders were reputed to have been committed by members of subversive and criminal
organisations at a time when an apparently burgeoning criminal underworld
weighed heavily in the public consciousness.[1023]
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.[1024] 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
- the 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”.[1025]
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.[1026]
3.140
In April 2004 the
Minister for Justice announced to the Association of Garda Sergeants and
Inspectors that the laws relating to drugs and firearms offences would be
strengthened.[1027] A number
of events seemed to precipitate this announcement. In November 2003, the
Department of Justice had released figures to the Labour spokesperson on
justice which indicated that there had been a 500% increase in murders
involving firearms since 1998.[1028]
Prior to that, a newly appointed Garda Commissioner, Noel Conroy, who had
addressed the Joint Committee on Justice, Equality, Defence and Women’s Rights,
explained the extent of the perceived problem:
“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.”[1029]
3.141
In April 2004, 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.[1030]
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.[1031]
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.”[1032]
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.”[1033]
3.142
In 2004 the Government
introduced the Criminal Justice Bill 2004.[1034]
During the second stage of 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.[1035]
The amendments were finalised following the fatal shooting of Donna Cleary in
March 2006.[1036]
3.143
At the same time the
idea that presumptive sentencing could be used to tackle firearms offences had
gained momentum in the UK which had introduced similar sentencing provisions in
the Criminal Justice Act 2003. This will be discussed in greater detail
in Section D.
3.144
To examine the application of the presumptive sentencing regime under
the Firearms Acts it is necessary to consider first the elements of the
offences to which it applies.[1037]
3.145
Section 15 of the Firearms
Act 1925, as amended,[1038] 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. As the Court of Criminal Appeal has not
examined section 15 in recent times, it is difficult to determine the exact
implications of the elements of the offence.
3.146
Neither the term
“possession” nor the term “control” is defined by the 1964 Act. As noted in
paragraphs 3.23 to 3.26, however, the term “possession” comprises actual
possession, which denotes having custody and control over an article, and
constructive possession, which denotes having control but not custody.[1039]
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.
3.147
Thus, in theory,
section 15 should be broad enough to describe the activities of both high-level
and low-level offenders. On the one hand, the high-level offenders, who are in
charge of the operations, may be said to exercise constructive possession as
they have ultimate control over those transporting the firearms or ammunition
on their behalf. On the other hand, the low-level offenders, who transport the
firearms or ammunition, may be said to have actual possession as they have some
level of control over the firearms or ammunition of which they have custody. As
noted in paragraph 3.26, however, the reality is that it is easier to detect
and prove actual possession than it is to detect or prove constructive
possession. Thus it is likely that more low-level offenders than high-level
offenders will be caught for offences under section 15.
3.148
Possession or control
must be coupled with either (a) intent to endanger life or cause serious injury
to property, or (b) intent to enable any other person by means of the firearm
or ammunition to endanger life or cause serious injury. Thus the person who
possesses or controls the firearms or ammunition must intend, personally, to
endanger life or cause serious injury to property or to enable someone else to
do so. Thus, for example, a courier who does not harbour a personal intention
to endanger life or cause serious injury to property may still be found guilty
of an offence under section 15. It is undeniable that in most cases the
provision of firearms or ammunition to another person enables that person to
endanger life or cause serious injury to property regardless of whether that
person chooses to do so in the end. It is arguable that this inference is even
stronger where that person is already involved in serious crime and has,
perhaps, requested the consignment of firearms or ammunition. Section 15 thus
provides very little wriggle room to the would-be courier.
3.149
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,[1040] provides
that a person who contravenes section 112(1) of the Road Traffic Act 1961
and who, at the time of the contravention, has with him or her a firearm or
imitation firearm is guilty of an offence. Again, it is difficult to determine
the exact implications of the elements of an offence under section 26 as the
Court of Criminal Appeal has not examined section 26 in recent times.
(aa)
Using or Taking
3.150
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 “use” 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 a person could manage and control the vehicle
without personally operating the vehicle. Thus, for example, a person might
manage and control a vehicle where he or she forces the owner to drive by
holding a firearm to his or her head.
3.151
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 in paragraphs 3.23 to 3.26, is not limited to having custody. The narrow
definition of take implies that the person must have physical custody of the
vehicle whereas the broader definition would allow for situations in which the
person does not have physical custody, such as where the person, at a remote
location from the vehicle, forces the owner to drive by threatening his or her
family with a firearm.
(bb)
Mechanically Propelled
Vehicle
3.152
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 vehicle
running on permanent rails.
(aa)
Having with Him or Her
3.153
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 he or she is taking the particular
vehicle.
(bb)
A Firearm or Imitation
Firearm
3.154
Section 1(1) of the Firearms
Act 1925, as amended,[1041] provides
that the term “firearm” means (a) a lethal firearm or other lethal 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 a 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;[1042] 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.
3.155
The term “imitation
firearm” is not defined by the Act. Presumably, however, the term includes any
article which is calculated or reasonably likely to give the person perceiving
it to believe that it is a real firearm. As noted by Finnegan J in People
(DPP) v Clail[1043]
it makes very little difference to a person who, in the course of a crime, is
confronted with a weapon that, unbeknownst to him or her, 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.
3.156
Section 27 of the Firearms
Act 1964, as amended,[1044]
prohibits the use or production of a firearm or imitation firearm for the
purpose of resisting arrest[1045]
or aiding escape or rescue of the person or another person from lawful custody.[1046]
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.
(aa)
Use or Production
3.157
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.[1047]
In People (DPP) v Curtin[1048]
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.[1049]
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 section
27. Thus a firearm need not be discharged but may be merely shown for the
purpose of section 27.
(bb)
Firearm or Imitation
Firearm
3.158
The meaning of the
terms “firearm” and “imitation firearm” have been considered at paragraphs
3.154 to 3.155.
3.159
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 or
rescue of another person.
3.160
Section 27A of the Firearms
Act 1964, as amended,[1050] provides
that it is an offence for a person to possess or control 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.[1051].
(aa)
Possession or Control
3.161
The meaning of the
terms “possession” and “control” have been considered at paragraphs 3.23 to
3.26.
(bb)
Firearm
3.162
The meaning of the term
“firearm” has been considered at paragraph 3.154. It should be noted, however,
that section 27A may be distinguished from the other provisions of the 1964 Act
in so far as it does not refer to imitation firearms.
3.163
While this 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 to objectively 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 because, as noted at
paragraph 3.144, a person may be legally entitled to possess or control a
firearm.
3.164
Section 27B of the Firearms
Act 1964, as amended,[1052] provides
that it is an offence for a person to have with him or her a firearm, or an
imitation firearm, with intent to commit an indictable offence or to resist or
prevent 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.[1053]
(aa)
Have
3.165
The meaning of “have”
has been considered at paragraph 3.153. It should be noted, however, that by
contrast to 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, for the purpose of resisting arrest. Thus
the fact that an offender has a firearm or imitation firearm on his or her
person may be sufficient for section 27B.
(bb)
Firearm or Imitation
Firearm
3.166
The meaning of the
terms “firearm” and “imitation firearm” have been considered at paragraphs
3.154 and 3.155.
3.167
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 arrest.[1054] Thus
having the firearm is an element of the overall plan to commit an offence or
resist or prevent arrest.
3.168
Section 12A of the Firearms
and Offensive Weapons Act 1990, as amended, 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[1055] or a
rifle to a length of less than 50 centimetres.[1056]
This provision needs little explanation. The mere act of shortening the
barrel of a shot-gun or rifle is an offence, regardless of whether there is
criminal intent.[1057]
3.169
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 sentences applicable to offences under the Firearms Acts.
3.170
As noted in paragraph
3.135, the offences which attract a five-year presumptive minimum sentence are
possession of a firearm while taking a vehicle without authority;[1058]
possession of a firearm or ammunition in suspicious circumstances;[1059]
carrying a firearm or imitation firearm with intent to commit an indictable
offence or resist arrest;[1060] and
shortening the barrel of a shotgun or rifle.[1061]
Each of these offences - 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[1062]
- is subject to a maximum sentence of 14 years.[1063]
The offences which attract a 10-year presumptive minimum sentence are
possession of firearms with intent to endanger life;[1064]
and using a firearm to assist or aid in an escape.[1065]
These offences are subject to a maximum sentence of life imprisonment.[1066]
3.171
As observed by the
Court of Criminal Appeal in relation to the Misuse of Drugs Act 1977,
the presumptive minimum sentence should not be used as a benchmark but may be a
useful guide as to the gravity of the offences under the Firearms Acts.
Thus in People (DPP) v Fitzgerald[1067]
the Court of Criminal Appeal ruled that the trial judge had erred in principle
by attributing insufficient weight to section 27A of the Firearms Act 1964
which provided for a presumptive minimum sentence of five years.
3.172
Furthermore, the fact
that the statute provides for a maximum sentence should not be ignored. The
significance of the statutory maximum was illustrated in the case of People
(DPP) v McCann.[1068] Macken J
observed that the trial judge had imposed a sentence of 7 years, having been
erroneously advised that the maximum sentence for an offence under section 12A
of the Firearms and Offensive Weapons Act 1990 was 14 years when it was,
in fact, 10 years. Respecting the trial judge’s intention to impose a sentence
midway between the minimum and maximum sentence, the Court of Criminal Appeal
reduced the sentence from 7 to five years.
3.173
Presumably, as observed
by the Court of Criminal Appeal in relation to the Misuse of Drugs Act 1977,
the courts are obliged to have regard to the presumptive minimum sentence
even where it does not apply.
3.174
In each of the
provisions outlined at paragraph 3.136, subsection (5)[1069]
provides that the presumptive minimum sentence does 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 five years’ or 10 years’ imprisonment unjust in all
the circumstances. 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 sentence rather than the seriousness of an offence.
3.175
Subsection (5)(a)[1070] 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 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.
3.176
Subsection
(5)(a)(i)[1071] refers to the stage at
which the accused indicates his or her intention to plead guilty. An early plea will merit more
credit than a late plea.[1072]
Subsection (5)(a)(ii) refers to the circumstances surrounding the plea. An
accused person who voluntarily pleads guilty will be given more credit than an
accused person who pleads guilty having been caught red-handed.[1073]
Presumably, as observed by the Court of Criminal Appeal in relation to the Misuse
of Drugs Act 1977, the courts should be slow to treat a guilty plea, in and
of itself, as an exceptional and specific circumstance.
3.177
In any
case, a guilty plea will usually be considered in addition to other mitigating
factors. In particular, there may be an overlap between the guilty plea and
material assistance. In People (DPP) v Barry,[1074] for instance, Finnegan
J observed:
“Firstly there was a plea of guilty. It has been
suggested on behalf of the applicant that the plea of guilty should count for
very little in this case as the respondent was caught red-handed. However he
did immediately acknowledge his guilt. It has to be accepted also that there
were possible defences available to him which could conceivably have succeeded.
They were not without hope. By his plea of guilty he enabled the court
proceedings to be prosecuted promptly and efficiently with a minimum impact on
court time or time in investigation or constructing the case against him. He
does merit some consideration therefore for his plea of guilty notwithstanding
that it could be said that he was caught red handed. Having had regard to that
one then moves on and takes into account the fact that the plea of guilty was
instant and was maintained throughout his interviews with the Gardaí. It has to
be accepted that he materially assisted in the investigation of the offence and
that is a matter which also must be taken into account.”
3.178
Subsection (5)(b)[1075] 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.
3.179
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[1076] or the
provision of information. As noted in paragraph 3.77, a voluntary admission or
the voluntary provision of information merits more credit, as does an admission
or information which facilitates the investigation or prosecution of the
particular offence or other offences.
3.180
Subsection (5)[1077] also
provides that the court may have regard to “any matters it considers
appropriate”. As noted in paragraph 3.81, these include factors which mitigate the seriousness of the offence, in
terms of culpability, harm and/or offender behaviour while committing the
offence; and factors which mitigate the severity of the sentence.
(aa)
Factors which Mitigate
the Seriousness of the Offence
3.181
Factors which mitigate
the seriousness of the offence include duress, the type of firearm used, the
fact that the firearm was not discharged, and low level involvement.
Duress -
Culpability
3.182
The fact
that an offender was pressurised into committing a firearms offence may be
considered an exceptional and specific circumstance. In People (DPP) v Barry,[1078] for instance, Finnegan
J observed:
“Subsection 4A also permits the court to take into
account in sentencing exceptional and specific circumstances relating to the
offence. In this case the explanation given by the respondent for his
involvement in this offence was duress. He was threatened not just personally
but his mother and his siblings, who were younger than him were threatened and
that if he did not act as a courier in respect of this weapon that the
consequences would be serious for him, his mother and particularly his young
siblings. The Gardaí accepted this as did the learned trial judge. So this
court must also take it into account.”[1079]
Type of
Firearm - Offender Behaviour
3.183
The Firearms
Acts do not distinguish between real and imitation firearms. In People
(DPP) v Clail[1080] Finnegan J observed
that it makes little difference to the person who, in the course of a crime, is
confronted with a weapon which, unbeknownst to him or her, is non-functioning. In People (DPP) v Walsh,[1081] however, the Court of
Criminal Appeal distinguished between shotguns and other firearms on the ground
that shotguns came “towards the top end” of the “hierarchy of weapons.” It thus
upheld the trial judge’s decision to impose the presumptive minimum sentence of
five years.
Fact that
Firearm not Discharged - Offender Behaviour/Harm
3.184
The fact
that the accused did not discharge the weapon may be considered an exceptional
and specific circumstance. In People (DPP) v Fitzgerald,[1082] for instance, the trial
judge observed that the defendant had had three opportunities to discharge his
firearm but had resisted on each occasion. As a result, the trial judge
concluded that it would be unjust to impose the minimum sentence.
Offender’s
Level of Involvement - Offender Behaviour
3.185
It would
appear that a low level of involvement in the commission of the offence may be
considered an exceptional and specific circumstance. In People (DPP) v Barry,[1083] for instance, the Court
of Criminal Appeal observed that the respondent was a courier who had no
intention of using the weapon. Similarly, in People (DPP) v Purcell[1084] the trial judge had
regard to the fact that the respondent had been put under pressure to mind the
firearms for someone else.
(bb)
Factors which Mitigate
the Severity of the Sentence
3.186
Factors which mitigate
the severity of the sentence include previous good character and, presumably,
personal circumstances.
Previous Good
Character
3.187
The fact
that an offender was previously of good character may be considered an
exceptional and specific circumstance.[1085] Presumably, as observed
by the Court of Criminal Appeal in relation to the Misuse of Drugs Act 1977,
where an offender has minor previous convictions, which are not related to
firearms offences, he or she may be treated as a first-time offender.[1086]
Matters regarding the Offender’s Personal Circumstances
3.188
Presumably,
the matters regarding the offender’s personal circumstances which would
influence the court’s decision regarding the imposition of the statutory
minimum would be similar to those under the Misuse of Drugs Act 1977.[1087]
3.189
To date,
the courts have taken into account the youth of the offender; personal traumas
suffered by the offender; family support; the naivety of the offender; and the
possibility of rehabilitation. Thus in People (DPP) v Kelly[1088] Denham J outlined the
exceptional and specific circumstances of the case as being:
“First, the Court has had special regard to the fact
that the respondent was 17 years of age at the time when these series of
offences took place. Secondly, at that time he had suffered severe trauma in
his personal life and it had had an effect upon him. Thirdly, he has a very
supportive family structure and this has been, and continues to be, of great
assistance to him. Of special note, as the learned trial judge pointed out, was
his mother’s intervention which has been very helpful. Fourthly, the garda
considered, and it is apparent, that he was a very naive young man at the time
when the offences took place. Fifthly, he appears to be getting his alcohol and
drug addiction under control.”
3.190
Similarly,
in People (DPP) v Clail[1089] Finnegan J referred to
the particularly tragic personal circumstances of the respondent which included
a dysfunctional family, sexual abuse and a history of self-harm.
3.191
Subsection (6)[1090]
of each provision provides that the court, when deciding whether or not to
impose the statutory minimum sentence, may have regard to (i) any previous
convictions for firearms’ offences and (ii) the public interest in preventing
firearms’ offences. As noted in Chapter 1, previous convictions tend to aggravate
the seriousness of an offence. Arguably, also, where the public interest lies
in preventing firearms’ offences this is an indication of how serious the
offence should be considered.
3.192
The courts
will take a dim view of an offender who has shown himself or herself to be a
repeat offender. Thus in People (DPP) v Donovan[1091] Finnegan J observed
that the respondent had a “long sequence of convictions dating back to 2001”.
He had been convicted of 46 offences and sentenced to 33 terms of imprisonment
in respect of those offences. In imposing the presumptive minimum sentence of
five years, Finnegan J concluded that society needed to be protected from a person
who was a recidivist to the extent that the respondent was a recidivist.[1092]
3.193
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)[1093] of each provision
provide that the court may have regard to such previous convictions when
determining whether the statutory minimum should apply.
3.194
Thus in People
(DPP) v Dwyer[1094] Finnegan J had regard
to the fact that the respondent had a previous conviction under the Firearms
Acts, “although it must be said it is at the lower end of seriousness”, to
increase the sentence from four to five years.
3.195
Subsection (6)(b)[1095] 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.
3.196
Factors
including the nature of the firearm, the fact that it was brandished in a
crowded place, and the fact that it was discharged have justified upward
departures from the presumptive minimum sentence.[1096] The fact that the
offender possessed more than one firearm[1097] and the fact that he
possessed a firearm and drugs have also aggravated the minimum sentence.[1098] Arguably, these are all factors
which aggravate the seriousness of an offence.
3.197
In a
similar vein to section 27 of the Misuse of Drugs Act 1977, section 27C
of the Firearms Act 1964, as amended,[1099] restricts the power to
grant early release to those who have been convicted of an offence under the Firearms
Acts.[1100] 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 to the Misuse of
Drugs Act 1977, however, section 27C does not permit the court to list a
sentence for review.
3.198
The Commission notes that there has been little in the way of commentary
in the literature on the presumptive sentencing provisions in the Firearms
Acts, as amended. This may reflect that these provisions, which were
modelled on those in the Misuse of Drugs Acts, are relatively recent in
origin and that there is therefore less outcomes on which to comment. It could
of course be argued, by analogy, that the criticisms relating to the
presumptive sentencing system under the Misuse of Drugs Act 1977 could
be applied to the presumptive sentencing system under the Firearms Acts.
3.199
Campbell does note, however, that the problem of gun crime is a complex
one which may require a more sophisticated response than presumptive
sentencing:
“The imposition of presumptive
sentences as a means of deterring gun crime is premised on an unduly simplistic
conception of the actor. Qualitative studies of gun criminals indicate that the
decision to commit the act is rarely driven by ‘rational’ considerations per se
and so much research challenges the deterrent value of robust sentences...
[T]he individual’s decision to commit
crime in a broad sense may not be influenced by rational factors, but his
choice as to where and when to commit the act may indeed be governed by such
reasoning. Drawing on this, it may be contended that the perpetrator of gun
crime thinks rationally in the context of the act itself, such as regarding the
choice of weapon, the time of day, the location and the number of people
involved, but that his ultimate involvement in gun crime must be interrogated
using more than the rational actor paradigm.”[1101]
3.200
Specifically, Campbell notes that the expression of masculinity and
social deprivation may be contributing factors of which policy makers should be
cognisant. Such factors may require an educational and psychological rather
than legal approach.[1102]
3.201
In addition to the
mandatory life sentence for murder, there are mandatory sentences for certain
firearms offences and public protection but not, apparently, for drugs
offences.
3.202
The Misuse of Drugs
Act 1971[1103]
applies to Northern Ireland.[1104]
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.
3.203
In Northern Ireland the
use of firearms is regulated by the Firearms (Northern Ireland) Order 2004, as amended.[1105]
The stated purpose of the order 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.[1106]
3.204
The Firearms
(Northern Ireland) Order 2004 was prepared following the publication of a
review conducted by the Northern Ireland Office.[1107]
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.[1108] 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.[1109] A
Proposal for a Draft Firearms Order was laid before Parliament on 22nd
July 2002 and, following consultation with and approval of the Northern Ireland
Affairs Committee,[1110] was
adopted as the Firearms (Northern Ireland) Order 2004.
3.205
The Firearms
(Northern Ireland) Order 2004 re-enacted much of the Firearms (Northern
Ireland) Order 1981 and introduced a number of new provisions for the
purpose of improving public safety.[1111]
One such provision was Article 70 which introduced a mandatory sentencing
regime in respect of certain firearms offences. Article 70 stipulates that the
courts impose a sentence of five years on offenders aged 21 years or over and a
sentence of three years on offenders aged below 21 years, unless there are
“exceptional circumstances relating to the offence or to the offender which justify
its not doing so”.[1112]
3.206
The offences to which
the mandatory sentencing regime applies are the possession, purchase or
acquisition of a handgun without holding a firearm certificate or otherwise
than as authorised by a firearm certificate;[1113]
the possession, purchase, acquisition, manufacture, sale or transfer of certain
controlled firearms or ammunition;[1114]
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;[1115]
the use of a firearm or imitation firearm to resist arrest;[1116]
the carrying of a firearm with intent to commit an indictable offence or to
resist arrest or to prevent the arrest of another;[1117]
the carrying or discharge of a firearm in a public place;[1118]
and trespass in a building with a firearm or imitation firearm.[1119]
3.207
Article 13 of the Criminal
Justice (Northern Ireland) Order 2008 provides that the court must impose a
life sentence for a serious offence 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. If the offence
is one in respect of which the offender would, apart from Article 13, be liable
to a life sentence and the court is of the opinion that the seriousness of the
offence is such as to justify the imposition of a life sentence, the court must
impose a life sentence. Where an offence is serious but does not attract
a life sentence or the current offence is not sufficiently serious, the court
must impose an indeterminate custodial sentence and specify a period of at
least two years as the minimum period required to satisfy the requirements of
retribution and deterrence. A sentence under Article 13 is not amenable to
remission under the Prison Rules.
3.208
The fact that Article
13 bears a remarkable resemblance to section 225 of the Criminal
Justice Act 2003, which is discussed at paragraph 3.227, 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 and assessed by the court as dangerous.[1120]
It observed, however, that the 2003 Act did not apply to Northern Ireland and
that there remained, as a result, a gap in Northern Ireland legislation 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.”[1121]
A draft Criminal Justice (Northern Ireland) Order 2007 was
proposed and later adopted as the Criminal Justice (Northern Ireland) Order
2008.[1122]
3.209
It has been observed
that mandatory sentencing in the UK reflects the attention paid to recidivist
offenders in the 1990s, which resulted in “three-strikes” statutes in the
United States.[1123] In
addition to the mandatory life sentence for murder, there are mandatory
sentences for certain repeat drug offences, certain firearms offences, repeat
domestic burglaries and offences which necessitate public protection. Each will
be considered in turn.
3.210
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.[1124]
The courts may impose a sentence of less than 7 years where there are “specific
circumstances” relating to the offences or the offender, which would make the
minimum sentence “unjust in all the circumstances.” While the 2000 Act does not
define what is meant by “specific circumstances”, it obliges the courts, when
they find that such circumstances exist, to state in open court what those
circumstances are.[1125]
3.211
In addition, section
152 of the 2000 Act permits the courts to impose a sentence of not less than 80
percent of the minimum term where the defendant has indicated an intention to
plead guilty.[1126] The
courts must take into account the stage at which the defendant indicated his or
her intention to plead guilty and the circumstances surrounding that
indication. It has been submitted that a court is entitled to take advantage of
section 152 whenever an offender has pleaded guilty, even though the intention
to plead guilty has not been indicated in advance of the trial.[1127]
Where a court imposes a sentence of less than 7 years, it should indicate how
it arrived at the sentence and what allowance has been made for the plea.[1128]
3.212
Section 4A of the Misuse
of Drugs Act 1971[1129] provides that the court should consider it an aggravating
factor where the drug supply has taken place within the vicinity of a school or
where couriers under 18 years of age have been used.
3.213
The Powers of
Criminal Courts (Sentencing) Act 2000 replaced the Crime (Sentences) Act
1997 but, as it was a consolidation act,[1130]
made no changes to the substantive law.[1131] A principal feature of the 1997 Act
was the introduction of presumptive minimum sentences for certain offences
including third class A drug trafficking offences.[1132]
This was just one of the proposals contained in the Government’s 1996 White
Paper on Crime[1133] which
were implemented by the 1997 Act. In the White Paper the Government had
indicated that it would be taking a punitive approach to tackling crime[1134]
and emphasised its view that prison worked[1135]
and that it was necessary to impose “severe deterrent sentences” on persistent
dealers in hard drugs.[1136] It thus
recommended that the courts be required in future to impose a minimum sentence
of 7 years on those convicted of a third Class A drug trafficking offence.[1137]
3.214
The Crime
(Sentences) Act 1997 had been preceded by the Criminal Justice Act 1991,
which had sought to implement the proposals contained in the Government’s 1990
White Paper on Crime.[1138] A broad
aim of the 1991 Act had been to promote the principle of proportionality and,
through this, achieve greater consistency in sentencing.[1139]
Ashworth notes that while this objective was set out clearly in the 1990 White
Paper, the provisions of the 1991 Act were less clear.[1140]
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.
3.215
In 1993 there was a
dramatic change in the penal climate following the murder of James Bulger.[1141]
In 1996 the Government published its White Paper on Crime[1142]
in which it (i) indicated that it would be taking a punitive approach to
tackling crime;[1143] (ii)
expressed the view that prison worked;[1144]
and (iii) sought to introduce mandatory sentencing in respect of a number of
offences. The fact that this was a significant departure from the prevailing
penal philosophy was illustrated by the fact that the same Government had in
1990 stated that prison was just “an expensive way of making bad people worse”.[1145]
The 1996 White Paper was criticised as reflecting the “increasing managerialism
and politicisation of sentencing policy”.[1146]
3.216
The Crime
(Sentences) Bill 1996 was introduced in the dying months of the
Conservative Parliament.[1147] The Bill
was severely criticised by the House of Lords on the ground that its provisions
were unwarranted and unjustified.[1148]
Thomas notes, for instance, the view of the late 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”.[1149]
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 UK 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.[1150]
As a result, the Home Secretary agreed to retain a House of Lords’ amendment,
which gave the sentencing court a discretion not to impose the mandatory
minimum sentence on domestic burglars and Class A drug traffickers in specified
circumstances,[1151] in
return for the Opposition’s agreement to support 17 Government Bills.
3.217
The Crime
(Sentences) Act 1997 received the Royal Assent on 21st March
1997, the day the Conservative Parliament was prorogued prior to the General
Election on 1st May.[1152]
Its enactment was to mark an evolutionary step in sentencing both in terms of
its practical and its symbolic effects. Its practical effects comprised of a
two-strikes rule in relation to offenders who had been convicted of a second
serious offence[1153] and a
three-strikes rule in relation to offenders who had been convicted of a third
Class A drug trafficking offence[1154]
or domestic burglary.[1155] Thomas
asserts, however, that the importance of the 1997 Act was in what it
symbolised:
“The decision to implement the Act suggests that the Home Secretary has
little regard for the opinions and experience of the senior judiciary, and is
more interested in the political than the practical consequences of the
legislation. The introduction of mandatory minimum sentences (absent from the
English sentencing system since 1891) for offenders convicted for a third time
of a class A drug dealing offence establishes a precedent for the
introduction of mandatory minimum sentences for just about any kind of
crime. A Home Secretary who has brought these provisions into force will find
it difficult to resist the pressure for mandatory sentences in other contexts.”[1156]
[Emphasis added]
3.218
Section 51A[1157]
of the Firearms Act 1968,
as amended,[1158] provides
for a presumptive minimum sentence of five years[1159]
or three years[1160] in
respect of certain firearms offences. These offences are possession,[1161]
purchase, acquisition, manufacture, sale or transfer of a firearm;[1162]
using another person to mind a dangerous prohibited weapon;[1163]
possession of a firearm with intent to injure;[1164]
possession of a firearm with intent to cause fear of violence;[1165]
use of a firearm to resist arrest;[1166]
carrying a firearm with criminal intent;[1167]
carrying a firearm in a public place;[1168]
and trespassing in a building with a firearm.[1169]
The minimum term must be imposed unless there are exceptional circumstances
which would justify the court not doing so.[1170]
It would appear that a guilty plea will not result in a reduction of the
sentence imposed for an offence under section 51A.[1171]
3.219
Section 51A of the Firearms
Act 1968 was inserted by section 287 of the Criminal Justice Act 2003.
It has been noted[1172] that the
Criminal Justice Act 2003 was inspired by proposals contained in the
Government’s 2002 White Paper Justice for All[1173]
which had, in turn, incorporated many of the recommendations contained in the
2001 Halliday Report.[1174]
While neither the 2002 White Paper nor the 2001 Halliday Report referred
to mandatory sentencing or firearms offences, there was a sense that a public
appetite for a stricter approach to sentencing existed.[1175]
3.220
During a House of Commons debate in late 2002,[1176]
the then Home Secretary was asked whether he was aware of the London
Metropolitan police’s aim 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.”[1177] 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.[1178]
3.221
In the UK, however,
firearms legislation has, for the most part, resulted from reactionary
responses to 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 ...”[1179]
3.222
The same might be said of section 287 of the Criminal Justice Act
2003. 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.[1180]
The incident was considered to be indicative of a rising gun culture in England
and Wales.[1181] Indeed,
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.[1182]
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.[1183]
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.[1184] 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.[1185]
3.223
Section 111[1186]
of the Powers of Criminal Courts (Sentencing) Act 2000 provides that
where a person who is convicted of a third domestic burglary the court must
impose a minimum sentence of three years, except where there are particular
circumstances which relate to the offences or the offender which would make it
unjust to do so in all the circumstances.
3.224
Section 111 of the 2000
Act replaced section 4 of the Crime (Sentences) Act 1997. As noted at
paragraphs 3.214 to 3.217, the Crime (Sentences) Act 1997 sought to
implement the proposals contained in the Government’s 1996 White Paper.[1187]
One of those proposals concerned the imposition of a mandatory minimum sentence
of three years on offenders convicted of a third domestic burglary.[1188]
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.[1189]
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.”[1190]
3.225
It is debatable as to whether section 4 of the Crime (Sentences) Act
1997 or, indeed, section 110 of the Powers of Criminal Courts Act 2000,
adequately addressed this perceived problem. In 2009, for instance, sentencing
statistics showed that in 2007 79 percent of offenders convicted of a third
domestic burglary had not received the three-year presumptive minimum.[1191]
3.226
Section 225 of the Criminal Justice Act 2003 provides that the
courts must impose a life sentence for a serious offence[1192] where they are of the opinion that there is a significant
risk that the offender will commit further offences causing serious harm to
members of the public. If the offence is one in respect of which the offender
would, apart from section 225, be liable to imprisonment for life, and the
court considers that the seriousness of the offence, or the offence and one or
more offences associated with it, is such as to justify the imposition of a
sentence of imprisonment for life, the court must impose a sentence of
imprisonment for life. Where an offence is serious but does not attract a life
sentence or the current offence is not sufficiently serious, the court must
impose a sentence of imprisonment for public protection. Section 226 creates a
similar sentence for offenders under 18 years of age.
3.227
As noted at paragraph 3.219, the Criminal Justice Act 2003 was inspired by proposals contained
in the Government’s 2002 White Paper Justice for All[1193]
which had, in turn, incorporated many of the recommendations contained in the
2001 Halliday Report.[1194]
In the 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.[1195]
Previously, section 109 of the Powers of Criminal Courts (Sentencing) Act
2000 had provided for a mandatory life sentence where the offender had been
convicted of a second serious offence.[1196]
This replaced section 2 of the Crimes (Sentences) Act 1997, a provision
which had been severely criticised during its life.[1197]
In 2000, the Court of Appeal effectively neutralised the “two strikes” rule
created by the provision when it ruled that only in exceptional circumstances
could judges take into account whether the offender presented a danger to the
public.[1198] The
provision was eventually repealed by section 303 of the Criminal Justice Act
2003.[1199]
3.228
Ashworth and Player have been 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.”[1200]
3.229
In 2008 the Chief Inspector of Prisons and the Chief Inspector of
Probation conducted a review of the indeterminate sentence for public
protection.[1201] 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.[1202] This,
they noted, had not only “increased pressure, and reduced manoeuvrability,
within the prison system” but had also stretched the Probation Service.[1203]
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.”[1204]
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.[1205]
3.230
In 2008, section 225 was amended by section 13 of the Criminal
Justice and Immigration Act 2008. The amendments provide that the courts
now have a power, rather than a duty, to impose a sentence of imprisonment for
public protection. They further provide 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 has on a
previous occasion been convicted of one of the offences listed in the new
Schedule 15A to the 2003 Act.[1206]
Section 14 makes similar amendments to section 226.
3.231
In addition to the
mandatory sentence for murder, there are mandatory sentences for certain drugs
and firearms offences.
3.232
Section 205B of the Criminal Procedure (Scotland) Act 1995, as
amended,[1207]
introduces a mandatory sentencing regime in respect of third class A drug
trafficking offences. Section 205B stipulates that the court impose a minimum
term of imprisonment of 7 years on offenders aged 21 years or more and a
minimum term of detention of 7 years on offenders aged 18 years and under 21
years.
3.233
Section B4 of the Scotland Act 1998 provides that legislating in
relation to firearms is a power reserved to Westminster. Thus the control of
firearms is regulated by the Firearms Act 1968, as amended.[1208]
Section 51A[1209] of the Firearms
Act 1968 introduces a mandatory sentencing regime in respect of certain
firearms offences. It stipulates that the Scottish courts impose a minimum
sentence of three years for offenders aged 16 to 20 years and five years for
those aged over 20 years.
3.234
As noted at paragraph 3.218, section 51A(1A)[1210] of the Firearms
Act 1968 provides that the offences to which the presumptive sentence
applies are possession of a firearm with intent to injure;[1211]
possession of a firearm with intent to cause fear of violence;[1212]
use of a firearm to resist arrest;[1213]
carrying a firearm with criminal intent;[1214]
carrying a firearm in a public place;[1215]
and trespassing in a building with a firearm.[1216]
The minimum term must be imposed unless there are exceptional circumstances
which would justify the court not doing so.
3.235
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.[1217]
3.236
Most states have
presumptive or mandatory sentencing regimes in respect of drugs and/or firearms
offences. Many states have presumptive or mandatory sentencing regimes in
respect of other offences as well. In general, second or subsequent offences
will attract enhanced penalties.[1218]
3.237
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.[1219] §13A-12-231(13)
stipulates that an additional penalty of five years be imposed for drug
trafficking while in possession of a firearm. §13A-12-250 stipulates that an
additional penalty of five years 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 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.
3.238
§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 C felony. §13A-11-60 stipulates that an additional penalty of three years be
imposed for possession and sale of brass or steel Teflon-coated handgun
ammunition.
3.239
Minimum
sentences are also prescribed in respect of a fourth or subsequent conviction
for driving under the influence within a five-year period;[1220] driving under the
influence with a passenger under 14 years of age;[1221] robbery of a pharmacy;[1222] second or subsequent
offences of domestic violence;[1223] terrorism;[1224] certain sexual offences
against children;[1225] hate crimes;[1226] falsely reporting an
incident;[1227] and possession,
transportation, receipt or use of a destructive device, explosive,
bacteriological or biological weapon.[1228] There are also
provisions dealing with habitual offenders.[1229]
3.240
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 with a child under the age
of 18 or with the aid or conspiring of a child under the age of 18; with a
prior conviction for a Class A, B or C drug offence; with a firearm; or on a
school bus or within 1,000 feet of a school zone. §1105-B prescribes a minimum
sentence of two years for trafficking or furnishing a counterfeit drug to a
child under the age of 18; with a prior conviction for a Class A, B or C drug
offence; with a firearm; or trafficking or furnishing a counterfeit drug and
death or serious bodily injury is caused by the use of the drug. §1105-C
prescribes a variety of minimum sentences, ranging from one year to two years,
for furnishing a scheduled drug to a child under the age of 18 or with the aid
or conspiring of a child under the age of 18; with a prior conviction for a
Class A, B or C drug offence; with a firearm; or furnishing a scheduled drug on
a school bus or within 1,000 feet of a school zone. §1105-D prescribes a
variety of minimum sentences, ranging from one year to four years, for
cultivating marijuana plants with a prior conviction for a Class A, B or C drug
offence; with a firearm; with the aid or conspiring of a child; or cultivating
marijuana plants within 1,000 feet of a school zone.[1230]
3.241
§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.
3.242
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. §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 II drugs. §18.2-248(C1) prescribes a
minimum sentence of three years for a third or subsequent offence of
manufacturing metamphetamine. §18.2-248.01 prescribes a variety of minimum
terms, ranging from three years to 10 years for transporting Schedule I or 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 6 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.[1231]
3.243
§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 transport 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.
3.244
Minimum sentences are
also prescribed in respect of the illicit possession, importation, sale or
distribution of cigarettes;[1232]
certain types of assault;[1233] escape
from a correctional facility;[1234]
identity theft;[1235] certain
gang-related offences in a school zone;[1236]
certain types of manslaughter;[1237]
certain types of sexual offence against children;[1238]
violations of certain protective orders;[1239]
certain types of sexual assault;[1240]
driving while intoxicated;[1241]
operating a vehicle while licence revoked;[1242]
reckless driving causing death;[1243]
certain types of hate crime;[1244]
and certain types of vandalism.[1245]
There is also a provision dealing with habitual offenders.[1246]
3.245
§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. §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. §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. §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 prescribes the minimum
required by §841(b)(1)(A) for the employment or use of persons under 18 in drug
operations. §861(b), (c) and §2D1.2 prescribe a minimum sentence of one year
for knowingly and intentionally employing or using a person under 18 years in
drug operations; one year for a second offence; and the minimum required by
§841(b)(1)(A) for a third offence. §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 mandatory minimum sentence for the underlying
offence for attempts and conspiracies to commit any offence of importation or
exportation.
3.246
§924(c)(1)(A)(i) and
§2K2.4 stipulate that an additional penalty of five years 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 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 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 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 be imposed for possessing a machinegun,
destructive device or firearm equipped with a silencer or muffler.
§924(c)(1)(C)(i) and §2K2.4 stipulate that an additional penalty of 25 years 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 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 be
imposed for carrying a firearm during a violent offence or drug trafficking
crime.
3.247
Minimum sentences are
also prescribed for certain immigration offences;[1247]
identity theft;[1248] sexual
offences against children;[1249]
production, possession or use of fire or explosives;[1250]
airplane hijacking;[1251]
obstruction of justice;[1252] illegal
food stamp activity;[1253]
kidnapping;[1254]
hostage-taking;[1255] bank
robbery, racketeering, and organised crime;[1256]
fraud, bribery and white collar crime;[1257]
piracy;[1258] certain
types of assault or battery;[1259]
interference with civil service examinations;[1260]
stalking in violation of a restraining order;[1261]
treason;[1262] failure
to report seaboard saloon purchases;[1263]
practice of pharmacy and sale of poisons in China;[1264]
navigable water regulation violation;[1265]
deposit of refuse or obstruction of navigable waterway;[1266]
deposit of refuse in New York or Baltimore harbours;[1267]
violation of merchant marine act;[1268]
refusal to operate railroad or telegraph lines;[1269]
sale or donation of HIV positive tissue or bodily fluids to another person for
subsequent use other than medical research;[1270]
and trespassing on federal land for hunting or shooting.[1271]
There are also provisions dealing with habitual offenders.[1272]
3.248
Currently, drug
offences are not subject to mandatory minimum sentences in Canada. The Controlled
Drugs and Substances Act 1996,[1273] which
regulates the possession, use and distribution of drugs does, however, provide
for a maximum sentence of life imprisonment for the most serious drug offences.[1274]
3.249
In May 2010 the Leader
of the Government in the Senate, Ms Marjory Lebreton, introduced Bill S-10 in
the Senate.[1275] The Bill
proposes to amend the Controlled Drugs and Substances Act 1996 to
provide for minimum sentences for serious drug offences such as producing,
dealing or trafficking in drugs for organised crime purposes, while using a
weapon or violence, or in or near a school or any public place that is normally
frequented by persons under the age of 18 years. The Bill contains an exception
that allows the courts not to impose a mandatory sentence if the offender
successfully completes a Drug Treatment Court programme or a treatment
programme, under subsection 720(2) of the Criminal Code that is approved by a
province and under the supervision of the court.
3.250
Dupuis observes that
vigorous debate has surrounded Bill S-10 and its predecessors.[1276]
On one side it has been argued that mandatory sentencing addresses the 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;
destroys the criminal infrastructure that keeps the crime cycle going;
encourages addicts to choose drug treatment programmes rather than go to
prison; is an important deterrent and denouncement by society; and
incapacitates offenders by keeping them off the streets. On the other side it
has been argued that mandatory sentencing strips judges of discretion in
sentencing; risks turning Canadian prisons into “US-style inmate warehouses”;
draws funds away from social programmes; and has not proven to be an effective
deterrent.[1277]
3.251
Certain offences
involving firearms or other weapons attract a mandatory minimum sentence in
Canada.
3.252
Section 343 of the
Canadian Criminal Code provides that every person who commits robbery is
liable, if a restricted firearm 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, to imprisonment for life and to a
minimum punishment of imprisonment for a term of five years, in the case of a
first offence, and 7 years, in the case of a second or subsequent offence. In
any other case where a firearm is used in the commission of the offence, the
person is liable to imprisonment for life and to a minimum punishment of
imprisonment for a term of four years and, in any other case, to imprisonment
for life.
3.253
Section 346(1.1)
provides that every person who commits extortion is guilty of an indictable
offence and liable, if a restricted firearm 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, to imprisonment for life
and to a minimum punishment of imprisonment for a term of five years, in the
case of a first offence, and 7 years, in the case of a second or subsequent
offence. In any other case where a firearm is used in the commission of the
offence, the person is liable to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years and, in any other case, to
imprisonment for life.
3.254
Section 92(1) provides
that it is an offence to possess a firearm knowingly without a licence or a
registration certificate. Section 92(2) provides that it is an offence to
possess a prohibited weapon, a restricted weapon, a prohibited device, other
than a replica firearm, or any prohibited ammunition knowingly without an
appropriate licence under which the person may possess it. Section 92(3)
provides that every person who commits an offence under subsection (1) or (2)
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding 10 years, in the case of a first offence, and to imprisonment for a
term not exceeding 10 years and to a minimum punishment of imprisonment for a
term of one year, in the case of a second offence, and to imprisonment for a
term not exceeding 10 years and to a minimum punishment of imprisonment for a
term of two years less a day, in the case of a third or subsequent offence.
3.255
Section 95(1) provides
that every person commits an offence who, in any place possesses a loaded
prohibited firearm or restricted firearm, or an unloaded prohibited firearm or
restricted firearm together with readily accessible ammunition that is capable
of being discharged in the firearm, unless the person is the holder of an
authorisation or a licence under which the person may possess the firearm in
that place; and the registration certificate for the firearm. Section 95(2)
provides that every person who commits an offence under subsection (1) is
guilty of an indictable offence and liable to imprisonment for a term not
exceeding 10 years and to a minimum punishment of imprisonment for a term of
three years, in the case of a first offence, and five years, in the case of a
second or subsequent offence.
3.256
Section 272(2) provides
that every person who commits a sexual assault[1278]
is guilty of an indictable offence and liable, if a restricted firearm 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, to imprisonment for a term not exceeding 14 years and to a
minimum punishment of imprisonment for a term of five years, in the case of a
first offence, and 7 years, in the case of a second or subsequent offence. In
any other case where a firearm is used in the commission of the offence, the
person is liable to imprisonment for a term not exceeding 14 years and to a
minimum punishment of imprisonment for a term of four years; and to
imprisonment for a term not exceeding 14 years, in any other case.
3.257
Section 273(2) provides
that every person who commits an aggravated sexual assault[1279]
is guilty of an indictable offence and liable, if a restricted firearm 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, to imprisonment for life and to a minimum punishment of
imprisonment for a term of five years, in the case of a first offence, and 7
years, in the case of a second or subsequent offence. In any other case where a
firearm is used in the commission of the offence, the person is liable to
imprisonment for life and to a minimum punishment of imprisonment for a term of
four years; and, in any other case, to imprisonment for life.
3.258
In Australia mandatory
sentencing has a long history.[1280]
During the eighteenth and nineteenth centuries mandatory sentencing was used
for a wide variety of offences. During the nineteenth century, however, 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.
3.259
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.[1281]
These do not appear to prescribe mandatory minimum sentences for any offence.
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 a court’s discretion with respect
to the duration of custody, while leaving a court free to impose a
non-custodial sanction.
3.260
In the Northern
Territory the Sentencing Act 1995, as amended in 1997,
introduced mandatory sentences in respect of a broad range of property
offences. It prescribed a minimum sentence of 14 days for a first offence; 90
days for second offence and a year for a third offence.[1282]
The same amendments also imposed mandatory minimum terms of imprisonment on
juveniles: 28 days for juvenile repeat property offenders (aged 15 or 16) with
escalating penalties for subsequent offences. When the mandatory sentencing
regime was associated with a number of deaths in prison a widespread grass
roots campaign led to their amendment and eventual repeal in 2001.[1283]
3.261
In 1999 a wide range of
violence offences and sexual offences, scheduled in the Sentencing Act,
became subject to a mandatory sentencing regime. Regarding violence offences,
the mandatory scheme which expired in 2008, applied to second or subsequent
offences. Regarding sexual offences, it applies to first-time offenders. It
prescribes the type of sentence – mandatory imprisonment – but does not
prescribe the minimum sentences to be applied. In December 2008, there was an
amendment to section 78B(a) of the Sentencing Act, which introduced a
sentencing regime of mandatory imprisonment for first-time assault offenders in
situations where the injury interferes with the victim’s health or results in
serious harm.[1284]
3.262
In addition, section 37
of the Misuse of Drugs Act provides that a 28-day
presumptive minimum sentence must be imposed for a number of serious 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.
3.263
Finally, section 121 of
the Domestic and Family Violence Act prescribes a presumptive
minimum sentence of 7 days for a second or subsequent breach of a domestic
violence order. The provision does not apply, however, if no harm is caused or
if the court is satisfied that it is not appropriate in the circumstances to
record a conviction and sentence.[1285]
3.264
A persistent and major
criticism of mandatory or presumptive sentencing in Australia is that
indigenous adults are much more likely to be affected than non-indigenous
adults.[1286]
3.265
Sentencing in
Queensland is regulated by the Penalties and Sentences Act 1992.[1287]
This does not appear to prescribe mandatory minimum sentences for any offence.
3.266
Victoria does not
appear to have mandatory minimum sentences for any offence.[1288]
3.267
In Western Australia,
under 1996 amendments to the Criminal Code (WA), an adult or juvenile
offender convicted for the third time or more for a home burglary must receive
a 12-month minimum sentence.[1289]
The Aboriginal Justice Council has noted that the mandatory sentence has had no
impact on burglary rates but has had a disproportionate impact on Aboriginal
offenders appearing before the courts.[1290]
3.268
At the federal level,
only one Act - the Migration Act 1958 - provides for mandatory
minimum sentences. Under section 233C of the Act, the court is required to
impose a sentence of at least five years imprisonment for the offence of people
smuggling - or at least 8 years if the conviction is a repeat offence - unless
it can be proven that the offender was under the age of 18 years when the
offence was committed. In addition, 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.[1291]
3.269
In New Zealand, there
do not appear to be mandatory minimum sentences for any offence,[1292]
despite pressure to introduce them.[1293]
3.270
As noted in Chapter 2, the Supreme Court has ruled that the Oireachtas
is entitled to prescribe a mandatory minimum sentence whenever it considers
that a mandatory minimum sentence is an appropriate penalty.[1294]
It thus follows that the Oireachtas is entitled to prescribe a mandatory
minimum sentence subject to exceptions whenever it considers that such a
sentence is an appropriate penalty. It remains to be seen, however, whether it
would be advisable for the Oireachtas to extend the use of mandatory minimum
sentences subject to exceptions to offences other than drugs and firearms
offences.
3.271
The Commission notes that there are a number of issues which must be
considered in this regard. First, it has been observed that mandatory minimum
sentences constrain judicial discretion and thus give rise to a greater risk of
disproportionate sentencing. The Commission notes, however, that this argument
is stronger in relation to mandatory sentences, which entirely preclude
judicial discretion, than in relation to mandatory minimum sentences subject to
exceptions, which permit some level of judicial discretion. These enable the
sentencing court to impose a sentence anywhere between the presumptive minimum
and the statutory maximum or, where there are exceptional and specific
circumstances, a sentence less than the presumptive minimum. The fact that
there is some level of judicial discretion remains the case even though the
Oireachtas has made it increasingly clear that the circumstances in which a
sentence below the mandatory minimum may be imposed must be truly exceptional
and specific.
3.272
It has also been noted that mandatory sentencing causes sentencing
discretion to be transferred, in effect if not in terms of the actual text of
the legislation, from the courts to the prosecution and defence.
3.273
In addition, it has been observed that the mandatory sentencing regime
applicable to certain drugs and firearms offences creates a one-strike rule
which is severe by comparison to the two-strike and three-strike rules in other
countries.[1295] The
Commission notes that this argument is reinforced by the fact that the 10 year
minimum prescribed for many of these offences is long by international standards
and applies, where the offence is a possession offence, to those at the lower
end of the criminal chain.
3.274
On a related note, it has been observed that the factor which triggers
the operation of a mandatory minimum sentence should be clearly defined and
unequivocal.[1296] In this
regard, it has been asserted that the use of “market value” as the triggering
factor for the minimum sentence applicable to certain drugs offences is less
than satisfactory.
3.275
It has also been noted that mandatory sentencing provisions tend to
target low-end offenders, such as couriers.
3.276
Furthermore, it has been asserted that the mandatory minimum sentence
may not be a sufficiently sophisticated response to the complex social issues
which contribute to certain offences. In relation to firearms offences, for
instance, it has been argued that educational and psychological approaches
would be more appropriate to address the social deprivation and machismo which
regularly feature in firearms cases. Having regard to the particular link
between social deprivation and crime, it has also been noted that mandatory
sentences tend to disproportionately affect certain socio-economic and ethnic
groups.
3.277
It has also been argued that the mandatory minimum sentence is not a
cost-effective response to crime. In relation to drugs offences, for instance,
it has been argued that revenue would be better invested in rehabilitation
programmes and improving the existing criminal justice framework than in
introducing a mandatory sentencing regime. The Commission notes that this
argument is particularly relevant in Ireland where the prison system is acutely
overcrowded and under-resourced. A mandatory sentencing regime which does not
permit of early release except in very limited circumstances means that more
people will be in prison for a longer period of time. This, in turn, affects
the extent to which imprisonment can deliver on the principles and purposes of
sentencing, outlined in Chapter 1, in particular, rehabilitation.
3.278
It has also been asserted that mandatory sentencing regimes are too
rigid to keep abreast of evolving penal philosophy.
3.279
While a comparative analysis of common law countries which have
introduced mandatory sentencing regimes is of interest, the Commission cautions
against relying too heavily on their example. In this regard, it may be
observed that the rationale for introducing mandatory sentencing regimes varies
from country to country but, for the most part, has been a reactionary response
to particularly egregious incidents, heinous crimes or persistent criminality.
While there has been near universal acceptance of mandatory sentencing for drugs
and firearms offences, only some countries have extended the use of mandatory
sentencing.
3.280
The Commission accepts that presumptive sentencing regimes may be
suitable in narrowly prescribed circumstances where the offences have a
particularly serious impact on society, such as with certain drugs offences and
certain firearms offences. Having regard to the general aims and principles set
out in Chapter 1, however, the Commission observes that there is a particular
need to ensure that these presumptive sentencing regimes are achieving their
stated objectives.
3.281
In this regard, the Commission notes that one objective was to increase
the severity of sentencing and that another objective was to deter offenders.
While the presumptive sentencing regimes may have succeeded in increasing the
severity of sentencing for certain drugs and firearms offences it is arguable,
at least, in respect of the regime under the Misuse of Drugs Act 1977
that the regime has not reduced the level of criminality. Instead, it has
resulted in a discriminatory system of sentencing where all cases are treated
alike regardless of differences in the individual circumstances of the
offenders. The drugs industry has adapted to the change in sentencing by using
expendable couriers to hold and transport drugs. In the majority of case, it is
these low-level offenders who are being caught under the presumptive regime
rather than those at the top of the drugs industry. This has resulted in a
bulge in the prison system of low-level drugs offenders. Furthermore, as a
guilty plea will generally result in the presumptive minimum sentence not being
applied, there is now less incentive to fight a case or, in consequence, test
the legislation.
3.282
The Commission has, therefore, concluded that the presumptive sentencing
regime, as it applies in the case of certain drugs and firearms offences,
should not be extended to any other offences but should be reviewed because,
while it has succeeded in one objective, namely, an increased severity in
sentencing for certain drugs and firearms offences, it has not been established
that it has achieved another general aim of the criminal justice system, namely
reduced levels of criminality. The Commission notes that, instead, the
presumptive drugs offences regime (on which the effects in practice are, in
particular, clear) has had the following results: a discriminatory system of
sentencing where all cases are treated alike regardless of differences in the
individual circumstances of the offenders; the adaptation of the illegal drugs
industry to the sentencing regime by using expendable couriers to hold and
transport drugs; that these relatively low-level offenders, rather than those
at the top of the drugs industry, are being apprehended and dealt with under
the presumptive regime; a high level of guilty pleas in order to avoid the
presumptive minimum sentence; and a consequent bulge in the prison system
comprising low-level drugs offenders.
3.283
The Commission provisionally recommends that the presumptive
sentencing regime, as it applies in the case of certain drugs and firearms
offences, should not be extended to any other offences but should be reviewed
because, while it has succeeded in one objective, namely, an increased severity
in sentencing for certain drugs and firearms offences, it has not been
established that it has achieved another general aim of the criminal justice
system, namely reduced levels of criminality. The Commission notes that, in
particular, the presumptive drugs offences regime has had the following
results: a discriminatory system of sentencing where all cases are treated
alike regardless of differences in the individual circumstances of the
offenders; the adaptation of the illegal drugs industry to the sentencing
regime by using expendable couriers to hold and transport drugs; that these
relatively low-level offenders, rather than those at the top of the drugs
industry, are being apprehended and dealt with under the presumptive regime; a
high level of guilty pleas in order to avoid the presumptive minimum sentence;
and a consequent bulge in the prison system comprising low-level drugs offenders.
4
4.01
This chapter considers those provisions which prescribe a mandatory
minimum sentence for second or subsequent offences. There
are three examples of this type of provision in Irish law. These concern
convictions for second or subsequent offences under the Criminal Justice Act
2007, the Misuse of Drugs Act 1977,[1297] and the Firearms Acts.[1298] Before examining these provisions, it is first necessary
to consider the rationale for increasing the penalties for second or subsequent
offences.
4.02
The Commission observes that the policy of imposing enhanced criminal
sanctions on recidivist offenders may be justified on the basis that offenders
who have been convicted of a subsequent offence have shown themselves to be
less amenable to correction. In this regard, O’Malley observes:
“The differential treatment of repeat
offenders is sometimes justified on the ground of incorrigibility... If an
offender, despite having been convicted and sentenced in the fairly recent
past, has defied the system by repeating the same criminal conduct after his
release from prison, he has shown himself more dangerous, more defiant, more
culpable or less capable of self-restraint, depending on how his personality is
assessed, than a person who has committed many offences before being detected
or reported. It seems intuitively acceptable, perhaps even morally necessary,
that a person with a previous conviction for a similar offence should be
punished more severely than somebody without such a record (though the latter
may have previous convictions for unrelated minor offences).”[1299]
4.03
The imposition of enhanced penalties on recidivist offenders may,
however, give rise to a number of issues.[1300]
First, the offender will have already been punished for the initial offence,
for which he or she will most likely have served a term of imprisonment. There
is thus a risk that an enhanced criminal sanction for a subsequent offence
would result in double punishment for the earlier offence. Second, the fact
that a person is a recidivist offender should not detract from the principle
that a sentence should be proportionate to the gravity of the offence and the
circumstances of the offender. Third, sentencing courts may face a policy
dilemma in cases where the offender’s record strongly suggests a propensity
towards violent offending.[1301] In line
with the principle of proportionality, the courts may adhere to the progressive
loss of mitigation approach and, while acknowledging the possibility (or
probability) that the offender will reoffend, insist that their role is to
sentence offenders on the basis of past offending. O’Malley asserts,
however, that the courts “cannot deny that public protection remains an
important consideration in sentencing” and, to some extent, warrants sentencing
on the basis of future offending.[1302]
4.04
Statute, except in very select situations, does not provide guidance as
to how recidivist offenders should be sentenced for subsequent offences.[1303] Section
11(1) of the Criminal Justice Act 1984, on the one hand,
provides that any sentence passed 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 previous offence. Section 13(1) of the Criminal Law Act 1976,
on the other, 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.
4.05
By contrast, the Irish courts have fluctuated between two approaches.
The first relates to the policy of progressive loss of mitigation[1304]
which, as O’Malley explains:
“...begins with the assumption that a
person without previous convictions should be entitled to mitigation on that
account. However, the more convictions the offender accumulates the less
mitigation he will deserve until a point is reached where he deserves none at
all, at least on the ground of record...”[1305]
O’Malley asserts that progressive loss of mitigation is an
approach which is “more compatible with the proportionality principle”.[1306]
Previous convictions do not justify a more severe sentence than is warranted by
the offence of conviction but, instead, diminish the level of mitigation
warranted by a previous good record.
4.06
The second approach is to treat previous convictions as an aggravating
factor, either in terms of adding to the gravity of the offence of conviction
or being relevant to personal circumstances which may warrant a more severe
sentence than would otherwise be justified.[1307]
4.07
In People (DPP) v
GK,[1308] however, the Court of Criminal Appeal
distinguished between “previous good character” and 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 the offence.
Accordingly in determining an appropriate sentence in this case it follows that
the learned trial judge was entitled to have regard to the two previous
convictions of rape, the fact that the offence was committed within six months
of having been released from prison for an offence of rape and the matters
disclosed in the Probation Service report. These circumstances are relevant not
just in terms of their absence in mitigation of sentence but also in terms of
assessing an appropriate sentence in terms of the seriousness of the offence, which
sentence will be proportionately more severe than would be the case were these
circumstances absent.”
Thus while
previous good character was a factor which would mitigate the severity of the
sentence, the Court of Criminal Appeal was of the view that previous
convictions were a factor which would aggravate the seriousness of an offence.
4.08
The facts of the case
were that the applicant had appealed against a sentence of life imprisonment
for aggravated sexual assault. The offender had two previous convictions for
rape and had committed the present offence 6 months after his release from
prison for another rape. The Court referred to the offender’s “previous
propensity to re-offend despite his having served quite significant custodial sentences”
and concluded that he should be “incapacitated from reoffending for a long time
by way of a long term of imprisonment.” In this regard, the Court observed that
the courts were entitled to impose an extended sentence in the interest of
social protection, in certain limited circumstances such as where the offender
had shown a high propensity to reoffend:
“In the case of People (DPP) v “MS” [2000] 2
I.R. 592 at 600 and 601, Denham J., held that in cases relating to sexual
offences a sentence may incorporate an element of protection of society,
something which can sometimes be best achieved by supervised release. If this
Court were to impose a sentence for the particular offence only, it would not
provide this element of protection where the evidence before the sentencing
judge establishes that the applicant has a high propensity to reoffend.
However, there is an important balance to be struck here between the obligation
of the judicial arm of the State to protect the citizens and in particular the
vulnerable citizens of the State and its obligation to vindicate the
constitutional rights of the individual even if that individual is a
recidivist. In advancing the former desideratum the Court cannot
disregard the fundamental principle that punishment should be proportionate to
the particular offence committed by the particular offender. The applicant
cannot be sentenced again for past offences and he cannot be sentenced in
anticipation for offences which he has not committed and which he might never
in fact commit. The concept of deterrence and of the protection of society,
which can be advanced in a number of ways, is a permissible input into
sentencing in our jurisprudence… but to a limited extent only consistent with
the proportionality principle and must not be conflated with a form of general
preventive incarceration which is not part of our jurisprudence. An
indeterminate sentence of life imprisonment could not be imposed on a repeat
offender solely on this basis.”
It would thus appear that the court was of the view that the
imposition of an extended term of imprisonment on a repeat offender was
compatible with the principle of sentencing proportionality, provided that the
sentence did not seek to punish the offender again for past offences or in
anticipation of future offences that might never occur.
4.09
In its 1996 Report on Sentencing,[1309] the Commission also adopted the view that previous
convictions were relevant to the seriousness of an offence rather than the
severity of a sentence. In this regard, it stated:
“[W]hereas, at first sight, previous history seemed irrelevant to
offence seriousness, it was certainly relevant to culpability, in that exposure
on a previous occasion to the system of sanctions should have brought home to
the offender dramatically and personally that his or her criminal conduct was
offensive to society. We also noted that this accorded with the approach of the
Supreme Court in Tiernan.”[1310]
4.10
The Commission thus
recommended that the following provision be included in sentencing guidelines:
“a statutory provision which confines the role of prior criminal record
in the determination of the severity of sentence to situations in which it
aggravates the culpability of the offender in committing the offence. The
provision should highlight the following concerns:
a. The sentencer, in determining the severity of the sentence to be imposed
on an offender, may have regard to any offences of which the offender has been
found guilty in the past which may be considered to increase the culpability of
the offender.
b. In considering whether such prior offences aggravate the culpability
of the offender for the offence for which he or she is being sentenced the
sentencer should have regard to:
i. the time which has elapsed between the prior offence or offences and
the offence for which the offender is being sentenced;
ii. the age of the offender at the time of commission of the prior
offence;
iii. whether the prior offence or offences are similar in nature to the
offence for which the offender is being sentenced;
iii. whether the prior offence or offences are
similar in seriousness to the offence for which the offender is being
sentenced.”[1311]
4.11
Section 25 of the Criminal
Justice Act 2007 provides that where an individual commits a second
or subsequent serious offence in the 7-year period following a first serious
offence - for which the person received a sentence of five years or more - the
presumptive sentence for the second or subsequent offence is three quarters of
the maximum sentence provided by law or 10 years if the maximum sentence is
life imprisonment.[1312]
4.12
The offences to which section 25 applies are set out in Schedule 2 to
the 2007 Act.[1313]
Introducing the provision, the Minister for Justice indicated that the
scheduled offences 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.”[1314] The Minister stated that, in broad
terms, these were racketeering offences and that the inspiration for the
inclusion of these provisions was the “racketeering-influenced corrupt
organization, RICO, legislation in the USA”.[1315] 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.”[1316]
4.13
The Criminal Justice
Bill 2007 was presented to the Dáil in March 2007. 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.”[1317]
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.”[1318] McIntyre
observes that, at the time, there was also a perception that the criminal
justice system had become “unbalanced” in favour of the criminal.[1319]
4.14
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.”[1320] 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,[1321] had just
published its interim report.[1322]
The Opposition also referred to two recent reports which had ranked Ireland unfavourably
in terms of criminal statistics.[1323]
In February 2007 the EU International Crime Survey had published its 2005
report, The Burden of Crime in the EU,[1324]
which found that Ireland ranked highest with regard to the risk of crime,
assaults with force, sexual assaults and robberies.[1325]
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,[1326]
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.”[1327]
Arguably, also, the enactment of the Criminal Justice Act 2006 had
exposed a number of criminal justice areas which would require further
examination.
4.15
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.[1328]
This, it was argued, did not allow sufficient time for the bill to be debated.[1329]
In particular, it was observed that the Irish Human Rights Commission had not
had time to examine the Bill,[1330]
as it was empowered to do by law.[1331]
4.16
In addition, McIntyre
notes that the final version of section 25 is a “somewhat watered down” version
of that originally proposed.[1332]
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 mandatory minimum sentence where it would be
disproportionate in all the circumstances of the case.[1333]
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 mandatory 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.”[1334] As a
result, section 25 and Schedule 2 were amended so as to remove burglary and
robbery from the list of scheduled offences.[1335]
4.17
These amendments were
due in no small part to the fact that the Bill had been widely criticised.[1336]
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”.[1337]
In a similar vein, the Irish Council of 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.”[1338]
The Law Society[1339] and some
prominent criminal law practitioners were also quick to voice their concerns
regarding proportionality and the separation of powers.[1340]
Having consulted the Council of State, the President decided not to refer the
Bill to the Supreme Court and signed the Bill into law.[1341]
4.18
As discussed at paragraph 4.11, section 25 of the Criminal Justice
Act 2007 introduces a mandatory sentencing regime in respect of serious
repeat offenders.[1342] To
examine the application of this regime it is necessary to consider first the
elements which trigger the mandatory sentence and to consider next the relevant
penalty provisions. Each will be considered in turn.
4.19
In this section the Commission is not concerned with the elements of the
various offences listed in Schedule 2 to the Criminal Justice Act 2007.
These offences are not relevant to the operation of the mandatory sentencing
regime except in so far as a second or subsequent conviction for such an
offence will trigger the mandatory regime. In this regard, the mandatory
sentencing regime under section 25 of the Criminal Justice Act 2007 may
be contrasted with the mandatory sentencing regimes under the Misuse of Drugs
Act 1977 and the Firearms Acts.
4.20
The first element relates to the age of the offender. Section 25(1) of
the Criminal Justice Act 2007 provides that the offender must be at
least 18 years of age on the date of conviction for the initial and subsequent
scheduled offence. The intention behind this provision, presumably, was to
ensure that no juvenile offender would be affected by the mandatory sentencing
regime.[1343] However,
the reference to the “date of conviction” means that offenders who were younger
than 18 years on the date of commission but had attained 18 years by the
date of conviction might still be caught by the mandatory sentencing
regime.
4.21
The second element relates to the initial offence. Section 25(1)(a) of
the Criminal Justice Act 2007 provides that the offender must have been
convicted on indictment of an offence specified in Schedule 2.[1344]
In addition, section 25(4)
provides that the initial offence may be committed before or after the
commencement of section 25. It has thus been observed that in certain
circumstances the provision
may operate retroactively.[1345]
4.22
The offences specified in Schedule 2 may be described as serious
offences and are likely to be - although not always - committed by offenders
involved in gangland activities. It may be noted, however, that while the Criminal
Justice Act 2007 was intended to respond to gangland activities it neither
defines “gangland activities” nor requires that the scheduled offences be
committed in connection with such activities. Thus the mandatory sentencing
regime may apply regardless of whether there is any connection to gangland
activities. Arguably, this does not pose a problem as the scheduled offences
are, in and of themselves, sufficiently serious to warrant stringent penalties.
4.23
The third element
relates to the sentence in respect of the initial scheduled offence. Section
25(1)(b) of the Criminal Justice Act 2007 provides that the offender
must have been sentenced to imprisonment for a term of not less than five years
for the initial offence. The intention behind the selection of a five-year
threshold was to distinguish between more serious and less serious incidents of
the offences specified in Schedule 2. In this regard, the Commission observes
that “serious”[1346]
and “arrestable”[1347]
offences are also defined by reference to a five-year period.
4.24
The 2007 Act provides,
however, that the mandatory sentencing regime will not apply where the sentence
for the initial offence has been wholly[1348]
or partially[1349]
suspended, or the conviction has been quashed on appeal or otherwise.[1350]
4.25
The fourth element
relates to the subsequent offence. Section 25(1)(c) of the Criminal Justice
Act 2007 provides that the offender must be convicted on indictment of a
subsequent offence specified in Schedule 2. There is no requirement that this
offence be related to gangland activities or, indeed, to the initial scheduled
offence. Section 25(4) provides, however, that the subsequent offence must have
been committed after the commencement of section 25.
4.26
The mandatory sentencing regime does not apply, however, if the second
scheduled offence is one which attracts a mandatory minimum sentence.[1351]
Thus if the second offence is murder or a drugs or firearms offence which
attracts a mandatory minimum sentence the mandatory sentencing provision will
not apply.
4.27
The fifth element relates to the time period within which the subsequent
scheduled offence must be committed. Section 25(1)(c)(ii) of the Criminal
Justice Act 2007 provides that the subsequent scheduled offence must be
committed during the period of 7 years from the date of conviction of the first
offence and, for the purpose of determining that period, there shall be
disregarded any period of imprisonment in respect of the first offence or the
subsequent offence. It would thus appear that the 7-year period relates to the
time during which the offender was at liberty after the date of conviction.
4.28
Alternatively, section 25(1)(c)(ii) provides that the offence may be
committed during any period of imprisonment in respect of the first or
subsequent offence. It would thus appear that in such circumstances the
subsequent offence may be committed during a period longer than 7 years
depending on the length of the term of imprisonment.
4.29
Where these elements have been satisfied, section 25 of the Criminal
Justice Act 2007 provides that the court must specify a minimum sentence of
not less than three quarters of the maximum term prescribed by law for the
second offence or, if the maximum term is life imprisonment, a sentence of not
less than 10 years. Thus the nature of the mandatory penalty will very much
depend on the nature of subsequent offence.
4.30
However, section 25(3) provides that the mandatory sentence will not
apply where the court is satisfied that it would be “disproportionate in all
the circumstances of the case” to impose the mandatory minimum sentence. This
proviso 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, O’Malley states that the discretionary element “will
probably deprive [the provision] of much of [its] punitive bite”[1352]
and, in a similar vein, Collins describes it as being “essentially
discretionary”.[1353]
4.31
It is interesting that
the sentencing regime for subsequent offences under the Criminal Justice Act
2007 refers to the date of conviction of the initial offence rather than
the date of commission. This ties in with the rationale that the offender
should be assessed by reference to his or her previous interaction with the
law. If the reference was 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.
4.32
The power to grant early release to those who have been convicted of a
second scheduled offence under section 25 of the Criminal Justice Act 2007
has been restricted. Section 25(13) provides that the powers of commutation and
remission conferred upon 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 25 of the 2007 Act. Section 25(13) provides, however, that any
sentence imposed for an offence under section 25 is subject to ordinary
remission for good behaviour which currently stands at one-quarter of the total
sentence. Section 25(15) provides that the power to grant temporary release, as
conferred by section 2 of the Criminal Justice Act 1950, 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”. Furthermore, the temporary
release shall be for such limited period of time as is justified by those
reasons. Section 25 does not, however, permit the court to list a sentence for
review.
4.33
Section 27(3F) of the Misuse
of Drugs Act 1977, as amended, 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.
4.34
It would appear that
section 27(3F) emanated from a Fine Gael proposal to amend the provisions of
the Criminal Justice Bill 2004[1354]
dealing with firearms offences.[1355]
The proposed amendment sought to 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. After consulting with the Attorney
General, the Minister for Justice accepted the amendment.[1356]
4.35
A case involving
section 27(3F) of the Misuse of Drugs Act 1977, as amended, does not
appear to have come before the courts as yet. However, a number of general
observations may be made.
4.36
Section 27(3F) of the Misuse
of Drugs Act 1977, as amended, prescribes a mandatory minimum sentence.[1357]
The mandatory sentence 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. There is no requirement that a
sentence of at least the presumptive minimum term be imposed for the first
offence. Arguably, therefore, the first offence could be relatively minor.
Neither is there a requirement that the second offence be committed within a
certain time frame. Arguably, therefore, a substantial period of time could
lapse between the first and second offence.
4.37
The Commission observes
that section 27(3E)[1358]
stipulates that subsections (3C) and (3D) apply and have effect only in
relation to persons convicted of a first offence under section 15A or section
15B. This is interesting in so far as subsection (3D) refers not only to
exceptional and specific circumstances which might justify a downward departure
from the statutory minimum but also to previous convictions and public interest
which might, arguably, justify an upward departure from the statutory minimum.
4.38
It would appear,
however, that subsection (3G) to subsection (3K) continue to apply and have
effect in relation to persons convicted of second or subsequent offences. Thus
while the power to grant early release is restricted the power to list a
sentence for review is maintained.[1359]
4.39
The mandatory sentence prescribed by section 27(3G) has been described
as “constitutionally vulnerable” as it severely constrains judicial discretion.[1360]
The Commission observes, however, that judicial discretion in sentencing may
not necessarily be a constitutional imperative. In any case, the judiciary
retain a certain level of discretion in so far as they may impose a sentence
anywhere between the mandatory minimum and the statutory maximum.
4.40
The Firearms Acts
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.[1361]
4.41
This provision emanated
from an amendment proposed by Fine Gael during the Committee Stage debates on
the Criminal Justice Bill 2004.[1362]
The Fine Gael spokesperson on justice, Mr Jim O’Keeffe TD, proposed 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 the Report Stage, Mr O’Keeffe
indicated his belief that:
“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.”[1363]
Having consulted
the Attorney General, the Minister for Justice accepted the amendment.[1364]
4.42
The provisions of the Firearms
Acts prescribe a mandatory minimum sentence.[1365]
The mandatory sentence applies where a person has been convicted of two or more
firearms offences which attract a presumptive minimum sentence. There is no
requirement that a sentence of at least the presumptive minimum term be imposed
for the first offence. Arguably, therefore, the first offence could be
relatively minor. Neither is there a requirement that the second offence be
committed within a certain time frame. Arguably, therefore, a substantial
period of time could lapse between the first and second offence.
4.43
The Commission observes
that subsection (7)[1366] of each provision
stipulates that subsection (4) to subsection (6)[1367]
apply and have effect only in relation to persons convicted of a first offence.
This is interesting in so far as while subsection (5) refers to exceptional and
specific circumstances which might justify a downward departure from the
statutory minimum subsection (6) refers to previous convictions and public
interest which might, arguably, justify an upward departure from the statutory
minimum.
4.44
It would appear,
however, that section 27C[1368] of the Firearms
Act 1964 continues to apply and have effect in relation to persons
convicted of second or subsequent offences. Thus the power to grant early
release to is restricted.
4.45
There has been little in the way of commentary on the mandatory
provisions of the Firearms Acts.[1369]
It is likely, however, that they would succumb to same criticisms as the provisions
of the Misuse of Drugs Act 1977. In this regard, the Commission
reiterates that judicial discretion in sentencing may not be a constitutional
imperative and that, in any case, the judiciary retain a certain level of
discretion in so far as they may impose a sentence anywhere between the
mandatory minimum and the statutory maximum.
4.46
The Court of Criminal
Appeal has considered the mandatory minimum sentence for second or subsequent
firearms offences. In People (DPP) v Clail[1370],
for instance, Finnegan J observed that he was obliged to impose the mandatory
minimum sentence even though the previous firearms offence had been committed
in 1990.
4.47
The Commission acknowledges that mandatory sentencing regimes for
subsequent offences may be open to some criticism. As noted at paragraph 3.127,
it has been asserted that mandatory sentencing severely constrains judicial
discretion and thereby increases the risk of disproportionate sentencing. In
this regard, it may be recalled that neither the Misuse of Drugs Act 1977
nor the Firearms Acts permit of any exception to the mandatory minimum
sentence applicable to recidivist offenders. By contrast, the Criminal
Justice Act 2007 provides that the mandatory minimum sentence need not be
applied where it would be “disproportionate in all the circumstances of the
case”. The Commission thus observes that the argument regarding constraints on
judicial discretion is much stronger in relation to the sentencing regimes
under the Misuse of Drugs Act 1977 and the Firearms Acts than in
relation to the sentencing regime under the Criminal Justice Act 2007.
4.48
The Commission notes at paragraph 3.129 that mandatory sentencing causes
sentencing discretion to be transferred, in effect, if not in terms of the text
of the legislation itself, from the courts to the prosecution and defence. This
is particularly evident under the Misuse of Drugs Act 1977 and the Firearms
Acts which provide that “no proceedings may be instituted... except by or
with the consent of the Director of Public Prosecutions”. Even though the Criminal
Justice Act 2007 does not refer specifically to this requirement, it will,
in reality, be up to the DPP to decide whether to institute proceedings for a
subsequent scheduled offence subject to the mandatory sentencing regime.
4.49
At paragraph 3.130, it was observed that the Misuse of Drugs Act 1977
and the Firearms Acts created a one-strike rule in relation to certain
drugs and firearms offences. Arguably, the mandatory sentencing regimes under
the Misuse of Drugs Act 1977, the Firearms Acts and the Criminal
Justice Act 2007, applicable to recidivist offenders are more just in so
far as they create two-strike rules. Thus an offender who commits an initial
offence is theoretically, at least, on notice that he or she will be subject to
a mandatory penalty should he or she commit a further offence. By contrast, as
will be noted in this chapter, some countries apply a three-strike rule under
which the offender has two chances before he or she is subjected to a mandatory
penalty.
4.50
However, the Commission
notes the confusion regarding the approach to be taken in respect of sentencing
for subsequent offences. There is a danger that offenders will be punished
twice for one offence and that the sentence imposed for the subsequent offence
will not be proportionate to the gravity of the particular crime (and the
circumstances of the offender). At the same time there is a concern that the
public should be protected from violent and/or dangerous criminals, however,
imprisonment on this ground is not permitted in Ireland.
4.51
It has been noted that while the mandatory sentencing regime under the Criminal
Justice Act 2007 applies to a broad range of scheduled offences it does not
operate unless a number of elements have been satisfied.[1371]
First, both the initial and subsequent scheduled offence must have been
committed by a person aged 18 years or older. Second, the initial offence must
have attracted a sentence of five years or more. Third, the subsequent offence
must have been committed within 7 years of the date of conviction of the
initial offence. These elements, Fitzgerald argues, ensure that “a minimal
number of offences will actually trigger the mandatory minimum sentence”.[1372]
By contrast, the mandatory sentencing regimes under the Misuse of Drugs Act
1977 and the Firearms Acts only require that the offender be 18
years or older. There is thus no requirement as to the sentence which must have
been imposed for the initial offence or as to the time limit by which the
subsequent offence must be committed.
4.52
At paragraph 3.131, it was observed that the majority of offenders
caught for offences under section 15A of the Misuse of Drugs Act 1977
are low-level offenders. In this regard, it may be recalled that many of these
low-level offenders are persons who, suffering from an addiction or other
vulnerability, have been cajoled or pressurised into acting as couriers.[1373]
There may be circumstances in which such an offender is convicted of a second
or subsequent offence for which he or she receives the mandatory penalty. This
is less likely to happen under the Firearms Acts, except in so far as
the offence is a possession offence, and even less likely to happen under the Criminal
Justice Act 2007. Schedule 2 to the 2007 Act lists offences which, even if
committed outside the context of gangland criminality, are high on the criminal
calendar. Thus an offender who commits one or more of these offences - and is
subject to the mandatory sentencing regime - is unlikely to be anything but a
serious offender.
4.53
Furthermore, at paragraph 3.131, it was observed that mandatory
sentencing tends to disproportionately affect certain socio-economic and ethnic
groups. Arguably, this problem is most likely to arise under the Misuse of
Drugs Act 1977 and least likely to happen under the Criminal Justice Act
2007.
4.54
At paragraph 3.132, reference was made to the Rand Corporation report
which indicated that mandatory sentencing was not a cost-effective method of
reducing drug consumption and/or drug-related crime. In particular, it asserted
that it would be more cost-effective to strengthen enforcement under the
previous sentencing regime or to increase the treatment of heavy drug-users. In
the context of the Misuse of Drugs Act 1977, this argument is equally
forceful in relation to the mandatory sentencing regime for subsequent offences
as it is in relation to the presumptive sentencing regime for first offences.
Potentially, a similar argument might be made in respect of sentencing for
offences under the Firearms Acts and the Criminal Justice Act 2007.
4.55
At paragraph 3.133, it was noted that there may be an incongruence
between the presumptive sentence of 10 years under the Misuse of Drugs Act
1977 and the presumptive sentence of five years, or in some cases 10 years,
under the Firearms Acts. The same argument might be made in respect of
the mandatory sentencing regimes for subsequent convictions for those offences
under the Misuse of Drugs Act 1977 and the Firearms Acts.
4.56
At paragraph 3.199, it was observed that mandatory sentencing may not be
a sufficiently sophisticated response to the complex issues which contribute to
certain types of offence. Arguably, this argument is stronger in relation to
certain offences under the Misuse of Drugs Act 1977 and the Firearms
Acts.
4.57
In paragraph 1.26, it was noted that commentators have questioned
whether mandatory sentences or, indeed, lengthy prison sentences are a
deterrent. It might be argued that the fact that the Misuse of Drugs Act
1977 and the Firearms Acts create a second level of mandatory
sentencing to deal with offenders who have committed a subsequent offence of
the type subject to a presumptive sentence lends weight to the argument that,
in many cases, mandatory sentences do not deter. Similarly, it might be argued
that the fact that the Criminal Justice Act 2007 creates a mandatory
sentencing regime to deal with offenders who have committed a second offence of
the type subject to a lengthy prison sentence lends weight to the argument
that, in many cases, lengthy prison sentences do not deter either.
4.58
As against this, however, it has been asserted that the potential
offender population comprises at least two broad categories, the smaller of
which comprises those who are less amenable to being deterred. In this regard,
Gabor and Crutcher observe:
“The evidence on deterrence suggests that the potential offender
population comprises at least two broad groups. Society at large, including
more casual offenders, is seen as showing some rationality in the decision to
commit crimes and the form such crimes will take. This rationality extends to
an awareness of and consideration of risk, including penal sanctions. The
second and smaller group is more enmeshed in criminality as a career or
lifestyle. Such individuals are more antisocial, less concerned about the consequences
of their actions, and less fearful of legal sanctions, including prisons.”[1374]
4.59
Arguably, the mandatory provisions for second or subsequent offences
under the Misuse of Drugs Act 1977, the Firearms Acts and the Criminal
Justice Act 2007 are primarily aimed at this “smaller group” which
comprised those who are less about the risk of incurring a criminal sanction.
4.60
These provisions may also be prone to a number of general criticisms in
respect of mandatory sentencing. As noted at paragraph 3.277, these provisions
may result in more people being sent to prison for longer periods of time. In
addition, as noted at paragraph 3.278, these provisions may be too rigid to
evolve with changing penal philosophy.
4.61
While Northern Ireland
has a mandatory sentencing regime in respect of certain firearms and “serious”
offences, it does not appear to have a mandatory sentencing regime in respect
of subsequent offences.
4.62
As noted at paragraph
3.210, section 110 of the Powers of the 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.
4.63
As noted at paragraph
3.223, section 111 of the Powers of the Criminal Courts (Sentencing) Act
2000 provides that where a person is convicted of a third domestic
burglary the court must impose a minimum sentence of three years, except where
there are particular circumstances which relate to the offences or the offender
which would make it unjust to do so in all the circumstances.
4.64
As noted at paragraph
3.232, section 205B of the Criminal Procedure (Scotland) Act 1995
provides that where a person is convicted of a third class A drug
trafficking offence the court must impose a minimum sentence of 7 years, where
the offender is aged 21 years or more, and a minimum term of detention of 7
years, where the offender is aged 18 years or under 21 years.
4.65
As noted at paragraph
3.228, section 51A(1A) of the Firearms Act 1968 provides for a mandatory
sentencing regime in respect of certain firearms offences.
4.66
In 1993, an initiative
was placed on the ballot in the state of Washington to require a term of life
imprisonment without the possibility of parole for persons convicted for a
third time of certain specified violent or serious felonies.[1375]
This action was fuelled by the death of Diane Ballasiotes, who was murdered by
a convicted rapist who had been released from prison. Shortly thereafter, Polly
Klass was kidnapped and murdered by a California-released inmate, who also had
an extensive prior record of violence. The three-strikes movement caught on,
not only with Washington and California voters, who passed their ballot
measures by wide margins, but with legislatures and the public throughout the
country. By 1997, 24 other states and the Federal government had enacted laws
using the three-strikes phrase.
4.67
It has been observed,
however, that there is diversity among the states in terms of their
three-strike provisions.[1376] First,
the vast majority of states include on their list of strikeable offences
violent felonies such as murder, rape, robbery, arson and assaults. Some states
have included other non-violent charges as well. There are also variations in
the number of strikes needed to be out, with two strikes bringing about some
sentence enhancement in 8 states.[1377]
California’s law is unique in that it allows for any felony to be counted if
the offender has a prior initial conviction for its list of strikeable crimes.
The laws also differ regarding the length of imprisonment that is imposed when
the offender strikes out, although most are designed to incapacitate the
offender for long periods of time.[1378]
These range from mandatory life sentences with no possibility of parole when
“out” (Georgia, Montana, Tennessee, Louisiana, South Carolina, Indiana, New
Jersey, North Carolina, Virginia, Washington and Wisconsin) to parole after a
significant period of incarceration (California, Colorado and New Mexico). A
number of states have enacted laws enhancing the possible penalties for
multiple convictions for specified serious felonies but leave the actual
sentence to the discretion of the court (Connecticut, Kansas, Arkansas and
Nevada) while others provide a range of sentences for repeat offenders that can
extend up to life imprisonment when certain violent offences are involved
(Florida, North Dakota, Pennsylvania, Utah and Vermont).
4.68
Furthermore, it has
been observed that in the majority of states the three-strikes legislation does
not close any loophole in the law but rather targets a population already
covered by existing laws.[1379] In this
regard, Austin et al state:
“In summary,
from a national perspective the ‘three strikes and you’re out’ movement was
largely symbolic. It was not designed to have a significant impact on the
criminal justice system. The laws were crafted so that in order to be ‘struck
out’ an offender would have to be convicted two or more, often three times for
very serious, but rarely committed crimes. Most states knew that very few
offenders have more than two prior convictions for these types of crimes. More
significantly, all of the states had existing provisions which allowed the
courts to sentence these types of offenders to very lengthy prison terms.
Consequently, the vast majority of the targeted offender population was already
serving long prison terms for these types of crimes. From this perspective the
three strikes law movement is much ado about nothing and is having virtually no
impact on current sentencing practices.”[1380]
4.69
It has been observed
that there are two - nearly identical - versions of the California strike law.[1381]
The first, found in the California Penal Code §667(b)-(j), was passed by
the legislature and signed into law by the governor on 7 March 1994. The
second, found in §1170.12 of the Penal Code, was enacted by voters as
Proposition 184 on 8 November 1994.
4.70
The legislative version
of the law was initially introduced in the California legislature on 1 March
1993 but no action was taken on the bill during the 1993 session.[1382]
Meanwhile, after adjournment of the 1993 legislative session, a petition began
to circulate among voters to include a proposition on the November 1994 ballot
that would, by voter initiative, enact the three strikes law. While the
petition was circulating, a three-strike bill was reintroduced in the 1994
legislative session. This was done in an attempt to circumvent the voters’
initiative which was seen as more difficult to amend if passed. (Under
California law, voter initiatives can only be amended by a vote of the
electorate or by two-thirds vote of each house of the legislature).
4.71
By the time the bill
had passed, enough signatures had been collected to qualify Proposition 184 for
the November ballot.[1383] The only
difference between the two versions of the law was that the voter initiative
did not state explicitly, as does the legislature’s version, that juvenile
adjudications and out-of-state prior convictions are to be counted as strikes.
4.72
Two provisions in the
California law make it one of the most severe in the country.[1384]
First, the law provides for a greatly expanded “strike zone” or charges that
constitute a strike. The strike zone for the first two strikes is similar to
that in other states - serious and violent felonies. The third strike in
California, however, is any felony - a provision found in no other state’s
strike laws. Persons with two or more convictions for qualifying offences, who
are convicted of a third felony, of any kind, are to be sentenced to an
indeterminate term of life imprisonment. The minimum term is calculated as the
greater of: (1) three times the term otherwise provided for the current
conviction; (2) 25 years; or (3) the term provided by law for the current
charge plus any applicable sentence enhancements.
4.73
Second, the California
law contains a two-strike penalty in which a person convicted of any felony who
has one prior conviction for a strikeable offence is to be sentenced to double
the term provided for the offence and must serve at least 80 percent of the
sentence before being released from prison.[1385]
Under California’s criminal code, non-strike inmates typically serve less than
half their sentence. Only six other states have two strike provisions, all of
which limit the offences that trigger a strike penalty to those that are
serious or violent.
4.74
The law was designed to
limit the discretion of system officials by prohibiting plea bargaining. Also,
if the offender is to be sentenced as a second or third striker, the law
mandates that the court may not grant probation, suspend the sentence, place
the offender on diversion, or commit the offender to any facility other than a
state prison. Even with these explicitly stated limitations on discretion, the
law conveys a great deal of authority to the prosecutor to determine the
ultimate sentence that the offender will receive if convicted.[1386]
While the law requires that the prosecution provide evidence of each prior
conviction for a qualifying offence, it permits the prosecutor to discount a
prior conviction for a qualifying offence if there is insufficient evidence to
prove the prior conviction, or if the prosecutor believes that a two or three
strike sentence would not be in furtherance of justice. It is this latter
clause that allows individual district attorneys throughout the state of
California to establish their own policies on how the law should be applied.
4.75
In terms of its crime
preventive effects, Gabor and Crutcher observe that:
“While [California] experienced a sharper decline than other states
following the law’s implementation, communities in California showed
inconsistent effects. Also, studies comparing states with and without such law
showed no difference in their crime trends. Reasons given for the lack of a
more pronounced effect of such sweeping laws include their inconsistent
application, the small number of individuals to whom these laws apply, and the
possibility that the most serious and persistent offenders already tend to be
serving long sentences under existing legislation.”[1387]
4.76
The three-strike rule
is contained in §667(e) of the Penal Code. §667(e)(1) provides that if a
defendant has one prior felony conviction, the determinate term or minimum term
for an indeterminate term will be twice the term otherwise provided as
punishment for the current felony conviction. §667(e)(2)(A) provides that if a
defendant has two or more prior felony convictions as defined in subdivision
(d), the term for the current felony conviction will be an indeterminate term
of life imprisonment with a minimum term of the indeterminate sentence
calculated as the greater of (i) three times the term otherwise provided as
punishment for each current felony conviction subsequent to the two or more
prior felony convictions; (ii) imprisonment in the state prison for 25 years;
or (iii) the term determined by the court pursuant to section 1170 for the
underlying conviction, including any enhancement applicable under Chapter 4.5
(commencing with section 1170) of Title 7 of Part 2, or any period prescribed
by section 190 or section 3046.
4.77
It is also contained in
§1170.12(c) of the Penal Code. §1170.12(c)(1) provides that if a
defendant has one prior felony conviction, the determinate term or minimum term
for an indeterminate term will be twice the term otherwise provided as
punishment for the current felony conviction. §1170.12(c)(2)(A) provides that
if a defendant has two or more prior felony convictions, as defined in
paragraph (1) of subdivision (b), the term for the current felony conviction
will be an indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the greater of (i) three times the term
otherwise provided as punishment for each current felony conviction subsequent
to the two or more prior felony convictions; (ii) imprisonment in the state
prison for 25 years; or (iii) the term determined by the court pursuant to
section 1170 for the underlying conviction, including any enhancement
applicable under Chapter 4.5 (commencing with section 1170) of Title 7 of Part
2, or any period prescribed by section 190 or section 3046.
4.78
In addition, §667.7 of
the Penal Code prescribes a sentencing regime for habitual offenders.[1388]
§667.7(a)(1) provides that a person who served two prior separate prison terms
will be punished by imprisonment in the state prison for life and will not be
eligible for release on parole for 20 years, or the term determined by the
court pursuant to section 1170 for the underlying conviction, including any
enhancement applicable under Chapter 4.5 (commencing with section 1170) of
Title 7 Part 2, or any period prescribed by section 190 or section 3046,
whichever is the greatest. §667.7(a)(2) provides that any person convicted of a
felony specified in this subdivision who has served three or more prior
separate prison terms for the crimes specified in subdivision (a) of this
section shall be punished by imprisonment in the state prison for life without
the possibility of parole. §667.7(b) provides that no prior prison term will be
used for this determination which was served prior to a period of 10 years in
which the person remained free of both prison custody and the commission of an
offence which results in a felony conviction.
4.79
Furthermore, §667.71 of
the Penal Code prescribes a sentencing regime for habitual sexual
offenders. §667.71(a) provides that an habitual sexual offender is a person who
has been previously convicted of one or more of the offences specified in
subdivision (c) (rape, lewd or lascivious act, sexual penetration, sexual abuse
etc) and who is convicted in the present proceeding of one of those offences.
§667.71(b) provides that an habitual sexual offender will be punished by
imprisonment in the state prison for 25 years to life.
4.80
In November 1994,
voters in Georgia approved by an 81 percent to 19 percent margin a ballot
measure amending the state’s sentencing laws to require that any person
convicted on two occasions for the following crimes would be sentenced to life
imprisonment without the possibility of parole: murder, armed robbery,
kidnapping, rape, aggravated child molestation, aggravated sodomy and
aggravated sexual batter.
4.81
The law took effect on
1 January 1995 and supplemented pre-existing Georgia law that contains the
following two provisions for repeat offenders:
“Upon the second conviction for any felony, the offender may, at the
discretion of the judge, be sentenced to ‘undergo the longest period of time
prescribed for the punishment of the subsequent offence’ for which the offender
is convicted.
Upon the fourth conviction for any felony, the offender must serve the
maximum time imposed, and not be eligible for parole until the maximum time has
been served.”
4.82
The law was also
changed to require that persons convicted of any one of the strikeable offences
for the first time would be sentenced to a mandatory minimum term of 10 years,
with no possibility of parole or early release, thus creating a one-strike provision.
4.83
The Georgia law differs
from California’s two strikes provision in a number of ways. It includes fewer
offences as strikes. It requires that all strikes be limited to the 7 major
offences listed at paragraph 4.81, as opposed to California where any
subsequent felony conviction can amount to a strike. The second strike in
Georgia leads to life imprisonment without parole while the second strike in
California results in doubling the presumptive sentence and limiting the amount
of good-time credit an inmate can earn. The Georgia law has a mandatory minimum
penalty for first strikers.
4.84
With respect to
Washington, discussed below, Georgia’s law is different in that the life
sentence is imposed after a second strike rather than after a third strike, but
the list of strikeable offences in Georgia is also much shorter.
4.85
Soon after the law was
adopted, litigation was filed challenging the constitutionality of the statute,
claiming that it constituted cruel and unusual punishment and that it violated
due process and equal protection requirements. On 3 June 1996 the Georgia
Supreme Court upheld the law against these challenges.
4.86
The two-strike rule is
contained in §17-10-7 of the Penal Code. §17-10-7(a) provides that any
person convicted of a felony offence and sentenced to confinement in a penal
institution who afterwards commits a felony punishable by confinement in a
penal institution, shall be sentenced to undergo the longest period of time
prescribed for the punishment of the subsequent offence of which he or she
stands convicted, 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.
4.87
§17-10-7(b)(2) provides
that any person who has been convicted of a serious violent felony and who
after such first conviction subsequently commits and is convicted of a serious
violent felony for which such person is not sentenced to death shall be
sentenced to imprisonment for life without parole. Any such sentence of life
without parole shall not be suspended, stayed, probated, deferred or withheld,
and any such person sentenced pursuant to this paragraph shall not be eligible
for any form of pardon, parole, or early release administered by the State of
Board Pardons and Paroles or for any earned time, early release, work release,
leave, or any other sentence-reducing measures under programs administered by
the Department of Corrections, the effect of which would be to reduce the
sentence of life imprisonment without the possibility of parole, except as may
be authorised by any existing or future provisions of the Constitution.
4.88
§17-10-7(c) provides
that any person who, after having been convicted for three felonies, commits a
felony within Georgia shall, upon conviction for such fourth offence or for
subsequent offences, serve the maximum time provided in the sentence of the
judge based upon such conviction and shall not be eligible for parole until the
maximum sentence has been served.
4.89
Austin et al assert
that Washington state represents most states, in that its law produced a rather
narrow strike zone which required three strikes.[1389]
By contrast California and Georgia broaden the strike zone and/or lower the
threshold to a two-strike criteria.
4.90
Officially entitled the
Persistent Offender Accountability Act 1994 the Washington strike law requires that any person
convicted for the third time of a specified offence is to receive a mandatory
sentence of life in prison without the possibility of parole.[1390]
4.91
Despite its limited
use, the strike law has been challenged in court on several grounds.[1391]
The Washington Supreme Court upheld the constitutionality of the law, rejecting
claims that it violated the ‘separation of powers’ by removing discretion from
prosecutors and judges, that it constituted cruel and unusual punishment by
mandating life sentences with no possibility of parole, and that it violated equal
protection and due process provisions of the state and federal constitutions.
4.92
As noted at paragraphs
3.251 to 3.257, the Criminal Code provides for a mandatory sentencing
regime in respect of certain offences involving firearms or other weapons.
There does not appear to be a mandatory sentencing regime in respect of second
or subsequent offences.
4.93
As noted at paragraph
3.263, section 121 of the Domestic and Family Violence Act prescribes a
minimum sentence of 7 days for a second or subsequent breach of a
domestic violence order.
4.94
In Western Australia mandatory sentencing laws were enacted in November
1996[1392]
which state that when convicted for the third time or more for a home
burglary, offenders must be sentenced to a minimum of 12 months imprisonment. This
is regardless of the gravity of the offence. The law was intended to reduce the
incidence of domestic burglary however research has revealed that the laws have
had no impact on burglary rates.[1393]
4.95
The Sentencing and
Parole Reform Act 2010 creates a three-stage regime of increasing
consequences for repeat serious violent offenders.
4.96
There are 40 qualifying
offences comprising all major violent and sexual offences, including murder,
attempted murder, manslaughter, wounding with intent to cause grievous bodily
harm, sexual violation, abduction, kidnapping and aggravated robbery. The full
list can be found in section 86A of the Sentencing Act 2002.
4.97
A first warning is
issued when an offender aged 18 or over at the time of the offence, and who
does not have any previous warnings, is convicted of a qualifying offence. Once
an offender has received a first “strike” warning, it stays on his or her
record for good (unless his or her conviction is quashed by an appellate
court).
4.98
If the offender is
subsequently convicted of another qualifying offence he or she receives a final
warning and, if sentenced to imprisonment, will serve that sentence in full
without the possibility of parole. The first and final warnings will stay on
the offender’s record.
4.99
On conviction of a
third qualifying offence the court must impose the maximum penalty for the
offence. The court must also order that the sentence is to be served without
parole, unless the court considers that would be manifestly unjust.
4.100
As noted in Chapter 2,
the Supreme Court has ruled that the Oireachtas is entitled to prescribe a
mandatory minimum sentence whenever it considers that a mandatory minimum
sentence is an appropriate penalty.[1394]
It thus follows that the Oireachtas is entitled to prescribe a mandatory
minimum sentence for second or subsequent offences whenever it considers that
such a sentence is an appropriate penalty. It remains to be seen, however,
whether it would be advisable for the Oireachtas to extend the use of mandatory
minimum sentences for second or subsequent offences to offences other than
firearms, drugs and serious offences, as defined by the Criminal Justice Act
2007.
4.101
As discussed at Section
F, mandatory sentencing is open to a number of significant criticisms which
militate against extending their use to other offences. The Commission is thus
of the view that their use should be confined to as few situations as possible.
4.102
Arguably, it should be
shown that the introduction of a mandatory sentencing regime is the only
option, all other options having been examined first. This should entail an
examination of the existing sentencing regime and, if improvement is found to
be necessary, how that regime might be improved. At very least, it should be
shown, by means of empirical research, how a mandatory sentencing regime is
likely to yield better results than the existing regime in terms of reducing
crime.[1395]
4.103
It is thus not
sufficient to argue that a mandatory sentencing regime would result in more
repeat offenders being imprisoned and, therefore, prevented from committing
further crimes. An increase in the number of people being imprisoned will
exacerbate the current problem of prison-overcrowding and will impede the
criminal justice system from pursuing the general aims of criminal sanctions.
4.104
In addition, it must be
shown how a mandatory sentencing regime will reduce crime, in terms of
deterrence or reform and rehabilitation. If the justification is deterrence -
which is usually the case - then it must be shown how the mandatory sentencing
regime will deter individual offenders and the public at large. As deterrence
is likely to be affected by both the severity of the sentence and the
probability of being caught, it must be shown, in particular, how the mandatory
sentencing regime will meet these requirements. Furthermore, as noted in
paragraph 1.26, there are a number of other factors which might affect the
deterrent effect of a criminal sanction.
4.105
In terms of reform and
rehabilitation, it is unlikely that a mandatory sentencing regime would be
justified on this basis. A possible argument would be that an offender could be
reformed and rehabilitated during a period of imprisonment. This argument is
weak, however, when regard is had to the current levels of prison-overcrowding
and under-resourcing.
4.106
The Commission considers,
therefore, that there are significant reasons to lead to the conclusion that
there should be no extension of the existing statutory framework concerning the
imposition of mandatory sentences (and, where relevant, presumptive mandatory
sentences) for second or subsequent offences. Indeed, these reasons are
comparable to those already discussed by the Commission in connection with the
presumptive regime for drugs and firearms offences. Nonetheless, the Commission
also considers that, as a general proposition, a statutory framework that takes
account in sentencing of repeat offending is consistent with the general aims
of the criminal justice system and principles of sentencing set out in Chapter
1.
4.107
The Commission provisionally recommends that the existing legislation
concerning mandatory sentences (and, where relevant, presumptive mandatory sentences) as it
applies in the case of second and subsequent offences should not be extended to
any other offences; but the Commission also considers that, as a general proposition, a statutory
framework that takes account in sentencing of repeat offending is consistent
with the general aims of the criminal justice system and principles of
sentencing set out in this Consultation Paper.
5
5.01
The provisional recommendations made by the Commission in this
Consultation Paper are as follows.
5.02
The Commission supports the recommendations made in 2000, and reiterated
in 2011, that the proposed 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
Consultation Paper. The Commission also provisionally recommends that such
guidance or guidelines should have regard to: the sentencing guidance and
guidelines available from decisions of the Supreme Court and the Court of
Criminal Appeal, including those discussed in this Consultation Paper; the
aggravating and mitigating factors, and individual offender characteristics,
identified in the Commission’s 1996 Report on Sentencing, as developed by the
courts since 1996; and information in relevant databases, notably the Irish
Sentencing Information System (ISIS). [Paragraph 1.249]
5.03
The Commission provisionally recommends that, while the use of the
entirely mandatory sentence may, having regard to the aims of criminal
sanctions and the principles of sentencing, be appropriately applied to the
offence of murder, the mandatory sentencing regime for murder should be amended
to provide that, on the date of sentencing, the court should be empowered to
indicate or recommend that a minimum specific term of imprisonment should be
served by the defendant, having regard to the particular circumstances of the
offence and of the offender. [Paragraph 2.112]
5.04
The Commission provisionally recommends that the presumptive sentencing
regime, as it applies in the case of certain drugs and firearms offences,
should not be extended to any other offences but should be reviewed because,
while it has succeeded in one objective, namely, an increased severity in
sentencing for certain drugs and firearms offences, it has not been established
that it has achieved another general aim of the criminal justice system, namely
reduced levels of criminality. The Commission notes that, in particular, the
presumptive drugs offences regime has had the following results: a
discriminatory system of sentencing where all cases are treated alike
regardless of differences in the individual circumstances of the offenders; the
adaptation of the illegal drugs industry to the sentencing regime by using
expendable couriers to hold and transport drugs; that these relatively
low-level offenders, rather than those at the top of the drugs industry, are
being apprehended and dealt with under the presumptive regime; a high level of
guilty pleas in order to avoid the presumptive minimum sentence; and a
consequent bulge in the prison system comprising low-level drugs offenders.
[Paragraph 3.283]
5.05
The Commission provisionally recommends that the existing legislation
concerning mandatory sentences (and, where relevant, presumptive mandatory
sentences) as it applies in the case of second and subsequent offences should
not be extended to any other offences; but the Commission also considers that,
as a general proposition, a statutory framework that takes account in sentencing
of repeat offending is consistent with the general aims of the criminal justice
system and principles of sentencing set out in this Consultation Paper.
[Paragraph 4.107]
[1] Law Reform Commission Report on Sentencing (LRC
53-1996).
[2] Law Reform Commission Report on Sentencing (LRC
53-1996) at paragraph 1.1. See also Canadian Sentencing Commission, Sentencing
Reform: A Canadian Approach (1987) at 111.
[3] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006).
[4] Article 15.2.1° of the Constitution of Ireland.
[5] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 28.01.
[6] See generally Law Reform Commission Report on Court
Poor Box: Probation of Offenders (LRC 75-2005).
[7] See, for example, O’Malley Sentencing Law and Practice
2nd ed (Thomson Round Hall, 2006), Chapter 2; and Ashworth Sentencing
and Criminal Justice 3rd ed (Butterworths, 2000), Chapter 3.
[8] 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.”
[9] Law Reform Commission Report on Sentencing (LRC
53-1996).
[10] Section 2 of the Criminal
Justice Act 1990.
[11] Section 4 of the Criminal
Justice Act 1990.
[12] The Irish Penal
Reform Trust considers 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 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 that, nonetheless, such sentences come
within the parameters of the Attorney General’s request.
[13] 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.
[14] Under the Firearms
Act 1925, as amended by section 42 of the Criminal
Justice Act 2006.
[15] Section 25
of the Criminal Justice Act 2007.
[16] 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.
[17] Law Reform
Commission Report on Sentencing (LRC 53-1996).
[18] See, generally,
O’Malley, Sentencing: Towards a Coherent System (Thomson Reuters, 2011),
and O’Malley “Creativity and Principled Discretion over Sentencing a
Necessity”, The Irish Times, 19 December 2011.
[19] [1972] IR 402.
[20] [1972] IR 402, at
408.
[21] Ibid.
[22] O’Malley “Sentencing Values and Sentencing Structures”
[2003] JSIJ 130 at 140; McAuley and McCutcheon Criminal Liability (Round
Hall, Sweet and Maxwell, 2000) at 60; Walker “The Aims of a Penal System” The
James Seth Memorial Lecture 1966 (Edinburgh University Press, 1966) at 3.
[23] Walker “The Aims of a Penal System” The James Seth
Memorial Lecture 1966 at 4-6.
[24] Walker and Padfield Sentencing: Theory, Law and
Practice (Butterworths, 2nd ed, 1996) at paragraph 9.7.
[25] Cavadino and Dignan The Penal System - An Introduction
(Sage Publications, 3rd ed, 2002) at 33.
[26] LRC Report on Sentencing (LRC 53-1996) at paragraph
2.1.
[27] Department of Justice, Equality and Law Reform, White
Paper on Crime, “Criminal Sanctions” Discussion Document No 2 (February,
2010).
[28] Ibid.
[29] Ibid.
[30] By contrast, the 2001 Halliday Report identifies
punishment as one of three aims - punishment, crime reduction and reparation -
pursued by criminal sanctions. In this context, “crime reduction” includes
deterrence, incapacitation, reform and rehabilitation. The Report observes,
however, that opinions differ as to whether punishment is a purpose in its own
right or simply a means of achieving the other two purposes. In this regard,
see Making Punishments Work - Report of a Review of the Sentencing Framework
for England and Wales (Home Office, 2001), at paragraph 1.4-1.5.
[31] Walker Why Punish? (Oxford University Press, 1991)
at 69ff.
[32] Walker and Padfield Sentencing: Theory, Law and
Practice (Butterworths, 2nd ed, 1996) at paragraph 9.8 ff.
[33] Walker Why Punish? (Oxford University Press, 1991)
at 96 ff.
[34] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at 2-07.
[35] [1996] 1 SCR 500, 80.
[36] R v M (CA) [1996] 1 SCR 500, paragraph 80.
[37] [1994] 3 IR 306.
[38] People
(DPP) v M [1994] 3 IR 306, 317.
[39] Law Reform Commission Report on Sentencing (LRC
53-1996).
[40] Law Reform Commission Report on Sentencing (LRC
53-1996) at paragraph 2.13.
[41] Walker “The Aims of a Penal System” The James Seth
Memorial Lecture 1966 at 7ff.
[42] Ibid at 7.
[43] Walker “The Aims of a Penal System” The James Seth
Memorial Lecture at 8. Walker observes that this version of retributivism
accords with Montero’s aim (the penal system should protect offenders and
suspected offenders against unofficial retaliation); the reductivist aim (the
penal system should reduce the frequency of the types of behaviour prohibited
by the criminal law); and the humanitarian principle (the penal system should
be such as to cause the minimum of suffering, whether to offenders or others,
by its attempts to achieve its aims).
[44] Ibid at 18.
[45] Ibid at 18-19.
[46] Ibid at 20.
[47] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-07; Report on Sentencing
(LRC 53-1996) at paragraph 2.20.
[48] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-09.
[49] Ibid.
[50] Riordan “Punishment in Ireland: Can We Talk about It?” in
O’Mahony (Ed) Criminal Justice in Ireland (Institute of Public
Administration, 2002) at 564-565.
[51] Riordan “Punishment in Ireland: Can We Talk about It?” in
O’Mahony (Ed) Criminal Justice in Ireland (Institute of Public Administration,
2002) at 564-565; O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-09.
[52] Ashworth Sentencing and Criminal Justice
(Butterworths, 2000) at 73-74.
[53] Cavender “Justice, Sanctioning, and the Justice Model” in
Priestley and Vanstone (Eds) Offenders or Citizens? Readings in
Rehabilitation (Willan Publishing, 2010) at 175.
[54] Law Reform Commission Consultation Paper on Sentencing
(LRC CP 2-1993).
[55] Ibid at paragraph 10.61.
[56] Ibid.
[57] Law Reform Commission Consultation Paper on Sentencing
(LRC CP 2-1993) at paragraph 10.61.
[58] Ibid.
[59] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-25.
[60] [1996] 1 SCR 500.
[61] R v M (CA) [1996] 1 SCR 500, paragraph 81; cited with approval by the
court in R v Latimer [2001] 1 SCR 3 at 41
[62] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-25; and Walker “The Aims of a
Penal System” The James Seth Memorial Lecture 1966 (Edinburgh University
Press, 1966) at 27.
[63] Walker “The
Aims of a Penal System” The James Seth Memorial Lecture 1966 (Edinburgh
University Press, 1966) at 25ff.
[64] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed ,2006) at paragraph 2-25.
[65] Department of Justice, Equality and Law Reform, White
Paper on Crime, “Criminal Sanctions” Discussion Document No 2 (February,
2010).
[66] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-11
[67] Ibid at paragraph 2-11
[68] McAuley and McCutcheon Criminal Liability (Round
Hall Sweet and Maxwell, 2000) at 104.
[69] Ibid.
[70] Kenny Freewill and Responsibility (London, 1978) at
77.
[71] Law Reform Commission Consultation Paper on Sentencing
(LRC CP 2-1993).
[72] Law Reform Commission Consultation Paper on Sentencing
(LRC CP 2-1993) at paragraph 4.42. See also O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at paragraph 2-13.
See also Gabor and Crutcher “Mandatory Minimum Penalties: Their Effects on
Crime, Sentencing Disparities, and Justice System Expenditures” rr2002-1e
(Research and Statistics Division, Department of Justice of Canada, 2002) at
paragraph 4.1.
[73] Gabor and Crutcher “Mandatory Minimum Penalties: Their
Effects on Crime, Sentencing Disparities, and Justice System Expenditures”
rr2002-1e (Research and Statistics Division, Department of Justice of Canada,
2002) at paragraph 4.3.1.
[74] Gabor and Crutcher refer to a study (Zedlewski, 1983)
which found that the increased certainty of arrested helped lower the burglary
rate but had little effect on the larceny rate.
[75] Gabor and Crutcher refer to a number of studies
(Greenfield, 1985; Wu and Liska, 1993) which found that more persistent
offenders and those who had been punished in the past were less likely to be
deterred by the threat of punishment and each ethnic group tended to respond to
the probability of arrest in relation to one of its members than in relation to
society at large.
[76] Gabor and Crutcher refer to a study (Grasmick, Bursik and
Arneklev, 1993) which found that those who will experience shame or
embarrassment as a result of their involvement in a crime are less likely to
commit that crime.
[77] Gabor and Crutcher refer to a study (Howe and Brandau,
1988) and indicate that, while little evidence exists in relation to this
factor, learning theories suggest that the more swiftly punishment follows
crime, the lower the likelihood that the crime will be repeated.
[78] Gabor and Crutcher refer to a study (Klepper and Nagin,
1989) and indicate that, generally, those who believe they are likely to be
caught and punished are less likely to commit a criminal act.
[79] Gabor and Crutcher “Mandatory Minimum Penalties: Their
Effects on Crime, Sentencing Disparities, and Justice System Expenditures”
rr2002-1e (Research and Statistics Division, Department of Justice of Canada,
2002) at 8, at paragraph 4.3.1.
[80] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-11; Ashworth Sentencing and
Criminal Justice (Butterworths, 3rd ed, 2000) at 66.
[81] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-14.
[82] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-12.
[83] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-12.
[84] Law Reform Commission Consultation Paper on Sentencing
(LRC CP 2-1993).
[85] Law Reform Commission Consultation Paper on Sentencing
(LRC CP 2-1993) at paragraph 10.26.
[86] Tonry Sentencing Matters (Oxford University Press,
1996) at 135ff. He indicates 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.
[87] Ibid at 137-139.
[88] Department of Justice, Equality and Law Reform, White
Paper on Crime, “Criminal Sanctions” Discussion Document No 2 (February,
2010).
[89] [1994] 3 IR 306.
[90] People
(DPP) v M [1994] 3 IR 306, 314.
[91] Priestley and Vanstone Offenders or Citizens? Readings
in Rehabilitation (Willan, 2010) at 107.
[92] Ibid.
[93] Ibid.
[94] Law Reform Commission Consultation Paper on Sentencing
(LRC CP 2-1993).
[95] Ibid at paragraph 10.26.
[96] Question: “I am going to read these purposes to you, and I
would like you to rate the importance of each purpose in general, using a 10
point scale where 1 means not at all important and 10 means most important. How
important is: Punishing offenders for their crimes; Preventing crime – for
example by deterring offenders and potential offenders; Reforming and
rehabilitating offenders; Protecting the public; Reparation, i.e., getting
offenders to make amends to the victim and/or the community”. Base: 1,023
respondents.
[97] Report on Public Attitudes to the Principles of Sentencing (Sentencing
Advisory Panel, 2009) at 13.
[98] Report on Public Attitudes to the Principles of Sentencing (Sentencing
Advisory Panel, 2009) at 13.
[99] Ibid at 16-17.
[100] 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.
[101] Robinson and Gaynor argue that there is everything to
gain, or at least little to lose, by continuing to articulate a distinctive
role and vision for a revitalised probation service (in the United States of
America) which would “gain much from an increased emphasis on renewing its
engagement with communities and localities; from greater use of restorative
approaches; and form a clearer focus on the relational and reintegrative
components of rehabilitation”. Robinson and Gaynor “The Future of
Rehabilitation” in Priestley and Vanstone (Eds.) Offenders or Citizens?
Readings in Rehabilitation (Willan, 2010) at 285. See also Priestly and
Vanstone who sound a note of caution in this regard. Priestley and Vanstone Offenders
or Citizens? Readings in Rehabilitation (Willan, 2010) at 213.
[102] See below this chapter. McAuley and McCutcheon Criminal
Liability (Round Hall Sweet and Maxwell, 2000) at 102 citing Martinson
“What works Questions and Answers about Prison Reform” (1974) Public
Interest 22-54 and Brody The Effectiveness of Sentencing (London,
1976).
[103] Ibid.
[104] McAuley and McCutcheon Criminal Liability (Round
Hall Sweet and Maxwell, 2000) at 103.
[105] Ibid.
[106] Ibid at 103-104.
[107] Matthews “Rethinking Penal Policy: Towards a Systems
Approach” in Matthews and Young The New Politics of Crime and Punishment (Willan,
2003) at 233, quoting Feeley and Simon “The New Penology: Notes on the Emerging
Strategy of Corrections and its implications” (1992) Criminology 30(4) at
449-474.
[108] Department of Justice, Equality and Law Reform, White
Paper on Crime, “Criminal Sanctions” Discussion Document No 2 (February,
2010).
[109] Cavadino and Dignan The Penal System - An Introduction
(Sage Publications, 3rd ed, 2002) at 44-45.
[110] Ibid at 45.
[111] Ibid.
[112] Ibid.
[113] Walker and Padfield Sentencing: Theory, Law and
Practice (Butterworths, 2nd ed, 1996) at paragraph 9.38.
[114] www.cica.gov.uk
[115] Walker and Padfield Sentencing: Theory, Law and
Practice (Butterworths, 2nd ed, 1996) at paragraph 9.37.
[116] Ibid.
[117] Ibid.
[118] Department of Justice, Equality and Law Reform, White
Paper on Crime, “Criminal Sanctions” Discussion Document No 2 (February,
2010).
[119] Ashworth Sentencing and Criminal Justice
(Butterworths, 3rd ed, 2000) at 68.
[120] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-21; Cavadino and Dignan The
Penal System - An Introduction (Sage Publications, 3rd ed 2002)
at 38 ff.
[121] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-22; Ashworth Sentencing and
Criminal Justice (Butterworths, 3rd ed, 2000) at 69.
[122] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-22.
[123] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-23; Ashworth Sentencing and
Criminal Justice (Butterworths, 3rd ed, 2000) at 69; Consultation
Paper on Sentencing (LRC CP 2-1993) at paragraph 4.46.
[124] Cavadino and Dignan The Penal System - An Introduction
(Sage Publications, 3rd ed, 2002) at 39.
[125] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-24.
[126] [1966] IR 501.
[127] Ibid at 508-509.
[128] Ibid at 516-517.
[129] Article 40.4.6: “Provision may be made by law for the
refusal of bail by a court to a person charged with a serious offence where it
is reasonably considered necessary to prevent the commission of a serious
offence by that person.
[130] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-24; see Consultation Paper on
Sentencing (LRC CP 2-1993) at paragraph 4.51.
[131] [1988] ILRM 370.
[132] Ibid at 370.
[133] Ibid at 372.
[134] Law Reform Commission Consultation Paper on Sentencing
(LRC CP 2-1993) at paragraph 4.51ff.
[135] Law Reform
Commission Report on an Examination of the Law of Bail (LRC 50-1995) at
paragraph 1.46.
[136] Court of Criminal Appeal 26 April 1993.
[139] McAuley and McCutcheon Criminal Liability (Round
Hall Sweet and Maxwell, 2000) at 105-106.
[140] Walker “The Aims of a Penal System” The James Seth
Memorial Lecture 1966 at 6.
[141] Walker “The Aims of a Penal System” The James Seth
Memorial Lecture 1966 at 6.
[142] McAuley and McCutcheon Criminal Liability (Round
Hall Sweet and Maxwell, 2000) at 105.
[143] Twenty-first
Amendment of the Constitution Act 2001
[Prohibition of death penalty and removal of references to death penalty] 27
March 2002.
[144] Hogan and Whyte JM Kelly: The Irish Constitution
(Lexis Nexis Butterworths, 4th ed, 2003) at paragraph 4.2.115. As
will be observed in Chapter 2, the amendment of these articles was largely
symbolic. There had not been an execution in Ireland since 1954, and the death
penalty had been abolished for all but a very limited class of crimes by the Criminal
Justice Act 1964 and for all remaining crimes by the Criminal Justice
Act 1990.
[145] Ryan v
Attorney General [1965] IR 345.
[146] [1976] IR 365.
[147] State (C) v
Frawley [1976] IR 365 at 374. Similar
remarks were made in Mulligan v Governor of Portlaoise Prison [2010]
IEHC 269; W v Ireland [1997]
2 IR 141; and Murray v Ireland [1985] IR 532.
[148] Similarly, Article 7 of the International Covenant on
Civil and Political Rights provides that “[n]o one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.”
[149] Walker “The Aims of a Penal System” The James Seth
Memorial Lecture 1966 at 6.
[150] Ashworth Sentencing and Criminal Justice
(Butterworths, 2000) at 83 quoting Bentham.
[151] O’Flaherty “Punishment and the Popular Mind: How much is
Enough?” in O’Mahony (Ed) Criminal Justice in Ireland (Institute of
Public Administration, 2002) at 381.
[152] Padfield “Time to Bury the Custody ‘Threshold’?” (2011)
Crim L R 593.
[153] O’Malley “Comments on White Paper on Crime” [2010] 2 JSIJ
1 at 8.
[154] O’Malley The Criminal Process (Roundhall, 2009) at
paragraph 22.05.
[155] Padfield “Time to Bury the Custody ‘Threshold’?” (2011)
Crim L R 593.
[156] O’Malley “Comments on White Paper on Crime” [2010] 2 JSIJ
1 at 8.
[157] See discussion in Padfield “Time to Bury the Custody
‘Threshold’?” (2011) Crim L R 593.
[158] Ibid.
[159] O’Malley “Comments on White Paper on Crime” [2010] 2 JSIJ
1 at 9; Padfield “Time to Bury the Custody ‘Threshold’?” (2011) Crim L R 593 at
600.
[160] Padfield “Time to Bury the Custody ‘Threshold’?” (2011)
Crim L R 593 at 610.
[161] Ibid at 603 and 606.
[162] It is not clear what would happen where there is a
lack of both prison spaces and effective non-custodial alternatives. Arguably,
the criminal justice system would err on the side of caution by keeping rates
of imprisonment at a high level.
[163] See the 2011 Report of the Thornton Hall Project Review
Group at 73; Making Punishments Work - Report of a Review of the
Sentencing Framework for England and Wales (Home Office, 2001) at 21; and Report
of the Committee of Inquiry into the Penal System 1985 at paragraph 2.10.
[164] Section 3 of the Criminal Justice (Community Service)
(Amendment) Act 2011.
[165] Section 19 of the Fines Act 2010.
[166] O’Malley “Comments on White Paper on Crime” [2010] 2 JSIJ
1 at 8.
[167] McAuley and McCutcheon Criminal Liability (Round
Hall Sweet and Maxwell, 2000) at 106.
[168] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 3-01; Duff “Guidelines as
Guidelines” (2005) 105 Colum L Rev 1162 at 1163-1166; and McAuley and
McCutcheon Criminal Liability (Round Hall Sweet and Maxwell, 2000) at
42ff. Ashworth states that the legality principle requires that “judicial
decisions be taken openly and by reference to standards declared in
advance”. Ashworth Sentencing and Criminal Justice (Butterworths, 3rd
ed, 2000) at 62. The Commission will consider transparency in a separate
section.
[169] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 3-01; and Duff “Guidelines as
Guidelines” (2005) 105 Colum L Rev 1162 at 1163-1166.
[170] Ashworth Sentencing and Criminal Justice
(Butterworths, 2000) at 72.
[171] Ibid.
[172] Ibid.
[175] [1994] 3 IR 593.
[176] [1994] 3 IR 593, 607.
[178] In re the
Employment Equality Bill 1996 [1997]
2 IR 321, 383.
[179] [1992] 2 IR 503.
[180] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 28-04.
[182] O’Malley The Criminal Process (Roundhall, 2009) at
paragraph 22.02.
[183] (1972) 1 Frewen 351.
[184] Ibid at 359.
[185] [1988] IR 251.
[186] Section 29 of the Courts of Justice Act 1924.
[187] People
(DPP) v Tiernan [1988] IR 251, 253.
[188] [1994] 3 IR 306.
[189] People
(DPP) v M [1994] 3 IR 306, 316.
[190] People
(DPP) v WC [1994] 1 ILRM 321; People
(DPP) v Sheedy [2000] 2 IR 184; People (DPP) v Kelly [2005]
1 ILRM 19; People (DPP) v O’Dwyer [2005] 3 IR 134; Pudlizsewski
v District Judge John Coughlan and the DPP [2006] IEHC 304; People (DPP)
v H [2007]
IEHC 335; People (DPP) v GK [2008]
IECCA 110; People (DPP) v Keane [2008]
3 IR 177; People (DPP) v Harty Court of Criminal Appeal 19
February 2008; People (DPP) v O’C Court of Criminal Appeal 5 November
2009; People (DPP) v Woods Court of Criminal Appeal 10 December 2010.
[191] O’Malley Sentencing Law and Practice (Round Hall
Thompson, 2nd ed, 2006) at paragraph 5-12ff.
[192] [1994] 3 IR 306.
[193] Ibid at 315.
[194] See Law Reform
Commission Report on Sentencing (LRC 53-1996) at paragraphs 3.5-3.8.
[195] People
(DPP) v Crowe [2010] 1 IR 129.
[196] People
(DPP) v Maguire Court of Criminal Appeal
19 February 2008; People (DPP) v O’C Court of Criminal Appeal 5 November
2009; People (DPP) v Halligan Court of Criminal Appeal 15 February 2010.
[197] People
(DPP) v Loving [2006]
IECCA 28.
[198] Section 14 of the Criminal Justice (Theft and Fraud
Offences) Act 2001.
[199] [1988] IR 251.
[200] People
(DPP) v Tiernan [1988] IR 251, 253.
[202] [1994] 1 ILRM 321.
[203] Ibid at 325.
[204] [2005] 1 ILRM 18.
[205] People
(DPP) v Kelly [2005] 1 ILRM 18, 22. See
also People (DPP) v Dillon Court of Criminal Appeal 17 December 2003; Pudliszewski
v District Judge Coughlan and DPP [2006] IEHC 304; and Dunne v Judge
Coughlan High Court 25 April 2005.
[207] Ibid at 330.
[208] Ibid at 319.
[209] Ibid at 319.
[210] Ibid at 324.
[211] Ibid at 324.
[212] Ibid at 324.
[213] People
(DPP) v WD [2008]
1 IR 308, 324.
[214] People
(DPP) v WD [2008]
1 IR 308, 327.
[215] People
(DPP) v WD [2008]
1 IR 308, 324.
[216] Ibid at 326.
[217] Ibid at 326.
[218] Ibid at 327.
[219] Ibid at 319.
[220] Ibid at 327.
[221] Ibid at 328.
[222] Ibid at 329.
[223] Ibid at 330.
[224] People
(DPP) v WD [2008]
1 IR 308, 330.
[226] Court of Criminal Appeal 10 May 2010.
[227] People
(DPP) v Pakur Pakurian Court of Criminal
Appeal 10 May 2010.
[228] Section 14 of the Criminal Justice (Theft and Fraud
Offences) Act 2001.
[230] People (DPP) v GK [2008]
IECCA 110. See the Court of Criminal Appeal decision in People (DPP) v Keane [2008]
3 IR 177, 195, which concerned the sentence for rape, in which
Murray CJ indicated that: “The 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)
[231] [1999]
1 WLR 307; see O’Malley Sentencing Law and Practice (Thomson
Round Hall, 2nd ed, 2006) at paragraph 5-16.
[232] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 5-16.
[233] Ibid at paragraph 5-15.
[234] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 5-15.
[235] [2005] 3 IR 134.
[236] People
(DPP) v O’Dwyer [2005] 3 IR 134, 148.
[237] People
(DPP) v O’Dwyer [2005] 3 IR 134, 152.
[238] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 5-15.
[239] [2005] 3 IR 134.
[240] See the 2004 Sentencing Guideline of the Sentencing
Guidelines Council of England and Wales on Seriousness.
[241] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 5-15.
[243] Ibid at 334.
[244] People
(DPP) v WD [2008]
1 IR 308, 334.
[246] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 5-15. See People (DPP) v WD [2008]
1 IR 308 in general.
[247] People
(DPP) v Black [2010] IECCA 91; People
(DPP) v Kelly [2005]
1 ILRM 19; People (DPP) v Princs [2007]
IECCA 142; People (DPP) v Maguire Court of Criminal Appeal 19
February 2008; People (DPP) v Dillon Court of Criminal Appeal 17
December 2003.
[248] People
(DPP) v Black [2010] IECCA 91; People
(DPP) v Kelly [2005]
1 ILRM 19; People (DPP) v Princs [2007]
IECCA 142; People (DPP) v Maguire Court of Criminal Appeal 19
February 2008.
[249] People
(DPP) v GK [2008]
IECCA 110; People (DPP) v Keane [2008]
3 IR 177; People (DPP) v WD [2008]
1 IR 308.
[250] People
(DPP) v Keane [2008]
3 IR 177.
[251] People
(DPP) v GK [2008]
IECCA 110; People (DPP) v Maguire Court of Criminal Appeal 19
February 2008.
[252] People
(DPP) v Tiernan [1988] IR 250; People
(DPP) v Maguire Court of Criminal Appeal 19 February 2008.
[253] People
(DPP) v M [1994] 3 IR 306.
[254] People
(DPP) v Tiernan [1988] IR 250; People
(DPP) v WD [2008]
1 IR 308.
[255] [1988] IR 250.
[256] People
(DPP) v Tiernan [1988] IR 250, 253-254.
[257] [2003] 4 IR 338.
[258] The 1989 Act has since been replaced by the Safety,
Health and Welfare at Work Act 2005.
[259] [2001] 3 IR 390.
[261] People
(DPP) v Roseberry Construction Ltd and McIntyre [2003] 4 IR 338, 340.
[262] People
(DPP) v Roseberry Construction Ltd and McIntyre [2003] 4 IR 338, 340.
[263] People
(DPP) v Roseberry Construction Ltd and McIntyre [2003] 4 IR 338, 340.
[264]
R v F Howe & Sons (Engineers) Ltd [1999]
2 All ER 249, 254.
[265] People
(DPP) v Roseberry Construction Ltd and McIntyre [2003] 4 IR 338, 342.
[267] (2003) 1 Cr App R 28.
[268]
People (DPP) v Loving [2006]
3 IR 355, 362.
[269]
People (DPP) v Loving [2006]
3 IR 355, 362.
[270]
R v Oliver (2003) 1 Cr App R 28, 467.
[271] Law Reform Commission Report on Sentencing (LRC 53-1996) Chapter 3.
[272] Law Reform Commission Report on Sentencing (LRC 53-1996) at paragraph 3.2.
[273] Law Reform Commission Report on Sentencing (LRC 53-1996) at paragraph 3.2.
[274] Law Reform Commission Report on Sentencing (LRC 53-1996) Chapter 3.
[275] Law Reform Commission Report on Sentencing (LRC 53-1996) at paragraphs 3.5-3.8
[276] Law Reform Commission Report on Sentencing (LRC 53-1996) at paragraph 3.17.
[277] [1988] IR 250.
[278] People
(DPP) v Tiernan [1988] IR 250, 255.
[279] (1986) 82 Cr App R 120. See O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at paragraph 6-33.
[280] (1986) 82 Cr App R 120, 122.
[281] See O’Malley Sentencing Law and Practice (Thomson
Round Hall, 2nd ed, 2006) at paragraph 6-33.
[283] People
(DPP) v Princs [2007]
IECCA 142. See O’Malley Sentencing Law and Practice (Thomson
Round Hall, 2nd ed, 2006) at paragraph 6-87.
[286] [2005]
1 ILRM 19. See O’Malley Sentencing Law and Practice (Thomson
Round Hall, 2nd ed, 2006) at paragraph 6-44ff.
[287] [2005]
1 ILRM 19 at 33.
[288] [1994] 3 IR 306. See O’Malley Sentencing Law and
Practice (Thomson Round Hall, 2nd ed, 2006) at paragraph 6-41.
[289] People
(DPP) v M [1994] 3 IR 306, 314.
[290] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 3-01.
[291] Making
Punishments Work - Report of a Review of the Sentencing Framework for England
and Wales (Home Office, 2001) at paragraph
2.21.
[292] Making
Punishments Work - Report of a Review of the Sentencing Framework for England
and Wales (Home Office, 2001) at paragraph
2.21.
[293] Law Reform Commission Consultation Paper on Prosecution
Appeals from Unduly Lenient Sentences in the District Court (LRC CP
33-2004).
[294] 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 paragraph 3-01.
[295] Ashworth Sentencing and Criminal Justice (Butterworths,
3rd ed, 2000) at 35-36.
[296] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 3-04.
[297] Ibid.
[298] Ibid.
[299] Ibid.
[300] Ibid.
[301] Article 34 of the Irish Constitution provides that
justice must, “save in exceptional circumstances prescribed by law”, be
administered in public.
[302] Making
Punishments Work - Report of a Review of the Sentencing Framework for England
and Wales (Home Office, 2001) at paragraph
2.25.
[303] Ibid.
[304] Ibid at paragraph 2.26.
[305] O’Malley “Sentencing Values and Sentencing Structures”
[2003] JSIJ 130 at 139.
[306] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 30-12.
[307] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 30-14.
[309] [2002]
2 IR 410, 416
[312] Ibid at 315.
[313] [2003] 4 IR 35.
[314] Ibid at 44.
[315] O’Malley “Sentencing Values and Sentencing Structures”
[2003] JSIJ 130 at 139.
[316] Section 3 of the Criminal Justice (Community Service)
Act 1983, as amended by section 3 of the Criminal Justice (Community
Service) (Amendment) Act 2011, provides that where a sentencing court is of the
opinion that the appropriate sentence would be one of imprisonment for a period
of 12 months or less, it must consider making a community service order
instead. It does not, however, require the sentencing court to give reasons
where it decides to impose a period of imprisonment.
[317] [1994] 1 WLR 242.
[318] Ibid at 259.
[320] Ibid at paragraph 15.
[321] Ibid at paragraph 16.
[322] [2002]
1 WLR 2409, paragraph 19.
[323] Garcia Ruiz
v Spain ECtHR 21 January 1999, at
paragraph 26; Higgins v France (1999)
27 EHRR 703; Helle v Finland (1998)
26 EHRR 159; Ruiz Torija v Spain (1995)
19 EHRR 542; Hiro Balani v Spain ECtHR 9 December 1994; Van
de Hurk v The Netherlands (1994)
18 EHRR 481.
[324] Walker “The Aims of a Penal System” The James Seth
Memorial Lecture 1966 (Edinburgh University Press, 1966) at 6. McAuley and
McCutcheon Criminal Liability (Round Hall Sweet and Maxwell, 2000) at
105.
[325] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 2-29ff; McAuley and McCutcheon Criminal
Liability (Round Hall, Sweet and Maxwell, 2000) at Chapter 1; Ashworth Sentencing
and Criminal Justice (Butterworths, 3rd ed, 2000) at 62-63 .
[326] Ashworth Sentencing and Criminal Justice
(Butterworths, 2000) at 62.
[327] Ashworth Sentencing and Criminal Justice
(Butterworths, 3rd ed, 2000) at 84.
[330] People
(DPP) v WD [2008]
1 IR 308, 314.
[331] Ashworth Sentencing and Criminal Justice
(Butterworths, 3rd ed, 2000) at 62; see also Young and Browning “New
Zealand’s Sentencing Council” [2008] Crim LR 287 at 290.
[332] Ashworth Sentencing and Criminal Justice
(Butterworths, 3rd ed, 2000) at 62.
[333] Ashworth Sentencing and Criminal Justice
(Butterworths, 3rd ed, 2000) at 63.
[334] Ashworth Sentencing and Criminal Justice
(Butterworths, 3rd ed, 2000) at 63.
[335] Ashworth Sentencing and Criminal Justice (Butterworths,
3rd ed, 2000) at 63.
[336] Ashworth Sentencing and Criminal Justice
(Butterworths, 3rd ed, 2000) at 63.
[337] Ashworth Sentencing and Criminal Justice
(Butterworths, 3rd ed, 2000) at 63.
[338] O’Malley “Comments on White Paper on Crime” [2010] 2 JSIJ
1 at 7. See also Report of the Thornton Hall Project Review Group 2011
at 73.
[339] O’Malley “Comments on White Paper on Crime” [2010] 2 JSIJ
1 at 8.
[340] O’Malley “Comments on White Paper on Crime” [2010] 2 JSIJ
1 at 8.
[341] See People (DPP) v GK [2008]
IECCA 110 and People (DPP) v WD [2008]
1 IR 308.
[342] Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 37.
[343] O’Malley “Sentencing Values and Sentencing Structures”
[2003] JSIJ 130 at 135.
[344] Maguire
“Consistency in Sentencing” [2010] JSIJ 14 at 37.
[345] For example, regarding persistent offenders the approach
taken by the Criminal Justice Act 2006 is very different to the approach
taken by the Criminal Justice Act 2007.
[346] O’Malley “Sentencing Values and Sentencing Structures”
[2003] JSIJ 130 at 135.
[347] This will be discussed in greater detail in Chapter 3.
[350] Law Reform Commission Report on Sentencing (LRC 53-1996), Chapter 3.
[351] Ibid at paragraphs 3.5-3.8
[352] Guideline
on Overarching Principles: Seriousness
(Sentencing Guidelines Council of England and Wales, 2004).
[353] Dáil Debates, Official Report - Unrevised, Vol. 673 No. 1,
Thursday, 29th January 2009, Order of Business, Mr Flanagan; Dáil
Debates, Official Report - Unrevised, Vol. 676 No. 2, Wednesday, 25th
February 2009, Priority Questions, Mr Flanagan, paragraph 40; Dáil Debates,
Official Report - Unrevised, Vol. 706 No. 2, Thursday, 1st April
2010, Written Answers, Mr Bruton, paragraph 107.
[354] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 3-06.
[355] Maguire “Consistency in Sentencing” [2010] JSIJ 14 at
18-28.
[356] Maguire “Consistency in Sentencing” [2010] JSIJ 14; and
Hamilton “Sentencing in the District Court: ‘Here be Dragons’” (2005) 15(3)
ICLJ 9a.
[357] Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 31
ff.
[358] 15 out of a total of 54 District Court Judges participated
in the study.
[359] 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.
[360] Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 34.
[361] 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.” Maguire “Consistency
in Sentencing” [2010] JSIJ 14 at 37.
[362] Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 37.
[363] Ibid at 42.
[364] Ibid at 42.
[365] Ibid at 43.
[366] Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 44.
[367] Ibid at 45.
[368] 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 offender to this court. Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 45.
[369] Maguire “Consistency in Sentencing” [2010] JSIJ 14 at
45-46.
[370] Maguire “Consistency in Sentencing” [2010] JSIJ 14 at 47.
[371] Ibid at 52.
[372] Hamilton “Sentencing in the District Court: ‘Here be
Dragons’” (2005) 15(3) ICLJ 9a.
[373] O’Malley
“Comments on White Paper on Crime” [2010] 2 JSIJ 1 at 9-11; Young and Browning
“New Zealand’s Sentencing Council” [2008] Crim LR 287 at 292; Kilaru
“Guidelines as Guidelines: Lessons from the History of Sentencing Reform”
(2010) 2 Charlotte L Rev 101 at 110.
[374] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 3-06.
[375] Maguire “Consistency in Sentencing” [2010] JSIJ 14.
[376] Law Reform Commission Consultation Paper on Sentencing
(LRC CP 2-1993).
[377] Ibid at paragraph 3.21.
[378] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 3-15.
[379] Law Reform Commission Consultation Paper on Sentencing
(LRC CP 2-1993) at paragraph 3.22.
[380] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 34-09ff.
[381] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph at paragraph 3-10.
[382] Ibid at paragraph 3-15.
[383] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 3-15; Young and Browning “New
Zealand’s Sentencing Council” [2008] Crim LR 287 at 289.
[384] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at 58-59.
[385] 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.
[386] Young and Browning “New Zealand’s Sentencing Council”
[2008] Crim LR 287 at 289.
[387] Ibid.
[388] Ibid.
[389] Young and Browning “New Zealand’s Sentencing Council”
[2008] Crim LR 287 at 289.
[390] Law Reform Commission Consultation Paper on Sentencing (LRC
CP 2-1993) at paragraph 3.24.
[391] [1988] IR 250.
[392] Section 29 of the Courts of Justice Act 1924.
[393] [1988] IR 250, 254.
[394] [1988] IR 250, 255.
[395] Ibid at 253.
[396] Conroy & Gunning “The Irish Sentencing Information
System (ISIS): A Practical Guide to a Practical Tool” [2009] 1
JSIJ 37 at 38.
[397] Conroy & Gunning “The Irish Sentencing Information
System (ISIS): A Practical Guide to a Practical Tool” [2009] 1
JSIJ 37 at 38.
[398] Conroy & Gunning “The Irish Sentencing Information
System (ISIS): A Practical Guide to a Practical Tool” [2009] 1
JSIJ 37 at 38.
[399] Conroy & Gunning “The Irish Sentencing Information
System (ISIS): A Practical Guide to a Practical Tool” [2009] 1
JSIJ 37 at 53.
[400] Report of
the Thornton Hall Project Review Group 2011.
[401] Ibid at 72.
[402] Report of
the Thornton Hall Project Review Group 2011
at 73.
[403] Ibid.
[404] Ibid at 74.
[405] Report of
the Working Group on the Jurisdiction of the Courts 2003.
[406]
http://www.courts.ie/Courts.ie/Library3.nsf/16c93c36d3635d5180256e3f003a4580/0dcce31243771e6680256e270055011b?OpenDocument
[407] Report of
the Committee on Judicial Conduct and Ethics (Government Publications, 2000) at 1.
[408] Ibid at 52-53.
[409] Report of
the Committee on Judicial Conduct and Ethics (Government Publications, 2000) at 52.
[410] Ibid at 57.
[411] Sixth
Report of the Working Group on a Courts Commission 1998 (Government Publications, 1999).
[412] Ibid at 175-176.
[413] Law Reform Commission Report on Sentencing (LRC
53-1996).
[414] Law Reform Commission Report on Sentencing (LRC
53-1996).
[415] Ibid at paragraph 2.22.
[416] Ibid.
[417] Law Reform Commission Report on Sentencing (LRC
53-1996) at paragraph 2.25.
[418] Law Reform Commission Report on Sentencing (LRC
53-1996).
[419] The General Scheme of the Judicial Council Bill
is available at: http://www.justice.ie/en/JELR/General%20Scheme%20Judicial%20Bill.pdf/Files/General%20Scheme%20Judicial%20Bill.pdf.
[420] “Interim Judicial Council to be set up”, The Irish
Times, 19 November 2011.
[421] Section 142(1) of the Criminal Justice Act 2003. Section
142(2) provides that these purposes do not apply in certain situations while
section 142A makes special provision for offenders who are under 18 years of
age.
[422] Section 143 of the Criminal Justice Act 2003.
[423] Section 143(1) of the Criminal Justice Act 2003.
[424] Section 143(2) of the Criminal Justice Act 2003.
[425] Section 143(3) of the Criminal Justice Act 2003.
[426] Section 144 of the Criminal Justice Act 2003.
[427] Section 144(1) of the Criminal Justice Act 2003.
[428] Section 144(2) of the Criminal Justice Act 2003.
[429] Section 145 of the Criminal Justice Act 2003.
[430] Section 146 of the Criminal Justice Act 2003.
[431] Section 147 to section 151 of the Criminal Justice Act
2003.
[432] Section 152 to section 155 of the Criminal Justice Act
2003.
[433] Section 156 to
section 160of the Criminal Justice Act 2003.
[434] Section 162 to section 165 of the Criminal Justice Act
2003.
[435] Section 177 to section 180 of the Criminal Justice Act
2003.
[436] Section 181 to section 182 of the Criminal Justice Act
2003.
[437] Section 183 to section 186 of the Criminal Justice Act
2003.
[438] Section 187 to section 186 of the Criminal Justice Act
2003.
[439] Section 189 to section 194 of the Criminal Justice Act
2003.
[440] Section 215 of the Criminal Justice Act 2003.
[441] Section 224 to section 236 of the Criminal Justice Act
2003.
[442] Section 240 to section 243 of the Criminal Justice Act
2003.
[443] Section 244 to section 256A of the Criminal Justice Act
2003.
[444] Section 263 to section 265 of the Criminal Justice Act
2003.
[445] Chapter 7 of the Criminal Justice Act 2003.
[446] Section 278 of the Criminal Justice Act 2003.
[447] Section 279 of the Criminal Justice Act 2003.
[448] Section 280 to section 285 of the Criminal Justice Act
2003.
[449] Section 287 to section 293 of the Criminal Justice Act
2003.
[450] Section 294 to section 297 of the Criminal Justice Act
2003.
[451] Section 298 of the Criminal Justice Act 2003.
[452] Part 3 to Part 8C of the Crimes (Sentencing Procedure) Act
1999.
[453] Section 5(1) of the Sentencing Act.
[454] Section 5(2) to section 5(4) of the Sentencing Act.
[455] Section 9(1)
of the Penalties
and Sentences Act 1992.
[456] Section 9(2) to section 9(9) of the Penalties and Sentences
Act 1992.
[457] Section 11 of the Penalties and Sentences Act 1992.
[458] Section 13 of the Penalties and Sentences Act 1992.
[459] Section 13A of the Penalties and Sentences Act 1992.
[460] Section 29A of the Criminal Law (Sentencing) Act 1988.
[461] Section 29B of the Criminal Law (Sentencing) Act 1988.
[462] Sentencing Final Report No 11 (Tasmania Law Reform Institute, 2008).
[463] Ibid at 85.
[464] Sentencing Final Report No 11 (Tasmania Law Reform Institute, 2008)
at 88.
[465] Ibid at 92.
[466] Ibid at 95.
[467] Section 5(1) of the Sentencing Act 1991.
[468] Section 5(2) of the Sentencing Act 1991.
[469] Section 68(2) of the Judiciary Act 1903.
[470] Australian Law Council
http://www.lawcouncil.asn.au/programs/criminal-law-human-rights/criminal-law/sentencing.cfm
(accessed 11.10.11).
[471] Same Crime,
Same Time - Sentencing of Federal Offenders
Report 103 (Australian Law Reform Commission, 2006).
[472] Ibid at 27.
[473] Ibid at 29.
[474] Ibid at 29-30.
[475] Ibid at 30-32.
[476] Section 6 of the Sentencing (Amendment) Act 2007.
[477] Section 12 of the Sentencing Act
2002, as amended, creates a strong
presumption in favour of reparation.
[478] Section 7(1) of the Sentencing Act 2002, as
amended. Section 7(2) provides that to avoid
doubt, nothing about the order in which the purposes appear implies that any
purpose referred to must be given greater weight than any other purpose
referred to.
[479] As indicated by the maximum penalties prescribed for the
offences.
[480] Unless circumstances relating to the offender make that
inappropriate.
[481] Unless circumstances relating to the offender make that
inappropriate.
[482] Section 8 of the Sentencing Act 2002, as
amended.
[483] Section 9 and section 9A the Sentencing Act 2002,
as amended.
[484] Section 10 of the Sentencing Act 2002, as
amended.
[485] Section 10A of the Sentencing Act 2002, as
amended. Sections 19 to section 21 provide
guidance on permitted combinations of sentences. Section 22 to section 23
restrict the use of cumulative sentences. Part 2 sets out the procedure
relating to the various sentences. Section 86A-I provides for additional
consequences for repeated serious violent offending. Section 87 to section 90
deal with preventive detention
[486] Section 16(1) of the Sentencing Act 2002, as
amended.
[487] Section 16(2) of the Sentencing Act 2002, as
amended. Section 16(3) provides that section
16 is subject to any provision in this or any other enactment that (a) provides
a presumption in favour of or against imposing a sentence of imprisonment in
relation to a particular offence; or (b) requires a court to impose a sentence
of imprisonment in relation to a particular offence.
[488] Section 17 of the Sentencing Act 2002, as
amended.
[489] Section 21A of the Sentencing Act 2002, as
amended.
[490] Section 31(1A) of the Sentencing Act 2002, as
amended.
[491] See Chapter 2.
[492] Part XXIII of the Canadian Criminal Code.
[493] Section 718 of the Canadian Criminal Code. However,
section 718.01 provides that when a court imposes a sentence for an offence
that involved the abuse of a person under the age of eighteen years, it shall
give primary consideration to the objectives of denunciation and deterrence
of such conduct. Similarly, section 718.02 provides that when a court imposes a
sentence for an offence under subsection 270(1), section 270.01 or 270.02 or
paragraph 423.1(1)(b), the court shall give primary consideration to the
objectives of denunciation and deterrence of the conduct that forms the basis
of the offence.
[494] Section 718.1 of the Canadian Criminal Code.
[495] Section 718.2 of the Canadian Criminal Code.
[496] Section 717 of the Canadian Criminal Code.
[497] Section 718.21 of the Canadian Criminal Code.
[498] Section 718.3 of the Canadian Criminal Code.
[499] Section 730 of the Canadian Criminal Code.
[500] Section 731 of the Canadian Criminal Code.
[501] Section 734 of the Canadian Criminal Code.
[502] Section 738 of the Canadian Criminal Code.
[503] Section 742 of the Canadian Criminal Code.
[504] Section 743 of
the Canadian Criminal Code.
[505] Section 743.6 of the Canadian Criminal Code.
[506] Section 745 of the Canadian Criminal Code.
[507] Section 748 of the Canadian Criminal Code.
[508] Part 4 of the Youth Criminal Justice Act 2002.
[509] Section 38(1) of the Youth Criminal Justice Act 2002.
[510] Section 38(2) of the Youth Criminal Justice Act 2002.
[511] Section 38(3) of the Youth Criminal Justice Act 2002.
[512] Section 39(1) of the Youth Criminal Justice Act 2002.
[513] Section 39(2) of the Youth Criminal Justice Act 2002.
[514] Section 39(3) of the Youth Criminal Justice Act 2002.
[515] Section 39(9) of the Youth Criminal Justice Act 2002.
[516] Law Reform
Commission Report on Sentencing (LRC 53-1996).
[517] See, generally,
O’Malley, Sentencing: Towards a Coherent System (Thomson Reuters, 2011),
and O’Malley “Creativity and Principled Discretion over Sentencing a
Necessity”, The Irish Times, 19 December 2011.
[518] Section 2 of the Criminal Justice Act 1990.
[519] Section 3 and section 4 of the Criminal Justice Act
1990.
[520] See O’Malley “Sentencing Murderers: The Case for
Relocating Discretion” (1995) 5(1) ICLJ 31 at 32 ff for a comprehensive
account.
[521] When the Irish Free State came into existence in 1922, the
Offences Against the Person Act 1861 was carried into Irish law by
Article 73 of the Constitution. The death penalty also applied to the crimes of
treason, section 1(1) of the Treason Act 1939, and piracy, section 3 of
the Piracy Act 1837.
[522] Article 13.6 of the Constitution.
[523] Sections 124, 125, 127 and 128 of the Defence Act 1954.
[524] Article 15.5.2 provides: “The Oireachtas shall not enact
any law providing for the imposition of the death penalty.”
[525] 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 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.
[526] People
(DPP) v Kelly [2005]
1 ILRM 19.
[527] People
(DPP) v Kelly [2005]
1 ILRM 19, 29-30. Hardiman J cites State (Healy) v Donoghue [1976]
IR 325; People (Attorney General) v O’Driscoll (1972) 1 Frewen 351; and People
(DPP) v M [1994] 3 IR 306 in relation to rehabilitation.
[528] O’Malley “Sentencing Murderers: The Case for Relocating Discretion”
(1995) 5(1) ICLJ 31 at 34.
[529] Dáil Debates, Written Answers - Crime Levels, Vol. 707 No.
5, Thursday, 29th April 2010, Mr Ahern, paragraph 170.
[530] Dáil Debates,
Written Answers - Crime Levels, Vol. 707 No. 5, Thursday, 29th April
2010, Mr Ahern, paragraph 170.
[531] O’Malley “The Ends of Sentence: Imprisonment and Early
Release Decisions in Ireland” (Paper delivered at Fitzwilliam College,
Cambridge, June 2008 and published in Padfield, van Zyl Smith and Dunkel (eds) Release
from Prison: European Policy and Practice (Willan Publishing, UK, January
2010)) at 3.
[532] Section 23(1) of the Criminal Justice Act 1951:
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... Howard argues that the
frequent exercise of clemency by the executive is a virtually certain
consequence of the imposition of mandatory sentences.
[533] Section 23(1) of the Criminal Justice Act 1951 was
amended by section 9 of the Criminal Justice Act 1990 which deleted the
words “except in capital cases” thereby extending the Government’s right to
commute or remit a prisoner’s sentence in any type of case.
[534] O’Malley “The Ends of Sentence: Imprisonment and Early
Release Decisions in Ireland” (Paper delivered at Fitzwilliam College,
Cambridge, June 2008 and published in Padfield, van Zyl Smith and Dunkel (eds) Release
from Prison: European Policy and Practice (Willan Publishing, UK, January
2010)) at 3.
[535] O’Malley “The Ends of Sentence: Imprisonment and Early
Release Decisions in Ireland” (Paper delivered at Fitzwilliam College,
Cambridge, June 2008 and published in Padfield, van Zyl Smith and Dunkel (eds) Release
from Prison: European Policy and Practice (Willan Publishing, UK, January
2010)) at 8.
[536] Re Royal
Prerogative of Mercy upon Deportation Proceedings [1933] SCR 269 and R v Veregin [1933] 2 DLR 362;
O’Malley “The Ends of Sentence: Imprisonment and Early Release Decisions in
Ireland” (Paper delivered at Fitzwilliam College, Cambridge, June 2008 and
published in Padfield, van Zyl Smith and Dunkel (eds) Release from Prison:
European Policy and Practice (Willan Publishing, UK, January 2010)) at 5
and 8.
[537] Rule 59(3) of the Prison Rules 2007. The Criminal
Justice (Miscellaneous Provisions) Act 1997 and the Prisons Act 2007
empower the Minister for Justice to make rules for the regulation and good
government of prisons. Section 35(2)(f) of the Prisons Act 2007 provides
that such rules may provide for remission.
[538] Rule 38(1) of the Prison Rules 1947 provides that a
convicted prisoner sentenced to imprisonment for one month or more is entitled
to remission of up to one fourth of his or her sentence for good behaviour. The
Prison Rules 1947 were made under the authority of the Prisons
(Ireland) Act 1907.
[539] O’Malley “The Ends of Sentence: Imprisonment and Early
Release Decisions in Ireland” (Paper delivered at Fitzwilliam College,
Cambridge, June 2008 and published in Padfield, van Zyl Smith and Dunkel (eds) Release
from Prison: European Policy and Practice (Willan Publishing, UK, January
2010)) at 7.
[540] Section 2 of the Criminal Justice Act 1960: The
Minister 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.
[541] Section 2 of the Criminal Justice Act 1960 was
amended by section 1 of the Criminal Justice (Temporary Release of
Prisoners) Act 2003, which sets out the matters that 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 significant to this discussion.
[542] O’Malley “The Ends of Sentence: Imprisonment and Early
Release Decisions in Ireland” (Paper delivered at Fitzwilliam College,
Cambridge, June 2008 and published in Padfield, van Zyl Smith and Dunkel (eds) Release
from Prison: European Policy and Practice (Willan Publishing, UK, January
2010)) at 9.
[543] O’Malley “The Ends of Sentence: Imprisonment and Early
Release Decisions in Ireland” (Paper delivered at Fitzwilliam College,
Cambridge, June 2008 and published in Padfield, van Zyl Smith and Dunkel (eds) Release
from Prison: European Policy and Practice (Willan Publishing, UK, January
2010)) at 10.
[544] Annual
Report 2009 (Parole Board, 2010) at page
11.
[545] See Address by Mr Michael McDowell TD, Minister for
Justice, Equality and Law Reform, at the First Edward O’Donnell McDevitt Annual
Symposium - “Sentencing in Ireland” 28 February 2004, in which the Minister
indicated that he would not consider a case for early release unless 12 to 15
years had been served.
[546] These include treason and attempted treason; “capital
murder” and attempted “capital murder”; possession of drugs contrary to section
27(3A) or section 27(3B) of the Misuse of Drugs Act 1977, as amended by
section 5 of the Criminal Justice Act 1999.
[547] Section 2 of the Criminal Justice Act 1960, as
amended by section 1 of the Criminal Justice (Temporary Release of
Prisoners) Act 2003.
[548] Section 1 of the Criminal Justice (Temporary Release of
Prisoners) Act 2003.
[549] Section 2(2)(b) of the Criminal Justice Act 1960,
as amended by section 1 of the Criminal Justice (Temporary Release of
Prisoners) Act 2003.
[550] See Report on the Penalties for Murder (Lord Emslie
Committee, 1972) at 96; and the Report on the Penalty for Murder
(Criminal Law Revision Committee, 1973) at 19.
[551] Criminal
Justice Act 1960 as amended by the Criminal
Justice (Temporary Release of Prisoners) Act 2003.
[553] [1963] IR 170.
[554] Whelan and
Another v Minister for Justice Equality and Law Reform [2010]
IESC 34.
[555] Whelan and
Another v Minister for Justice Equality and Law Reform [2010]
IESC 34.
[556] Whelan and
Another v Minister for Justice Equality and Law Reform [2010]
IESC 34.
[558] Whelan and
Another v Minister for Justice, Equality and Law Reform [2010]
IESC 34.
[560] Pursuant to section 5(1) of the European Convention on
Human Rights Act 2003.
[561] Article 3: No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.
[563] Whelan and
Another v Minister for Justice, Equality and Law Reform [2010]
IESC 34. See also Kafkaris v Cyprus (2009)
49 EHRR 35, paragraphs 98-99.
[564] 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...
[565] 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.
[566] This echoes the view taken by the Irish Human Rights
Commission in its Report into the Determination of Life Sentences (IHRC,
2006) at 3.
[568]
Kafkaris v Cyprus (2009)
49 EHRR 35, paragraph 121.
[569] 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...
[570] Address by Mr Michael McDowell TD, Minister for Justice,
Equality and Law Reform at the First Edward O’Donnell McDevitt Annual Symposium
- “Sentencing in Ireland” 28 February 2004.
[571] McCutcheon and Coffey “Life Sentences in Ireland and the
European Convention on Human Rights (2006) Irish Yearbook of International
Law 101.
[572] McCutcheon and Coffey “Life Sentences in Ireland and the
European Convention on Human Rights (2006) Irish Yearbook of International
Law 101 at 103.
[574] Weeks v
United Kingdom (1988)
10 EHRR 293, paragraph 38.
[575] Weeks v
United Kingdom (1988)
10 EHRR 293, paragraph 40.
[576] Weeks v
United Kingdom (1988)
10 EHRR 293, paragraph 51.
[577] Weeks v
United Kingdom (1988)
10 EHRR 293, paragraph 61.
[578] McCutcheon and Coffey “Life Sentences in Ireland and the
European Convention on Human Rights (2006) Irish Yearbook of International
Law 101 at 104.
[579] (1995) 19 EHRR 333.
[580] Wynne v
United Kingdom (1995) 19 EHRR 333,
paragraph 31.
[582] Wynne v
United Kingdom (1995) 19 EHRR 333,
paragraph 36.
[583] Wynne v
United Kingdom (1995) 19 EHRR 333,
paragraph 35.
[585] Thynne,
Wilson and Gunnell v United Kingdom (1991)
13 EHRR 666, paragraph 64.
[586] Thynne,
Wilson and Gunnell v United Kingdom (1991)
13 EHRR 666, paragraph 78.
[587] McCutcheon and Coffey “Life Sentences in Ireland and the
European Convention on Human Rights (2006) Irish Yearbook of International
Law 101 at 104.
[589] Hussain v
United Kingdom (1996)
22 EHRR 1, paragraph 47.
[590] Hussain v
United Kingdom (1996)
22 EHRR 1, paragraph 50.
[591] Hussain v
United Kingdom (1996)
22 EHRR 1, paragraph 51.
[592] Hussain v
United Kingdom (1996)
22 EHRR 1, paragraph 52.
[593] Hussain v
United Kingdom (1996)
22 EHRR 1, paragraph 53.
[594] Hussain v
United Kingdom (1996)
22 EHRR 1, paragraph 54.
[595] Hussain v
United Kingdom (1996)
22 EHRR 1, paragraph 54.
[596] Hussain v
United Kingdom (1996)
22 EHRR 1, paragraph 54.
[597] McCutcheon and Coffey “Life Sentences in Ireland and the
European Convention on Human Rights (2006) Irish Yearbook of International
Law 101 at 105.
[599]
V and T v United Kingdom (2000)
30 EHRR 121, paragraph 111.
[600]
V and T v United Kingdom (2000)
30 EHRR 121, paragraph 114.
[601]
V and T v United Kingdom (2000)
30 EHRR 121, paragraph 114.
[603] McCutcheon and Coffey “Life Sentences in Ireland and the
European Convention on Human Rights (2006) Irish Yearbook of International
Law 101 at 105.
[604] Stafford v
United Kingdom (2002)
35 EHRR 32, paragraph 57.
[605] Stafford v
United Kingdom (2002)
35 EHRR 32, paragraph 58.
[606] Stafford v
United Kingdom (2002)
35 EHRR 32, paragraph 59.
[607] Stafford v
United Kingdom (2002)
35 EHRR 32, paragraph 59.
[608] Stafford v
United Kingdom (2002)
35 EHRR 32, paragraph 85.
[609] Stafford v
United Kingdom (2002)
35 EHRR 32, paragraph 85.
[610] Stafford v
United Kingdom (2002)
35 EHRR 32, paragraph 86.
[611] Stafford v
United Kingdom (2002)
35 EHRR 32, paragraph 81.
[612] Stafford v
United Kingdom (2002)
35 EHRR 32, paragraph 87.
[613] Stafford v
United Kingdom (2002)
35 EHRR 32, paragraph 87.
[614] Stafford v
United Kingdom (2002)
35 EHRR 32, paragraph 79.
[616] Kafkaris v Cyprus (2009)
49 EHRR 35, paragraphs 80-86.
[617] Kafkaris v Cyprus (2009)
49 EHRR 35, paragraphs 87-95.
[618]
Kafkaris v Cyprus (2009)
49 EHRR 35, paragraph 96.
[619]
Kafkaris v Cyprus (2009)
49 EHRR 35, paragraph 97.
[620]
Kafkaris v Cyprus (2009)
49 EHRR 35, paragraph 98.
[621] Kafkaris v Cyprus (2009)
49 EHRR 35, 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.
[622] Kafkaris v Cyprus (2009)
49 EHRR 35, paragraph 108.
[623] Kafkaris v Cyprus (2009)
49 EHRR 35, paragraphs 104-105.
[624] 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.
[625] Kafkaris v Cyprus (2009)
49 EHRR 35, paragraphs 111-112.
[626] Kafkaris v Cyprus (2009)
49 EHRR 35, paragraphs 113-116.
[627] Kafkaris v Cyprus (2009)
49 EHRR 35, paragraph 120.
[628] Kafkaris v Cyprus (2009)
49 EHRR 35, paragraph 121.
[629] Kafkaris v Cyprus (2009)
49 EHRR 35, paragraph 123.
[630] Kafkaris v Cyprus (2009)
49 EHRR 35, paragraph 124.
[631] Kafkaris v Cyprus (2009)
49 EHRR 35, paragraph 125.
[632] Kafkaris v
Cyprus (2009)
49 EHRR 35, 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.
[633] Kafkaris v
Cyprus (2009)
49 EHRR 35, paragraph 100.
[634] Kafkaris v
Cyprus (2009)
49 EHRR 35, paragraph O-I8, concurring opinion of Judge Bratza.
[635] The definition of murder contrary to section 3 of the 1990
Act is almost identical to the definition of capital murder.
[636] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at 244.
[637] Dáil Debates, Criminal Justice (No.2) Bill 1990: Committee
and Final Stages, Vol. 339 No. 10, p.22, 12 June 1990 (Minister for Justice).
[638] People
(DPP) v Murray [1977] 1 IR 360, 378 (Walsh
J). Similar comments were made by Henchy J and Griffin J.
[639] O’Malley Sentencing Law and Practice (Thomson Round
Hall, 2nd ed, 2006) at paragraph 10.04.
[640] Dáil Debates, Criminal Justice (No.2) Bill 1990: Committee
and Final Stages, Vol. 339 No. 10, p.22, 12 June 1990 (Minister for Justice).
[641] Review of
the Criminal Justice System in Northern Ireland (Criminal Justice Review Group, 2000).
[642] Consultation
on the Review of the Sentencing Framework in Northern Ireland (Northern Ireland Office, 2005).
[643] Annual
Report 2009-2010 (Parole Commissioners of
Northern Ireland, 2010) at page 4 ff.
[644] Article 3 of the Life Sentences (Northern Ireland)
Order 2001.
[645] Article 46(1) of the Criminal Justice (Northern Ireland)
Order 2008 substituted the name “Parole Commissioners” for “Life Sentence
Commissioners”
[646] Slapper and Kelly The English Legal System: 2009-2010
(Taylor and Francis, 2009 at 513.
[647] Article 6(4) of the Life Sentences (Northern Ireland)
Order 2001.
[648] Article 28(2) of the Criminal Justice (Northern
Ireland) Order 2008.
[649] Section 24 of the Northern Ireland Act 1998 (Devolution
of Policing and Justice Functions) Order 2010.
[650] 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.
[651] Section 3(3) of the Murder (Abolition of the Death
Penalty) Act 1965 provides that the Act does not apply to Northern Ireland.
[652] Section 269(1) of the Criminal Justice Act 2003
provides that section 269 applies where after the commencement of the
section a court passes a life sentence in circumstances where the sentence is
fixed by law. See Slapper and Kelly The English Legal System: 2009-2010
(Taylor and Francis, 2009) at 513ff.
[653] Section 28 of the Crime (Sentences) Act 1997, as
amended by section 275 of the Criminal Justice Act 2003.
[654] Section 1(2) of the Murder (Abolition of Death Penalty)
Act 1965.
[655] Blom-Cooper “The Penalty for Murder” (1973) Brit J
Criminology 188 at 188.
[656] Penalty for
Murder (Twelfth Report of the Criminal Law
Revision Committee, 1973).
[657] Penalty for
Murder (Twelfth Report of the Criminal Law
Revision Committee, 1973) at 15.
[658] Penalty for
Murder (Twelfth Report of the Criminal Law
Revision Committee, 1973) at 17.
[659] Penalty for
Murder (Twelfth Report of the Criminal Law
Revision Committee, 1973) at 18.
[660] Penalty for
Murder (Twelfth Report of the Criminal Law
Revision Committee, 1973) at 19.
[661] Penalty for
Murder (Twelfth Report of the Criminal Law
Revision Committee, 1973) at 10.
[662] Governance
of Britain - Review of the Executive Royal Prerogative Powers: Final Report (Ministry of Justice, 2009) at page 15.
[663] Governance
of Britain - Review of the Executive Royal Prerogative Powers: Final Report (Ministry of Justice, 2009) at page 15.
[664] Governance
of Britain - Review of the Executive Royal Prerogative Powers: Final Report (Ministry of Justice, 2009) at page 15.
[665] Governance
of Britain - Review of the Executive Royal Prerogative Powers: Final Report (Ministry of Justice, 2009) at page 16.
[666] Governance
of Britain - Review of the Executive Royal Prerogative Powers: Final Report (Ministry of Justice, 2009) at page 16-17.
[667] Governance
of Britain - Review of the Executive Royal Prerogative Powers: Final Report (Ministry of Justice, 2009) at page 17. Thus, for example,
section 248 of the Criminal Justice Act 2003 empowers the Secretary of
State to release both determinate and life sentence prisoners on compassionate
grounds.
[668] Tadros “The Scots Law of Murder” in The Law of Murder:
Overseas Comparative Studies (Law Commission, 2005) at pages 87-105.
Sheehan and Dickson Criminal Procedure - Scottish Criminal Law and Practice Series
(LexisNexis Butterworths, 2nd ed, 2003) at page 329.
[669] 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 of the Crime
and Punishment (Scotland) Act 1997 and the Convention Rights
(Compliance) Scotland Act 2001.
[670] 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 of 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.
[671] 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 of the Crime and Punishment (Scotland) Act
1997 and the Convention Rights (Compliance) Scotland Act 2001.
[672] 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 of the Crime and Punishment (Scotland) Act
1997 and the Convention Rights (Compliance) Scotland Act 2001.
[673] The
Penalties for Murder (Report of the Lord
Emslie Committee, 1972).
[674] The
Penalties for Murder (Report of the Lord
Emslie Committee, 1972) at paragraph 92.
[675] The
Penalties for Murder (Report of the Lord
Emslie Committee, 1972) at paragraph 98.
[676] The
Penalties for Murder (Report of the Lord
Emslie Committee, 1972) at paragraph 102.
[677] Governance
of Britain - Review of the Executive Royal Prerogative Powers: Final Report (Ministry of Justice, 2009) at page 17.
[678] 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.
[679] Sheehan and Dickson Criminal Procedure - Scottish
Criminal Law and Practice Series (LexisNexis Butterworths, 2nd
ed, 2003) at paragraph 443.
[680] 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 pages 106-117 at
page 107. Alabama Criminal Code, § 13A-5-39 (definition of capital
offense) and § 13A-5-40 (murder/capital offense); Arizona Criminal Code,
§ 13-751 and §13-752 (procedure) and § 13-1105 (first degree murder); Arkansas
Code (Title 5 Criminal Offenses), § 5-10-101 (capital murder); California
Penal Code, § 190 (first degree murder); Colorado Criminal Code, §
18-1.3-401(4)(a) (classification of felonies), § 18-1.3-1201 and § 18-1.3-1302
and § 18-1.4-102 (procedure) and § 18-3-102 (first degree murder, class 1
felony); Connecticut Penal Code, § 53a-46a (procedure, capital felony,
death penalty), § 53a-54a (murder, definition, penalty) and § 53a-54b (capital
felony, definition); Delaware Code, Title 11 § 4209(a) (first degree
murder); Florida Statutes (Title XLVI Crimes), § 775.082 (capital
felony, death penalty), § 782.04 (first degree murder, capital felony) and §
921.141 (procedure); Georgia Code, § 6-5-1 (murder); Idaho Statutes
(Title 18 Crimes and Punishments), § 18-4004 (first degree murder); Illinois
Unified Code of Corrections, § 5-4.5-20 (first degree murder) and Illinois
Criminal Code, § 9-1 (first degree murder); Indiana Code § 35-42-1-1
(murder, felony), § 35-50-2-3 (murder, death penalty) and § 35-50-2-9
(procedure); Kansas Statutes (Chapter 21 Crimes and Punishments), § 21-3401
(first degree murder, off-grid person felony), § 21-3439 (capital murder,
off-grid person felony), § 21-4622 (capital murder; death penalty) and Section
21-4624 (procedure); Kentucky Penal Code, § 431.060 (felony,
definition), § 507.010 (capital offense, felony), § 507.020 (murder, capital
offense) and § 532.025 (procedure); Louisiana Revised Statutes (Title 14
Criminal Law), § 14:30 (first degree murder); Maryland Code, Crim
Law § 2-201 (first degree murder, death penalty) and § 2-202 (procedure); Mississippi
Code (Title 97 Crimes), § 97-3-21 (capital murder); Missouri Revised
Statutes (Title XXXVIII Crimes and Punishments), § 565.020 (first degree
murder); Montana Annotated Code (Title 45 Crimes), § 45-5-102
(deliberate homicide) and § 46-18-301 to § 46-18-310 (procedure); Nebraska
Revised Statutes § 28-303 (first degree murder); Nevada Revised Statutes
(Title 15 Crimes and Punishments), § 200.030 (first degree murder); New
Hampshire Criminal Code, § 630:1 (capital murder); North Carolina
General Statutes (Chapter 14 Criminal Law), § 14-17 (first degree
murder); Ohio Revised Code (Title [29] XXIX Crimes - Procedure) §
2901.02(B) (aggravated murder, capital offense), § 2903.01 (aggravated murder
defined), § 2903.02 (murder defined), § 2929.02 (aggravated murder, death
penalty) and § 2929.022, § 2929.03 and § 2929.04 (procedure); Oklahoma Penal
Code, § 21-701.9 (first degree murder) and § 21-701.10 (procedure); Oregon
Revised Statutes (Volume 4 Criminal Procedure Crimes), § 163.095
(aggravated murder defined), § 163.105 (aggravated murder) and § 163.150
(procedure); Pennsylvania Consolidated Statutes (Title 18 Crimes and
Offenses), § 1102(a) (first degree murder) and (Title 42 Judiciary and
Judicial Procedure) § 9711 (life); South Carolina Code of Laws (Title
16 Crimes and Offenses), § 16-3-10 (murder defined) and § 16-3-20 (murder);
South Dakota Codified Laws (Title 22 Crimes), § 22-6-1 (class A felony;
death penalty), § 22-16-4 (first degree murder defined), § 22-16-12 (first
degree murder; class A felony) and § 23A-27A-4 (procedure); Tennessee Code
(Title 39 Criminal Offenses), § 39-13-202 (first degree murder) and §
39-13-204 (procedure); Texas Penal Code, § 12.31 (capital felony, death
penalty) and § 19.03 (capital murder, capital felony); Utah Criminal Code,
§ 76-3-206 (capital felony, death penalty), § 76-3-207 (procedure) and §
76-5-202 (aggravated murder, capital felony); Virginia Code (Title 18.2
Crimes and Offenses), § 18.2-10 (class 1 felony, death penalty) and §
18.2-31 (capital murder; class 1 felony); Washington Revised Code (Title
10 Criminal Procedure), § 10.95.030 (aggravated first degree murder); Wyoming
Code (Title 6 Crimes and Offenses), § 6-2-101 (first degree murder)
and § 6-2-102 (procedure); United States Code (Title 18 Crimes and Criminal
Procedure), § 3591 (various types of murder).
[681] Alabama
Criminal Code, § 13A-5-39 (definition of
capital offense, life imprisonment without parole) and § 13-5-40 (murder/capital
offense); Arizona Criminal Code, § 13-751 and §13-752 (procedure, life
or natural life imprisonment) and § 13-1105 (first degree murder, life
imprisonment); Arkansas Code (Title 5 Criminal Offenses), § 5-10-101
(life imprisonment without parole); California Penal Code, § 190 (life
without parole or 25 years to life); Colorado Criminal Code, §
18-1.3-401(4)(a) (life without parole), § 18-1.3-1201 and § 18-1.3-1302 and §
18-1.4-102 (procedure) and § 18-3-102 (first degree murder, class 1 felony); Connecticut
Penal Code, § 53a-35 and § 53a-35a (life without parole) and § 53a-46a
(procedure, capital felony, life without parole); Delaware Code, Title
11 § 4209 (life without parole); Florida Statutes (Title XLVI Crimes), §
775.082 (life without parole), § 782.04 (first degree murder, capital felony)
and § 921.141 (procedure); Georgia Code, § 6-5-1 (life imprisonment with
or without parole); Idaho Statutes (Title 18 Crimes and Punishments),
§ 18-4004 (fixed life sentence or life with minimum term to be served
without parole); Illinois Unified Code of Corrections, § 5-4.5-20
(determinate sentence or natural life), § 5-8-1 (natural life) and § 5-8-2
(determinate term) and Illinois Criminal Code, § 9-1 (first degree
murder); Indiana Code, § 35-42-1-1 (murder, felony), § 35-50-2-3
(determinate term or life without parole) and § 35-50-2-9 (procedure); Kansas
Statutes (Chapter 21 Crimes and Punishments), § 21-3401 (first degree
murder, off-grid person felony), § 21-3439 (capital murder, off-grid person
felony), § 21-4622 (capital murder, life without parole) and Section 21-4624
(procedure); Kentucky Penal Code, § 431.060 (felony, definition), §
507.010 (capital offense, felony), § 507.020 (murder; capital offense) and §
532.025 (procedure, life without parole or life without parole for a minimum
period); Louisiana Revised Statutes (Title 14 Criminal Law), § 14:30
(life without parole); Maryland Code, Crim Law § 2-201 (life
without parole or life) and § 2-202 (procedure); Mississippi Code (Title 97
Crimes), § 97-3-21 (life with or without parole); Missouri Revised
Statutes (Title XXXVIII Crimes and Punishments), § 565.020 (life without
parole); Montana Annotated Code (Title 45 Crimes), § 45-5-102 (life
imprisonment or determinate sentence); Nebraska Revised Statutes, §
28-303 (); Nevada Revised Statutes (Title 15 Crimes and Punishments), §
200.030 (life with or without parole or a determinate term); New Hampshire
Criminal Code, § 630:5 (life without parole); North Carolina General
Statutes (Chapter 14 Criminal Law), § 14-17 (life without parole); Ohio
Revised Code (Title [29] XXIX Crimes - Procedure) § 2929.02 (life with or
without parole); Oklahoma Penal Code, § 21-701.9 (life with or without
parole) and § 21-701.10 (procedure); Oregon Revised Statutes (Volume 4 Criminal
Procedure Crimes), § 163.105 (life with or without parole) and § 163.150
(procedure); Pennsylvania Consolidated Statutes (Title 18 Crimes and
Offenses), § 1102 (first degree murder) and (Title 42 Judiciary and
Judicial Procedure) § 9711 (life); South Carolina Code of Laws (Title
16 Crimes and Offenses), § 16-3-20 (30 years to life or life without
parole); South Dakota Codified Laws (Title 22 Crimes/23A), § 22-6-1
(Class A felony; life), § 22-16-12 (murder; class A felony) and § 23A-27A-4
(procedure); Tennessee Code (Title 39 Criminal Offenses), § 39-13-202
(life with or without parole); Texas Penal Code, § 12.31 (life with or
without parole); Utah Criminal Code, § 76-3-206 (25 years to life or
life without parole) and § 76-5-202 (aggravated murder, capital felony); Virginia
Code (Title 18.2 Crimes and Offenses), § 18.2-10 (class 1 felony, life) and
§ 18.2-31 (capital murder, class 1 felony); Washington Revised Code (Title
10 Criminal Procedure), § 10.95.030 (life without parole); Wyoming Code
(Title 6 Crimes and Offenses), § 6-2-101 (life with or without parole); United
States Code (Title 18 Crimes and Criminal Procedure), § 3591.
[682] Alaska Code
of Criminal Procedure § 12.55.125 (first
degree murder, 20 to 99 years) and Alaska Statutes § 11.41.100 (first
degree murder definition); District of Columbia Official Code (Division IV
Criminal Law and Procedure and Prisoners), § 22-2104 (first degree murder,
30 years to life without parole); Hawaii Penal Code, § 706-656 (first
degree murder, life without parole); Iowa Code (Title XVI Criminal Law and
Procedure), § 707.2 (first degree murder; class A felony) and § 902.1 (life
without parole); Maine Criminal Code, 17-A § 1251 (murder, 25 years to
life); Massachusetts General Laws (Part III Courts, Judicial Officers and
Proceedings in Civil Cases) chapter 265 § 2 (first degree murder: death or
life without parole) but was found to be unconstitutional in Commonwealth v
Colon-Cruz 393 Mass. 150 (1984); Michigan Penal Code, § 750.316
(first degree murder, life); Minnesota Criminal Code, § 609.185 (first
degree murder, life); New Jersey Code of Criminal Justice, § 2C:11-3
(first degree murder, 30 years to life without parole); New Mexico Annotated
Statutes (Chapter 30 Criminal Offenses) § 30-2-1 (first degree murder,
capital felony) and (Chapter 31 Criminal Procedure) § 31-18-4 (capital
felony, life with or without parole); New York Penal Code § 70.00 (class
A felony, life) and § 125.27 (first degree murder, class A felony); North
Dakota Criminal Code, § 12.1-16-01 (murder, class AA felony) and §
12.1-32.1 (class AA felony, life without parole); Rhode Island General Laws
(Title 11 Criminal Offenses), § 11-23-2 (first degree murder, life with or
without parole); Vermont Statutes (Title 13 Crimes and Criminal Procedure),
§ 2303 (first degree murder, 35 years to life without parole); West Virginia
Code (Chapter 61 Crimes and their Punishment) § 61-2-2 (first degree
murder, life); Wisconsin Criminal Code § 939.50(3)(a) (class A felony, life
imprisonment) and § 940.01 (first degree murder, class A felony).
[683] Alabama; Alaska; Arizona; Arkansas; California; Colorado;
Connecticut; Delaware; Florida; Georgia; Hawaii; Idaho; Illinois; Indiana;
Iowa; Kansas; Kentucky; Louisiana; Maine; Maryland; Massachusetts; Michigan;
Minnesota; Mississippi, Missouri; Montana; Nebraska; Nevada; New Hampshire; New
Jersey; New Mexico; New York; North Carolina; North Dakota; Ohio; Oklahoma;
Oregon; Pennsylvania; Rhode Island; South Carolina; South Dakota; Tennessee;
Texas; Utah; Vermont; Virginia; Washington; West Virginia; Wisconsin and
Wyoming.
[684] Kinnevy and Caplan National Surveys of State Parole
Boards: Models of Service Delivery (University of Pennsylvania, 2008) at 7.
[685] United States Parole Commission (federal offences 1st
November 1987; DC Code Offenders 5th August 2000; Uniform Code of
Military Justice offenders; transfer-treaty cases 1st November
1987); Delaware Board of Parole (30th June 1990); Indiana Parole
Board (discretionary parole before and mandatory parole after October 1977);
Kansas Parole Board (1st July 1993); Maine Parole Board (1 May
1976); Mississippi Parole Board (on or after 1st July 1995); North
Carolina Post-Release Supervision and Parole Commission (1st October
1994); Ohio Parole Board (1st July 1996); Oregon Board of Parole and
Post-Prison Supervision (murder/aggravated murder 1st November
1989); Virginia Parole Board (1st January 1995); Washington State
Indeterminate Sentence Review Board (felony offenders 1st July 1984;
certain sex offenders 31st August 2001).
[686] Harris and Redmond “Executive Clemency: The Lethal Absence
of Hope” (Fall, 2007) 3(1) Criminal Law Brief 2.
[687] Harris and Redmond “Executive Clemency: The Lethal Absence
of Hope” (Fall, 2007) 3(1) Criminal Law Brief 2 at 2.
[688] Harris and Redmond “Executive Clemency: The Lethal Absence
of Hope” (Fall, 2007) 3(1) Criminal Law Brief 2 at 8.
[689] Section 2 of Article 2 of the United States
Constitution: “The President shall ... have Power to Grant Reprieves and
Pardons for Offenses against the United States, except in cases of
Impeachment.”
[690] Harris and Redmond “Executive Clemency: The Lethal Absence
of Hope” (Fall, 2007) 3(1) Criminal Law Brief 2 at 8.
[691] Alabama; California; Colorado; Kansas; Kentucky; New
Jersey; New Mexico; New York; North Carolina; Oregon; South Carolina; Virginia;
Washington and Wyoming.
[692] Arizona; Delaware; Florida; Louisiana; Montana; Oklahoma;
Pennsylvania and Texas.
[693] Arkansas; Illinois; Indiana; Maryland; Mississippi;
Missouri; New Hampshire; Ohio; South Dakota and Tennessee.
[694] Connecticut; Georgia; Idaho and Utah.
[695] Section 91(27) of the Constitution Act 1867 (UK).
[696] Holland “Murder and Related Issues: An Analysis of the Law
in Canada” in The Law of Murder: Overseas Comparative Studies (Law
Commission, 2005) at 24.
[697] Holland “Murder and Related Issues: An Analysis of the Law
in Canada” in The Law of Murder: Overseas Comparative Studies (Law
Commission, 2005) at 35-36.
[698] Section 235(1) of the Canadian Criminal Code.
[699] Section 745(a) of the Canadian Criminal Code.
[700] Section 745(b), section 745(b.1) and section 745(c) of the
Canadian Criminal Code.
[701] Section 745.4 of the Canadian Criminal Code.
[702] Section 745.2 of the Canadian Criminal Code.
[703] Trotter “Justice, Politics and the Royal Prerogative of
Mercy: Examining the Self-Defence Review” (2000-2001) 25 Queen’s LJ 339;
Factsheet: Royal Prerogative of Mercy (Parole Board of Canada, January 2001)
accessed at http://www.pbc-clcc.gc.ca/infocntr/factsh/man_14faq-eng.shtml on
15.03.11.
[704] Paragraph II and paragraph XII of the Letters Patent
Constituting the Office of the Governor General in Canada 1947.
[705] Trotter “Justice, Politics and the Royal Prerogative of
Mercy: Examining the Self-Defence Review” (2000-2001) 25 Queen’s LJ 339 at 351.
[706] Trotter “Justice, Politics and the Royal Prerogative of
Mercy: Examining the Self-Defence Review” (2000-2001) 25 Queen’s LJ 339 at 346.
[707] Trotter “Justice, Politics and the Royal Prerogative of
Mercy: Examining the Self-Defence Review” (2000-2001) 25 Queen’s LJ 339 at 348.
[708] Section 748(1) of the Canadian Criminal Code.
[709] Section 748(2) of the Canadian Criminal Code.
[710] Section 748(3) of the Criminal Code.
[711] Trotter “Justice, Politics and the Royal Prerogative of
Mercy: Examining the Self-Defence Review” (2000-2001) 25 Queen’s LJ 339 at 358.
[712] Section 9 of the Criminal Records Act 1985.
[713] Section 691.1
replaced section 690. Trotter observes that the error-correction aspect of
mercy was founded in section 690 which referred to an “application for the
mercy of the Crown”. See Trotter “Justice, Politics and the Royal Prerogative
of Mercy: Examining the Self-Defence Review” (2000-2001) 25 Queen’s LJ 339. The
reference to the “mercy of the Crown” has been omitted from section 691.1.
[714] Section 696.3(3)(a) of the Canadian Criminal Code.
[715] Potas and Walker “Capital Punishment” Trends and Issues
in Crime and Criminal Justice No. 3 (Australian Institute of Criminology,
1987);
[716] Section 2 of the Criminal Code Amendment Act 1922.
[717] Acts
Amendment (Abolition of Capital Punishment) Act 1984.
[718] Section 5(b) of the Crimes (Amendment) Act 1955
(NSW); section 5A of the Statutes Amendment (Capital Punishment Abolition)
Act 1976 (SA); section 4 of the Criminal Code Act 1968 (T); section
2 of the Crimes (Capital Offences) Act 1975 (V).
[719] Sentencing
of Federal Offenders, Issues Paper 29
(Australian Law Reform Commission, 2005) at paragraph 2.3. State and territory
criminal laws cover the vast majority of conduct that requires the censure of
the criminal law.
[720] Section 4 of the Death Penalty Abolition Act 1973 (CW).
[721] It thus abolished the death penalty in all jurisdictions
including the Australian Capital Territory and Northern Territory.
[722] 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.
[723] Divisions 71.2, 115.1, 268.8 and 268.70 of the Criminal
Code Act 1995 (CW).
[724] Section 12(2) of the Crimes Act 1900 (ACT).
[725] Section 18(1) of the Crimes Act 1900 (NSW).
[726] Section 158 of the Criminal Code Act 1924 (T).
[727] Section 3 of the Crimes Act 1958 (V).
[728] Dr Anderson argues that labelling life sentences as
“mandatory” is misleading. See Anderson “Informing the Public about Sentencing”
delivered at the Sentencing Conference 2010, Canberra 6th and 7th
February 2010, accessed at
http://njca.anu.edu.au/Professional%20Development/programs%20by%20year/2010/Sentencing%202010/Papers/Anderson.pdf
on 16th February 2011.
[729] Section 157 of the Criminal Code Act (NT), as
amended by section 17 of the Criminal Reform Amendment Act (No. 2) 2006
(NT).
[730] Section 305 of the Criminal Code Act 1899 (QL).
[731] Section 11 of the Criminal Law Consolidation Act 1935
(SA).
[732] Section 279 of the Criminal Code Act Compilation Act
1913 (WA).
[733] The “non-parole period” is equivalent to the “minimum
term”.
[734] Sections 19AB to 19AK of the Crimes Act 1914 (CWA);
section 65 of the Crimes (Sentencing) Act 2005 (ACT); section 44 of the Crimes
(Sentencing Procedure) Act 1999 (NSW);
section 53A of the Sentencing Act (NT); section 181 of the Corrective
Services Act 2006 (QL) and section 305 of the Criminal
Code Act 1899 (QL); section 32 of the Criminal Law (Sentencing) Act 1988
(SA); section
18 of the Sentencing Act 1997 (T);
section 11 of the Sentencing Act 1991 (V); section 90 of the Sentencing
Act 1995 (WA).
[735] Leader-Elliott “Fault Elements in Murder - A Summary of
Australian Law” in The Law of Murder: Overseas Comparative Studies (Law
Commission, 2005) at 7.
[736] Section 313 (remission), section 314A (pardon) and section
314A (prerogative of mercy) of the Crime (Sentence Administration) Act 2005
(ACT); Section 21D of the Crimes Act 1914 (CW); Section 76 to section 79
of the Crimes (Appeal and Review) Act 2001 (NSW); Section 431 of the Criminal
Code Act (NT); Section 18 and section 672A of the Criminal Code Act 1899
(QL); Section 369 of the Criminal Law Consolidation Act 1935 (SA);
Section 419 of the Criminal Code Act 1924 (T); Section 584 of the Crimes
Act 1958 (V); Section 137 to section 142 of the Sentencing Act 1995
(WA).
[737] Weathered “Pardon Me: Current Avenues for the Correction
of Wrongful Conviction in Australia” (2005-2006) 17(2) Current Issues in
Crim Just 203 at 212; Section 61 of the Australian Constitution; Section
7(1) and section 7(2) of the Australia Act 1986.
[738] Section 76 to section 79 of the Crimes (Appeal and
Review) Act 2001 (NSW).
[739] Section 142 of the Sentencing Act 1995.
[740] Section 3 of the Abolition of the Death Penalty Act
1989 abolished the death penalty in respect of treason while section 5
abolished it in respect of treachery in the armed forces.
[741] For a critique of the Sentencing Act 2002 see
Roberts “Sentencing Reform in New Zealand: An Analysis of the Sentencing Act
2002” (2003) Australian and New Zealand Journal of Criminology; accessed at http://findarticles.com/p/articles/mi_hb3370/is_3_36/ai_n29057975/ on 25th January 2011.
[742] Part 1 of the Sentencing and Parole Reform Act 2010.
[743] Section 102(1) of the Sentencing Act 2002.
[744] Section 102(2) of the Sentencing Act 2002.
[745] 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 repeated
serious violent offending.
[746] See section 84 and section 85 of the Parole Act 2002
regarding “non-parole periods”.
[747] Section 61 of the Parole Act 2002.
[748] Section 41(1) of the Parole Act 2002.
[749] Trendle “The Royal Prerogative of Mercy - A Review of New
Zealand Practice” (Ministry of Justice, 2003); Article 11 of the Letters
Patent Constituting the Office of Governor-General.
[750] Section 407 of the Crimes Act 1961. By contrast to
the position in England, a pardon is not granted on the basis that the
Executive accepts that the convicted person committed the offence but forgives
him or her.
[751] Article 11 of the Letters Patent Constituting the
Office of Governor-General.
[752] The Commission acknowledges that the reference to
“mandatory sentencing” might have been meant to include “presumptive
sentencing”.
[753] For a contrary view, see O’Malley “Sentencing Murderers:
The Case for Relocating Discretion” (1995) 5(1) ICLJ 31; and Cooney “Criminal
Due Process and the Definition of Crime” (June, 1983) Gazette of the
Incorporated Law Society of Ireland 117.
[755] [1969] IR 385.
[756] [1969] IR 385, 403-404.
[757] [1963] IR 170.
[758] [1963] IR 170, 181.
[759] O’Malley
“Further Observations on DPP v Connolly” 22 February 2011 Ex Tempore blog.
[760] Section 12 of the Criminal Justice (Theft and Fraud
Offences) Act 2001.
[761] Section 13(1) Criminal Justice (Theft and Fraud Offences) Act
2001 provides that a person is guilty of aggravated burglary if
he or she commits any burglary and at the time has with him or her any firearm
or imitation firearm, any weapon of offence or any explosive.
[762] Section 13 of the Criminal Justice (Theft and Fraud
Offences) Act 2001.
[763] See R v McInerney [2003] 2 Cr App R (S) 39, p 240;
Sentencing Advisory Panel Guideline on Burglary; and People (DPP) v Mullen
Court of Criminal Appeal 17 December 2002.
[764] Section 15A and
section 15B of the Misuse of Drugs Act 1977.
[765] Section 15 of
the Misuse of Drugs Act 1977.
[766] Section 27(a) of
the Misuse of Drugs Act 1977 provided that an offender, on summary
conviction, would be liable to a fine of £250 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 £3,000 and/or a maximum term of 14 years.
[767] Criminal Justice
(Drug Trafficking) Bill 1996: Committee Stage, Select Committee on Legislation
and Security Debate, Tuesday, 18 June 1996, Mr John O’Donoghue TD.
[768] 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 £1,000 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.
[769] Section 4 of the
Criminal Justice Act 1999.
[770] Section 27(3B)
inserted by section 5 of the Criminal Justice Act 1999.
[771] Section 1 of the
Euro Changeover (Amounts) Act 2001 converted this amount to €13,000.
[772]
Irish Current Law Statutes Annotated 1999 at 10-05.
[773] Section 3(2) of
the Crime (Sentences) Act 1997.
[774] Section 81 of
the Criminal Justice Act 2006.
[775] Section 82 of
the Criminal Justice Act 2006.
[776] Section 84 of
the Criminal Justice Act 2006.
[777] 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, 127-132; First
Report of the Ministerial Task Force on Measures to Reduce Demand for Drugs
1996 at 6-15 and 25-26.
[778] 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, 128.
[779]
First Report of the Ministerial Task Force on Measures to Reduce
Demand for Drugs 1996 at 12.
[780] Adjournment Debate
- Importation of Illegal Drugs, Dáil Debates, Vol 458 No 1, Thursday, 9
November 1995; 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;
Editorial “Divisions in Drugs Response” Irish Times, 11 December 1995;
[781] 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, 129.
[782] Private Members’
Business: Drug Abuse: Motion Dáil Debates, Vol 452 No 8, Tuesday, 16 May 1995,
Ms Liz O’Donnell TD, Progressive Democrats Spokesperson for Justice.
[783] Private Members’
Business: Drug Abuse: Motion Dáil Debates, Vol 453 No 1, Wednesday, 17 May
1995, Mr Des O’Malley TD.
[784] Criminal Justice
(Drug Trafficking) Bill 1996: Committee Stage, Select Committee on Legislation
and Security Debate, Tuesday, 18 June 1996, Mr John O’Donoghue TD, Fianna Fáil
Spokesperson for Justice.
[785] Criminal Justice
(Drug Trafficking) Bill 1996: Committee Stage, Select Committee on Legislation
and Security Debate, Tuesday, 18 June 1996.
[786] Killing of
Dublin Journalist: Statements Dáil Debates, Vol 467 No 5, Wednesday, 26 June
1996; Kennedy “Stunned Political Leaders see Killing as Attack on Democracy”
Irish Times 27 June 1996.
[787] Maher “Time to
move against Freedom of the Criminal” Irish Times 28 June 1996; Cullen “Owen
defends Management of the Drug Crisis” Irish Times 28 June 1996; Fitzgerald
“Inadequacies of Criminal Law must be tackled” Irish Times 29 June 1996; “The
Politics of Crime” Irish Times 29 June 1996; Coghlan “Cool Heads needed to deal
with Drugs Issue” Irish Times 29 June 1996.
[788] 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, 130; “Crime
Bosses had to run for Cover after Murder of Journalist” Irish Times 16 March
2001.
[789] 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; “The Debate on
Crime” Irish Times 6 July 1996.
[790] 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; Kennedy “Cabinet bid to pass
Four Bills on Organised Crime Today” Irish Times 25 July 1996.
[791] Criminal Justice
(No 2) Bill, 1997: Order for Second Stage Seanad Debates, Vol 153 No 1,
Tuesday, 9 December 1997.
[792] Criminal Justice
(No 2) Bill, 1997: Second Stage Seanad Debates, Vol 153 No 1, Tuesday, 9
December 1997.
[793] Criminal Justice
(No 2) Bill, 1997 [Seanad]: Second Stage Dáil Debates, Vol 492 No 3, Thursday,
11 June 1998.
[794] See paragraph
3.10.
[795] 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).
[796] Criminal Justice
Bill 2004: Second Stage Dáil Debates, Vol 597 No 5, Tuesday, 15 February 2005.
[797] Criminal Justice
Bill 2004: Second Stage Dáil Debate, Vol 597 No 5, Tuesday, 15 February 2005.
[798] “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; Browne “Now that would be a Watershed” Irish Times 8 March 2006.
[799] Criminal Justice
Bill 2004: Motion Dáil Debates, Vol 617 No 97, Tuesday, 28 March 2006.
[800] Section 81 of
the Criminal Justice Act 2006.
[801] 1 August 2006; Irish
Current Law Statutes Annotated 2006 at 26-79.
[802] [2007] 2 IR 509.
[803]
People (DPP) v Power Court of Criminal Appeal 22 May 2006.
[804] Section 29 of
the Courts of Justice Act 1924.
[805]
People (DPP) v Power [2007] 2 IR 509, 522.
[806] For example see People
(DPP) v Charles Portlaoise Circuit Court 13 July 2004.
[807] Section 82 of
the Criminal Justice Act 2006.
[808] Section 84 of
the Criminal Justice Act 2006.
[809] Criminal Justice
Bill 2004: Committee Stage (Resumed) Select Committee on Justice, Equality,
Defence and Women’s Rights Debate, Thursday, 11 May 2006.
[810] Criminal Justice
Bill 2004: Committee Stage (Resumed) Select Committee on Justice, Equality,
Defence and Women’s Rights Debate, Thursday, 11 May 2006, Mr McDowell TD.
[811] Section 84 of
the Criminal Justice Act 2006.
[812] Now section
27(3D)(c).
[813] Criminal Justice
Bill 2004: Committee Stage (Resumed) Select Committee on Justice, Equality,
Defence and Women’s Rights Debate, Thursday, 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 proffered by Minister O’Donoghue for the introduction
of presumptive sentencing in respect of offences under section 15A of the Misuse
of Drugs Act 1977.
[814] Criminal Justice
Bill 2004: Committee Stage (Resumed) Select Committee on Justice, Equality,
Defence and Women’s Rights Debate, Thursday, 11 May 2006.
[815] Criminal Justice
Bill 2004: Committee Stage (Resumed) Select Committee on Justice, Equality,
Defence and Women’s Rights Debate, Thursday, 11 May 2006.
[816] 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.
[817] 13 March 2007.
[818] Criminal Justice
Bill 2007: Second Stage Dáil Debates Vol 634, No 2, Thursday 22 March 2007 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; O’Mahony “McDowell’s Battle with Judiciary not Justified” Irish
Times 22 March 2007.
[819] Lally “Only
Three of 57 Drug Dealers got 10-Year Sentence” Irish Times 30 October 2007.
[820] Ashworth
“Changes in Sentencing Law” (1997) Crim LR 1.
[821] Section 1 of the
Euro Changeover (Amounts) Act 2001.
[822] McAuley and
McCutcheon Criminal Liability (Round Hall, Sweet and Maxwell, 2000) at
208-209.
[823] McAuley and
McCutcheon Criminal Liability (Round Hall, Sweet and Maxwell, 2000) at
208.
[824] [1966] IR 69.
[825] [1966] IR 69 at
73. Cited with approval by the Court of Criminal Appeal in People (DPP) v
Foley [1995] 1 IR 267 at 286.
[828]
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.
[829] Section 15A(5)
of the Misuse of Drugs Act 1977, as amended. See also Dáil Debates, Vol
492, Col 536-637, 11 June 1998.
[830] Section 15A(3)
of the Misuse of Drugs Act 1977, as amended.
[831] Court of
Criminal Appeal 15 October 2010.
[833]
People (DPP) v Connolly [2011]
IESC 6.
[834] The process by
which market value is determined was considered by the Supreme Court in People
(DPP) v Connolly [2011]
IESC 6 and the Court of Criminal Appeal in People (DPP) v
Finnamore [2008]
IECCA 99.
[835] O’Malley
“Further Observations on DPP v Connolly (Part 1 of 3)” 22 February 2011 Ex
Tempore blog: www.extempore.ie.
[836] O’Malley
“Further Observations on DPP v Connolly (Part 1 of 3)” 22 February 2011 Ex
Tempore blog: www.extempore.ie.
[837] O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 341.
[839] O’Malley
“Further Observations on DPP v Connolly (Part 1 of 3)” 22 February 2011 Ex
Tempore blog: www.extempore.ie.
[840] O’Malley
“Further Observations on DPP v Connolly (Part 1 of 3)” 22 February 2011 Ex
Tempore blog www.extempore.ie.
[844] Section 1 of the
Euro Changeover (Amounts) Act 2001.
[845] The elements
which offences under section 15B have in common with offences under section 15A
have already been examined at paragraphs 3.22-3.44 so will not be re-examined
in this section.
[846] In People
(DPP) v Smyth Court of Criminal Appeal 18 May 2010 a consignment of drugs
was found in the DHL compound at Dublin Airport. In People (DPP) v Shekale
Court of Criminal Appeal 25 February 2008 drugs were found in the suitcase of
the applicant, who had been stopped at Dublin Airport having come off a flight
from Amsterdam. In People (DPP) v Farrell [2010]
IECCA 116 a consignment of drugs was found by customs officers at
Rosslare Ferry-Port, in a van being driven by the respondent.
[847] Court of
Criminal Appeal 18 February 2010.
[848] The New Oxford
Dictionary of English (Oxford University Press, 2001) at 918.
[849] 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.
[850] That the court
may impose a sentence greater than 10 years has been confirmed by the Court of
Criminal Appeal. See, for example, People (DPP) v Hogarty Court of
Criminal Appeal 21 December 2001 and People (DPP) v Gilloughly Court of
Criminal Appeal 7 March 2005.
[851] It is to be
expected that the Court of Criminal Appeal would reach a similar finding
regarding the 10-year minimum in the context of offences under section 15B.
[852] Court of
Criminal Appeal 23 November 2001.
[853] Court of
Criminal Appeal 23 November 2001.
[854] See People
(DPP) v Botha [2004] 2 IR 375, 383; and People (DPP) v Ducque [2005]
IECCA 92.
[855] Court of
Criminal Appeal 21 December 2001.
[856] In subsequent
cases the Court of Criminal Appeal has tended to advocate the approach adopted
in Duffy. See People (DPP) v Farrell [2010]
IECCA 116; and People (DPP) v Costelloe Court of Criminal
Appeal 2 April 2009.
[857] Court of
Criminal Appeal, 31 July 2008.
[858] The Court of
Criminal Appeal reached a similar conclusion in People (DPP) v McGrane
Court of Criminal Appeal 8 February 2010, when it observed that it would be
useful, while not essential in terms of an appropriate sentencing procedure, if
the sentencing judge indicated with some clarity where on the scale of
seriousness the particular offence fell.
[859] Court of Criminal
Appeal 18 May 2010.
[860] O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 341.
[861] This is, of
course, relevant to sentences for offences under section 15B as well.
[862] Formerly,
section 27(3C).
[863] Formerly,
section 27(3B).
[864] [2004] 2 IR 375
at 384.
[865]
People (DPP) v Ducque [2005]
IECCA 92.
[866]
People (DPP) v Renald Court of Criminal Appeal 23 November 2001.
[867] Court of
Criminal Appeal 23 July 2003.
[868] Court of
Criminal Appeal 18 November 2002.
[869] Court of
Criminal Appeal 15 May 2002.
[870] Section
27(3C)(b)/27(3D)(b)(ii) of the Misuse of Drugs Act 1977, as amended.
[871] Formerly,
section 27(3C)(a).
[872] Court of Criminal
Appeal, 18 May 2010.
[873] Formerly,
section 27(3C)(a)(i).
[874] Court of
Criminal Appeal 13 July 2009.
[875] Other examples
include People (DPP) v Brodigan Court of Criminal Appeal 13 October
2008; and People (DPP) v Benjamin Court of Criminal Appeal 14 January
2002.
[876] Court of
Criminal Appeal 7 December 2009.
[877] See People
(DPP) v Costelloe Court of Criminal Appeal 2 April 2009; and People
(DPP) v Henry Court of Criminal Appeal 15 May 2002.
[878] Formerly,
section 27(3C)(a)(ii).
[879] Court of
Criminal Appeal, 31 July 2008.
[880] Other examples
include People (DPP) v Delaney Court of Criminal Appeal 21 June 2010; People
(DPP) v Keogh Court of Criminal Appeal, 23 November 2009; People (DPP) v
Kinahan Court of Criminal Appeal 14 January 2008; People (DPP) v
Lernihan Court of Criminal Appeal 18 April 2007; People (DPP) v Ducque
[2005]
IECCA 92; People (DPP) v Galligan Court of Criminal Appeal 23
July 2003; and People (DPP) v Henry Court of Criminal Appeal 15 May
2002.
[884] Court of
Criminal Appeal 23 November 2001.
[885] Other examples
include People (DPP) v Howard and McGrath Court of Criminal Appeal 29
July 2005; People (DPP) v Botha Court of Criminal Appeal 19 January
2004; People (DPP) v Alexiou [2003] 3 IR 513; People (DPP) v Benjamin
Court of Criminal Appeal 14 January 2002; People (DPP) v Hogarty Court
of Criminal Appeal 21 December 2001.
[886] Court of
Criminal Appeal 23 July 2003.
[887] A similar
approach is evident in People (DPP) v Kinahan Court of Criminal Appeal
14 January 2008.
[888] Court of
Criminal Appeal 8 February 2010.
[889] Smith
“Sentencing Section 15A Offences” (2010) 20(1) ICLJ 8; People (DPP) v Duffy
Court of Criminal Appeal 21 December 2001.
[890] Court of
Criminal Appeal 25 February 2008.
[891] 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).
[892] Formerly,
section 27(3C)(b).
[893] Court of
Criminal Appeal 19 February 2008.
[894] Court of
Criminal Appeal 7 December 2009.
[896] Court of
Criminal Appeal 12 March 2009.
[897] The court
appeared to be influenced by the fact that the applicant suffered from ADHD and
Asperger Syndrome.
[898] Court of
Criminal Appeal 21 June 2010.
[899] Court of
Criminal Appeal 13 October 2008.
[900] Similar
information was provided by the applicants in People (DPP) v Botha
[2004] 2 IR 375 and People (DPP) v Rossi and Hellewell Court of Criminal
Appeal 18 November 2002.
[901] Court of
Criminal Appeal 21 December 2001.
[902] Court of
Criminal Appeal 8 February 2010.
[903] Other examples
include People (DPP) v Kinahan Court of Criminal Appeal 14 January 2008;
People (DPP) v Lernihan Court of Criminal Appeal 18 April 2007; People
(DPP) v Ducque [2005]
IECCA 92; People (DPP) v Galligan Court of Criminal Appeal 23
July 2003; and People (DPP) v Henry Court of Criminal Appeal 15 May
2002.
[904] Court of
Criminal Appeal 21 July 2010.
[905] Court of
Criminal Appeal 23 July 2003.
[906] Court of
Criminal Appeal 23 November 2001.
[907] Court of
Criminal Appeal 18 November 2002.
[908] Court of
Criminal Appeal 15 May 2002.
[909] Smith
“Sentencing Section 15A Offences” (2010) 20(1) ICLJ 8 ff.
[910] Court of
Criminal Appeal 18 May 2010.
[911] Similar
observations were made by the Court of Criminal Appeal in People (DPP) v
Nelson Court of Criminal Appeal 31 July 2008.
[912]
People (DPP) v Kinahan Court of Criminal Appeal 14 January 2008.
[913] Smith
“Sentencing Section 15A Offences” (2010) 20(1) ICLJ 8.
[914] Previously,
section 27(3C).
[915] Court of
Criminal Appeal 23 November 2001.
[916] Court of
Criminal Appeal 17 May 2010.
[917] Court of
Criminal Appeal 10 December 2007.
[919] See People
(DPP) v Anderson Court of Criminal Appeal 18 May 2010; People (DPP) v
Murphy Court of Criminal Appeal 18 May 2010; and People (DPP) v Nelson
Court of Criminal Appeal 31 July 2008.
[920] [2003] 3 IR 513.
[921] Court of
Criminal Appeal 12 March 2009.
[922] See section 3
and section 27(1) of the Misuse of Drugs Act 1977.
[923] See section 5
and section 27(3) of the Misuse of Drugs Act 1977.
[924] Dáil Debates,
Vol. 492, Col 884, 1 July 1998.
[925] Court of
Criminal Appeal 23 November 2001.
[926]
People (DPP) v Renald Court of Criminal Appeal 23 November 2001.
[927]
People (DPP) v Farrell [2010]
IECCA 116; People (DPP) v Nelson Court of Criminal Appeal 31
July 2008; People (DPP) v Long Court of Criminal Appeal 31 October 2008;
People (DPP) v Long [2006]
IECCA 49; and People (DPP) v Gilligan (No 2) [2004] 3 IR 87,
92.
[928]
Court of Criminal Appeal 31 October 2008.
[929] Court of
Criminal Appeal 31 October 2008.
[930] Court of
Criminal Appeal 31 October 2008.
[931] See Criminal
Justice Bill 2004: Committee Stage (Resumed) Select Committee on Justice,
Equality, Defence and Women’s Rights Debate, Thursday, 11 May 2006.
[932] 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).
[933]
People (DPP) v Alexiou [2003] 3 IR 513, 518-519.
[934]
People (DPP) v Alexiou [2003] 3 IR 513, 518-519.
[935] [2004] 2 IR 375.
[936] This was cited
in People (DPP) v Ducque [2005]
IECCA 92.
[937] Court of
Criminal Appeal 20 October 2008.
[939] Court of
Criminal Appeal 15 May 2002.
[940] Court of
Criminal Appeal 21 December 2001.
[941] Other examples
include People (DPP) v Keogh Court of Criminal Appeal 23 November 2009; People
(DPP) v Long [2006]
IECCA 49; and People (DPP) v Peyton Court of Criminal Appeal
14 January 2002.
[943] The drugs were
found in a van being driven by the respondent.
[944] Court of
Criminal Appeal 2 April 2009.
[945] A similar view
was expressed by Finnegan J in People (DPP) v McGrane Court of Criminal
Appeal 8 February 2010.
[946]
People (DPP) v Galligan Court of Criminal Appeal 23 July 2003.
[947] Court of
Criminal Appeal 21 December 2001.
[948] Other examples
include People (DPP) v Renald Court of Criminal Appeal 23 November 2001;
and People (DPP) v Benjamin Court of Criminal Appeal 14 January 2002.
[949]
People (DPP) v Galligan Court of Criminal Appeal 23 July 2003.
[950]
Other examples include People (DPP) v McGrane Court of Criminal
Appeal 8 February 2010; and People (DPP) v Keogh Court of Criminal
Appeal 23 November 2009.
[951]
People (DPP) v Botha [2004] 2 IR 375.
[952] See People
(DPP) v Purcell Court of Criminal Appeal 21 June 2010.
[953] Court of
Criminal Appeal 7 December 2009.
[955] Court of
Criminal Appeal 18 May 2010.
[956] Court of
Criminal Appeal 28 April 2008.
[957] Court of
Criminal Appeal 18 May 2010.
[958] Court of
Criminal Appeal 23 November 2009.
[959] The court may
have been influenced by the fact that the applicant had been running a
commercial operation.
[960] Court of
Criminal Appeal 23 November 2001.
[961] Court of
Criminal Appeal 23 November 2001.
[962] Court of
Criminal Appeal 15 May 2002.
[963] Court of
Criminal Appeal 20 October 2008.
[964] Court of
Criminal Appeal 14 January 2008.
[965] Court of
Criminal Appeal 20 January 2003.
[966] In People
(DPP) v Botha [2004] 2 IR 375 the court referred to Vardacardis as a
very exceptional case in which a lower sentence was justified.
[967] Court of
Criminal Appeal 7 December 2009.
[969] Formerly,
section 27(3CC).
[970] Formerly,
section 27(3CC)(a).
[971] 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.”
[972] [2004] 3 IR 87.
[973] [2004] 3 IR 87,
91.
[975] Court of
Criminal Appeal 28 February 2000.
[976] Court of
Criminal Appeal 3 March 2009.
[977] Smith
“Sentencing Section 15A Offences” (2010) 20(1) ICLJ 8.
[978] Formerly,
section 27(3CC)(b).
[979] See paragraph
3.06.
[980] Irish Current
Law Statutes Annotated 2006 at 26-84.
[981] Smith
“Sentencing Section 15A Offences” (2010) 20(1) ICLJ 8.
[983] Court of
Criminal Appeal 21 June 2010.
[984] O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 333.
[985] Formerly,
section 27(3D).
[986]
Formerly, section 27(3E).
[987] Formerly,
section 27(3F).
[988] O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 333.
[989] Now section 15(3J)
after the enactment of section 33 of the Criminal Justice Act 2007.
[990] Formerly,
section 27(3B).
[991] Section 27(3F)
provides that the 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.
[992] Section
27(3J)(a) of the Misuse of Drugs Act 1977, as amended.
[993] Section
27(3J)(b) of the Misuse of Drugs Act 1977, as amended.
[994] Formerly,
section 27(3H).
[996] Court of
Criminal Appeal 18 May 2010.
[997] [2003] 4 IR 87.
[998] O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 334.
[999] O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 334.
[1000] As inserted by
section 84 of the Criminal Justice Act 2006, re-numbered by section 33
of the Criminal Justice Act 2007.
[1001] Court of
Criminal Appeal 10 October 2002.
[1002] In People
(DPP) v Dermody [2007]
2 IR 622, 625, Hardiman J observed that the right of appeal, whether
by the accused or the prosecutor, was an essential safeguard against undue
severity or leniency particularly in the context of offences under section 15A.
[1003] O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 340.
[1004] It is possible
that the same situation could arise with regard to offences under section 15B.
[1005] O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 340-341.
[1006] O’Malley Sentencing
Law and Practice (Thomson Round Hall, 2nd ed, 2006) at 340-341.
[1007] Rand
Corporation “Are Mandatory Minimum Drug Sentences Cost-Effective?” 1997.
[1008] 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 Ex Tempore blog: www.extempore.ie.
[1009] In People
(DPP) v Purcell Court of Criminal Appeal 21 June 2010, Denham J noted that
opinion was divided as to whether the drug offences or the firearms offences in
the case were more serious but that the drug offences carried a prescriptive
minimum term of 10 years whereas the firearms offences carried a prescriptive
term of 5 years.
[1010] Section 57 of
the Criminal Justice Act 2006 replaces section 26 of the Firearms Act
1964.
[1011] Section 59 of
the Criminal Justice Act 2006 replaces section 27A of the Firearms
Act 1964.
[1012] Section 60 of
the Criminal Justice Act 2006 replaces section 27B of the Firearms
Act 1964.
[1013] Section 65 of
the Criminal Justice Act 2006 inserts section 12A into the Firearms
and Offensive Weapons Act 1990.
[1014] Section 42 of
the Criminal Justice Act 2006 replaces section 15 of the Firearms Act
1925.
[1015] Section 58 of
the Criminal Justice Act 2006 replaces section 27 of the Firearms Act
1964.
[1016] 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.
[1017] 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.
[1018] Section
12A(9A) of the Firearms and Offensive Weapons Act 1990 refers to
subsections (10) and (11) rather than (5) and (6).
[1019] McIntyre Irish
Current Law Statutes Annotated 2007 at 29-43.
[1020] Dáil
Debates 1986 Vol 366, cols 2108-9.
[1021] Dáil Debates
1987 Vol 374 Written Answer 71.
[1022] Private
Members’ Business - Measures against Crime: Motion, Dáil Debates, Vol 467 No 7,
Wednesday, 2 July 1996, Liz O’Donnell TD; “Coalition to present Anti-Crime
Package later Today” Irish Times 2 July 1996.
[1023] “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; Maher “Murdered Drug Dealer linked to two Killings in
Dublin” Irish Times 9 December 1996.
[1024] “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 1996; Cusack
“Dublin’s Gangsters have got the Killing Habit” Irish Times 7 September 1996;
[1025] Killing of
Dublin Journalist: Statements Dáil Debates, Vol 467 No 5, Wednesday, 26 June
1996; Kennedy “Stunned Political Leaders see Killing as Attack on Democracy”
Irish Times 27 June 1996.
[1026] See, for
example, the Criminal Assets Bureau Act 1996 and the Proceeds of
Crime Act 1996.
[1027] Lally “Gun and
Drug Laws to be Toughened Up” Irish Times 6 April 2004; “Mandatory Sentences”
Irish Times 7 April 2004; Coulter “Sentence must be Proportionate to the Crime,
say Observers” Irish Times 7 April 2004.
[1028] Lally “500%
Rise in Murders using Guns” Irish Times 19 November 2003.
[1029] Garda
Commissioner: Presentation Joint Committee on Justice, Equality, Dfence and
Women’s Rights Debate, Tuesday, 14 October 2003, Garda Commissioner Noel
Conroy; Lally “Conroy says Rise in Use of Guns in Homicides” Irish Times 15
October 2003; Lally “Gardaí call for Overhaul of Justice System” Irish Times 6
November 2003.
[1030] Lally “Crime
Figures show 6% Drop” Irish Times 17 April 2004; Brady “Crackdown on Way as Gun
Crime Rockets” Belfast Telegraph 17 April 2004
[1031] 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.
[1032] Lally
“All-Ireland Survey Shows Fast Rise in Use of Cocaine” Irish Times 20 April
2004; McDaid “Minister Vows to Get Tough on Drugs” Irish News 20 April 2004.
[1033] Lally
“All-Ireland Survey Shows Fast Rise in Use of Cocaine” Irish Times 20 April
2004.
[1034] Criminal
Justice Bill 2004: Order for Second Stage Dáil Debate, Vol 597 No 5, Tuesday,
15 February 2005.
[1035] Criminal
Justice Bill 2004: Second Stage Dáil Debate, Vol 597 No 5, Tuesday, 15 February
2005.
[1036] 6 March 2003.
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; McMorrow “Ireland in the Grip of Gun Crime” Sunday Tribune 12 March
2006.
[1037] None of the
offences require that the firearms, imitation firearms or ammunition be
illegally held.
[1038] Section 42 of
the Criminal Justice Act 2006.
[1039] McAuley and
McCutcheon Criminal Liability (Round Hall, Sweet and Maxwell, 2000) at
208-209.
[1040] Section 57 of
the Criminal Justice Act 2006.
[1041] Section 26 of
the Criminal Justice Act 2006.
[1042] 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.”
[1043] Court of
Criminal Appeal 9 February 2009.
[1044] Section 58 of
the Criminal Justice Act 2006.
[1045] Section
27(1)(a) of the Firearms Act 1964, as amended.
[1046] Section
27(1)(b) of the Firearms Act 1964, as amended.
[1047] The New Oxford
Dictionary of English (Oxford University Press, 2001) at 2038.
[1048] Court of
Criminal Appeal, 21 June 2010.
[1049] The New Oxford
Dictionary of English (Oxford University Press, 2001) at 1479.
[1050] Section 59 of
the Criminal Justice Act 2006.
[1051] People (DPP) v Barry Court of Criminal Appeal 23 June
2008; People (DPP) v Clail Court of Criminal Appeal 9 February 2009; People
(DPP) v Dwyer Court of Criminal Appeal 9 February 2009; People (DPP) v
Walsh Court of Criminal Appeal 17 December 2009; People (DPP) v Curtin
Court of Criminal Appeal 21 June 2010; People (DPP) v Fitzgerald Court
of Criminal Appeal 21 June 2010; People (DPP) v Kelly Court of Criminal
Appeal 28 June 2010; and People (DPP) v Purcell Court of Criminal Appeal
21 June 2010.
[1052] Section 60 of
the Criminal Justice Act 2006.
[1053] People (DPP) v Heelan Court of Criminal Appeal 14
April 2008; People (DPP) v Kelly Court of Criminal Appeal 9 November
2009; and People (DPP) v Donovan Court of Criminal Appeal 28 June 2010.
[1054] 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.
[1055] Section
12A(1)(a) of the Firearms and Offensive Weapons Act 1990, as amended.
[1056] Section
12A(1)(b) of the Firearms and Offensive Weapons Act 1990, as amended.
[1057] The Court of
Criminal Appeal has considered section 12A in People (DPP) v Kelly Court
of Criminal Appeal 24 November 2008; and People (DPP) v McCann Court of
Criminal Appeal 13 October 2008.
[1058] Section 57 of
the Criminal Justice Act 2006 inserts a new section 26 into the Firearms
Act 1964.
[1059] Section 59 of
the Criminal Justice Act 2006 replaces section 27A of the Firearms
Act 1964.
[1060] Section 60 of
the Criminal Justice Act 2006 replaces section 27B of the Firearms
Act 1964.
[1061] Section 65 of
the Criminal Justice Act 2006 inserts section 12A into the Firearms and Offensive
Weapons Act 1990.
[1062] Section 12A of
the Firearms and Offensive Weapons Act 1990, as amended.
[1063] 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.
[1064] Section 42 of
the Criminal Justice Act 2006 replaces section 15 of the Firearms Act
1925.
[1065] Section 58 of
the Criminal Justice Act 2006 replaces section 27 of the Firearms Act
1964.
[1066] Section
15(2)(a) of the Firearms Act 1925, as amended; and section 27(2)(a) of
the Firearms Act 1964, as amended.
[1067] Court of
Criminal Appeal 21 June 2010.
[1068] Court of
Criminal Appeal 13 October 2008.
[1069] Subsection
(10) of section 12A of the Firearms and Offensive Weapons Act 1990.
[1070] Subsection
(10)(a) of section 12A of the Firearms and Offensive Weapons Act 1990.
[1071] Subsection
(10)(a)(i) of section 12A of the Firearms and Offensive Weapons Act 1990.
[1072] People (DPP) v Barry Court of Criminal Appeal 23 June
2008; and People (DPP) v Curtin Court of Criminal Appeal 21 June 2010.
[1073] People (DPP) v Clail Court of Criminal Appeal 9
February 2009; People (DPP) v Dwyer Court of Criminal Appeal 9 February
2009; and People (DPP) v Walsh Court of Criminal Appeal 17 December
2009.
[1074] Court of
Criminal Appeal 23 June 2008.
[1075] Subsection
(10)(b) of section 12A of the Firearms and Offensive Weapons Act 1990.
[1076] In People
(DPP) v Curtin Court of Criminal Appeal 21 June 2010, 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.
[1077] Subsection
(10) of section 12A of the Firearms and Offensive Weapons Act 1990.
[1078] Court of
Criminal Appeal 23 June 2008.
[1079] Similar
observations were made in People (DPP) v Purcell Court of Criminal
Appeal 21 June 2010.
[1080] Court of
Criminal Appeal 9 February 2009.
[1081] Court of
Criminal Appeal 17 December 2009.
[1082] Court of
Criminal Appeal 21 June 2010.
[1083] Court of
Criminal Appeal 23 June 2008.
[1084] Court of
Criminal Appeal 21 June 2010.
[1085] People (DPP) v Barry Court of Criminal Appeal 23 June
2008.
[1086] See paragraph
3.97.
[1087] See paragraphs
3.100 to 3.107.
[1088] Court of
Criminal Appeal 9 November 2009.
[1089] Court of
Criminal Appeal 9 February 2009.
[1090] Subsection
(11) of section 12A of the Firearms and Offensive Weapons Act 1990.
[1091] Court of
Criminal Appeal 28 June 2010.
[1092] Similar
observations were made in People (DPP) v Kelly Court of Criminal Appeal
24 November 2008.
[1093] Subsection (8) and (11)(a) of section 12A of the Firearms
and Offensive Weapons Act 1990.
[1094] Court of
Criminal Appeal 9 February 2009.
[1095] Subsection
(10)(b) of section 12A of the Firearms and Offensive Weapons Act 1990.
[1096] People (DPP) v Fitzgerald Court of Criminal Appeal 21
June 2010; and People (DPP) v Curtin Court of Criminal Appeal 21 June
2010.
[1097] People (DPP) v Kelly Court of Criminal Appeal 24
November 2008.
[1098] People (DPP) v Purcell Court of Criminal Appeal 21
June 2010.
[1099] As inserted by
section 61 of the Criminal Justice Act 2006.
[1100] 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.
[1101] Campbell
“Responding to Gun Crime in Ireland” (2010) 50 Brit J Criminology 414 at 422.
[1102] Campbell
“Responding to Gun Crime in Ireland” (2010) 50 Brit J Criminology 414 at 429.
[1103] In England and
Wales the Misuse of Drugs Act 1971 has been amended by the Crime
(Sentences) Act 1997 and the Powers of Criminal Courts 2000 but it
would appear that these amendments do not apply to Northern Ireland.
[1104] Criminal Justice Act 2003 does not apply in this
regard.
[1105] Firearms (Amendment) (Northern Ireland) Order 2004
and Violent Crime Reduction Act 2006.
[1106] Explanatory
Memorandum to the Firearms (Northern Ireland) Order 2004.
[1107] Review of the Sentencing Framework in Northern Ireland
(Northern Ireland Office, 2004.
[1108] Review of the Sentencing Framework in Northern Ireland
(Northern Ireland Office, 2004) at 1-2.
[1109] Public Inquiry into the Shootings at Dunblane Primary
School on 13 March 1996 Cm 3386 (1996)
[1110] Report of the Northern Ireland Affairs Committee 2004.
[1111] Explanatory
Memorandum to the Firearms (Northern Ireland) Order 2004.
[1112] Article 70(2).
[1113] Article
3(1)(a) of the Firearms (Northern Ireland) Order 2004.
[1114] 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.
[1115] Section 58 of
the Firearms (Northern Ireland) Order 2004.
[1116] Section 59 of
the Firearms (Northern Ireland) Order 2004.
[1117] Section 60 of
the Firearms (Northern Ireland) Order 2004.
[1118] Section 61(1)
of the Firearms (Northern Ireland) Order 2004.
[1119] Section 62(1)
of the Firearms (Northern Ireland) Order 2004.
[1120] Proposed Draft Criminal Justice (Northern Ireland) Order
2007 - Equality Screening Forms (Northern Ireland Office, 2007) at 7.
[1121] Proposed Draft Criminal Justice (Northern Ireland) Order
2007 - Equality Screening Forms (Northern Ireland Office, 2007) at 8.
[1122] Section 225 of
the Criminal Justice Act 2003 has since been amended by the Criminal
Justice and Immigration Act 2008. It is unclear whether similar amendments
have been made in Northern Ireland.
[1123] Mandatory Sentences of Imprisonment in Common Law
Jurisdictions (Department of Justice, Canada) at 14.
[1124] Class A drugs
are defined in Part 1 of Schedule 2 of the Misuse of Drugs Act 1971. The
term “drug trafficking offence” is defined by section 1 of the Drug
Trafficking Act 1994.
[1125] Section 110 of
the Powers of Criminal Courts (Sentencing) Act 2000 replaces section 3
of the Crime (Sentences) Act 1997 which contained an identical
provision.
[1126] See also
section 144 of the Criminal Justice Act 2003.
[1127] Current Law Statutes (Sweet and Maxwell, 2000) at
6-105.
[1128] Brown [2000]
Crim L R 496.
[1129] Inserted by
section 1 of the Drugs Act 2005.
[1130] 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.
[1131] Current Law Statutes (Sweet and Maxwell, 2000) at
6-7.
[1132] Section 2 introduced a presumptive life sentence for a
second serious offence; section 3 introduced a presumptive seven-year sentence
for a third Class A drug trafficking offence; and section 4 introduced a
presumptive three-year sentence for a third domestic burglary.
[1133] Protecting
the Public - The Government’s Strategy on Crime in England and Wales,
March 1996.
[1134] White Paper on Protecting the Public - The Government’s
Strategy on Crime in England and Wales, March 1996, at 3.
[1135] White Paper on Protecting the Public - The Government’s
Strategy on Crime in England and Wales, March 1996, at 4.
[1136] White Paper on Protecting the Public - The Government’s
Strategy on Crime in England and Wales, March 1996, at 23.
[1137] White Paper on Protecting the Public - The Government’s Strategy
on Crime in England and Wales, March 1996, at 49.
[1138] White Paper on Crime, Justice and Protecting the Public
Cm 965 (HMSO, 1990).
[1139] Ashworth and
Player “Criminal Justice Act 2003: The Sentencing Provisions” 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)
http://www.lawlibrary.ie/viewdoc.asp?Docid=144&Catid=18&StartDate=01+January+2001
(last accessed on 22.06.11).
[1140] Ashworth and
Player “Criminal Justice Act 2003: The Sentencing Provisions” 68 Mod L Rev 822,
at 822.
[1141] Ashworth and
Player “Criminal Justice Act 2003: The Sentencing Provisions” 68 Mod L Rev 822,
at 822.
[1142] White Paper on Protecting the Public - The Government’s
Strategy on Crime in England and Wales, March 1996.
[1143] White Paper on Protecting the Public - The Government’s
Strategy on Crime in England and Wales, March 1996, at 3.
[1144] White Paper on Protecting the Public - The Government’s
Strategy on Crime in England and Wales, March 1996, at 4.
[1145] Ashworth and
Player “Criminal Justice Act 2003: The Sentencing Provisions” 68 Mod L Rev 822
at 822.
[1146] Henham “Back
to the Future on Sentencing: The 1996 White Paper” (1996) 59 Mod L Rev 861 at
861.
[1147] Fitzgerald
“Californication of Irish Sentencing Law” (2008) 18 ICLJ 42 at 42.
[1148] Fitzgerald
“Californication of Irish Sentencing Law” (2008) 18 ICLJ 42 at 42; Thomas “The
Crime (Sentences) Act 1997” [1998]
Crim LR 83 at 83; and Thomas Current Law Statutes (Sweet and
Maxwell, 1997) at 43-3.
[1149] Current Law
Statutes (Sweet and Maxwell, 1997) at 43-3.
[1150] Fitzgerald “Californication
of Irish Sentencing Law” (2008) 18 ICLJ 42 at 42.
[1151] Henham “Making
Sense of the Crime (Sentences) Act 1997” (1998) 61 Mod L Rev 223 at 223.
[1152] Henham “Making
Sense of the Crime (Sentences) Act 1997” (1998) 61 Mod L Rev 223 at 223.
[1153] Section 2 of
the Crime (Sentences) Act 1997.
[1154] Section 3 of
the Crime (Sentences) Act 1997.
[1155] Section 4 of
the Crime (Sentences) Act 1997.
[1156] Thomas “The
Crime (Sentences) Act 1997” [1988] Crim LR 83 at 83.
[1157] Inserted by
section 287 of the Criminal Justice Act (UK) 2003.
[1158] Section 30 of
the Violent Crime Reduction Act 2006.
[1159] Section 51A(5)
provides that a sentence of five years must be imposed in England and Wales
where the offender is aged 18 years or over at the time of the offence and in
Scotland where the offender is aged 21 years or over at the time of the
offence.
[1160] Section 51A(5) provides that a sentence of three years must
be imposed in England and Wales where the offender is aged under 18 years at
the time of the offence and in Scotland where the offender is aged under 21
years at the time of the offence.
[1161] The imposition
of a mandatory sentence to a possession offence has given rise to a number of
seemingly unjust results: “Grandmother jailed for WWII ‘Family Heirloom’
Pistol” BBC 16 June 2010 available at www.bbc.co.uk/news/10335003; “Pensioner
jailed for Hoarding ‘Aladdin’s Cave’ of Firearms” The Telegraph 30 December
2009; and O’Neill “Why Judges find Ways to ignore the Law in Gun Crime
Sentences” The Times 25 March 2008.
[1162] Section 5(1) and section 5(1A) of the Firearms Act 1968.
[1163] Section 29 Violent
Crime Reduction Act 2006.
[1164] Section 16 of
the Firearms Act 1968.
[1165] Section 16A of
the Firearms Act 1968.
[1166] Section 17 of
the Firearms Act 1968.
[1167] Section 18 of
the Firearms Act 1968.
[1168] Section 19 of
the Firearms Act 1968.
[1169] Section 20(1)
of the Firearms Act 1968.
[1170] It has been noted that this ground for
not imposing the presumptive minimum term has been taken from section 109 of
the Powers of Criminal Courts (Sentencing) Act 2000, which imposes an
automatic life sentence for a second serious offence, rather than 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 and allows the court not
to impose the minimum term if it would be unjust to do so in all the
circumstances. Arguably, exceptional circumstances which justify the court to
not impose 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.
[1171] Richardson (ed) Arcbold 2010 (Sweet and Maxwell,
2010) at 5-261.
[1172] 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 page 7.
[1173] Justice for All Cm 5563 (Home Office, 2002).
[1174] Making Punishments Work: Report of a Review of the
Sentencing Framework for England and Wales (Home Office, 2001).
[1175] Justice for All (Home Office, Cm 5563, 2002) at
paragraph 5.2.
[1176] House of
Commons Debates, Monday, 2 December 2002, Column 594. Available at
http://www.parliament.the-stationery-office.co.uk/pa/cm200203/cmhansrd/vo021202/debtext/21202-01.htm
(last accessed on 23.06.11).
[1177] House of
Commons Debates, Monday, 2 December 2002, Column 594. Available at
http://www.parliament.the-stationery-office.co.uk/pa/cm200203/cmhansrd/vo021202/debtext/21202-01.htm
(last accessed on 23.06.11). 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.
[1178] 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.
[1179] Hales, Lewis
and Silverstone Gun Crime: The Market in and Use of illegal Firearms
Research Study 298 (Home Office, 2006) at 7.
[1180] Oliver
“Birmingham Shooting Victims Named” The Guardian 3 January 2003.
[1181] Burke,
Thompson, Bright, Hinsliff, Barnett and Rowan “Where the Gun rules and the
Innocent go in Fear” The Guardian 5 January 2003.
[1182] 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.
[1183] 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; “Blunkett confirms tough new Gun Penalties” The
Guardian 6 January 2003.
[1184] “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.
[1185] “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.
[1186] Replaced
section 4 of the Crime (Sentences) Act 1997.
[1187] Protecting the Public - The Government’s Strategy on
Crime in England and Wales Cm 3190 (Home Office, 1996).
[1188] Protecting the Public - The Government’s Strategy on
Crime in England and Wales Cm 3190 (Home Office, 1996) at page 51.
[1189] Protecting the Public - The Government’s Strategy on
Crime in England and Wales Cm 3190 (Home Office, 1996) at page 51.
[1190] Protecting the Public - The Government’s Strategy on
Crime in England and Wales Cm 3190 (Home Office, 1996) at page 51-52.
[1191] Hope
“Four-Fifths of Repeat Burglars do not receive Minimum Jail Term, say Tories”
The Telegraph, 4 February 2009.
[1192] The term
“serious offence” is defined by section 224(2) of the Criminal Justice Act
(UK) 2003.
[1193] Justice for All Cm 5563 (Home Office, 2002).
[1194] Making Punishments Work: Report of a Review of the
Sentencing Framework for England and Wales (Home Office, 2001).
[1195] Justice for All (Home Office, Cm 5563, 2002) at
paragraph 5.2.
[1196] This provision
replaced section 2 of the Crime (Sentences) Act 1997.
[1197] Henham “Making
Sense of the Crime (Sentences) Act 1977” (1998) 61 Mod L Rev 223 at 224-225.
[1198] Dyer “Ruling
neutralises ‘Two Strikes’ Law” The Guardian, 10 November 2000.
[1199] Mandatory Sentences of Imprisonment in Common Law
Jurisdictions (Department of Justice, Canada) at 14.
[1200] Ashworth and
Player “Criminal Justice Act 2003: The Sentencing Provisions” (2005) 68 Mod L
Rev 822 at 835.
[1201] The Indeterminate Sentence for Public Protection - A
Thematic Review (HM Chief Inspector of Prisons and HM Chief Inspector of
Probation, 2008).
[1202] The Indeterminate Sentence for Public Protection - A Thematic
Review (HM Chief Inspector of Prisons and HM Chief Inspector of Probation,
2008) at 3.
[1203] The Indeterminate Sentence for Public Protection - A
Thematic Review (HM Chief Inspector of Prisons and HM Chief Inspector of
Probation, 2008) at 3.
[1204] The Indeterminate Sentence for Public Protection - A
Thematic Review (HM Chief Inspector of Prisons and HM Chief Inspector of
Probation, 2008) at 4.
[1205] See, for
instance, “Sentence designed for ‘Public Protection” The Telegraph 20 August
2007.
[1206] Inserted by
Schedule 5 to the Criminal Justice and Immigration Act 2008.
[1207] Inserted by
section 2(1) of the Crime and Punishment (Scotland) Act 1997.
[1208] Criminal Justice Act 2003.
[1209] Inserted by section
287 of the Criminal Justice Act 2003.
[1210] As inserted by
section 30 of the Violent Crime Reduction Act 2006.
[1211] Section 16 of
the Firearms Act 1968.
[1212] Section 16A of
the Firearms Act 1968.
[1213] Section 17 of
the Firearms Act 1968.
[1214] Section 18 of
the Firearms Act 1968.
[1215] Section 19 of
the Firearms Act 1968.
[1216] Section 20(1)
of the Firearms Act 1968.
[1217] 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.
[1218] Three-strikes
legislation will be considered in Chapter 4.
[1219] §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 s the defendant will be served” by splitting
the sentence.
[1220]
§32-5A-191f(h).
[1221]
§32A-5A-191(n).
[1222] §13A-8-51(2)
and §13A-8-52.
[1223] §13A-6-130 and
§13A-6-131.
[1224] §13A-10-152.
[1225] §15-20-21(5);
§13A-5-6(4) and (5); §13A-5-110; and §13A-6-111.
[1226] §13A-5-13.
[1227] §13A-11-11.
[1228] §13A-7-44.
[1229] Habitual Felony Offender Act.
[1230] §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.
[1231] §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 an d20 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 as committing a class 1 misdemeanour.
[1232] §3.2-4212(D,i)
and §3.2-4212(D,ii).
[1233] §18.2-51.1;
§18.2-57(A); §18.2-57(B); §18.2-57(C); and §18.2-57(D).
[1234] §53.1-203(1).
[1235] §18.2-186.4.
[1236] §18.2-46.2.
[1237] §18.2-36.1(B)
and §18.2-36.2(B).
[1238] §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).
[1239] §16.1-253.2.
[1240] §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.
[1241] §18.2-266;
§46.2-341.24; §46.2-357(B,1); §46.2-357(B,2); and §46.2-357(B,3).
[1242] §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).
[1243] §46.2-865.1(A,2).
[1244] §18.2-121;
§18.2-57(A); and §18.2-57(B).
[1245] §18.2-154.
[1246] §19.2-297.1.
[1247]
§1324(a)(2)(B)(i) and §2L1.1; §1324(a)(2)(B)(ii) and §2L1.1; and §1326(b)(3)
and §2L1.2.
[1248] §1028A(a)(1)
and §2B1.6; and §1028A(a)(2) and §2B1.6.
[1249] §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).
[1250] §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.
[1251]
§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.
[1252] §192; §390;
§13a and §2B1.1; §13b; §15b(k); and §195(3) and §2N2.1.
[1253] §2024(b)(1) and
§2B1.1; and §2024(c) and §2B1.1.
[1254] §1201(g)(1)
and §3559(f)(2).
[1255] §1203(a),
§2A4.1 and §2X1.1.
[1256] §225(a),
§2B1.1 and §2B4.1; §1956(h) and §2S1.1; and §2113(e), §2A1.1 and §2B3.1.
[1257] §4221 and
§2B1.1; §622 and §2C1.1; §447; §220(e); §617; §630; and §8.
[1258] §1651; §1652;
§1653; §1655; §1658(b); and §1661.
[1259] §1389.
[1260] §1917.
[1261] §2261(b)(6)
and §2M1.1.
[1262] §2381 and §2A6.2.
[1263] §283 and
§2T3.1.
[1264] §212.
[1265] §410
[1266] §411 and
§2Q1.3.
[1267] §441.
[1268] §58109(a).
[1269] §13.
[1270] §1122.
[1271] §414
[1272] §3559(c)(1).
[1273] 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). Available at
http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=s10&source=library_prb&Parl=40&Ses=3&Language=E#fn20.
(Last accessed on 23.06.11).
[1274] Section 7 of
the Controlled Drugs and Substances Act 1996.
[1275] A similar
predecessor bill - Bill C-15 - was introduced in the House of Commons on 27th
February 2009 by the Minister for Justice, Mr Robert Nicholson. Although Bill
C-15 passed the House of Commons and the Senate, with certain amendments, it
died on the Order Paper on 30 December 2009 when Parliament was prorogued. Bill
C-15 was almost identical to Bill C-26, which received a second reading during
the second session of the 39th Parliament, but which died on the
Order Paper when Parliament was dissolved on 7th September 2008.
[1276] 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
http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=s10&source=library_prb&Parl=40&Ses=3&Language=E#fn20.
Last accessed on 23rd June 2011.
[1277] See also
McLemore “Why Canada should reject the Bill S-10” (Human Rights Watch, 2011).
[1278] Section
272(1).
[1279] Section
273(1).
[1280] Roche
“Mandatory Sentencing” No 138, Trends & Issues in Crime and Criminal
Justice, (Australian Institute of Criminology, 1999) at 1.
[1281] Mandatory Sentences of Imprisonment in Common Law
Jurisdictions (Department of Justice, Canada) at 29.
[1282] Roche
“Mandatory Sentencing” No 138, Trends & Issues in Crime and Criminal
Justice, (Australian Institute of Criminology, 1999) at 1-2.
[1283] Mandatory Sentences of Imprisonment in Common Law
Jurisdictions (Department of Justice, Canada) at 25.
[1284] Jackson and
Hardy “The Impact of Mandatory Sentencing on Indigenous Offenders” Sentencing
Conference 2010, Canberra 6 and 7 February 2010, National Judical College of
Australia. Cranny “Mandatory Sentencing – Where From, Where to and Why?”
available at http://www.isrcl.org/Papers/2006/Cranny-Paper.pdf (accessed on 24
June 2011).
[1285] 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.
[1286] Roche
“Mandatory Sentencing” No 138, Trends & Issues in Crime and Criminal
Justice, (Australian Institute of Criminology, 1999) at 1-2.
[1287] Mandatory Sentences of Imprisonment in Common Law
Jurisdictions (Department of Justice, Canada) at 28.
[1288] Mandatory
Sentences of Imprisonment in Common Law Jurisdictions (Department of Justice, Canada) at 28.
[1289] Roche
“Mandatory Sentencing” No 138, Trends & Issues in Crime and Criminal
Justice, (Australian Institute of Criminology, 1999) at 2.
[1290] Aboriginal
Justice Council 2001.
[1291] Same Crime, Same Time Report 103 (Australian Law
Reform Commission, 2006) at 539.
[1292] Mandatory Sentences of Imprisonment in Common Law
Jurisdictions (Department of Justice, Canada) at 31.
[1293] Roberts
“Sentencing Reform in New Zealand: An Analysis of the Sentencing Act 2002”
(2003) Australian and New Zealand Journal of Criminology.
[1294] Deaton v Attorney General [1963] IR 170, 181; and State
(P Woods) v Attorney General [1969] IR 385, 403-404.
[1295] See Section D.
[1296] See paragraph
3.34.
[1297] Section 27(3F)
of the Misuse of Drugs Act 1977, as inserted by section 84 of the Criminal
Justice Act 2006 and renumbered by section 33 of the Criminal Justice
Act 2007.
[1298] 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, respectively.
[1299] O’Malley “Sentencing
Recidivist Sex Offenders: A Challenge for Proportionality” (2008) Paper
delivered at Conference on Recent Developments in Criminal Law at Trinity
College Dublin in December 2008 and subsequently published in Bacik and
Heffernan (eds) Criminal Law and Procedure: Current Issues and Emerging
Trends (Firstlaw, 2009) at 106-132.
[1300] O’Malley
“Sentencing Recidivist Sex Offenders: A Challenge for Proportionality” (2008)
Paper delivered at Conference on Recent Developments in Criminal Law at Trinity
College Dublin in December 2008 and subsequently published in Bacik and
Heffernan (eds) Criminal Law and Procedure: Current Issues and Emerging
Trends (Firstlaw, 2009) at 106-132.
[1301] O’Malley
“Sentencing Recidivist Sex Offenders: A Challenge for Proportionality” (2008)
Paper delivered at Conference on Recent Developments in Criminal Law at Trinity
College Dublin in December 2008 and subsequently published in Bacik and
Heffernan (eds) Criminal Law and Procedure: Current Issues and Emerging
Trends (Firstlaw, 2009) at 106-132.
[1302] O’Malley
“Sentencing Recidivist Sex Offenders: A Challenge for Proportionality” (2008)
Paper delivered at Conference on Recent Developments in Criminal Law at Trinity
College Dublin in December 2008 and subsequently published in Bacik and
Heffernan (eds) Criminal Law and Procedure: Current Issues and Emerging
Trends (Firstlaw, 2009) at 106-132.
[1303] O’Malley
“Sentencing Recidivist Sex Offenders: A Challenge for Proportionality” (2008)
Paper delivered at Conference on Recent Developments in Criminal Law at Trinity
College Dublin in December 2008 and subsequently published in Bacik and
Heffernan (eds) Criminal Law and Procedure: Current Issues and Emerging
Trends (Firstlaw, 2009) at 106-132.
[1304] Fitzgerald’s
view is that the courts, in general, adhere to this policy. See Fitzgerald “The
Usual Suspects: Analysing the Use of Past Criminal Convictions in the Criminal
Justice System” (2009) The Westminster International Law and Theory Centre
Online Working Papers 2009/3.
[1305] O’Malley “Sentencing Recidivist Sex Offenders: A Challenge
for Proportionality” (2008) Paper delivered at Conference on Recent
Developments in Criminal Law at Trinity College Dublin in December 2008 and
subsequently published in Bacik and Heffernan (eds) Criminal Law and
Procedure: Current Issues and Emerging Trends (Firstlaw, 2009) at 106-132.
[1306] O’Malley
“Sentencing Recidivist Sex Offenders: A Challenge for Proportionality” (2008)
Paper delivered at Conference on Recent Developments in Criminal Law at Trinity
College Dublin in December 2008 and subsequently published in Bacik and
Heffernan (eds) Criminal Law and Procedure: Current Issues and Emerging
Trends (Firstlaw, 2009) at 106-132.
[1307] O’Malley
“Sentencing Recidivist Sex Offenders: A Challenge for Proportionality” (2008)
Paper delivered at Conference on Recent Developments in Criminal Law at Trinity
College Dublin in December 2008 and subsequently published in Bacik and
Heffernan (eds) Criminal Law and Procedure: Current Issues and Emerging
Trends (Firstlaw, 2009) at 106-132.
[1309] Law Reform
Commission Report on Sentencing (LRC 53-96).
[1310] Law Reform
Commission Report on Sentencing (LRC 53-96) at paragraph 3.19.
[1311] Law Reform
Commission Report on Sentencing (LRC 53-96) at paragraph 3.20.
[1312] Brady “More
Prison for Second Offenders” Irish Independent 6 March 2007.
[1313] The relevant
offences are set out in Schedule 2 of 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.
[1314] Criminal
Justice Bill 2007: Second Stage Dáil Debates Vol 634, No 2, Thursday 22 March
2007 Col 383.
[1315] Criminal
Justice Bill 2007: Second Stage Dáil Debates Vol 634, No 2, Thursday 22 March
2007 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.
[1316] Criminal
Justice Bill 2007: Second Stage, Dáil Debates Vol 634 No 2, Thursday 22 March 2007
Col 384.
[1317] Criminal
Justice Bill 2007: Second Stage Dáil Debates Vol 634, No 2, Thursday 22 March
2007 Col 381.
[1318] Criminal Justice Bill 2007: Second Stage Dáil Debates Vol
634, No 2, Thursday 22 March 2007 Col 382.
[1319] 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 at 14;
Griffin “Tinkering with Due Process Values” (2007) 101(2) Law Society
Gazette 14 at 15.
[1320] Criminal
Justice Bill 2007: Second Stage Dáil Debates Vol 634, No 2, Thursday 22 March
2007 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; Bray
“Gangland is flourishing, claims FG” Irish Independent 10 April 2007.
[1321] Notably,
mandatory sentencing was not one of these areas.
[1322] McIntyre Irish
Current Law Statutes 2007 at 29-06.
[1323] Criminal
Justice Bill 2007: Second Stage Dáil Debates Vol 634, No 2, Thursday 22 March
2007 Col 394-395, Mr Jim O’Keeffe, Fine Gael Spokesperson on Justice.
[1324] 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).
[1325] Ireland ranked
third highest for burglaries and ranked high for car theft and personal theft.
[1326] Fahey, Russell
and Whelan (ed) Best of Times? The Social Impact of the Celtic Tiger
(IPA, 2007).
[1327] Fahey, Russell
and Whelan (ed) Best of Times? The Social Impact of the Celtic Tiger
(IPA, 2007) at 252; Lally “Dublin Murder Rate is fastest growing” Irish Times
20 March 2007.
[1328] O’Halloran
“Criminal Justice Bill passed in Dáil” Irish Times 25 April 2007.
[1329] 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; Walsh “Quinn claims Abuse of Power over
Justice Bill” Irish Times 27 April 2007.
[1330] “Rights
Watchdog warns of ‘Danger of Injustice’” Irish Times 30 March 2007.
[1331] Human Rights Commission Act 2000.
[1332] McIntyre Irish
Current Law Statutes Annotated 2007 at 29-26.
[1333] Criminal
Justice Bill 2007: Report Stage (Resumed) and Final Stage Dáil Debates Vol 636,
No 1 Tuesday, 24 April 2007, Col 122-123, Mr McDowell TD, Minister for Justice.
[1334] Criminal Justice Bill 2007: Report Stage (Resumed) Dáil
Debates Vol 635, No 2 Wednesday, 4 April 2007, Col 605, Mr O’Keeffe TD,
Spokesperson on Justice for Fine Gael.
[1335] Criminal
Justice Bill 2007: Report Stage (Resumed) Dáil Debates Vol 635, No 2 Wednesday,
4 April 2007, Col 606, Mr McDowell TD, Minister for Justice.
[1336] 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;
“Tackling complex Problem of Crime” Irish Times 11 October 2007.
[1337] 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; “IHRC warns
Government over rushing Legislation” RTE News 15 October 2007.
[1338] What’s Wrong with the Criminal Justice Bill 2007?
(ICCL, 2007) at 8; Kelly “Having a real Impact on serious Crime will require
wiser Counsel” Irish Independent 14 March 2007.
[1339] Murphy
“Criminal Justice Bill should be withdrawn” Irish Times 29 March 2007;
[1340] “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; Bracken “Irish People ‘apathetic’ about Loss of Civil Rights in the
Justice System” Sunday Tribune 14 October 2007.
[1341] 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; Lavery “President to make Call on Anti-Gang Bill” Sunday Independent 6
May 2007.
[1342] Section 25(1)
of the Criminal Justice Act 2007.
[1343] Fitzgerald
“Californication of Irish Sentencing Law” (2008) ICLJ 42 at 45.
[1344] The relevant
offences are set out in Schedule 2 to the Criminal Justice Act 2007:
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.
[1345] McIntyre Irish
Current Law Statutes Annotated 2007 at 29-26.
[1346] 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 severe penalty.”
[1347] 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...”
[1348] Section
25(5)(a) of the Criminal Justice Act 2007.
[1349] Section
25(5)(b) of the Criminal Justice Act 2007.
[1350] Section 25(6)
of the Criminal Justice Act 2007.
[1351] Section 25(2)
of the Criminal Justice Act 2007.
[1352] O’Malley
“Sentencing Recidivist Sex Offenders: A Challenge for Proportionality” (2008)
Paper delivered at Conference on Recent Developments in Criminal Law at Trinity
College Dublin in December 2008 and subsequently published in Bacik and
Heffernan (eds) Criminal Law and Procedure: Current Issues and Emerging
Trends (Firstlaw, 2009) at 106-132.
[1353] Collins “And
Throw Away the Key” (2007) 101(7) Law Society Gazette 36 at 38-39.
[1354] The history of
the Criminal Justice Bill 2004 was discussed in Chapter 3.
[1355] Criminal
Justice Bill 2004: Committee Stage (Resumed), Wednesday, 3 May 2006, Select
Committee on Justice, Equality, Defence and Women’s Rights, Deputy Jim
O’Keeffe.
[1356] Criminal
Justice Bill 2004: Report Stage (Resumed), Wednesday, 28 June 2006, Dáil
Éireann Debate, Vol 622 No 78, Col 1257, Mr McDowell TD.
[1357] Murphy “An
Analysis of Sentencing Provisions in the Criminal Justice Act, 2006” [2007:1]
JSIJ 60 at 76.
[1358] Formerly
subsection (3CCC).
[1359] See paragraphs
3.123 to 3.126.
[1360] O’Malley The
Criminal Process (Round Hall, 2009) at 904; see also Observations on the
Criminal Justice Bill 2007 (IHRC, 2007) at 15; and What’s Wrong with the
Criminal Justice Bill 2007? (ICCL, 2007) at 8.
[1361] 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, respectively.
[1362] Criminal
Justice Bill 2004: Committee Stage (Resumed), Wednesday, 3 May 2006, Select
Committee on Justice, Equality, Defence and Women’s Rights, Deputy Jim
O’Keeffe.
[1363] Criminal
Justice Bill 2004: Report Stage (Resumed), Wednesday, 28 June 2006, Dáil
Éireann Debate, Vol 622 No 78, Col 1259.
[1364] Criminal
Justice Bill 2004: Report Stage (Resumed), Wednesday, 28 June 2006, Dáil
Éireann Debate, Vol 622 No 78, Col 1257.
[1365] Murphy “An
Analysis of Sentencing Provisions in the Criminal Justice Act, 2006” [2007]
JSIJ 60 at 76.
[1366] Subsection
(12) of section 12A of the Firearms and Offensive Weapons Act 1990.
[1367] Subsection (9)
to subsection (11) of section 12A of the Firearms and Offensive Weapons Act
1990.
[1368] As inserted by
section 61 of the Criminal Justice Act 2006.
[1369] Campbell
“Responding to Gun Crime in Ireland” (2010) Brit J Criminology 414.
[1370] Court of
Criminal Appeal 9 February 2009.
[1371] Fitzgerald
“Californication of Irish Sentencing Law” (2008) ICLJ 42 at 45.
[1372] Fitzgerald
“Californication of Irish Sentencing Law” (2008) ICLJ 42 at 45.
[1373] The same might
not be said of the majority of offenders under the Firearms Acts except
in so far as the particular offence is a possession offence.
[1374] Gabor and
Crutcher “Mandatory Minimum Penalties: Their Effects on Crime, Sentencing
Disparities, and Justice System Expenditures” rr2002-1e (Research and
Statistics Division, Department of Justice of Canada, 2002) at 29.
[1375] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 1; See also Jones and
Newburn “Three Strikes and You’re Out” (2006) 46 Brit J Criminol 781 at 783.
[1376] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 5.
[1377] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 5.
[1378] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 5-6.
[1379] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 6.
[1380] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 7-8.
[1381] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 16. See also Zimring,
Hawkins, and Kamin Punishment and Democracy –Three Strikes and You’re Out in
California (Oxford University Press, 2001).
[1382] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 16-17.
[1383] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 17.
[1384] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 17.
[1385] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 18.
[1386] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 18-19.
[1387] Gabor and
Crutcher “Mandatory Minimum Penalties: Their Effects on Crime, Sentencing
Disparities, and Justice System Expenditures” rr2002-1e (Research and
Statistics Division, Department of Justice of Canada, 2002) at 13.
[1388] §667.7(a)
provides that a “habitual offender” is any person convicted of a felony in
which the person inflicted great bodily injury... or personally used force
which was likely to produce great bodily injury, who has served two or more
prior separate prison terms... for the crime of murder; attempted murder;
voluntary manslaughter; mayhem; rape by force, violence or fear of immediate
and unlawful bodily injury on the victim or another person; sodomy by force,
violence or fear of immediate and unlawful bodily injury on the victim or
another person; lewd acts on a child under the age of 14 years by force,
violence or fear of immediate and unlawful bodily injury on the victim or
another person; a violation of subdivision (a) of section 289 where the act is
accomplished against the victim’s will by means of force, violence or fear of
immediate and unlawful bodily injury on the victim or another person;
kidnapping as punished in former subdivision (d) of section 208, or for ransom,
extortion, or robbery; robbery involving the use of force or a deadly weapon;
carjacking involving the use of a deadly weapon; assault with intent to commit
murder; assault with a deadly weapon; assault with a force likely to produce
great bodily injury; assault with intent to commit rape, sodomy, oral
copulation, sexual penetration in violation of section 289, or lewd and
lascivious acts on a child; arson of a structure; escape or attempted escape by
an inmate with force or violence in violation of subdivision (a) of section
4530, or of section 4532; exploding a destructive device with intent to murder
in violation of section 12308; exploding a destructive device which causes
bodily injury in violation of section 12309, or mayhem or great bodily injury
in violation of section 12310; exploding a destructive device with intent to
injury, intimidate or terrify, in violation of section 12303.3; any felony in
which the person inflicted great bodily injury as provided in section n12022.53
or 12022.7; or any felony punishable by death or life imprisonment with or
without the possibility of parole.
[1389] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 15.
[1390] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 15.
[1391] Austin, Clark,
Hardyman and Henry “Three Strikes and You’re Out: The Implementation and Impact
of Strike Laws” (US Department of Justice, 2000) at 15.
[1392] Amendment of the Criminal Code (WA) 1913.
[1393]. Sentencing
Guidelines Around the World (Scottish Sentencing Commission, 2006) at 7.
[1394] Deaton v Attorney General [1963] IR 170, 181; and State
(P Woods) v Attorney General [1969] IR 385, 403-404.
[1395] Gabor and
Crutcher “Mandatory Minimum Penalties: Their Effects on Crime, Sentencing
Disparities, and Justice System Expenditures” rr2002-1e (Research and
Statistics Division, Department of Justice of Canada, 2002) at 29.