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Connolly, Johnny (2012) Mandatory minimum sentencing. Drugnet Ireland , Issue 41, Spring 2012 , pp. 23-24.

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The Law Reform Commission (LRC) has highlighted in a consultation paper a number of serious deficiencies in the operation of the presumptive 10-year sentence for certain drug offences and has recommended that the provision be reviewed.1  

The consultation paper begins with a consideration of the overall aims of criminal sanctions and the principles by which these are regulated. The broad aims of criminal sanctions as identified by the LRC include punishment, deterrence, reform and rehabilitation, and reparation. These form the basis of its analysis of presumptive sentencing in drug offences. The Criminal Justice Act 1999 created a new offence of possessing controlled drugs having a value of £10,000 (€13,000) or more for sale or supply, which attracted a presumptive sentence of 10 years’ imprisonment, except where there were ‘exceptional and specific circumstances’ relating to the offence, or to the person convicted of the offence (p.101). According to the LRC, the changes introduced in this legislation ‘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’ (p.102). This occurred ‘against a backdrop of an escalating drug 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’ (p.102).
 
In the years immediately following these provisions however, the courts appeared resistant to allowing their discretion to be eroded in this way. The LRC paper cites a Department of Justice report on judicial sentencing practices for drug offences under section 15A,2 which concluded that ‘the courts showed a marked reluctance to impose the mandatory minimum sentence … for fear that it would result in a disproportionate sentence in individual cases’ (p.105). That research found that, out of 55 cases between November 1999 and May 2001, a sentence of 10 years or more had been imposed in only three cases.
 
The LRC also suggests that further legislation was introduced to address this ‘apparent rift which had developed between legislative intent and judicial execution’ (p.102). Introducing the Criminal Justice Bill 2004, the Government announced that it would be making a series of legislative amendments in order to strengthen the presumptive sentencing provisions for drug offences. In its final form, the Criminal Justice Act 2006 created a new offence of importing drugs having a value of €13,000, which would attract a minimum sentence of 10 years. In addition, it introduced provisions to oblige the court to consider evidence of previous drug trafficking provisions. It also clarified that the mens rea3 regarding the value of the drugs was not an element of the offence. Consequently, ‘the prosecution needed only to establish that the accused knew that he or she was in possession of drugs with intent to supply and not that he or she knew the value of the drugs involved.’ During the committee stages of the Criminal Justice Bill, the then Minister for Justice, Michael McDowell TD, alluded to the apparent rift between the intentions of the Oireachtas and the practice in the courts at that time:
 
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. …[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. (p.107)
 
The Minister concluded by noting that for the year 2004, ‘after public controversy grew, the figure was approximately 21%’ (p.107). Clearly, the changes made had the desired effect for the Government.
 
The LRC however, following a lengthy consideration of the way in which the various components of the sentence have been adjudicated in practice in the courts, highlights a number of criticisms of the presumptive sentencing regime.4 As a consequence of the constraints it places on the exercise of judicial discretion, the LRC suggests that the regime has created ‘a discriminatory system of sentencing where all cases are treated alike regardless of differences in the individual circumstances of the offenders’ (p.189). The LRC also refers to an assertion that the sentence is akin to a ‘one-strike rule’ (p.131). In this regard the LRC refers to the observation of one sentencing expert5 that ‘by contrast to the “three strikes” laws enacted in some US states’, the Irish regime ‘does not require the accused to have a previous conviction for drug dealing or anything else before the presumptive minimum may apply’ (p.131).
 
The LRC also states, ‘it has been observed that the majority of those being caught for offences under section 15A are drug couriers rather than drug “barons”’. Those at the higher levels of the drugs trade have simply adapted to the sentencing regime by using expendable couriers or ‘victims of circumstance’, such as ‘impoverished individuals from African countries or underprivileged Irish citizens’ to hold and transport drugs thus avoiding detection themselves (p.132). The regime has also, the LRC concludes, subverted the normal criminal process by leading accused people to plead guilty simply to avoid the sentence, rather than testing the prosecution case.6
 
In recommending a review of the sentencing regime, the LRC states that the legislation has merely led to a ‘bulge in the prison system comprising low-level drugs offenders’ serving lengthy prison sentences, and that it has not contributed to any reduction in levels of criminality (p.189).
 
 
1.    Law Reform Commission (2011) Consultation paper: mandatory sentences. Dublin: Law Reform Commission. www.lawreform.ie. The LRC uses the term presumptive as distinct from mandatory sentence in that there is a presumption that the sentence would apply unless the court deems otherwise in a specific case. The LRC distinguishes such sentences from mandatory life sentences for murder treason or capital murder, for example. See discussion on p.3 of the LRC paper.
2.    McEvoy P (2005) Research for the Department of Justice on the criteria applied by the courts in sentencing under section 15A of the Misuse of Drugs Act 1977 (as amended). Dublin: Department of Justice, Equality and Law Reform.www.inis.gov.ie/en/JELR/Research.pdf/Files/Research.pdf
3.    A fundamental principle of criminal law is that a crime consists of both a mental and a physical element. Mens rea, a person's awareness of the fact that his or her conduct is criminal, is the mental element, and actus reus, the act itself, is the physical element.
4.    A recent Supreme Court decision, in the case of DPP v. Connolly (2011) IESC 6, overturned a 10-year sentence because of concerns about the way in which the market value of a drug seizure was determined. See Connolly J (2011) Supreme Court overturns mandatory drug sentence. Drugnet Ireland, (38): 15.
5.    O’Malley T (2006) Sentencing law and practice. 2nd edition. Dublin: Round Hall.  p. 340.
6.    See discussion on p.119 of the LRC paper. The McEvoy study referred to above found that the accused pleaded guilty in all but one of the 55 cases studied. McEvoy suggests that the ‘the consequences of unsuccessfully testing the prosecution case…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…’.
Item Type:Article
Issue Title:Issue 41, Spring 2012
Date:April 2012
Page Range:pp. 23-24
Publisher:Health Research Board
Volume:Issue 41, Spring 2012
EndNote:View
Accession Number:HRB (Electronic Only)
Subjects:MM-MO Crime and law > Justice system > Court system
MM-MO Crime and law > Law enforcement and the justice system
VA Geographic area > Europe > Ireland
MM-MO Crime and law > Substance use laws > Drug laws
MM-MO Crime and law > Criminal penalty

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