th
8 A NNUAL N ATIONAL
P ROSECUTORS ’ C ONFERENCE
SATURDAY, 19 MAY 2007
DUBLIN CASTLE CONFERENCE CENTRE
Tom O’Malley, BL
Law Library
~
Sentencing
Drug Offenders
SENTENCING DRUG OFFENDERS
Tom O’Malley BL
Faculty of Law
NUI, Galway
When the Criminal Justice Bill 2007 was first published it contained some alarming
sentencing provisions. It proposed mandatory ten-year sentences without exception for
those convicted of section 15A or 15B offences where the value of the drugs exceeded
€500,000. It also proposed that, again without exception, a person convicted of an
offence contained in a schedule to the Act within seven years of having been convicted or
completed the service of a prison sentence for another offence in the same schedule
should received three-quarters of the maximum sentence, provided he had been sentenced
to 12 months or more on the first occasion. The idea of mandatory minimum 10-year
sentences for possessing drugs worth €500,000 had been abandoned by the time the Bill
was passed by the Dáil. The provision for repeat offenders remains but with substantial
modifications. To qualify now, a person must have received at least five years’
imprisonment for the first offence and the list of scheduled offences has been narrowed.
Robbery and burglary have now been removed, but aggravated burglary remains. So,
incidentally, do drug trafficking offences contrary to s. 3 of the Criminal Justice Act
1994. However, the bite has been removed from the overall scheme with a new provision
to the effect that a court need not impose the “mandatory” three-quarter sentence if
satisfied that it would be disproportionate in all the circumstances of the case to do so.
One welcome feature of the Criminal Justice Act 2007 is that it now contains a revised
version of s. 27(A) to 27(K) inclusive of the Misuse of Drugs Act 1977 as amended over
the years.
Repeat offenders
The most significant recent change made to the sentencing arrangements for section 15A
and section 15B drug offences - under the Criminal Justice Act 2006 - is that a second or
subsequent conviction for either offence carries a mandatory minimum sentence of 10
years’ imprisonment, subject to a maximum of life imprisonment. This may cause some
difficulty at a number of levels. First, there is the question of whether it is compatible
with Article 7 of the European Convention of Human Rights to apply an enhanced
sentence for recidivist offending when that provision did not exist at the time of the first
offence. Article 7 expressly forbids the imposition of a higher punishment for an offence
than applied when the offence was committed. Indeed, the Constitution of Ireland appears
to provide implicitly for the same principle. However, it would appear that under the
Convention, increased punishment for recidivist offending is permissible as long as the
accused person had a fair warning that the commission of a further offence would leave
him liable to enhanced punishment. This was the clear view of the Grand Chamber of the
European Court of Human Rights (by a 16 to one majority) in Achour v France,1 where a
1
[2006] ECHR 268 (March 29, 2006).
1
statutory change had been made extending the period within which a person became
liable for classification as a recidivist and hence for enhanced punishment. When the
applicant committed the first relevant offence, enhanced punishment was available if he
re-offended within five years, but by the time he committed the second offence, the
relevant statute had been amended extending the recidivism period to 10 years which
meant that he was now caught by it. The Court found no violation of Article 7, saying
that by the time the applicant committed the second offence he had had fair notice of the
statutory change. A similar stance was adopted earlier this year by the European Court of
Justice, following the advice of Advocate General Maduro, in Groupe Danone v
Commission of the European Communities.2
A more difficult question arises if an accused is being sentenced simultaneously for two
section 15A or section 15B offences. Is he then subject to the mandatory minimum of ten
years? All hinges of what is meant by the words “is convicted of a second or subsequent
offence”. The relevant provision does not say “a person who has a previous conviction
for” such an offence. In the latter case, it might be held to require that the person had a
previous conviction at the time of committing the offence. As section 27(3F) of the
Misuse of Drugs Act 1977 is now worded, it appears that a person being sentenced
simultaneously for two relevant offences could perhaps be given the mandatory minimum
although the courts may chose to interpret it as meaning that the person should have had a
previous conviction at the time of committing the offence.
Needless to say, in a hard case, the constitutionality of mandatory minimum ten-year
sentences for repeat s. 15A offenders might well be called into question on constitutional
grounds. Take the case of an impoverished and disadvantaged first sentenced to three
years for acting as courier when caught with €14,000 worth of cannabis when he was just
over 18 years and then a year or two after release from prison caught doing the same
thing. Would a minimum sentence of 10 years’ imprisonment be constitutionally
proportionate in these circumstances? It remains to be seen.
Review power remains intact
If the offender in the example just given were a drug addict, the court would have the
power to list the sentence for review once half of it had been served. This provision has
been in place since the introduction of the present presumptive sentencing regime in 1999
and s. 27(3J), as it now exists, provides that when imposing sentence for a section 15A or
15B offence, the court may inquire if the offender is an addict and if so list the sentence
for review when one half of the term imposed under subsection 3C (the ten-year
presumptive minimum for first-time offenders) or subsection 3F (the ten-year mandatory
minimum for repeat offenders). At the review stage the balance of the sentence may be
suspended. However, the problem remains that this power does not appear to be available
when a person is sentenced to less than 10 years in accordance with the provisions of
subsection 3D, though it is arguable that the statute could be interpreted to allow for this.
Otherwise, it is entirely illogical.
2
Case C – 3/06P (Second Chamber, February 8, 2007).
2
Part-suspended sentences
Another factor to be borne in mind is that the suspended and part-suspended sentences
are now regulated by s. 99 of the Criminal Justice Act 2006.3 This section provides that a
suspended sentence of any kind may not be imposed for an offence which carries a
mandatory term of imprisonment which, in turn, is defined to include mandatory
minimum terms.4 More precisely it states that a mandatory term of imprisonment
includes “a term of imprisonment imposed by a court under an enactment that provides
that a person who is guilty of the offence concerned shall be liable to a term of
imprisonment of not less than such term as is specified in the enactment.”5 We are
probably right in assuming that this does not apply to first-time section 15A offenders, as
courts have been imposing part-suspended sentences on a wholesale basis in these
circumstances, notwithstanding the terms of s. 99. The expression “shall be liable to” in
sentencing terms always causes problems. For instance, the Criminal Justice Act 1964
provided that person convicted of murder was to be liable to life imprisonment. In People
(Attorney General) v Murtagh,6 the Supreme Court held that in this particular instance,
“liable to” meant that the life sentence was mandatory, although it accepted that in many
statutory provisions which used this expression did in fact allow for discretionary
sentences. The ten-year minimum for section 15A is not strictly speaking mandatory. It
is, as the Court of Criminal Appeal recently pointed out in People (DPP) v Lernihan,7
presumptive. However, there can be no doubt about the mandatory nature of the ten-year
minimum for repeat section 15A or 15B offences. No part of the ten-year sentence may
be suspended. A question may well arise as to whether any portion of a sentence over and
above 10 years for a repeat offence may be suspended, e.g. 15 years with the last 4
suspended. Arguably, this could be done as the only portion that is truly mandatory is the
ten-year portion.
Needless to say, in a hard case, the constitutionality of the mandatory minimum ten-year
sentence for a repeat s. 15A offender might well be called into question on constitutional
grounds. Take the case of an impoverished drug addict first sentenced to three years for
acting as courier when caught with €14,000 worth of cannabis when he was just over 18
years and then a year or two after release from prison caught doing the same thing.
Would a minimum sentence of 10 years’ imprisonment be constitutionally proportionate
in these circumstances? It remains to be seen.
First-time offenders convicted of s. 15A or s. 15B offences
Essentially, the Act of 2007 leaves intact the sentencing arrangements for first-time
offenders convicted of section 15A or 15B offences. The presumptive ten-year sentence
remains, but with the qualification that in exceptional and specific circumstances, a lesser
3
Some amendments to s. 99 have been made by s. 60 of the Criminal Justice Act 2007 but these are
not relevant for present purposes.
4
S. 98.
5
Emphasis added.
6
[1966] I.R. 361
7
[2007] IECCA 21 (April 18, 2007).
3
sentence may be imposed if a sentence of 10 years or higher would be unjust in all the
circumstances. It continues to provide a non-exhaustive list of factors which a court may
take into account for this purpose, including the existence and timing of a guilty plea and
material assistance in the police investigation. Other factors to which the court may have
regard include the presence of previous convictions for a drug trafficking offence and
“whether the public interest in preventing drug trafficking would be served by the
imposition of a lesser sentence.” The courts are now faced with a rather contradictory
mélange of factor to which they may have regard. Matters like guilty pleas (though
certainly not exceptional) and assisting the police point towards a more lenient sentence.
The public interest in preventing drug trafficking would almost invariably point to a more
severe punishment.
The courts are therefore left in a very difficult position, especially when it comes to
dealing with offenders who are clearly in the lower reaches of the drug dealing business.
The orthodoxy appears to be that even where a lesser sentence if considered justified, the
court must still have regard to the statutory ten-year presumptive minimum. This means
that even relatively low level offenders must receive high sentences. A great deal of the
difficulty arises from the requirement that there be “exceptional and specific
circumstances” present to warrant a downward departure from the ten-year presumptive
standard. It would be far preferable if the legislature were to adopt the formula which was
included at the last minute in s. 25 of the 2007 Bill as passed by the Dail, the section that
provides for enhanced sentencing for repeat Schedule 2 offences. This, it will be recalled,
provides that in certain circumstances a repeat offender must receive three-quarters of the
maximum or 10 years where the maximum is life imprisonment. However, there is now a
saving clause, presumably included to insulate the provision against a constitutional
challenge, which states that this arrangement does not apply “where the court is satisfied
that that it would be disproportionate in all the circumstances of the case” to impose the
specified term of imprisonment. If this is sufficient for repeat murder, firearms and
aggravated burglary offences, to name but a few, it is difficult to see why it should not be
adequate for dealing with first-time section 15A offences. It could, if necessary, be
coupled with a statutory direction to the effect that courts must treat all drug dealing and
drug trafficking offences seriously and that regard must be had to the indispensable role
of minor players in the overall drugs trade. I make this recommendation principally
because an analysis of decided section 15A cases makes it quite clear that there are
seldom any specific or exceptional circumstances to be found in any of them. For the
most part, in fact, they are depressingly predictable.
SENTENCING FOR DRUG OFFENCES PRIOR TO 1999
The Criminal Justice Act 1999 was enacted and, indeed, welcomed by many on foot of an
assumption that the courts were routinely imposing unduly lenient sentences for drug
offences. In the absence of comprehensive statistics, it is difficult to identify with any
precision the sentencing patterns for drug offences since the early 1980s. What is certain
however is that heavy sentences were often imposed and upheld on appeal. For instance
4
in 1987, a wheelchair-bound heroin dealer, known in the Ballymun area as “deals on
wheels”, as sentenced to seven years imprisonment following a plea of guilty to having
heroin for sale or supply. A co-accused was given six years imprisonment.8 Two years
earlier, the Court of Criminal Appeal upheld a sentence of 12 years’ imprisonment
imposed on a man with a number of previous drug convictions who had plead guilty to
having over £400,000 worth of heroin and cocaine for sale or supply.9
In fact, as far back as 1983, a Dublin barman was sentenced to 14 years’ imprisonment
for importing £8,000 worth of cannabis.10 Larry Dunne was sentenced to 14 years
imprisonment, also in 1983, for possessing heroin and cocaine with a street value of
£60,000.11 A few years later, his wife, Elizabeth Dunne, was sentenced to seven years’
imprisonment for a similar offence, a sentence that was upheld by the Court of Criminal
Appeal.12 In 1996, Anthony Felloni was sentenced to 20 years’ imprisonment for what
was described as wholesale dealing in heroin and that sentence too was upheld on
appeal.13 His son was later sentenced six years for dealing in heroin14 and, in fact, a
teenage girl who was acting as courier for the Fellonis was sentenced to four-and-a-half
years in prison.15 Then there was the case of Edward “Judd” Scanlon who was given two
concurrent sentences of 22 years’ imprisonment for drug dealing in 1999 but his
conviction was quashed on appeal in May 2005.16 Many other instances of sentences in
the five-to-10 year bracket can also be found in the late 1980s and early 1990s.
CASE ANALYSIS
What follows is an analysis of 100 section 15A cases or, more precisely, 100 offenders
who were sentenced for section 15A offences. As there were some co-defendants
involved, there would have been approximately 90 separate hearings. All of the sentences
were imposed, either by the Circuit Court or the Court of Criminal Appeal, between 2001
and early May 2007, though the vast majority were imposed during the period January
2005 to May 2007. For the purpose of this survey, final sentences only have been
counted, so in case where there was a successful sentence appeal by either defence or
prosecution, the substituted sentence is taken as the operative one. It has now become
very common for the Circuit Court to impose a part-suspended sentence, usually phrased
in terms such as “ten years’ imprisonment with the last two years suspended.” In such
8
People (DPP) v Foran and Ward, Dublin Circuit Criminal Court, November 11, 1987.
People (DPP) v Johnson, Dublin Circuit Criminal Court, February 24, 1985.
10
People (DPP) v Preston, Dublin Circuit Criminal Court, November 18, 1983.
11
His conviction was later upheld by the Court of Criminal Appeal and he did not pursue his appeal
against sentence: People (DPP) v Dunne Court of Criminal Appeal, March 14, 1989 (Irish Times, March
15, 1989).
12
People (DPP) v Dunne Court of Criminal Appeal, October 28, 1999 (Irish Times,October 29,
1999).
13
People (DPP) v Felloni, Court of Criminal Appeal, February 15, 1999 (Irish Times, February 16,
1999).
14
People (DPP) v Felloni, Circuit Criminal Court, October 10, 1996 (Irish Times, October 11,
1996).
15
People (DPP) v Lynch, Circuit Criminal Court, December 4, 1996 (Irish Times, December 5,
1996).
16
People (DPP) v Scanlon, Court of Criminal Appeal, May 30. 2005.
9
5
cases, the term of immediate imprisonment, and that only, has been counted, which
means that in the example just given, the sentence is taken as being eight years’
imprisonment. Information about the cases was gathered from a variety of sources,
including media reports and appeal court judgments. Because there are exactly 100
offenders, the numbers also reflect percentages.
Gender profile
In this sample, there were 88 males and 12 females. This is a clear exception to general
crime trends, as only 3.6 per cent of the Irish prison population in April 2006 were
female.17
Nationality/Place of origin
Some definitional problems arise here as in some cases the offenders may have been born
in one country but have spent the greater part of their lives in another. For the purpose of
this survey, the country of origin is taken to be the one in which the offender appears to
have been domiciled.
Ireland
African countries
United Kingdom
Eastern Europe
Elsewhere
60
14
9
6
11
This means that 40 per cent of the offenders were from countries other than Ireland.
Again, this goes against general trends, as the foreigners make up about 9 per cent of the
overall prison population.18
Age profile
The youngest person in the sample was 19 years of age and the oldest 72 years of age.
Information was available about 94 offenders at the time of sentence or appeal. Exactly
half of them (47 individuals) were under 30 years of age and half were aged 30 years or
more. Those in the age category 25 to 29 years represented the biggest single cohort about one-third of the total - while the next biggest cohort, representing about one-fifth,
fell into the 30-34 year age category.
Plea
Information about plea was available in 97 cases. Exactly 90 pleaded guilty, and seven
were found guilty following trial. The remaining three probably pleaded guilty as well,
which means that close on 95 per cent of those charged with section 15A offences
17
Prison Brief for the Republic of Ireland, International Centre for Prison Studies, King’s College
London.
18
Ibid.
6
pleaded guilty. Indeed, it is telling (for reasons further explored below) that of the seven
who were found guilty following trial, at least three (Bowes, Dickey and Tanner) had
their convictions quashed on appeal, though at least two of these (Bowes and Tanner)
were subsequently retried and sentenced.
Street value of drugs involved
There were enormous variations in the street value of the drugs involved. According to
the reports used, the values were as follows:
€1 million or more
€100,000 up to €1 million
€13,000 up to €100,000
Not recorded
20
37
35
8
Sentences imposed
98 per cent of the offenders received sentences of immediate imprisonment. There were
only two entirely suspended sentences. The highest sentence of immediate imprisonment
imposed was 24 years and the lowest was 11 months. Overall, the trends were as follows:
10 years or more
5 years to 9 years
3 or 4 years
2 years or less
Suspended sentence
21
50
21
6
2
In fact, 47 per cent received actual prison sentences of seven years or longer. This is a
significant figure when one considers a guilty plea rate approaching 95 per cent. Almost
three-quarters received sentences of five years or longer. Again, it must be recalled that
the figures given here refer to sentences of immediate imprisonment. Many of those who
received sentences lower than ten years received part-suspended sentences which means
that on their release from prison they will be subject to conditions specified by or in
accordance with s. 99 of the Criminal Justice Act 1999. Overall, therefore, it can fairly be
said that s. 15A drug offenders are being sentenced quite heavily indeed.
Levels of involvement
For empirical purposes, it is very difficult to make any confident assessment of the level
of involvement of any particular offender in the drug dealing or drug trafficking business.
However, for the purpose of this exercise, three broad levels of involvement have been
identified.
7
Level 1 covers transactions over which the offender did not appear to have had any
substantial level of control, and from which he derived only a small profit. In some cases,
the amount allegedly paid or promised to the offender for transporting the drugs was
revealed. This was typically in the region of a few hundred Euro. In one case only, did it
appear to exceeed €1,000, and that was a particularly big operation.
Level 2 covers transactions in which the offender had a more dynamic or profitable role
in terms of distributing or selling drugs, being responsible for the direction of others, or
with a history of drug dealing.
Level 3 covers situations in which the offender was seriously involved in the drugs trade
in the sense that he was making a substantial profit from it.
It is obviously difficult on the basis of the rather scant information available to determine
precise levels of involvement. In a few cases it was clear that offenders were heavily
involved, at least at level 2 and possibly at level 3. At the other end of the scale, a
reasonably significant number of offenders were clearly within the level 1 category in the
sense that they appeared to be impoverished individuals, sometimes from African or
Easter European countries (but sometimes from Ireland as well) who were caught
transporting drugs into Ireland or carrying them within the country, often in return for
very small monetary rewards.
The estimated numbers of offenders falling into these categories are as follows:
Level 1
65
Level 2
30
Level 3
5
Of the total number (100) of offenders in this sample, almost 30 were caught at airports
or ferry ports. In fact, two were caught exporting, as opposed to importing, drugs. Rather
predictably therefore what we see is an exercise in “picking the low hanging fruit”. Those
who act as couriers or who agree to store drugs in return for payment are certainly worthy
of punishment because there are essential links in the drug dealing chain. But what s. 15A
and the punishment regime attached to it have manifestly failed to do is to catch the bigtime dealers and the masterminds of the drugs business.
THE VALUE OF THE GUILTY PLEA
Irrespective of whether it should truly be counted as an exceptional and specific factor,
the prevalence of guilty pleas in section 15A cases is clearly a great boon to the state, if
only in financial terms. In the survey of cases just outlined, convictions were secured for
drug offences with an aggregate street value well in excess of €65 million following
8
guilty pleas. This is all the more striking if one considers the case histories of some of
those who contested their guilt. Take, for example, the case of James Bowes who was
caught driving a car on James Street, Dublin 8 on April 3, 2000 and the car was found to
contain €750,000 worth of drugs. Shortly before his original trial began, he sought to
have it prohibited on so-called Braddish grounds, arguing that the car should have been
preserved by the Gardaí so that he could have independent fingerprint analysis
undertaken. The High Court dismissed this application as did the Supreme Court to which
he appealed.19 He then went on trial and pleaded not guilty. He was convicted and on July
23, 2003, he was sentenced to 12 years imprisonment. However, that conviction was
quashed by the Court of Criminal Appeal on a right to silence point.20 He was later
convicted following retrial and again sentenced to 12 years’ imprisonment on July 1,
2005. It therefore took five years, 2 trials, one High Court, one Supreme Court and one
Court of Criminal Appeal hearing to secure a conviction and sentence.
Or, take the case of Michael Tanner who was charged with possessing drugs to the value
of €77,000 in Cork in 2004. He was first convicted following trial in November 2004 and
sentenced to 15 years’ imprisonment. It was claimed that he was a significant drugs
dealer on a national level. This first sentence was imposed in November 2004. However,
the conviction was quashed and a new trial ordered by the Court of Criminal Appeal. He
was later reconvicted in July 2006 and sentenced to 14 years. Meanwhile, in November
2005, he had been convicted sentenced to 15 years’ imprisonment for a different drug
offence. He also appealed this conviction, though unsuccessfully, to the Court of
Criminal Appeal.21
Perhaps the case of Leslie Dickey is even more instructive. It would be difficult for many
of those accused of section 15A offences to protest their innocence because of the manner
in which they are caught (Dublin Airport being a particularly dangerous place in this
respect), although the case of Mr Bowes arguably gives the lie to that. Mr Dickey, too,
was caught redhanded. He arrived at Rosslare driving a car with approximately €1.3
million worth of cannabis hidden in the boot. He was convicted following trial and
sentenced to 10 years’ imprisonment. However, he had his conviction quashed on appeal
largely because it was held that the jury had not been properly been instructed in respect
of the defence of duress which he had put forward, or more specifically in relation to the
burden of proof in circumstances where this defence is raised.22 Many of those caught
importing, transporting or storing drugs claim to be acting under some form of duress.
This, of course, is a defence that rarely succeeds because of the applicable test23 but in an
environment where there is little to be gained from a guilty plea, it is one that might be
attempted more often.
19
20
21
McGrath and Bowes v DPP [2003] 2 I.R. 25
People (DPP) v Bowes [2004] 4 I.R. 223.
People (DPP) v Tanner [2006] IECCA 151.
22
People (DPP) v Dickey, Court of Criminal Appeal, unreported, March 7, 2003.
People (Attorney General) v Whelan [1934] I.R. 518. See also People (DPP) v O’Toole,
unreported, Court of Criminal Appeal, March 23, 2003 where duress as a defence to liability did not
succeed, but the Court granted some reduction in the sentence (for the importation of a large consignment
of drugs) in light of evidence that he had acted under some degree of duress.
23
9
One might contrast all of these with the facts of the most recently reported Court of
Criminal Appeal judgment, People (DPP) v Lernihan.24 The applicant in this case was
caught with approximately €72,000 worth of cocaine in Cork in December 2004. He was
convicted in June 2006 and sentenced to four years’ imprisonment with the final twoand-half years suspended. The DPP appealed against leniency of sentence. It appears that
the prosecution appeal was based on the contention that while a four-year sentence
simpliciter would have been lenient, the suspension of the final two-and-a-half years
made it unduly lenient. The Court of Criminal Appeal went one further and found that the
entire sentence, without or without the part-suspension was unduly lenient. It therefore
substitutes a sentence of seven years’ imprisonment. Yet, one cannot help but suspect
that if the applicant had been found guilty following trial and had been sentenced to
seven years imprisonment, his sentence would probably not have been upset (and might
not have been appealed). Furthermore, there appears to be some degree of dissonance
between the substituted sentence in this case and the final sentence imposed in People
(DPP) v Bowes - 12 years’ imprisonment. After all, the value of the drugs found in Mr
Bowes’ possession was more than 10 times that in Mr Lernihan’s case. Bowes pleaded
contested his guilt and his convictions at every possible juncture, as he was fully entitled
to do. He had previously been sentenced to five years for heroin trafficking in 2000 and
was described by a Garda witness as a significant player in the Dublin Drugs scene.
Lernihan, on the other hand, had no previous convictions. He was employed and was in a
stable relationship. Without doubt, he appears to have knowingly engaged in the drugs
dealing for financial gain and there was no evidence that he was an addict. He therefore
deserved punishment. However, the substituted sentence appears unduly harsh.
Of course, the nub of the problem is to be found in the Lernihan judgment itself. The
Court had to contend with the unwieldy jurisprudence that has emerged for the
sentencing of s.15A offences, an unwieldiness that is due entirely to the awkward terms
in which the relevant statutory provision (s. 27 of the Misuse of Drugs Act 1977) is
phrased, as already discussed.
THE NEW INCONSISTENCY
We generally think of inconsistency in terms of similar offences attracting markedly
different sentences. What we are now witnessing under the section 15A regime is the
imposition of similar sentences for markedly different offences. For instance, 22
offenders received sentences of 7 or 8 years’ imprisonment. Yet the amount of drugs
involved in these cases varied from €33,000 worth to €16 million worth. The same
pattern is evident throughout the sample. There were also considerable variations in the
personal circumstances and levels of involvement of the many offenders who received
sentences within this and other very narrow bands within the sample. If the legislative
intention back in 1999 was to curtail perceived disparities in the sentencing of drug
dealing offences, the statutory provision introduced to cure this situation has created what
is, in many respects, an even more noxious form of inconsistency.
24
[2007] IECCA 21 (April 18, 2007).
10
THE CRITERIA FOR DEPARTURE FROM THE PRESUMPTIVE MINIMUM
As I have already suggested, the statutory requirement that there must be exceptional and
specific circumstances relating to the offence or the offender is inherently problematic.
The Court of Criminal Appeal was surely right to point out in People (DPP) v Botha25
that the circumstances must be both exceptional and specific. The difficulty is that the
“specific” element does not mean a great deal. Presumably it is intended to convey a
requirement that a court should isolate certain particular factors which would provide
possible grounds for downward departure (rather than just look at the case in the round)
and then proceed to consider if these factors are sufficiently exceptional to warrant
departure in fact. As the above case survey shows, few offenders can point to truly
exceptional circumstances.
However, it is arguable that the courts themselves have contributed to the problem.
There are now many reported judgments on section 15A sentencing, but the judgment of
the Court of Criminal Appeal delivered by Murphy J. in People (DPP) v Renald
continues to dominate the entire jurisprudence in the area.26 Here the court said that even
where a trial judge determines that a sentence of less than 10 years is warranted, he or she
must still have regard to so-called mandatory minimum as “an important guide” when
determining the appropriate sentence. The court also said, quite rightly and
uncontroversially, that the maximum sentence for an offence is always an important
guide to the legislative assessment of its gravity. This is certainly true. For example,
when the maximum prison sentence for dangerous driving causing death or serious injury
was increased from five years to ten years, this was taken as an indication that sentences
for such an offence should generally become more severe than they had hitherto been.
However, the problem with the court’s declaration that the 10-year presumptive
minimum should function as an important guide is that it has not basis in the statute itself.
In fact, what s. 27 of the Misuse of Drugs Act as amended says is that once a court has
decided that there are specific and exceptional circumstances present, the presumptive
minimum shall not apply. Even under the recently revised terms of the section as set out
in s. 33 of the Criminal Justice Act 2007 which require courts to have regard to a variety
of important social and individual factors before deciding to depart from the presumptive
minimum, it still provides that once they are satisfied in this respect, the presumptive
minimum shall not apply. I would interpret this to mean that when a court is satisfied
that a sentence of less than 10 years is warranted, the ordinary principles of sentencing
apply. And, it goes without saying that those principles would usually mandate a heavy
sentence for drug dealers and couriers even where there are mitigating factors. The
section, after all, could have said something to the effect that where the presumptive
sentence is held not to apply, a court shall still have regard to it when deciding on the
appropriate sentence. Certainly, the presumptive minimum is a matter to which a court
should have regard, but to no greater extent that a court has regard to any maximum
25
[2004] 2 I.R. 375.
People (DPP) v Renald, unreported, November 23, 2001. This has been quoted with express
approval in several cases including People íDPP) v Botha [2004] 2 I.R. 375 and People (DPP) v Lernihan
[2007] IECCA 21 (April 18, 2007).
26
11
sentence. After all, the maximum sentence for theft may be 10 years (or 12 months
following summary conviction), but nobody suggests that when sentencing somebody for
a minor theft, a court must always feel that it should approach either of these maxima. In
short, therefore, the ten-year presumptive sentence in Renald-type cases should be a
factor, among many others, for consideration, but it should not operate as a straightjacket.
If the courts simply applied the ordinary principles of sentencing once they had decided
that a departure from the presumptive ten-year sentence was warranted they would free
themselves from the legal gymnastics in which they have felt themselves obliged to
engage ever since Renald and which were most recently evident in Lernihan. However,
to make this approach both politically and morally acceptable, it should be accompanied
by a set of judicially-developed guidelines which would provide for reasonably severe
sentences in serious cases while allowing for more moderate sentences where the
interests of proportionality so require, a topic further considered, though briefly, below.
A MORE RADICAL CRITIQUE OF MANDATORY AND PRESUMPTIVE
SENTENCING
Why ten?
A legislative decision to stipulate a mandatory or mandatory minimum sentence for a
criminal offence reflects a mistrust of judicial decision-making or, to adopt the title of a
leading American critique of sentencing guidelines, a “fear of judging.”27 The drawbacks
of mandatory sentencing are well documented, but one factor seldom noticed is the
paradox inherent in the legislative selection of a set mandatory sentence as an antidote to
judicial discretion.28 The adoption of any mandatory sentence measured in years’
imprisonment represents a choice that is just as discretionary and selective as any
judicially-chosen sentence in a specific case. Moreover it is of necessity an arbitrary
choice because legislators can never predict, except perhaps in the vaguest of terms, the
range of circumstances in which any offence is likely to be committed. Mandatory
sentences are often than expressed in prison terms of five or ten years, or life. Yet there
is nothing to suggest that these numerical terms are more intrinsically appropriate than
any other. Numbers like seven, ten and twelve are often said to have biblical or other
historical significance. That is one explanation, though a contested one, as to why most
common-law jurisdictions have 12-member juries, though the Scots obviously had
different ideas when they opted for 15. Yet, the figure ten, which now seems to be the
favoured number for mandatory sentences in this country, has its own symbolic
problems. St Matthew’s Gospel tells of ten virgins who went out to the meet the
bridegroom, but the point of the story is that only five of them were wise. In both Exodus
and Deuteronomy, Moses is credited with having given the Israelites the Ten
27
K. Stith and J.A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts
(University of Chicago Press, 1998).
28
This concept of systemic discretion, usually overlooked, is discussed very perceptively by Reitz,
“Modelling Discretion in American Sentencing Systems” (1998) 20 Law and Policy 389.
12
Commandments, but when he proclaims them, there turn out to be 14, 17 or, according to
some scholars, 25 different precepts. It was only in the fifth century A.D. that St.
Augustine produced the version of the Commandments followed today by Catholics and
Lutherans. Other denominations have their own versions.
Another factor worth remembering is that mandatory prison sentences are almost always
expressed in terms of years. Imprisonment is one of the few things that we still measure
in pre-industrial units of time.29 Why not think instead in terms of months, weeks or
days? What is it that makes 3,650 days (or 3,652 if we allow for a couple of leap years)
an intrinsically appropriate presumptive sentence for the possession of €13,000 of
cocaine, or the only appropriate starting point in the case of a second or subsequent
conviction for section 15A or 15B offence?
Indicia of gravity
The doctrine of proportionality requires, first, that punishment reflect the gravity of the
offence and, secondly, that it also reflect the personal circumstances of the offender.
Despite the repeated acceptance of this principle in Ireland, there has so far been no
sustained effort to identify the indicia of gravity. Assessments of gravity must, for the
most part, be offence-specific. In manslaughter, for example, which is a notoriously
difficult offence to sentence, the amount of violence inflicted and the level of foreseen
injury are widely accepted as key factors in the construction of gravity. Theft offences,
on the other hand, must be assessed in terms of the value of the property stolen, the
degree of hardship caused to the victim, the manner in which the theft was carried out
and related matters. When it comes to drug dealing in its various forms, the value of the
drugs involved is certainly an important matter, but it is not the only one. The nature of
the offender’s involvement may be equally important, if not more so. Some would hold
that the nature of the drugs should also be taken into account, but opinions differ on this
matter. The problem with our present sentencing regime where the drugs are worth more
than €13,000 is that the principal factor is the street value of the drugs. This
preoccupation with street value poses several problems when it comes to developing an
effective and just sentencing system.
Two related problems arise. First, as a matter of principle it is unsatisfactory that a
person’s liability to a very heavy term of imprisonment should depend on police
estimates of the street value of drugs, and all the more so when a heavy mandatory
sentence must be imposed. In fact, international practice seems clearly to favour weight
over street value. The federal sentencing guidelines of the United States which, naturally,
are heavily preoccupied with drug offences as these form the bulk of criminal business in
the federal courts, define sentencing levels in terms of weight rather than value. Some
29
D.J. Rothman, “Doing Time: Days, Months and Years in the Criminal Justice System” in Etzioni
(ed), International Studies in Sociology and Social Anthropology, Volume XXIV, Policy Research
(Leiden, E.J. Brill, 1978).
13
years ago, the Sentencing Advisory Panel of England and Wales was called upon to
recommend guidelines for the importation of opium, an offence that did not arise very
often. The Panel consulted widely, as it was obliged by statute to do, about the
appropriate criteria for the drafting of guidelines.30 It identified a number of possible
criteria at the outset – weight, dosage units, street value and the quantity of heroin that
could be produced from a given quantity of opium. Following consultation and its own
consideration, the Panel concluded:
“We believe, however, that monetary value, even as a comparator between
different types of drugs rather than as the primary factor for determining sentence
levels, needs to be treated with considerable caution. Some of our consultees
have suggested that the concept of “street value” cannot be meaningfully applied
to a drug such as opium which is not commonly traded on the street. The value of
such a commodity would not only be more difficult to ascertain than for other,
more commonly available drugs, but would also be likely to fluctuate markedly
from time to time and from place to place.”31
Even ignoring the special difficulties associated with assessing the value of opium, this
general observation seems valid in respect of drugs generally.
Aside from all of this, the selection of quantum, whether measured in weight or street
value, as the predominant consideration means that other highly relevant considerations
must either be ignored or downgraded. The offender’s level of involvement in the overall
enterprise should always be a matter of key importance. The ultimate objective, after all,
is to curtail both the importation of drugs and their distribution within the State. We must
accept, of course, the need to target and apprehend everyone engaged in drug distribution,
irrespective of their level of involvement. However, from both strategic and moral points
of view, the so-called drug barons – those responsible for masterminding the drug trade
and those who make the most profit out of it – are deserving of far heavier punishment
that carriers and distributors who are often little more than pawns in the game. The
decision of the High Court of Australia in R v Wong32 is instructive in this regard. When
this case came before the New South Wales Court of Appeal, a majority of the court, led
by Spigelman C.J., took it upon itself to devise guidelines for the importation of certain
narcotics based on weight.33 Thus, for example, the importation of 1 kilogram to 1.5
kilograms of heroin was ordinarily to attract a sentence of seven to 10 years. When the
matter came before the High Court of Australia, there was quite a diversity of opinion on
the various matters raised in the appeal, which also touched on issues of federalism.
However, the point was made by several members of the court that sentencing guidelines
based solely on weight were clearly inadequate. For instance, Gaudron, Gummow and
Hayne JJ in a joint judgment said:
30
Sentencing Advisory Panel, Sentencing Guideline on Importation and Possession of Opium (2001)
available at Hwww.sentencing-guidelines.gov.uk/about/sapH
31
Ibid., para. 12. This was largely adopted by the Court of Appeal in R v. Mashaollaki [2001] 1 Cr.
App. R. (S) 330.
32
[2001] HCA 64 (November 15, 2001).
33
R v Wong (1999) 48 NSWLR 340 at 366.
14
“It must be recognised that not all offenders will know or even suspect how much
pure narcotic is to be imported. Apart from the extent to which the pure narcotic
is diluted or cut (a matter about which those involved in the importation may
know little or nothing), it is by no means uncommon for many of those involved
in an importation of narcotics to know nothing at all about what they are dealing
with, except that it is a quantity of narcotic.
It follows that there will be many cases in which a sentencing judge will be more
concerned to identify the level of the offender's criminality by looking to the state
of the offender's knowledge about the importation in which he or she was
involved. Often enough, information about the kind and size of reward given or
promised to the offender for involvement in the importation will be seen as
important in fixing a sentence and distinguishing between offenders.”34
They also said:
“So long as a sentencing judge must, or may, take account of all of the
circumstances of the offence and the offender, to single out some of those
considerations and attribute specific numerical or proportionate value to some
features, distorts the already difficult balancing exercise which the judge must
perform.”35
All of these remarks may be applied mutatis mutandis to rules which require sentence to
be selected almost entirely on the basis of the street value of drugs. In an earlier New
South Wales case, Gleeson CJ had said:
"It must often be the case that an offender's conduct in pleading guilty, his
expressions of contrition, his willingness to co-operate with the authorities, and
the personal risks to which he thereby exposes himself, will form a complex of
inter-related considerations, and an attempt to separate out one or more of those
considerations will not only be artificial and contrived, but will also be
illogical."36
Needles to say, other factors might be mentioned as well, including evidence that the
offender acted under duress as will be true of some drug couriers.
A SUGGESTED GUIDELINE SYSTEM FOR SENTENCING DRUG OFFENCES
A system of judicially-developed guidelines would, of necessity, be guided by the same
fundamental policy as the present statutory sentence, namely, an acceptance that drug
offences deserve to be treated severely because of the social harm caused by the drugs
34
35
36
R v Wong [2001] HCA 64 at [68]-[69] (November 15, 2001).
[2001] HCA 64 at [76].
R v Gallagher (1991) 23 NSWLR 220 at 228.
15
and those who deal in them in various ways. It is to be expected therefore that guidelines
would stipulate appropriately severe sentences for such offences. However, they would
also have the merit of allowing for subtle, but morally and socially justifiable,
distinctions to be drawn in order to reflect different levels of involvement and culpability.
The starting point for any guideline system must surely be the level of involvement. For
this purpose, offenders might be divided into two broad categories. The first would
consist of those with a meaningful or substantial level of control over their drug-dealing
activities. This would include not only the so-called drug barons who mastermind the
importation and distribution of drugs, but also those who knowingly and willingly engage
in the business of selling drugs for profit and who are known to derive profit from that
business. When dealing with such offenders, the amount and value of the drugs found in
their possession or under their control can legitimately influence the severity of sentence.
After all, a person who arranges for the importation of €3 million worth of heroin knows
and intends that this will cause a great deal of harm. Somebody caught with €25,000
worth of heroin in which he is dealing is also causing harm, but to a lesser degree. This
admittedly gives rise to the problem of “real offence sentencing” which arose in both
Gilligan and Barrett. In other words, there may be a strong suspicion, or it may even be
common knowledge, that the person caught with €25,000 worth of drugs is a regular
dealer and may have sold hundreds of thousands of Euro worth of drugs, if not more,
over the preceding months or years. Yet, the orthodoxy is that a court must only sentence
a person for an offence of which he has been found guilty, or to which he has pleaded
guilty, or which he has asked to have to be taken into consideration. There is no easy
way around this problem, except perhaps to pitch the base sentence for those in this first
category at a reasonably high level. There could then be marginal increases for those
found in possession of particularly large amounts of drugs, for the reasons already given,
and some decrease where the evidence that the offence was a once-off. Credit would also
be given for the usual mitigating factors such as a guilty plea or previous good character.
Possession of firearms should be treated as a ground for sentence enhancement unless a
separate, consecutive sentence was being imposed for the firearms offence.
A FINAL THOUGHT ON MANDATORY SENTENCING
The disadvantages associated with mandatory sentencing are well-known and well
charted. There are numerous academic studies showing how they have failed to work at
different eras in history, including modern times. They are objectionable on both ethical
and strategic grounds. The principal ethical objection is that courts are obliged to impose
the same sentence on everyone convicted, whether following trial or plea, of a given
offence irrespective of differences, and sometimes quite profound differences, in the
circumstances of the offence and the offender. The main strategic objections are, first,
that discretion is extraordinarily difficult to remove. According to the so-called hydraulic
theory, when discretion is removed from one decision-maker, such as a judge, it generally
16
migrates to another, such as a prosecutor.37 Furthermore, mandatory sentencing usually
results in increased prison populations and longer sentences. Little thought is ever
devoted to what will happen when those prisoners are released back into the community.
The United States is now experiencing this problem, with about 600,000 people being
released from federal and state prisons every year. Perhaps if there is one striking
illustration of the drawbacks of mandatory sentencing, it comes from Utah of all places, a
state not exactly known for its lenient sentencing policies. A recent report of the Utah
Sentencing Commission explained by it decided to abandon mandatory minimum
sentences for child sexual abuse offences and I suggest that the following extract makes
for instructive reading:
“Utah experimented with mandatory minimum sentencing for sex offences
against children in 1983. These were repealed in 1996 after considerable
experience and research indicated mandatory minimums for sex offences were
failing Utah’s justice system, its citizens, and most importantly, the vulnerable
victims these mandatory sentences were designed to protect. For instance,
mandatory minimum sentences were resulting in more child sex cases going to
trial through evidence strongly favoured the prosecution. It was observed that in
the mandatory minimum scheme, defendants had nothing to lose by going to trial
as their time of incarceration was definite if found guilty. In these trials, child
victims were forced to re-live their private devastation in a public forum, in the
presence of the offender, and under cross-examination from defence counsel.
Additionally, for cases that were not incredibly strong or the credibility of the
child witness was considered to be less than stellar due largely to the victim’s
reluctance to testify, a plea agreement was negotiated and the offender ended up
not being convicted of the mandatory minimum offence at all – rather, they often
ended up with a plea agreement to a second or third degree felony when the
underlying charge was a first degree felony.
Since repealing these mandatory minimums in 1996, research indicates Utah is
actually getting more sex offenders convicted of first degree felonies. First degree
felony sex offence admissions to prison have dramatically increased.”38
37
See, for example, Miethe, “Charging and Plea Bargaining Practices under Determinate
Sentencing: An Investigation of the Hydraulic Problem of Discretion” (1987) 78 Journal of Criminal Law
and Criminology 155.
38
Utah Sentencing Commission, A Statement Regarding Utah’s Indeterminate Sentencing System
(September 2006), pp. 3-4.
17