A recent study conducted by the Irish Sentencing Information System (ISIS)¹ examines the sentencing practices of the Irish courts in relation to the offences of possession or importation of controlled drugs for the purpose of sale or supply.² There are four such offences which are covered by the study:

• possession of controlled drugs for unlawful sale or supply (s. 15 of the Misuse of Drugs Act 1977, as amended),
• possession of controlled drugs (valued at €13,000 or more) for unlawful sale or supply (s. 15A of the Misuse of Drugs Act 1977, as amended),
• importation of controlled drugs for unlawful sale or supply (several provisions found in the Customs Acts, Misuse of Drugs Acts 1979–1984, as amended, and the Misuse of Drugs Regulations 1988), and
• importation of controlled drugs (valued at €13,000 or more) for unlawful sale or supply (s. 15B of the Misuse of Drugs Act 1977, as amended).

Convictions under s.15A or s.15B of the Misuse of Drugs Act 1977 attract a ‘basic presumptive sentence’ of 10 years or more. A sentencing court may, however, impose a lower sentence where there are mitigating factors that amount to ‘exceptional and specific circumstances’, which would render the imposition of a sentence of 10 years or more ‘unjust in all the circumstances’.³

Part I of the report analyses the legislative basis for these drug trafficking offences and the reserved judgements of the superior courts. Part II examines the application of sentencing principles in relation to the ‘basic presumptive sentence’ provided for in s. 15A and s. 15B. Part III examines 79 judicialdecisions involving 81 offenders before the Court of Criminal Appeal between 2009 and 2012. Twenty of these judgements relate to ordinary offences and 59 to offences carrying the presumptive sentence.

The case law analysed shows that ‘in the majority of s. 15A and s. 15B sentences (67% of those surveyed), the presumptive minimum sentence of 10 years imprisonment or more is not imposed by the courts despite the fact that this sentence is popularly described as a “mandatory minimum” ’ (p. 6). However, this does not mean that the courts are disregarding the presumptive minimum sentencing provisions. As the author explains, ‘the Court of Criminal Appeal has repeatedly emphasised that the upper parameters of these offences are properly defined by reference to the maximum penalty of life imprisonment and not, as is often the case, to the presumptive mandatory minimum of 10 years’ (p. 6). This is the case at least with regard to possession for supply offences. With regard to importation offences, the author concludes that the statutory framework ‘is less coherent’ (p. 6). This is due to the fact that the ordinary offence exists under legislative provisions which provide different maximum penalties, ‘one of which carries a maximum penalty of 14 years imprisonment and the other carries a maximum sentence of life imprisonment’ (p. 6).

This anomaly exists primarily for historical reasons that can be traced back to the emergence of the heroin ‘epidemic’ in Dublin in the early 1980s. Prior to the introduction of the maximum sentence of life imprisonment in 1984, the upper limit of 14 years applied to importation and possession for sale and supply offences. Such a maximum sentence was imposed in The People (Director of Public Prosecutions) v. L.D., the initials standing for Larry Dunne, a leading member of the family largely credited with introducing heroin to Dublin at that time.⁴ In the period between the commission of the offence, and the date of sentencing, the legislature had increased the maximum penalty. In passing sentence, McMahon J. stated that the major players involved in drug trafficking could in future expect life imprisonment. As the ISIS report shows, however, to date no convicted person has received the maximum sentence of life imprisonment. As a consequence, as the author points out, ‘It is sometimes therefore popularly espoused that custodial sentences imposed are too short or that disparity exists from one sentence to the next’ (p. 7). Such disparity is apparent in the following cases examined by the author of the ISIS report:

… one offender found with €300,500 of cannabis and cocaine was sentenced to the presumptive minimum of 10 years while another found with €329,301 of cocaine received a wholly suspended sentence; a man found with €43,000 of cocaine received a 1.5 year custodial sentence while another man found with €287,050 of cannabis received 4 years. (p. 7)

The ISIS report finds that in supply offences involving drugs valued at €13,000 or more, the value is the most important factor in determining the sentence. However, this is not the only factor considered, as sentences differ relative to the circumstances of individual cases and individual offenders. This approach is regarded as consistent with general sentencing principles.

The analysis of cases provided in the report shows that there are four primary factors featuring in the construction of sentences for drug trafficking offences:

• quantity or value of the controlled drug or drugs,
• type of controlled drug or drugs,
• role of the offender, and
• condition of the offender (p. 7).

The Law Reform Commission (LRC), an independent statutory body established to keep the law under review and to make proposals for reform, has recently recommended that the presumptive sentencing regime for drug offences be repealed.³

1. ISIS was established by the Board of the Courts Service as a computerised information system on sentences and other penalties imposed for offences in criminal proceedings. ISIS enables a judge, by entering relevant criteria, to access information on the range of sentences and other penalties which have been imposed for particular types of offence in previous cases. http://www.irishsentencing.ie/
2. Mackey K (2014) Analysis of sentencing for possession or importation of drugs for sale or supply Dublin: Irish Sentencing Information System
3. For a detailed account of the legislation and recommendations for change, see Law Reform Commission (2013) Report: mandatory sentences. LRC 108–2013 Dublin: Law Reform Commission
4. For an account of this period, see Flynn S and Yeates P (1985) Smack: the criminal drugs racket in Ireland  Dublin: Gill & Macmillan