The recent report published by the Law Reform Commission (LRC)¹ recommends that the presumptive sentencing regime for drug offences be repealed.² The Criminal Justice Act 1999 created a new offence of possessing controlled drugs having a value of £10,000 (€13,000) or more for sale or supply, which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. In an earlier consultation paper on the operation and impact of this legislation,³ the LRC called for a review of the sentencing regime, finding that in effect it had merely led to a ‘bulge in the prison system comprising low-level drugs offenders’ serving lengthy prison sentences (p.189). Following further examination, the LRC concludes in the present report that the legislation has not contributed to any reduction in levels of criminality, ‘the paramount aim of the criminal justice system’ (p.181).

This report reviews similar legislation in a number of other common law countries, noting that the enactment of presumptive minimum sentencing in Ireland was, to some extent, influenced by sentencing reforms in the US and the UK in particular. In the drugs context, a range of punitive sentencing measures has been introduced in other jurisdictions so as to reflect the relative seriousness of specific drug-related offences. Aggravating factors can include: repeat drug offences, dealing drugs to minors or ‘with the aid or conspiring of a child under the age of 18 years’ (p.155), drug trafficking while in possession of a firearm, selling drugs on a school bus or in the vicinity of a school, college, in a housing project, or to someone who is pregnant; running a drug trafficking enterprise or acting as the ‘principal administrator, organiser or leader of a continuing criminal enterprise’ (p.157) can also lead to more severe punishments. Aggravating factors may also relate to the quantity of drugs involved in the offence (p.161). 

Although such a comparative analysis is of interest, the LRC cautions against relying too heavily on examples set by other countries, noting that these provisions ‘are often the product of circumstances and cultural factors specific to the jurisdiction in question’ (p.174). Ultimately, the LRC concludes, presumptive sentencing should be evaluated in terms of the extent to which it is consistent with the general aims of criminal sanctions, which include deterrence, punishment, reform, rehabilitation and reparation.⁴

Sections 4.191 to 4.197 of the report deal individually with these general aims (pp.174–176). In particular, the LRC observes that deterrence and punishment feature prominently as aims in respect of offences that attract presumptive sentences, as these sentences seek to

 With regard to deterrence, the LRC observes  that, in practice, ‘high-level [drug] offenders…shield themselves from detection and prosecution by means of complex and constantly evolving networks of distributors. It is unlikely that such offenders would be deterred by the prospect of a presumptive …sentence when they are unlikely to be subjected to it’. At the other end of the scale, offenders are either ‘low-level drug mules whose involvement in the drugs trade is generally secured by means of exploitation and/or coercion’ or, referring to an observation of the Court of Criminal Appeal, ‘they are themselves drug addicts struggling to escape from the terrors of their addiction’. Drug mules would be unlikely to be deterred by a presumptive sentence, in many cases either not being equipped to assess the legal consequences of their actions or fearing the consequences of refusing to carry drugs. Dependent drug users, on the other hand, are prepared to risk ‘victimisation, overdose, the transmission of diseases, and toxicity and impurities in the drug in order to feed their addiction’ and, as a consequence, according to the LRC, ‘they are unlikely to be deterred by the prospect of lengthy imprisonment’.

With regard to meeting the aims of punishment from a retributive perspective, the LRC highlights the apparent injustice inherent in the legislation whereby the same presumptive sentencing regime applies to individuals regardless of their position in the drug trafficking operation and their consequent level of moral culpability. This arises because ‘the market value of the drugs (€13,000 or more)…is prioritised at the expense of other factors relevant to culpability, such as role, motive and state of mind of the offender’.      

In calling for a repeal of the presumptive sentencing regime, the LRC concludes that the objective of reducing drug-related crime is unlikely to be achieved solely through criminal law enforcement, and that crime-reduction approaches must be informed by a deeper understanding of the complexity of the relationship between illicit drug use and crime and a focus on measures aimed at addressing drug dependency.⁵

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1. The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. Its 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.
2. Law Reform Commission (2013) Report: mandatory sentences. LRC 108–2013. Dublin: LRC. www.drugsandalcohol.ie/20242. The LRC uses the term ‘presumptive’ as distinct from ‘mandatory’ in relation to sentences for certain drugs and firearms offences, 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 treason or capital murder, for example.
3. Law Reform Commission (2011) Consultation paper: mandatory sentences. LRC CP 66-2011.Dublin: LRC. www.drugsandalcohol.ie/16789. See also Connolly J (2012) Mandatory minimum sentencing. Drugnet Ireland, (41): 23–24. www.drugsandalcohol.ie/17288
4. See detailed discussion in chapter one of the LRC conslutation paper.
5. With regard to the drugs–crime linkage, the LRC report endorses the analysis provided by the Health Research Board in an earlier study: Connolly J (2006) Drugs and crime. Overview 3. Dublin: Health Research Board. It also highlights the current focus by the British–Irish Council on recovery from drug dependence. See discussion pp.176–177.