Cormac O'Keeffe: Minimum sentences well-meant but are they beneficial?
Ireland does have three entirely mandatory sentences: For murder, capital murder (of a garda or prison officer in the course of their duty), and treason.
When minimum sentences for drug dealing and firearms offences were introduced, they were “well meant”, an official report has found.
The provisions aimed to hit those people responsible for poisoning local communities with heroin and driving an upsurge in gangland murders and shootings.
The Criminal Justice Act 1999 brought in a 10-year minimum jail term for anyone caught with drugs worth over €13,000.
The country, particularly working class areas of Dublin, had been hit by a second heroin epidemic from the mid-1990s on, decimating communities, forcing families to take to the streets to demand action on dealers and treatment for users.
That resulted in the government setting up a number of ministerial taskforces to examine the issue, including the underlying poverty in the worst-hit areas, and led to a dramatic increase in the provision of drug treatment.
A raft of legislation also followed to tackle drug gangs, including the setting up of the Criminal Assets Bureau in 1996, months after the shooting dead of journalist Veronica Guerin by the John Gilligan gang.
Two years after the 1999 Act was introduced, Gilligan was given a 28-year jail sentence for drug trafficking.
Although he was acquitted of murdering the journalist, the Special Criminal Court found his gang was behind it.
The Criminal Justice Act 2006 was a major piece of legislation aimed at combating the threat posed by organised crime — particularly in Dublin and Limerick.
That Act created a new definition of a criminal organisation and new offences of participating in or assisting the activities of crime gangs.
These provisions were expanded in the Criminal Justice Act 2009 and, between them, the provisions have been used extensively, including, in recent years, against hit teams and senior lieutenants working for the Kinahan crime cartel.
The 2006 Act also set out a number of firearms offences, which would attract either a five-year or 10-year minimum sentence.
The feud between the Keane-Collopy and the McCarthy-Dundon gangs in Limerick and the Crumlin-Drimnagh feud in Dublin was causing massive concern leading up to the 2006 Act, violence that would continue until the early 2010s.
There were 17 gangland murders in 2003, 20 in 2005, and 19 in 2006. In contrast, there have only been two gangland murders this year.
Two murders in 2006 that caused particular outrage were those of innocent people, Roy Collins in Limerick and mother Baiba Saulite in Dublin.
The murder of another innocent, Limerick man Shane Geoghegan in 2008, by the Dundon gang, played a major part in the introduction of the 2009 Act.
A detailed examination of the drug and firearm “minimum sentence” provisions by the Department of Justice does not find in their favour — though ultimately it decided to retain them. “The introduction of these particular enactments were well meant, intending to target those at the highest levels of organised crime who co-ordinated the distribution of drugs or who directed the escalating firearm offences as part of the gangland violence,” states the report.
“However, it has become clear over time that many of those most impacted by the introduction of minimum sentences are individuals, who, while found guilty of the respective offences, are low-level offenders, often vulnerable and subject to degrees of coercion.”
The report was carried out under a provision in the Judicial Council Act 2019 requiring a review of minimum sentences. It found that in the “vast majority” of cases, based on the data available, prison sentences handed down for the drug-dealing and firearms offences attracting the minimum sentences were, in fact, a lot lower.
It says this reflected the discretion legally provided to judges to decide the “appropriate sentences”, taking into account the specific circumstances of the case and the defendant.
The minimum sentences are “presumptive”, stresses the report, meaning that while they set out the minimum terms that should apply, judges can give lower sentences in “exceptional circumstances”.
These include a plea of guilty, including how early the plea was given and the circumstances of it, and whether the person materially assisted the Garda investigation.
The most well-known presumptive offence is the 10-year minimum sentence for anyone caught with drugs worth €13,000 or more. It also applies to a second drug offence of importing drugs.
It also applies to six firearms offences — including two crimes attracting 10-year minimum sentences and four crimes with a five-year minimum sentence.
A number of presumptive minimum sentences were introduced for repeat offences for the same crime, including offences of murder, non-fatal assault cases, firearms, aggravated burglary, drugs, organised crime, and sex offences.
Irish legislation only provides for presumptive minimum sentences and not mandatory minimum sentences, which the report says were deemed unconstitutional by the Supreme Court.
Ireland, however, does have three entirely mandatory sentences: For murder, capital murder (of a garda or prison officer in the course of their duty), and treason.
A separate review is under way into life sentences, including mandatory life sentences, with a view to introducing minimum periods of imprisonment before parole can be considered.
The Department of Justice report says that, as a result, it did not examine this issue.
The report details figures taken from the Irish Prison Service and the Courts Service for active sentences, currently in place, for the offences attracting presumptive minimum sentences:
- Of the 1,521 active sentences for possession of drugs over €13,000, 94% were less than 10 years, ranging from 22% up to three years; 50% between three and six years; 9% between six and eight years; 6% between eight and 10 years; and 6% above 10 years;
- Of the 288 active sentences of possession of a firearm with intent to endanger life (presumptive minimum of 10 years), 16% were 10 years and above, but most (53%) were between two and six years;
- Of the 53 active sentences for using firearms to resist arrest or aid escape (10-year minimum), 4% were above 10 years, 45% were five to six years, and 23% were seven to eight years;
- Of the 565 sentences for possession of firearms or ammunition in suspicious circumstances (five years minimum), just 1% were above five years, while 65% were between two and six years;
- *Of the 377 active sentences for carrying a firearm with criminal intent (five years minimum), 2% were above the five years, with 83% between three and five years.
In relation to the drug possession offence, the report says the majority of sentences are “considerably lower” than the minimum, but that a number of the sentences “far exceed” the minimum.
It says the data provides evidence to the extent to which the judiciary “utilises judicial discretion to hand down appropriate sentences”.
It says the Law Reform Commission (LRC), in a 2013 report, recommended the repeal of all minimum sentences.
The LRC report states that most of the drug offenders were “drug mules”, whose criminal activity would have been incited through “exploitation and coercion”. It found people can also be “coerced or tricked” into hiding firearms and ammunition for someone else.
The Department of Justice report says that it found “no recent evidence” to contradict the recommendations of the LRC and others recommending the repeal of presumptive minimum sentencing legislation.
It says recent research indicated that minimum sentences “are neither an effective deterrent for criminal behaviour nor do they increase community safety” any more than the normal way of sentencing.
“It is clear in this jurisdiction, the punitive nature of minimum sentences is understood, and judges continue to use their discretion at sentencing where possible,” states the report.
It says there was “no clear benefit” in retaining the provisions and that it was considered “highly unlikely” their repeal would have any major impact on current sentencing patterns.
Despite all the forgoing analysis, the report states that there were gaps in the data and that “no definitive position” could be reached in determining if there was a place for presumptive minimum sentences.
“On this basis, this policy review does not recommend the repeal of enactments providing for presumptive minimum sentences,” it concludes.
It recommends the repeal of the provisions that exclude offenders who are given the presumptive minimum sentences from being considered for temporary release or parole.
The report will now be considered by Justice Minister Helen McEntee and her senior officials.
CONNECT WITH US TODAY
Be the first to know the latest news and updates
