Conciencia – Equivocación

Act to provide that the sentencing regime prescribed under that section in respect of an offence under section 15A (offence relating to possession of drugs with a value of\_{13,000 or more for the pur-}

pose of sale or supply) including the mandatory minimum sentence of 10 years shall also apply to an offence under section 15B (offence of importation of controlled drugs in excess of\_{13,000 as inserted}

by section 82 of this Act). In addition the section provides for a number of amendments to the mandatory minimum sentencing regime under the section.

A new subsection (3AA) is added. It provides that the court in determining the appropriate sentence shall have regard to whether the person has a previous conviction for a drug trafficking offence.

A new subsection (3CC) relates to cases where the court is con- sidering whether a sentence of not less than 10 years would be unjust, it shall have regard to whether the person has a previous conviction for a drug trafficking offence and whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence.

New subsections (3CCC) and (3CCCC) provide that in circum- stances where a person has a previous conviction under sections 15A or 15B, the court must impose a sentence of not less than 10 years imprisonment.

The relevant subsections of section 27 of the 1977 Act as inserted by section 6 of the Misuse of Drugs Act 1984; section 5 of the Crimi- nal Justice Act 1999 and amended by section 84 of this Act are set out below for ease of reference.

27.—(1) ... ... ... (2) ... ... ... (3) ... ... ...

(3A) Every person guilty of an offence under section 15A or 15B of this Act shall be liable, on conviction on indictment—

(a) to imprisonment for life or such shorter period as the court may determine, subject to subsections (3B) to (3CC) of this section or, where subsection (3CCCC) of this section applies, to that subsection, and, (b) at the court’s discretion, to a fine of such amount as the

court considers appropriate.

(3AA) The court, in imposing sentence on a person for an offence under section 15A or 15B of this Act, may, in particular, have regard to whether the person has a previous conviction for a drug trafficking offence.

(3B) Where a person (other than a child or young person) is convicted of an offence under section 15A or 15B of this Act, the court shall, in imposing sentence, specify as the minimum period

of imprisonment to be served by that person a period of not less than 10 years imprisonment.

(3C) Subsection (3B) of this section shall not apply where the court is satisfied that there are exceptional and specific circum- stances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances and for this purpose the court may have regard to any matters it considers appropri- ate, including—

(a) whether that person pleaded guilty to the offence and, if so,

(i) the stage at which he indicated the intention to plead guilty, and

(ii) the circumstances in which the indication was given,

and

(b) whether that person materially assisted in the investi- gation of the offence.

(3CC) The court, in considering for the purposes of subsection (3C) of this section whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to—

(a) whether the person convicted of the offence concerned was previously convicted in respect of a drug traffick- ing offence, and

(b) whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence. (3CCC) Subsections (3B) to (3CC) of this section apply and have effect only in relation to a person convicted of a first offence under section 15A or 15B of this Act (other than a person who falls under paragraph (b) of subsection (3CCCC) of this section), and accordingly references in those first-mentioned subsections to an offence under section 15A or 15B of this Act are to be con- strued as references to a first such offence.

(3CCCC) Where a person (other than a child or young person)—

(a) is convicted of a second or subsequent offence under section 15A or 15B of this Act, or

(b) is convicted of a first offence under one of those sections and has been convicted under the other of those sections,

the court shall, in imposing sentence, specify as the minimum period of imprisonment to be served by that person a period of not less than 10 years.

(3D) The power conferred by section 23 of the Criminal Justice Act, 1951, to commute or remit a punishment shall not, in the case of a person serving a sentence imposed under subsection

section less any reduction of that period under subsection (3E) of this section.

(3E) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence imposed under subsection (3A) of this section and the minimum period specified by the court under subsection (3B) of this section shall be reduced by the amount of any remission so earned by that person.

(3F) Any powers conferred by rules made under section 2 of the Criminal Justice Act, 1960, to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised during the period for which the commutation or remission of his punishment is prohibited by subsection (3D) of this section unless for grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by that reason.

(3G) In imposing a sentence on a person convicted of an offence under section 15A of this Act, a court—

(a) may inquire whether at the time of commission of the offence the person was addicted to one or more con- trolled drugs, and

(b) if satisfied that the person was so addicted at that time and that the addiction was a substantial factor leading to the commission of the offence, may list the sentence for review after the expiry of not less than one-half of the period specified by the court under subsection (3B) of this section.

(3H) On reviewing a sentence listed under subsection (3G) (b) of this section, the court—

(a) may suspend the remainder of the sentence on any con- ditions it considers fit, and

(b) in deciding whether to exercise its powers under this sub- section, may have regard to any matters it considers appropriate.

(3I) Paragraph (a) of section 13(2) of the Criminal Procedure Act, 1967, shall not apply in relation to an offence under section 15A or 15B of this Act, but each of those offences shall be deemed for the purposes of paragraph (b) of section 13(2) of that Act to be an offence to which section 13 of that Act applies.

(3J) The reference in subsection (3F) of this section to section 2 of the Criminal Justice Act, 1960, shall be construed to include that section as applied by section 4 of the Prisons Act, 1970.

(3K) In subsections (3AA) and (3CC) of this section ‘drug traf- ficking offence’ has the meaning it has in section 3(1) of the Criminal Justice Act 1994 and in subsection (3CC) of this section ‘drug trafficking’ has the meaning it has in the said section 3(1).

(4) ... ... ... (5) ... ... ... (6) ... ... ... (7) ... ... ... (8) ... ... ... (9) ... ... ...

(10) [Deleted by section 6 of the Misuse of Drugs Act 1984.] (11) [Deleted by section 6 of the Misuse of Drugs Act 1984.] (12) ... ... ...

Section 85 (Amendment of section 29 of Act of 1977) — This