THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J,
251/14
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
JUDGMENT of the Court (ex tempore) delivered on the 24th day of June 2016,
by Mr. Justice Birmingham
1. This is an appeal against severity of sentence. The sentence appealed is one of eight years imprisonment that was imposed on the 27th November 2014, in the Circuit Court in Cork in respect of an offence contrary to s. 15A of the Misuse of Drugs Act.
2. The basic facts are that on the 2nd March, 2012, a number of gardaí went to the appellant’s address which is off Dominick Street, cork, in order to carry out a drugs search. The appellant was not present originally, but he returned while the search was in progress. In the course of that search a black refuse sack was located in a wheelie bin in the back garden which contained 4kg of cannabis valued at €47,646.
3. The appellant was detained and was then interviewed and in the course of interviews made admissions. He said that he was storing the drugs because he was under pressure from people to whom he owed a drugs debt.
4. In terms of his background and personal circumstances, the appellant was 23 years of age at the time of the offence. But despite his youth he had a significant prior criminal record at the time of sentencing. In all he had 43 previous convictions. Of particular relevance is that on the 5th April, 2010, he received two sentences in respect of s. 15 Misuse of Drugs Act offences, a sentence of four years in respect of an offence committed on the 6th January, 2009 and a concurrent two year sentence in respect of an offence committed on the 15th December, 2008. The record also includes nine offences under s. 3 of the Misuse of Drugs Act.
5. The sentencing court was told that he came from a dysfunctional family background, that he began using drugs aged thirteen and that he was addicted to heroin by age seventeen. One of the aspects of the appeal is a criticism of the sentencing judge for not paying enough attention to the difficult personal circumstances of the appellant.
6. It is to be noted that in the aftermath of this offence, the appellant fled to the United Kingdom. At the time that he did so he was subject to a suspended sentence. It was put to gardaí in the course of the sentence hearing that the appellant had fled in fear of his life and the garda did not disagree with that proposition. The appellant was returned from the UK on foot of a European Arrest Warrant. At the time of the sentence hearing, he was in custody serving the activated portion of the suspended sentence. The prosecution at the sentence hearing took the view that the sentence to be imposed in respect of the present offence ought to be and indeed is required to be consecutive to the activated sentence. The judge however, took the view that this was not required and he declined to make the sentence that he was imposing consecutive.
7. In assessing whether the sentence that was imposed on the 27th November, 2014, was an unduly severe one, the fact that it was not imposed as a consecutive sentence is a relevant consideration.
8. The judge in the course of his sentencing remarks commented:-
“I am having the gravest difficulties in finding sufficient grounds to depart from a ten year sentence in this case, but I will take what his counsel says that in relation to the plea, the limited level of cooperation and his very young age has been sufficient grounds to enable me to depart from a ten year sentence. But it is at the higher end of what one might expect given his previous involvement, sorry I should also take into account the value of the drugs which is not the highest one sees before the court, but I think when all is said and done notwithstanding his plea, a sentence of eight years from today’s date is merited. In view of the probation report unfortunately, I see no function or place for structuring a sentence in this case.”
9. A number of criticisms of the approach of the trial judge are advanced. It is said that the judge ought to have considered suspending a portion of the sentence and made provision for post release supervision. After the judge pronounced his sentence the issue was raised with him by counsel for the defendant. The judge responded by referring to what he had said earlier about the probation report when refusing the request that was made to him.
10. It is said that the probation report does not properly considered preclude a role for that service. The judge is also criticised for not adverting to the fact that the appellant had offended against a background of pressure/duress. This issue arises from a question that was put to the investigating garda by defence counsel. Counsel asked
That to be clear was a question that was asked by prosecuting counsel.
11. The issue suffers once more later in the transcript when there was an exchange that touched on this between counsel and the sentencing judge. The judge was considering the factors that were present that might permit a departure from the ten year mandatory presumptive sentence. The judge, just to give the context said:-
“What was the value of the drugs?
PC €46,000 odd.
J. €46,000, that’s a thing I can take into consideration.
DC. Yes Judge.
PC You can.
J. The level of his cooperation?
PC Well he -
J. He admitted?
PC He did take responsibility for the drugs.
J. He admitted that and he was not in the house initially?
PC He wasn’t in the house initially.
J. So he admitted that the drugs were his and then he gave the excuse of --
PC That he was storing them under pressure.
J. Storing them?
PC Yes.
12. The fact that the judge participated in that exchange does indicate that he was fully aware of what the evidence had been in relation to the reason why Mr. Donoghue became involved in storing the drugs.
13. This was a case where the Oireachtas had provided a presumptive mandatory minimum sentence. The judge indicated that he was having difficulty identifying factors which would prevent him departing from the presumptive minimum. Ultimately though he concluded that there were factors which permitted a departure.
14. It goes without saying that this was a very serious offence, indeed any s. 15A Misuse of Drugs offence invariably is. In this case the offence was committed by a person with a very significant prior criminal record, including two convictions under s. 15 of the Misuse of Drugs Act. While there was initial assistance in terms of the admissions made while under detention, the value of that was somewhat diminished by his actions in fleeing the jurisdiction.
15. The appellant benefitted from the decision of the judge not to make the sentence that he was imposing consecutive to the activated sentence. That was a decision that conferred a benefit on the appellant. Overall this Court cannot conclude that there was any error in principle in selecting a sentence of eight years imprisonment, even making full allowance for the factors in favour of the appellant, nor in the circumstances of the case can it be said that there was an error in declining to part suspend the sentence. In the circumstances the court will dismiss the appeal.
