COURT OF CRIMINAL APPEAL Application for leave to appeal against sentence

Fennelly J.

Budd J.

O'Higgins

234/07

The People at the Suit of the Director of Public Prosecutions

v

John Paul Kelly

Applicant

Judgment of the Court (ex tempore) delivered on the 25th day of July 2008 by Fennelly J.
This is an application for leave to appeal against severity of a sentence of 7 years imprisonment imposed by Her Honour Judge Delahunt in the Dublin Circuit Criminal Court. The applicant pleaded guilty to one count of possession of drugs, diamorphine or heroin for supply. It is not as. 15A case because the value of the actual drugs found in his actual possession were less than €13,000. It followed from a search warrant issued to the Garda Siochana which was executed on 16th December, 2005 at the applicant's flat at Old Distillery Building in Beresford Street. There was a Garda surveillance operation put on the flat and the Gardai found one person leaving the flat who had 10 packets of heroin on him which were subsequently valued at €3,200. He also had the key of the flat on him, that other person, and the Gardai then, in execution of the warrant and using the key, went into the flat where the applicant was found lying on a bed speaking on his mobile and when he saw the Gardai he shouted out "Its the Guards, it's the Guards". A search of the flat then revealed a number of incriminating items €10,695 in cash, which at a later stage the applicant accepted, was the proceeds of drug dealing, five knotted bags of brown paper powder containing heroin to the value of €1,300, a box of clear plastic bags, some cut off plastic bags, brown wrapping paper, blue carbon paper, which is used to disguise the presence of drugs on importation, to disguise them from x-ray machines, a weighing scales found on analysis to have traces of heroin on it, a mobile phone which had text messages showing requests for drugs. There was a series of Garda interviews where gradually,

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at first having given a false account of the origin of the cash, he later admitted could be the proceeds of heroin and he later admitted that he had been selling heroin for a time. The learned judge in sentencing quite correctly concluded that the evidence showed he had been involved in extensive drug dealing.
The applicant was born on 16th October, 1985. He had 61 previous convictions. A large number of them admittedly based on the Road Traffic Acts, but some of those serious, dangerous driving, s. 49 cases, s. 112 cases, public order offences and two offences of possession of drugs for personal use. It is also material to note that he was contemporaneously sentenced to four years imprisonment in respect of a completely separate matter of reckless endangerment which is running concurrently with this. The net effect of this sentence is that he will have to serve three years additional imprisonment in respect of this particular drug-dealing matter.
One of the principal points made on his behalf by Mr. McCarthy, made very clearly in written submissions and here, is that the learned judge was wrong to deprive him of the full benefit of his plea of guilty because he did plead guilty. Mr. O'Briain on behalf of the Director has drawn the courts attention to s. 29 of the Criminal Justice Act 1999 which requires the court to take account of the stage of the proceedings at which the person indicated an intention to plead guilty and the circumstances in which the indication was given. In fact, of course, the actual offer of the plea was delayed by a period of 8 to 10 months and what Mr. McCarthy says is that that was reasonable because he was waiting for the completion of the disclosure process by the prosecution. The court would like to make an observation on that argument. The court is of the opinion that the suggestion on behalf of the appellant that he should not be deprived of the full value of the early plea because it was reasonable to await completion of disclosure by the prosecution is not an acceptable argument. That is a tactical approach; it is not facing up to guilt. We must make a distinction, of course, between the right of an accused person to decline to answer questions or to withhold cooperation, none of which can be held against him at his trial, from a situation of a plea of guilty where a person is seeking credit from the court, sentencing him for the fact that he has accepted his responsibility and for that purpose he must be taken as knowing that he is guilty. He is not entitled to seek the full benefit of the plea where he has in fact sought to have the best of both worlds: full credit for an early plea of

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guilty and the tactical advantage of possibly avoiding guilt by delaying his plea. So the court rejects the criticism of the learned trial judge in that respect.
The court considers the learned trial judge balanced all of the mitigating factors that have been advanced in a fair way and that she could not be considered to have committed any error in imposing the sentence of 7 years imprisonment. Accordingly the court will dismiss the application for leave to appeal.