Court of Criminal Appeal allows appeal against sentence for attempted drug possession, reducing term to three years with twelve months suspended.

219/07

Macken, J.

McKechnie, J.

Irvine, J.

THE COURT OF CRIMINAL APPEAL

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-AND-

GERARD QUIGLEY

APPLICANT

Judgment of the Court delivered on the 11th day of December 2008 by Macken, J.

This is an appeal against severity of sentence on the part of the applicant who, on the 23rd October 2007, was sentenced to three

years imprisonment for an offence under the Misuse of Drugs Act 1977 (as amended) (“the Act of 1977”). The applicant pleaded guilty

to one of two counts, to which the court will return. The issues which arise for consideration however are quite different to those

which normally arise on this type of application. Whereas counsel on behalf of the applicant challenges the sentence, the real issue

for consideration is the more complex question of the correct interpretation and application of certain penalty sections of the

legislative scheme covering drugs offences.

Background

A brief background of the events is sufficient for this judgment because of the issues which arise for consideration. Gardaí in County

Monaghan mounted a surveillance operation in a field outside the town of Carrickmacross, as a result of which cannabis resin,

amounting to approximately 978 grammes, was found. In the course of the surveillance, according to the evidence tendered before

the learned sentencing judge, the applicant and another man called Gogarty were seen by gardaí (who had secreted themselves in

the field), when Cathal Gogarty, was searching inside the field while the other, the applicant, searched along the grass verge just

outside the field. Three other persons remained in two motor cars which, after some time, drove away with the applicant and Cathal

Gogarty. Again according to the evidence, the gardaí thereupon, on searching close to the gate entrance to the field, found drugs

which were stuck into the ground wrapped in the manner described in the course of the hearing but which had not been found either

by Cathal Gogarty who appeared to carry out a more extensive search, or by the applicant.

The applicant was charged with two “attempting” offences - and pleaded guilty to one of these. For the purposes of understanding

the legal arguments made on behalf of both parties to this application it is necessary to set out both charges which were on counts 9

and 10 on the indictment. The charges were as follows:

COUNT NUMBER 9

Statement of Offence

Attempting to possess a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of

s.21(1) of the Misuse of Drugs Act 1977 as amended by s.6(5) of the Misuse of Drugs Act 1984.

Particulars of Offence

“You, Gerard Quigley, did on the 31st day of January 2006 in the County of Monaghan attempt to possess a controlled

drug, towit cannabis resin, for the purpose of unlawfully selling or otherwise supplying it to another contrary to s.15(1) of

the Misuse of Drugs Act 1977 and Article 4(1)(b) of the Misuse of Drugs Regulations, 1988, punishable by s.27 of the

Misuse of Drugs Act 1977 as amended by section 6 of the Misuse of Drugs Act 1984.”

COUNT NUMBER 10

Statement of Offence

Attempting to possess a controlled drug, to wit Cannabis Resin, contrary to s.21(1) of the Misuse of Drugs Act 1977 as

amended by s.6(5) of the Misuse of Drugs Act 1984.

Particulars of Offence

“You Gerard Quigley did on the 31st day of January 2006 in the County of Monaghan attempt to possess a controlled drug

towit Cannabis Resin contrary to s.3 of the Misuse of Drugs act 1977 as amended by s.2 of the Misuse of Drugs Act 1984

punishable by s.27 of the Misuse of Drugs Act 1977 as amended by s.6 of the Misuse of Drugs Act 1984.”

The four co-defendants, including Cathal Gogarty, were also charged with identical counts. Three of the four co-defendants pleaded

guilty, as did the applicant, to count number 10, or an equivalent count. Cathal Gogarty pleaded guilty to the equivalent of Count 9

and was sentenced to three years imprisonment. The applicant was also sentenced to three years imprisonment, the three co-

defendants to one year each.

On a reading of the transcript it is clear that the provisions of the Misuse of Drugs Act 1977 as amended, including s.21, are those

with which the sentencing court was concerned. The sentencing judge, having regard to the evidence advanced, considered that the

applicant had been more involved in the offences than three of his co-defendants and more akin in terms of involvement to Cathal

Gogarty. The transcript discloses this in clear terms.

This Appeal

From the sentence imposed the applicant appeals against its “severity” by his Notice of Application for Leave dated the 2nd November

2007. However, the submissions on behalf of the applicant set out several grounds of appeal, and relate only indirectly to the severity

of sentence. As mentioned at the commencement of this judgment, the real issue which arises for consideration concerns the correct

interpretation of several provisions of the legislative scheme concerning drugs offences, in particular the applicable penalties, which

were not specifically drawn to the attention of the learned sentencing judge, nor argued before him. Nor was any separate application

permitting additional grounds of appeal, apart from simple severity of sentence, brought. Nevertheless the application is made having

regard to the sentence actually imposed and, essentially, on the basis that the legislative scheme does not permit the imposition of a

three year sentence, or indeed of any custodial sentence. For that reason, it appears to the court that the argument based on the

legislation ought to be heard in its entirety since it raises a legal issue of some importance, having an effect on the sentence actually

imposed.

The primary and most important submission advanced on behalf of the applicant is that the learned sentencing judge committed an

error in principle in failing to apply correctly or at all the provisions of s.27(1)(a) of the Misuse of Drugs Act 1977 as amended,

because, it is argued, that section provides a clear statutory framework for the penalties to be imposed in the case of first, second

and third offences for possession of cannabis resin for personal use. Had that section been applied, Mr. O’Higgins senior counsel on

behalf of the applicant argues, it would have had as its legal effect that the learned sentencing judge could only have imposed a fine,

because, according to the evidence adduced in the case, this was a first offence consisting of possession of cannabis resin for

personal use. The learned sentencing judge had therefore erred in principle in applying a custodial sentence. Mr. O’Higgins submits

further that, even though an earlier conviction of the applicant for possession of drugs for sale or supply was not made known to the

sentencing judge, but which has now been brought to the attention of this court, nevertheless the penalties under s.27 apply in the

present case because this offence is clearly within the ambit of s.27(1)(a). As to the interpretation of s.27, Mr. O’Higgins contends

that s.27(1)(a) covers possession of cannabis resin for personal use, and s.27(1)(b) covers all drugs other than cannabis resin, since

s.3 of the Act covers only unlawful possession of drugs, and s.27(1)(a) covers only cannabis resin for personal use.

Moreover, even if a custodial sentence had been permitted to be applied, it is counsel’s argument on behalf of the applicant that the

sentence actually imposed by the sentencing judge was disproportionate, having regard both to the sentences imposed on three of

the applicant’s co-defendants who pleaded guilty to the same offence, as well as to that imposed on Cathal Gogarty, who had

pleaded guilty to the much more serious offence of possession of cannabis resin for the purposes of sale or supply. The charge to

which the applicant pleaded was significantly different and less serious to that concerning Cathal Gogarty.

Mr. Colgan, counsel on behalf of the respondent, argues from a different perspective altogether. He submits that the applicant was

not charged with an offence contrary to s.3 of the Act of 1977 and did not plead to a s.3 offence. Rather he was charged with a

s.21(1) offence which carries significantly different connotations, and had pleaded to a s.21 offence on the basis that the entire of

the facts surrounding the events would be fully disclosed to the sentencing judge. On that basis he contends that, having regard to

the provisions of s.21(1) of the Act of 1977, the sentence which the learned sentencing judge imposed was fully justified, particularly

in that the evidence established that the applicant had aided and abetted others within the meaning of s.21(1) of the Act of 197, and

the learned sentencing judge was therefore entitled to impose a higher sentence, including one which was equivalent to that imposed

on Cathal Gogarty.

Conclusion

One of the real difficulties which arises in this application is that the penalty provisions of s.27 of the Act of 1977, as amended, were

never specifically argued before the learned sentencing judge. Neither was a further and important relevant matter, namely, that,

contrary to the evidence actually tendered in the Circuit Court on behalf of the applicant, he had in fact a prior conviction in respect

of a drugs offence. While there was no evidence actually tendered to that effect before the judge, it is said it was mentioned in the

course of a probation report, although the court notes that, according to the transcript, no probation report was sought on his behalf

and none produced. However, that information has, very properly, been brought to the attention of this court on counsel’s advice, in

the form of an addendum to the submissions filed in respect of this application. The addendum confirms that on the 7th November

2004 the applicant was convicted of possession of drugs for sale or supply contrary to s.15 of the Misuse of Drugs Act 1977 and was

sentenced to two years imprisonment suspended for three years. The addendum does not include any information as to the nature of

the drugs in question.

The Legislation

Section 3 of the Act of 1977 as amended provides as follows:

“(1) Subject to subsection (3) of this section and section 4 (3) of this Act, a person shall not have a controlled drug in

his possession.

(2) A person who has a controlled drug in his possession in contravention of subsection (1) of this section shall be guilty

of an offence.

… .”

Absent possession for lawful purposes, therefore, it is an offence to have possession of a controlled drug. A controlled drug includes

cannabis resin.

Section 21 of the Act of 1977 as amended or consolidated, establishes other offences, including the offence of “attempting” to

commit an offence. Section 21(1) states as follows:

“A person who attempts to commit an offence under this Act, or who aids, abets, counsels or procures the commission of

an offence under this Act, or who solicits or incites any other person to commit an offence under this Act shall be guilty

of an offence.” (emphasis added)

It will be seen from this section that it includes under the same subsection three separate offences namely:

(i) attempting to commit an offence under the Act;

(ii) aiding abetting counselling or procuring the commission of an offence under the Act; or

(iii) soliciting or inciting any other person to commit an offence under the Act.

In the present case, the court is satisfied, from a reading of the statement of the offence that the offence in the present case is the

first of the above offences, namely, attempting to commit an offence under s.21, as amended, that is, attempting to possess a

controlled drug, and the particulars make it clear the attempt is to possess cannabis resin contrary to s.3. as punishable by s.27 of

the Act of 1977, as amended by s.6 of 1984. This is also borne out by the definition of “substantive offence” in s.27(12) of the Act

as consolidated, which reads: “substantive offence” means “the offence under this Act which the attempt, or as the case may be,

the aiding, abetting, counselling, procuring, soliciting or incitement was directed.”(emphasis added). The applicant was not therefore

charged with a substantive offence under s.3 of the Act, but neither was he charged with either of the two other possible offences

with which he could have been charged under s.21(1).

Penalties for such offences are found, insofar as those applying in the present application are concerned, in s.27 of the Act of 1977,

as that section was amended by s.6 of the Misuse of Drugs Act 1984. In the consolidated version of the legislation in question that

amendment appears as s.27(5) of the Act, which reads as follows:

“27(5) Every person guilty of an offence under s.21 of this Act shall be liable to be punished on summary conviction as if

he were guilty of the substantive offence and in case a penalty on conviction on indictment is provided by this Act in

relation to the substantive offence he shall be liable to be proceeded against on indictment and, if convicted, punished as

if he were convicted on indictment of the substantive offence.” (emphasis added)

This means that if a person on indictment is convicted of an offence under s.21(1) of the Act, he can expect to be punished, and the

learned sentencing judge has power to punish him as if he were convicted of the substantive offence. S.27(1)(a) and (b) of the Act

of 1977 as amended, covering the penalties for a substantive offence under s.3, reads as follows:

“(1) Subject to section 28 of this Act, every person guilty of an offence under section 3 of this Act shall be liable-

(a) where the relevant controlled drug is cannabis or cannabis resin and the court is satisfied that the person was

in possession of such drug for his personal use:

(i) in the case of a first offence, to a fine on summary conviction not exceeding fifty pounds (…)

(ii) in the case of a second offence, to a fine on summary conviction not exceeding one hundred pounds

(…)

(iii) in the case of a third or subsequent offence, to a fine on summary conviction not exceeding two

hundred and fifty pounds (…) or, at the discretion of the court, to imprisonment for a term not

exceeding twelve months, or to both the fine and the imprisonment;

(b) in any other case—

(i) on summary conviction, to a fine not exceeding two hundred and fifty pounds or, at the discretion of

the court, to imprisonment for a term not exceeding twelve months, or to both the fine and the

imprisonment, or

(ii) on conviction on indictment, to a fine not exceeding fifteen hundred pounds or, at the discretion of

the court, to imprisonment for a term not exceeding seven years, or to both the fine and the

imprisonment.”

From this section, it will be clear that the legislature has made specific, and far more lenient, provision for penalties, on a sliding

scale, in respect of s.3 offences, provided it is a first second or third offence and provided that the drug is cannabis resin for personal

use. It draws a distinction between such penalties and those arising “in any other case”. It is true that there are discrepancies in the

euro conversions listed in this section in the printed version Act as consolidated, but for the purposes of the arguments before this

court, these are not really relevant. The s.27(1)(a) penalty provisions provide for increasing fines, which on the third or subsequent

conviction, may be accompanied or substituted by a prison term not exceeding three years. Section 27(1)(b) which also covers

offences under s.3, refers to all other cases that is to say those other than ones falling under s.27(1)(a), and on conviction on

indictment, provides for more serious penalties.

The question which arises is whether the provisions of s.27(1) of the Act permit a person such as the applicant, who has already

been convicted of a more serious offence involving unlawful drugs for sale or supply contrary to s.15 of the Act of 1977, to have the

benefit of the sliding scale of penalties provided for in s.27(1)(a), as Mr. O’Higgins contends for, or whether in light of the earlier

conviction, the applicant is to be sentenced pursuant to the provisions of s.27(1)(b) as falling within “any other case”.

It is true that, ordinarily, penal statutes are to be construed strictly, the basis for this being that they usually include provisions

having negative consequences for an accused (see Denham, J. in DPP v Boyce; unrept’d Supreme Court, 18th November 2008).

However, the provision under consideration here is an exception to the normal, quite severe penalties imposed in the case of offences

under the Misuse of Drugs legislation, which include even certain minimum penalties, applicable in pursuance of a legislative policy. It

is not a provision having any such negative consequence but is rather distinctly advantageous to a convicted person, and falls to be

construed, because it is such an exception, in a restrictive manner, pursuant to well established norms.

It seems to the court that on the ordinary meaning of the words, the correct interpretation of s.27(1)(a) is that it is intended to

protect only those persons guilty of “a first offence”, or “a second offence”, etc., in the true sense of those words provided that the

drugs are cannabis resin and they are for personal use. The effect of interpreting the section in the manner contended for by Mr.

O’Higgins on behalf of the applicant is to determine that, even where a person has been convicted of an offence of possession of

drugs under s.15, or even under s.15(A), and regardless of how serious the offences were, or how often those convictions, the

Oireachtas intended that such a person would nevertheless be entitled to take the benefit of s.27(1)(a), provided that any

subsequent conviction was for simple possession of drugs, and provided that, on the facts established or accepted, those drugs

consisted of cannabis resin for personal use.

In the view of the Court, the provisions of the Act would have to be very clear and express before such an interpretation could be

accepted. If it had been intended that the penalty would apply regardless of prior, more serious convictions, rather than in respect of

a “first offence” as those words are plainly understood, it would have been a simple matter for the drafters of the section to have

adopted the phrase “in the case of a first such offence” rather than the clear words adopted. Such a simple and common legislative

drafting approach was adopted, for example, in relation to certain aspects of s.15 and s.15A of the Act by the amendment found at

s.27(3E) of the Act, as consolidated. That being the conclusion of the Court, the only “offences” or “convictions” for which the more

lenient penalty scheme can be applied are truly first or second or third drugs offences, and do not include circumstances where there

are prior convictions on more serious drugs charges. Penalties for offences where there is a prior offence of a different calibre, as

here, come within the ambit of the phrase “any other case” in s.27(1)(b) of the Act.

Having regard to the foregoing, the court is satisfied that the maximum penalty in the present case which the learned sentencing

judge could have imposed, had the appropriate legislation been brought to his attention, was not a fine, as contended for by Mr.

O’Higgins, but rather the sentence which could have been imposed had the matter been classified correctly, that is to say, under

s.27(1)(b). The permitted penalty in such a case is a possible fine in a sum considered appropriate by the court, or imprisonment for a

maximum period of seven years, or both, pursuant to the provisions of S.27(1)(b)(ii) of the Act of 1977 as amended.

In the unusual circumstances which arose before the sentencing judge, the court formally sets aside the sentence imposed, noting

that it does so only because neither the appropriate amending legislation nor the prior conviction was brought to the attention of the

learned sentencing judge. This court must itself now impose an appropriate sentence. It does so having regard to the following

factors. Firstly, this was not the applicant’s first offence. He already had a more serious conviction for the sale and supply of drugs

contrary to s.15 of the Act of 1977, for which a two year sentence, although suspended for three years, was imposed. Although the

evidence in the present case tended to describe a fairly substantial quantity of cannabis resin, even for personal use, the court notes

Mr. O’Higgins’ submission that substantially higher quantities of cannabis resin for personal use might well be in the possession of

accused persons, and therefore does not have regard to the amount, in fixing the appropriate penalty.

In addition the court must have regard for the fact that the applicant made admissions and pleaded guilty at an early stage, although

the parties were caught pretty well red handed, which tends to limit the value of the plea, although not of the admissions, especially

in the case of an attempted possession offence. Moreover the court should have regard to the steps which the applicant is taking to

rehabilitate himself. He has, according to the evidence, removed himself from the locality and from the company of his co-accused

and has secured work in London. From a personal point of view the applicant lost his father at a young age, and did not complete his

formal education, although it is difficult to assess the value to be allocated to these last two matters, in the absence of any

psychological evidence.

Having regard to the particular events surrounding the offence as tendered in evidence, and to the fact that he already had a

conviction for a more serious drugs offence, the court does not consider that it would be appropriate to fix a sentence on the same

basis as the three co-defendants on whom one year sentences were imposed. The court ascertains from the transcript that Cathal

Gogarty had two previous convictions for drugs offences, one under s.15 of the Misuse of Drugs Act for which he received a nine

month sentence in the District Court, which was suspended. The second lot of offences, also disposed of in the District Court, were

ones in which he was sentenced to one month for a s.3 offence, eleven months for a s.15 offence and for a s.19 offence under the

same Act. Those convictions have been appealed. However, the transcript disclosed that Gogarty did, of course, plead in the present

case to a more serious offence.

The applicant had a two year sentence imposed, presumably imposed by the Circuit Court, even if suspended, at a time less than two

years prior to the current offence. The court does not demur from the finding of the learned sentencing judge that on the evidence

there were similarities between the role of the applicant and that of Cathal Gogarty, although he did not suggest that there roles

were identical, and the court accepts that the learned sentencing judge did not find the applicant was the ringleader of the

enterprise. It is not appropriate however to uphold, having regard to certain common factors and the prior conviction, counsel’s

argument on behalf of the applicant that the sentence was disproportionate, having regard to the sentence imposed on the co-

defendant Cathal Gogarty, given the above matters.

In light of the foregoing, the court is also satisfied that a fine pursuant to s.21(1)(b) would not constitute a proper sentence. The

appropriate sentence in the present case, where the maximum is seven years, is a sentence slightly lower than the mid range,

allowing for all the above factors namely three years, and in addition having regard to the steps being taken by the applicant as to his

rehabilitation, the final twelve months of that sentence will be suspended.