Court of Criminal Appeal allows unduly lenient sentence appeal but permits suspended sentence to stand due to respondent's release.

THE COURT OF CRIMINAL APPEAL

[C.C.A. No. 244 C.J.A./07]

Finnegan J.

Budd J.

Herbert J.

BETWEEN

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

EDWARD ANTHONY FARRELL

RESPONDENT

JUDGMENT of the Court delivered by Mr. Justice Finnegan on the 21st day of December 2010.

In this Appeal the Director of Public Prosecutions seeks an Order of this Court, pursuant to the provisions of s. 2 of the Criminal

Justice Act 1993, setting aside the sentence imposed on the respondent by the learned sentencing judge on the ground that it was

unduly lenient.

In a previous judgment in this matter, delivered on the 27th July, 2009, this Court concluded, that while the transcript of the

sentencing hearing on 6th November, 2007, was fragmentary, incomplete and in places garbled, the Report furnished to this Court by

the learned sentencing judge was sufficient to inform this Court of what took place at the sentencing hearing. This Report of the

learned sentencing judge enabled this Court to be confident as to what took place at the sentencing hearing and, it enabled this

Court to be satisfied as to the considerations taken into account by the learned sentencing judge, particularly the mitigating factors

identified by him, in the course of the deciding on a sentence of eight years imprisonment, with the final six years suspended, which

was the sentence he imposed on the respondent.

It is the opinion of this Court that the learned sentencing judge erred in principle in failing properly to apply the ruling of the Supreme

Court in The People (Director of Public Prosecutions) v. M. [1994] 2 I.L.R.M. 541, and of this Court in the People (Director of Public

Prosecutions) v. Renald (C.C.A. – 23rd November, 2001 - Unreported). A sentencing court must first establish the range of penalties

available for the type of offence and then the gravity of the particular offence, where on the range of penalties it would lie, and thus

the level of the punishment to be imposed in principle. Then, having assessed what is the appropriate notional sentence for the

particular offence, it is the duty of the sentencing court to consider the circumstances particular to the convicted person. It is within

that ambit that the mitigating factors fall to be considered. On the one hand, a grave crime should generally be reflected in a long

sentence and in this respect, this Court is satisfied to endorse the opinion of Lord Griffiths in Re: Hunt [1987] A.C. 352 at 378, that,

“offences involving the misuse of hard drugs are among the most serious in the criminal calendar”. On the other hand attention must

be paid to factors relevant to the individual offender such as a plea of guilty, the time at which it was indicated, the personal

circumstances of the offender, an absence of propensity to reoffend a genuine expression of remorse, a real prospect of

rehabilitation, all of which may serve to mitigate the sentence.

The facts of this case as identified by the learned sentencing judge are, that the respondent was driving a Nissan Van when it was

stopped by Customs Officers at Rosslare Ferry-Port on the 14th June, 2007. After a careful search of the vehicle, two hidden

compartments were found which contained 8.0175 kgs of Diamorphine (heroin). A witness from An Garda Síochána gave evidence that

this quantity of Diamorphine had a market value in excess of €1.6m. In the first three out of a total six interviews of the respondent

conducted in Wexford Garda Station, he denied any knowledge of these drugs. When a key element in his account was shown to be

untrue, the respondent relented and then admitted that he had driven to Antwerp where a meeting had been arranged at a particular

location. He accepted that he knew drugs were involved but he claimed that he did not know either the type or the quantity of those

drugs. This is absolutely irrelevant to either the fact of or, the seriousness of the offence, though the learned sentencing judge

appears to have erroneously considered that it somehow lessened the moral turpitude and therefore the gravity of the offending. The

respondent admitted that he had made two test runs over the route about one month earlier.

The learned sentencing judge noted that the respondent had twenty previous convictions: sixteen of these were for road traffic

offences and the others were an offence under the Theft Act, an offence under the Public Order Act and an offence under s. 21 of

the Misuse of Drugs Act 1977. The learned sentencing judge described these previous offences as not ranking high in the criminal

calendar.

In passing sentence, the learned sentencing judge stated that he could not disregard the very significant quantity of heroin involved

and, the fact that it was a drug which had been the cause of enormous societal problems, a great deal of which ultimately came

before the courts. He noted that offences pursuant to the provisions of s. 15(A) of the Misuse of Drugs Act 1977, (as amended)

carried a maximum sentence of life imprisonment. The learned sentencing judge further noted that the emphasis of the Act of 1977

(as amended) was on the value of the drugs involved. Having correctly identified all of these aspects of this particular offence, the

learned sentencing judge unfortunately then failed to assess what would be an appropriate “notional” sentence in principle for such an

offence. He failed to have regard to and to identify in his judgment where on the range of penalties this particular type of offending

would lie, before he considered what reduction (if any) would be appropriate based on any identifiable mitigating factors. Taking

account of the facts as proved or admitted, this Court is satisfied that it should be located in the upper mid range and that the

appropriate notional sentence, having regard to the gravity of the offence, would be a term of imprisonment of twelve years.

The respondent’s personal circumstances, as identified by the learned sentencing judge, appear to be that he was 31 years of age at

the date of this offence. He has a long term partner, from whom he had been separated for a considerable period but with whom he

has become reconciled. He has five sons by this partner aged from twelve years to four years. His three siblings hold responsible

positions. The family had emigrated to Canada where the respondent had received some of his education. Unfortunately, unhappy

differences had arisen between his parents and they had separated when the applicant was at the very vulnerable age of thirteen

years. On returning to this State, the applicant had initially been a very conscientious worker and had risen to the rank of a team

leader after three and a half years employment in his chosen occupation.

Tragically, the respondent then started to abuse drugs and in due course became a heroin addict. He overcame this terrible addiction,

largely by the force of his own strength of character. He became reconciled to his father to whom he had originally been very close.

Unfortunately, his father died in November 2006. It was open to inference that as a result of this loss, the applicant started to abuse

heroin again. He then tried to re-establish himself in employment but he lost his job. His mother told the learned sentencing judge that

she and his partner continue to give the respondent every support.

Detective Garda Alan Byrne, told the learned sentencing judge that the respondent had stated at interview that at a party he had

been blamed for the disappearance of some drugs. The respondent said that it had been made clear to him that that the only way he

could ensure his safety was by acting as a courier. He told An Garda Síochána that he knew that if the persons involved did not get

him they would get his family. He said he was shown a gun when he seemed to hesitate. He said that he had been instructed to carry

out two trial runs before the actual run. He said that he was promised that €1,000 would be taken off his indebtedness after the first

run, €1,500 after the second run and, €6,000 after the actual run. He told the interviewing members of An Garda Síochána that he

realised that there was a real likelihood that he would be caught, but he felt that he had no choice but to comply.

It was pointed out by this court in The People (Director of Public Prosecutions) v. Galligan (C.C.A. - 23rd July, 2003 – Unreported),

that an excuse of this nature, fear for the offender’s own safety, may or may not be well founded. The court cannot assess this

element in a case which rests entirely on a prisoner’s own unverified assertion. In the instant case, even though the record of the

evidence in chief of Det. Gda. Byrne is entirely missing and his evidence in cross examination is obviously incomplete, this Court is

satisfied that it was reasonably open to the learned sentencing judge to attach weight to this unverified assertion of the respondent

in circumstances where it did not appear improbable and, was neither challenged nor contradicted by the prosecution.

Detective Garda Alan Byrne accepted in cross examination that at the time the respondent was interviewed in Wexford Garda Station

he classified him as a heroin addict. He asked Dr. Stephen Bowe to attend at the Garda Station and he made arrangements for

methadone to be brought down from Dublin. Detective Garda Byrne said that during the course of interviews the applicant was asked

if he was sorry. He said he was desperately sorry and had not committed the offence for financial gain, but through fear more than

anything else.

In his plea in mitigation, to the extent that the same is recorded in the available transcript, Senior Counsel for the respondent

identified a number of factors which he claimed were both “exceptional and specific” and, which he submitted would render it unjust

for the sentencing court to impose the statutory minimum sentence of ten years imprisonment. The factors identified were: the

respondent’s unchallenged evidence that he had acted under duress; his offer of a plea of guilty during the course of the interviews

conducted in Wexford Garda Station following his arrest; the fact that at the time of the commission of the offence he was a heroin

addict as had been accepted by Det. Gda. Byrne; that the applicant had not become involved for reasons of profit or personal

financial gain and, the fact that the respondent had expressed genuine remorse for his actions. Senior Counsel for the respondent

submitted that one of the principle reasons why it would be unjust in the court to impose the mandatory minimum sentence was

that:-

“. . . the detective garda in question, who gave evidence quite clearly described the situation , where the amount of

assistance which was given was at the highest level possible because of the difficulties which he accepts the accused

would face, were he to go further.

The question of material assistance, Judge, must be assessed on the particular facts of the case and taking into account

the particular circumstances of the accused. In this particular case, there was a threat, not just to his safety, there was

a threat to the safety of his family and there was an element of – not an element, but, in fact the actual production of a

gun.”

As this Court has already noted, the record of the evidence of Det. Gda. Alan Byrne given in the course of his examination in chief is

missing in its entirety from the available transcript of the sentencing hearing. This Court is satisfied that the evidence actually given

by Det. Gda. Alan Byrne in cross examination, to the extent that it is recorded, does not describe any such material assistance as

having been given to An Garda Síochána by the respondent.

The learned sentencing judge took into account in mitigation the fact that the respondent had co-operated with An Garda Síochána,

but this is a very different matter from giving “material assistance” to An Garda Síochána for the purpose of the provisions of s.

27(3C)(b) of the Misuse of Drugs Act 1977, (as amended by s. 5 of the Criminal Justice Act 1999). What is required in order for there

to be a finding of “material assistance” is express evidence, of such assistance given to the sentencing court by a member of An

Garda Síochána, or, where An Garda Síochána have good reason for considering that the prisoner or someone associated with him

might be at serious risk of bodily harm were such details to be disclosed, a clear finding by the sentencing court on the record, that

the convicted person had furnished material assistance to An Garda Síochána. This, of course, must be assistance of the type

identified by this Court in such cases as, The People (Director of Public Prosecutions) v. Benjamin (C.C.A. – 14th January, 2002 –

Unreported), The People (Director of Public Prosecutions) v. Houlihan (C.C.A. – 14th November, 2005, - Unreported), The People

(Director of Public Prosecutions) v. Henry (C.C.A. – 15th May, 2002 – Unreported) and The People (Director of Public Prosecutions) v.

O’Laoghaire (C.C.A. – Unreported) or some other information of equivalent substance and relevance.

In mitigation, the learned sentencing judge in the instant case took into account, the plea of guilty, which was indicated at an early

stage. He stated that this was a welcome relief to an already very overcrowded list and he considered that the case might have been

difficult to prosecute to conviction, because of the respondent’s evidence that he and his family had been threatened. He took into

account the remorse expressed by the respondent in the course of being interviewed by An Garda Síochána, and he considered that

the remorse was genuine. He considered that the respondent had co-operated with and, had been of assistance to An Garda

Síochána so far as he could in the circumstances. He had regard to the opinion expressed by Det. Gda Byrne that the respondent’s

involvement was on the lower rung of the drug hierarchy. Despite the quantity of drugs involved and the respondent’s previous

convictions, the learned sentencing judge came to the conclusion that the offence involved fell somewhat towards the lower end of

the scale. He had regard to the fact that the respondent had in the past rehabilitated himself from heroin addiction. The respondent

was reconciled to his partner and they had five children. The learned sentencing judge considered that the threat of a very lengthy

sentence would be a strong motivation to the respondent to avoid criminal involvement in the future.

This Court is satisfied that the respondent in this case was not just a “courier”, that is a person carrying controlled drugs in or on his

person or in his personal luggage. Employing the terminology in The People (Director of Public Prosecutions) v. Long (C.C.A. – 7th

April, 2006 – Unreported), this respondent was a “transporter” of a very large quantity, with a high market value of what the learned

sentencing judge correctly identified as a drug which has caused, or has been the cause of enormous damage, suffering and

lawlessness in this State. The learned sentencing judge also correctly identified, following the decision of this Court in The People

(Director of Public Prosecutions) v. Renald (above cited) that the governing factor in prosecutions pursuant to the provisions of s.

15(A) and s. 27(3) of the Misuse of Drugs Act 1977, (as amended), is the value of the drug: in the instant case in excess of €1.6m.

In The People (Director of Public Prosecutions) v. Galligan (C.C.A. – 23rd July, 2003 – Unreported), this Court accepted that even

though not identified as such in s. 27(3C) of the Act of 1977, (as amended), the fact that the convicted person was, or given the

nature of his or her other convictions should be treated as being a first offender, could be an “exceptional and specific” circumstance

rendering the imposition of the statutory minimum sentence of ten years imprisonment unjust. In the instant case however, the

respondent had a large number of previous convictions even if only one of these offences was an offence under the Misuse of Drugs

Legislation. The fact that couriers or transporters are regarded by some members of An Garda Síochána as occupying a relative lowly

position in the ranking of drugs traffickers inter sé, is not a reason for the courts to disregard the fact that their services are

essential, particularly in the case of an island nation such as this State, to the continued existence of this most serious form of crime.

In The People (Director of Public Prosecutions) v. Hogarty (C.C.A. – 21st December, 2001 - Unreported), this Court pointed out that

such persons play an essential role in the illegal drugs trade. This Court is satisfied that the learned sentencing judge in the instant

case departed from principle in concluding that the respondent’s offence “fell somewhat towards the lower end of the scale”. In the

opinion of this Court the applicant’s offence fell at the upper middle range of offending and an appropriate sentence would have been

one of 12 years imprisonment.

Detective Garda Byrne accepted in cross examination that the respondent was addicted to heroin on the occasion of this offence and

had been dealt with as such while in Wexford Garda Station. In the circumstances it was open to the learned sentencing judge to

accept the respondent’s account, eventually given to the interviewing members of An Garda Síochána after many initial untruths, of

how he had become involved in the importation of these drugs into the State. There was no evidence that the respondent had done

so for profit. The respondent was in effect caught red-handed so that his plea of guilty though it cannot be entirely disregarded,

must be discounted accordingly. He is entitled to some reduction of sentence to reflect this plea which is enhanced by the fact of the

very early indication to An Garda Síochána that it would be made. The learned sentencing judge was entitled to take account of the

remorse expressed by the respondent during his interviews by members of An Garda Síochána and, which Det. Gda. Byrne was

prepared to accept was genuine. The learned sentencing judge correctly had regard to the fact that the respondent had previously

rehabilitated himself from heroin addiction and it was reasonably open to the learned sentencing judge to infer from the evidence that

the respondent had relapsed into heroin abuse as a consequence of the death of his father and of losing his job. This fact, and the

respondent’s recognition of his serious wrongdoing; the support offered by his partner and his mother and, the respondent’s

realisation, even if belated, of the affect his offending was having and was likely to continue to have on the lives of his five sons,

gave room to the learned sentencing judge to consider that the respondent should be encouraged to rehabilitate himself in the hope

of his becoming a useful member of society.

In the light of the respondent’s personal circumstances, in particular his heroin addiction and the part which the learned sentencing

judge concluded was played by this addiction in the respondent’s offending, the plea of guilty with the early indication of that plea,

the remorse which, on the evidence, the learned sentencing judge was entitled to accept was genuine, and, the encouraging

indications of a possible successful rehabilitation in this case, this Court is satisfied that the sentence of eight years imposed by the

learned sentencing judge, while very lenient, could not be regarded as unduly lenient. In an appeal of this nature, it is not for this

Court to decide what sentence it would have imposed in the circumstances. While mindful of the ruling of this Court in The People

(Director of Public Prosecutions) v. McGinly [2006] I.E.C.C.A. 37, that a suspended sentence is not wrong in principle in every

circumstance of a prosecution under s. 15(A) of the Misuse of Drugs Act 1977, (as amended), this Court finds that the suspension of

the final six years of the sentence in this instance constituted a departure from principle and that the sentence actually imposed by

the learned sentencing judge was therefore unduly lenient. The sentence actually imposed was significantly below the range of

sentences usually imposed in cases of this nature and diverged materially from the norm. The Court will therefore allow the application

of the Director of Public Prosecutions in this case.

At the hearing of this application much reliance was placed by Senior Counsel for the respondent on the decision of this Court in The

People (Director of Public Prosecutions) v. McGinly (above cited). Though there are some similarities between the personal

circumstances of the respondent in the instant case and those of the applicant in the McGinly case, without engaging in an

exhaustive comparison of the two cases, it is at once obvious and, this Court is satisfied, that there are very significant differences

between the facts and circumstances of the offence and the offender in the latter case which distinguish it from those in the instant

case.

In the McGinly case the accused pleaded guilty to possession of cocaine with a market value of €12,068 and cannabis resin with a

market value of €13,785 for the purpose of supply. In that case the prosecution accepted that there were “exceptional and specific”

circumstances which would render the imposition of a sentence of not less than ten years imprisonment unjust. While Mr. McGinly had

some relatively minor previous convictions, for the purpose of sentencing for the offence in issue, he was treated as a first offender.

In the McGinly case, his Honour Judge Matthews, the sentencing judge found and, this Court accepted that, “there was a range of

exceptional factors at play in [this] case which included the aptness of the accused for a [drug rehabilitation] programme, . . . the

level of success in an intense and difficult programme to which [he] contributed by becoming a leader and a role model in the

programme and a promoter for other persons seeking to rehabilitate themselves, and also an exceptional period of proven abstention

from drugs”. His Honour judge Matthews the sentencing judge, said:-

“In all my years in drugs work, as a Barrister, Senior and Junior and, in the last nearly eight years as a judge, I have not

seen as comprehensive a testing over a long period. This is a man who has done consistently, on the data supplied, which

is in law independent corroboration, . . ..”

Having regard to the provisions of s. 27(3B) of the Misuse of Drugs Act 1977, (as amended), a sentencing court is mandated to

impose a statutory minimum sentence of ten years imprisonment unless it considers that the provisions of s. 27(3C) apply. This Court

is satisfied that on the facts before the learned sentencing judge, to the extent that they are properly recorded only the plea of

guilty and the early indication that it would be made, could properly and confidently described as capable of constituting “exceptional

and specific” circumstances for the purposes of s. 27(3C) of the Act of 1977, (as amended). Having regard to the decision in The

People (Director of Public Prosecutions) v. Ducque [2005] I.E.C.C.A. 92, this court considers that even making due allowance for this

plea of guilty it would ordinarily be unduly lenient to impose a sentence of less than eight years imprisonment on the respondent.

However, there are quite extraordinary and, it is hoped never to be repeated, circumstances in this case which are so, “exceptional

and specific”, as to persuade this Court that it would be unjust to re-impose the suspended portion of the sentence in the instant

case.

This Court has had occasion in the past to hold that where, due to an error in principle on the part of a sentencing judge a convicted

person is released from prison having served the sentence imposed, but that sentence is subsequently held by this Court to have

been unduly lenient, the shock and feeling of disappointment, of freedom withdrawn when believed secure and, the disruption to a life

resumed all may be taken into account as constituting an additional penalty on the person concerned. It is important to stress that

this is something which must fall to be addressed by reference to the circumstances of each individual case and that a release from

prison is not, in itself, sufficient to confer a right to such consideration on a convicted person. The total or partial re-imposition of a

suspended portion of a sentence in a case of

re-offending raises entirely separate and different considerations.

As is to be seem from the other judgment of this Court in the instant case, given on the 27th July, 2009, (dealing with issues of

whether this Court had jurisdiction to hear and determine this application on behalf of the Director of Public Prosecutions), the

transcript of the sentencing hearing on the 6th November, 2007, was quite inexcusably incomplete, garbled and fragmented. The

difficulties which this thankfully, most unusual situation presented for this Court on the hearing of this application by the Director of

Public Prosecutions, though ultimately held not to be insurmountable, may clearly seen from its judgment of the 27th July, 2009.

The initial sentence was imposed on the respondent on the 6th November, 2007. The Notice of Application for Review of that

sentence on behalf of the Director of Public Prosecutions is dated the 30th November, 2007. The respondent was released from prison

on the 28th February, 2009, having served the custodial portion of the sentence imposed by the learned sentencing judge. The

suspended portion of the sentence, subject only to this application, remains in force and operational. This Court accepts that the

respondent had to have been aware of this application on the part of the Director of Public Prosecutions and had to be conscious of

the fact that it might be successful, carrying with it the possibility of a further period of incarceration being imposed on him.

Once convicted, a prisoner, subject to his right to seek bail pending an appeal by him or her, has a right to serve any period of

imprisonment so imposed as soon as possible. In the instant case, without any appeal, delay or default on the part of the respondent

or his legal representatives, this right has been frustrated by extraordinary and specific circumstances. In the result, any additional

period of incarceration which this Court might impose on the respondent on foot of this application by the Director of Public

Prosecutions would now spring into being after the respondent has been at large and resumed his life for almost two years, having

fully served the custodial portion of the sentence initially imposed on him by the learned sentencing judge.

In these unique circumstances, it is the opinion of this Court that it would be an unacceptable disregard for the humanity of the

respondent if this Court were now to direct that he must serve the remainder of the sentence of eight years imprisonment imposed by

the learned sentencing judge. This is despite the conclusion of this Court that the suspension of any part of that sentence of eight

years imprisonment was an error in principle on the part of the learned sentencing judge. In the extraordinary, specific and, it is hoped

never to be repeated circumstances of this case, this Court will permit the sentence imposed by the learned sentencing judge to

stand.