Court of Criminal Appeal dismisses appeal against seven-year sentence for drug trafficking where mitigating factors were fully considered.

UNAPPROVED

THE COURT OF CRIMINAL APPEAL

Murray C.J. 226/08

McKechnie J.

Dunne J.

BETWEEN

ROMOSE SAKPOBA

APPLICANT

-v-

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of the Court delivered by Murray C.J. on the 28th day of July 2010

On the 27th July 2005 the applicant pleaded guilty to the possession of a controlled drug for the purpose of unlawful sale or supply

contrary to s. 15A of the Misuse of Drugs Act 1977, as amended. The offence occurred on the 21st September 2004 when the

applicant was found in possession of a quantity of cocaine the market value of which exceeded the sum of €13,000 specified in s. 15A

of the Act of 1977. The amount of cocaine found was 603.5 grams. The market value was estimated at €43,000.

In January 2006 the applicant sought to change his plea of guilty to one of not guilty and that application was refused by a ruling of

the Circuit Court on the 28th February 2006.

On 25th July 2006 the applicant did not appear in court and a bench warrant was issued for his arrest. The explanation given was

that his mother had died and that fact was accepted in the Circuit Court. However he did not present himself to the authorities and

was next brought before the court of trial on the 10th March 2008 having been arrested on foot of the warrant the previous day. The

matter was then listed for mention before the trial Court on two subsequent occasions. A hearing for the purpose of sentencing the

applicant occurred on the 9th July 2008. Evidence in relation to the circumstances of the offence was given and the matter was

adjourned to the 16th July 2008 when further evidence was given. On that occasion the learned trial judge sentenced the applicant

to seven years in prison. An application for leave to appeal against sentence was refused.

The applicant applied to this Court for leave to appeal against sentence and on 5th July 2008 this Court determined the application

and refused the applicant’s application.

This judgment sets out the reasons for the Court’s determination of the application.

Background Facts

On the 21st September 2004 Customs and Excise Officers became aware of a sealed package which arrived on a flight at Dublin

Airport which, on examination, was found to contain a white powder believed to be cocaine. It appears that the package originated in

Brazil. The package was opened and found to contain shirts, socks, CDs, ties and so forth but attached to the cardboard insert in

each shirt was a packet of white powder. Tests identified it as cocaine. The Garda Siochana became involved. The package was due

to be delivered by an international courier company through which it had been consigned and it bore the name and address of an

individual at Fairview Strand, Dublin. A member of An Garda Siochana, posing as a delivery man, took the package to the address on

the package. At this point the applicant, who was at the address in question took the package and signed for it, although he was not

the person to whom it was addressed.

Subsequent to delivery members of An Garda Siochana gained access to a flat at that address with the benefit of a search warrant.

The applicant was found in the flat as the sole occupant. The Gardaí found that the shirts containing the cocaine had been removed

from the package and were recovered from under a bed in the bedroom in the flat. As indicated above, the amount of cocaine found

was 603.5 grams with a market value of €43,000 approximately. It is accepted by the Gardaí that the applicant was not the main

instigator in the offence and that he was not someone of substantial means.

In sentencing the applicant the learned trial judge took into account the matters referred to by counsel in mitigation of the offence.

In the course of his sentencing the trial judge stated:-

“Now, as of the sentence date what was relied on by Mr. Ó Lideadha by way of mitigation in relation to the matters,

that he was mannerly and polite in the course of the investigation, he identified the shirts in the boxes and this was said

to be of some limited assistance. He didn’t defend the case and it was put forward that his plea was of significance and

assistance in the case. There were no signs of wealth on his behalf. It was accepted by Garda Lee that he wasn’t the

main instigator of the offence and that there was a relatively small gain on his part. The plea was proffered at an early

stage.”

The learned trial judge treated lightly and leniently the fact that the applicant, having breached his bail on account of the death of

his mother in June 2006, remained at large until 9th March 2008. He took into account the applicant’s good behaviour in prison in the

meantime and other matters urged upon him by counsel for the applicant including that as a non national his time in custody would be

more difficult. He also specifically took into account that in or about April 2005 the then solicitor for the applicant wrote to the Gardaí

providing them with a registration number of a vehicle which could be used in their investigation and which it was suggested backed

up his story that he initially gave to the Gardaí namely that he was receiving or collecting the parcel on behalf of someone else. In

fact nothing arose out of this information which was given some months after the offence but the learned trial judge treated it as

constituting material assistance to the Gardaí. A Garda witness had accepted that it provided evidence of a willingness to assist.

The learned trial judge considered that there were exceptional circumstances within the meaning of s. 15A of the Act and that he

could therefore depart from the minimum sentence specified in that section. He pointed out that nonetheless the offence was a

significant and serious drug offence committed in the course of a sophisticated organised operation.

Having considered all the circumstances the learned trial judge imposed a sentence of imprisonment of seven years to date from the

date on which the applicant was placed in custody namely the 10th March 2008.

The Application

Counsel on behalf of the applicant has submitted that the sentence was unduly severe and wrong in principle. It was submitted on

behalf of the applicant that the learned trial judge in imposing a sentence of seven years:-

Did not give the applicant adequate credit for the combination of having provided material assistance to the investigation,

matters offered in mitigation and the guilty pleas;

excluded from his consideration the imposition of a partially suspended sentence in circumstances where a partial

suspension of sentence may have been warranted;

erred in holding that a guilty plea and the matters referred to in mitigation were insufficient to amount to “exceptional

circumstances” allowing a departure from the presumed mandatory minimum sentence.

This latter point (c) was set out in the written submissions of the applicant but was not really pursued, and properly so, at the

hearing since the learned trial judge did consider there were exceptional circumstances allowing him to depart from the otherwise

mandatory minimum sentence.

It is in any event noted that the learned trial judge, during the course of the sentencing hearing, seemed at one point to be under

the impression that this Court had decided, in a case of D.P.P. v. O’Reilly (ex tempore, Unreported, CCA 30th May 2008) that a guilty

plea could not be taken into account in determining whether there are exceptional circumstances in a case which would make a

sentence of not less than ten years imprisonment unjust.

On reading the judgment of the Court as delivered by Kearns J. it is quite evident that that case did no more than decide the weight

to be attached to certain early admissions made by the accused in the circumstances of the case. It did not decide that admissions

or a plea of guilty could not be taken into account in determining whether there are exceptional circumstances. What that case

decided, on its own particular facts, was “… that in the particular circumstances the admission was perhaps not as valuable as it

might have been in another case.” Of course the fact that somebody pleads guilty, even at an early stage, does not necessarily

mean that there are exceptional circumstances which would render a sentence of not less than ten years imprisonment unjust. That

would depend on all the circumstances of the case. First of all the gravity of the offence may be such as to warrant the imposition of

a term of imprisonment significantly in excess of the statutory minimum ten years. In cases where the minimum sentence of ten years

is deemed to apply by virtue of the statutory provision the mere fact that a person has pleaded guilty at some point may not, on the

facts of a particular case, mean that there are exceptional circumstances within the meaning of the section. That would be a matter

for the sentencing Court to determine in each case according to all the circumstances of the case before it.

Furthermore, it may be appropriate here to state, as this Court has noted on previous occasions, ex tempore judgments, because of

their very nature, tend to have limited importance as precedents. Such judgments are, as a general rule, delivered because the issues

arising in the case can be readily resolved and determined on its own facts within the ambit of well established principles of law. If a

court is reviewing the traditional application of a principle of law or developing the law in a particular issue it is likely to do so

expressly in a reserved judgment where the existing law is analysed and the reasons why it should be expanded upon or qualified,

explained. It is also generally the position that ex tempore judgments are delivered in the context of the case at hearing which has

just concluded and it is not necessary to recite every single fact or circumstance of the case for the purpose of deciding the

particular point or points at issue. There may be particular exceptions to this general rule where the Court in an ex tempore judgment,

explicitly addresses a particular issue from a particular perspective. Even then it has to be borne in mind that the particular facts and

circumstances of each criminal case relating to a particular offence tend to differ in some important respect from one case to

another. It is the totality of the circumstances that are usually important in determining issues in criminal cases and the fact that

some elements in one case are the same as some elements in another does not necessarily mean that they must be decided in the

same way. Issues in criminal cases are not decided in the abstract. For this reason even cases which decide or uphold an important

principle of law may fall to be considered or interpreted in the context of other leading cases on the same issue rather than in

isolation.

With regard to the facts and circumstances of this particular case the Court notes, as has been noted in previous judgments of this

Court, that offences concerned with dealing in or supplying drugs are grave offences under the law, the gravity of which is reflected

in s. 15A. The sale and supply of drugs has had a devastating effect on the lives of people throughout our cities, towns and villages.

It is also the source and cause of many forms of criminal activity ranging from theft and robbery to organised crime. This situation is

not unique to Ireland. Throughout the world crimes connected with the supply or sale of illicit drugs are treated as grievous offences.

Every person who commits such a crime must now know that he or she is likely to face a severe term of imprisonment.

In this case the defendant knowingly engaged in a sophisticated operation, as the learned trial judge put it, which involved the sale or

supply of a substantial amount of cocaine. The Court does not accept the submission made on behalf of the applicant that this was a

case in which the sentencing Court could have considered suspending a portion of a seven year term of imprisonment. Neither does

the Court consider that the circumstances give rise to any grounds upon which suspending a portion of the term of imprisonment

ought to have been contemplated by the learned trial judge.

It is also quite clear from the ruling of the trial judge, quoted above that he took into account all the mitigating factors relied upon by

the applicant.

The gravity of this case lies in the fact that the applicant was knowingly involved in the supply chain for a significant consignment of

cocaine. The fact that he was not the instigator of the sophisticated operation involved was taken into account by the trial judge. If

he had been the instigator, or the like, the trial Judge would have had to consider imposing a very much greater sentence.

The Court considers that the learned trial judge gave the maximum weight possible to the mitigating factors which were advanced on

behalf of the applicant having regard to all the circumstances of the case.

Counsel for the applicant referred to a number of other cases and in particular D.P.P. v. O’Reilly. It is clear from that case that the

sentence imposed by the Court of Criminal Appeal was one imposed in the particular circumstances of that case and in the Court’s

view has no implications for this case. Neither is there anything in D.P.P. v. Dermody [2007] 2 I.R. 622 which could be a basis for

calling in question the decision of the learned trial judge to impose a sentence of seven years imprisonment in the circumstances of

this particular case.

Accordingly the Court is satisfied that the sentence imposed in this case was not unduly severe and that there are no grounds for

considering that the trial judge erred in principle.

For these reasons the Court makes an order dismissing the application.