Court of Criminal Appeal dismisses appeal against suspended sentence for drug trafficking due to lack of unduly lenient grounds.

THE COURT OF CRIMINAL APPEAL

CCA 0195/2008

Hardiman J.

Budd J.

Hanna J.

BETWEEN

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPLICANT

.V.

BRIAN WALL

RESPONDENT

Judgment of the Court delivered on the 29th day of July, 2011, by Mr. Justice Declan Budd

Background

This is an appeal pursuant to the provisions of s. 2 of the Criminal Justice Act 1993 (hereafter “the Act of 1993”) on the grounds that

the sentence which was imposed on the respondent on the 17th June, 2008, by Cork Circuit Criminal Court was unduly lenient. All of

the charges related to offences under the Misuse of Drugs Act 1977 (hereafter “the Act of 1977”), as amended, and the two counts

of offences were contrary to s. 15A of the Act of 1977, as amended. On arraignment on the 13th February, 2008, the respondent

pleaded guilty and the matter was adjourned for sentencing on the 17th June, 2008. The learned trial judge, His Honour Judge Patrick

Moran subsequently imposed a sentence of six years imprisonment, the entirety of which was suspended on the basis that the

respondent keep the peace and be of good behaviour for a period of three years.

The respondent at the date of sentence was twenty six years of age. He was in employment with a food distribution company, and

he was in a long term relationship with his girlfriend and was the father of a young child aged one and a half. He had suffered a sports

injury as a result of which he was unable to attend his place of employment to work. Despite this he remained in receipt of his ‘flat

rate’ of pay of €580 per week. At the time, as his partner was also in employment, the net household income was €1,000. Whilst out

of work he was, however, at a loss of earnings in respect of overtime and other additional payments, which he would normally have

received on top of his ‘flat rate’ of pay. It was allegedly during this period of time when he was out of work that he began engaging in

distributing drugs. The respondent had purchased a house in a new development and had moved into this house in the weeks prior to

his arrest. He was paying a mortgage of around €800 per month for this property. It appears that he was out of work for a period of

thirty to thirty one days before he commenced engaging in distributing drugs.

The respondent stood charged with possession of a quantity of drugs to include 726.996 grammes of Diamorphine (heroin) with a

street value of €145,600. The charges related to an incident which occurred on the 27th September, 2007, wherein the respondent

was observed by the drug squad personnel, alighting from a car in the Shanakiel area of Cork city and placing an item at the base of

an ESB pole. He got back into his car and was stopped approximately 100 yards away by the gardaí who conducted a search of the

vehicle and found a number of bags containing heroin. The gardaí then went back to the ESB pole and upon searching the area found

an ounce of heroin. The respondent was arrested and a search of his home was conducted under warrant. A further ounce of heroin

was found concealed in a video cassette player in a spare bedroom.

The respondent was interviewed a number of times after the incident and admitted to acting in the capacity of store man and to

distributing the heroin to various locations in Cork city. He also stated that he had received a kilo of heroin in the week prior to his

arrest and that he had made three separate drops distributing a total of 9 ounces of heroin before his arrest. He claimed that he was

to be paid €2,000 for his activities on the 27th September. The respondent co-operated with the gardaí but did not disclose whom he

was working for or who owned the drugs in question.

The respondent had no previous convictions at the date of his arrest and was not, himself a drug addict. He claimed to have engaged

in the activity for the purpose of financial gain.

Particulars of Conviction and Indictment

The applicant was charged with nine counts on the indictment as follows:-

Count No. 1: Possession of a controlled drug contrary to s. 3 and s. 27 (as amended by s.6 of the Misuse of Drugs Act

1984) of the Misuse of Drugs Act 1977.

Count No. 2: Possession of a controlled drug for the purposes of selling or otherwise supplying it to another in

contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Misuse of Drugs Act 1977 and

contrary to s. 15 and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Count No. 3: Possession of a controlled drug for the purposes of selling or otherwise supplying it to another in

contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Misuse of Drugs Act 1977 at the

time of possession, the market value of the controlled drugs amounting to €13,000.00 or more contrary to s. 15A of the

Misuse of Drugs Act 1977, as inserted by s. 4 of the Criminal Justice Act 1999 and s. 27 (as amended by s. 5 of the

Criminal Justice Act 1999) of the Misuse of Drugs Act 1977, as amended by s. 1 of the Euro Changeover (Amounts) Act

2001.

Count No. 4: Possession of a controlled drug contrary to s. 3 and s. 27 (as amended by s. 6 of the Misuse of Drugs Act

1984) of the Misuse of Drugs Act 1977.

Count No. 5: Possession of a controlled drug for the purposes of selling or otherwise supplying it to another in

contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Misuse of Drugs Act 1977 and

contrary to s. 15 and s. 27 (as amended by s.6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Count No. 6: Possession of a controlled drug contrary to s. 3 and s. 27 (as amended by s. 6 of the Misuse of Drugs Act

1984) of the Misuse of Drugs Act 1977.

Count No. 7: Possession of a controlled drug for the purposes of selling or otherwise supplying it to another in

contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Misuse of Drugs Act 1977 and

contrary to s. 15 and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Count No. 8: Possession of a controlled drug contrary to s. 3 and s. 27 (as amended by s. 6 of the Misuse of Drugs Act

1984) of the Misuse of Drugs Act 1977.

Count No. 9: Possession of a controlled drug contrary to s. 3 and s. 27 (as amended by s. 6 of the Misuse of Drugs Act

1984) of the Misuse of Drugs Act 1977.

Evidence at trial

The court heard from Detective Sergeant Lar O’Brien who gave sworn evidence at trial. When questioned by Mr. Sreenan, about the

respondent’s co-operation with the gardaí, Detective O’Brien stated that the respondent had admitted his part in the offence from the

outset and that whilst he did not originally mention the additional ounce of heroin which was later found in his bedroom, however,

when it was put to him he conceded that he had forgotten about it the previous evening. Detective O’Brien also stated that the

respondent did not inform the gardaí who he worked for or who owned the drugs but that he had no previous convictions and had not

come to the attention of the gardaí since.

The respondent on examination by Mr. O’Carroll stated that he would like to apologise to the Court and to his family for being in this

situation. When questioned as to the effect of the offence on his partner, he stated it was “eating her alive” and also stated that it

had been “very tough” for his parents. The respondent stated that “[i]f the Court does give me a second chance, there’s no way that

I’d ever be in this situation ever again; I promise you that.” He expressed his remorse and told the Court that he regretted the event

every day.

Sentencing

The applicant pleaded guilty to counts 3, 5, 7 and 9. The trial judge imposed a sentence of six years imprisonment (the entirety of

which was suspended on the basis that the respondent would enter a bond to keep the peace and be of good behaviour for a period

of three years) in respect of Count No. 3, all other counts were taken into consideration. Thereafter, the DPP entered a nolle prosequi

in relation to Counts No. 1, 2, 4, 6 and 8 in the indictment. In sentencing, the trial judge stated that:-

“The Oireachtas, in introducing this legislation, gave powers to the courts to in fact impose a prison sentence of not less

than ten years unless there were exceptional circumstances. I take the view that there are exceptional circumstances in

this case. You got involved in this for the simple sum of €2,000 to help your partner and your child and your way of life.

I have read the various letters that have been handed in on your behalf, I have read the probation report, I have listened

to what Mr. Mulcahy said on your behalf, and listened to your own evidence. I accept that you’re remorseful for this, and

I accept the havoc it has brought to your partner and your own family.

You are the second young man I have dealt with during the current sitting who has been involved in this type of activity.

You have asked me for a second chance, and the other young man asked me for a second chance as well and I took the

view I should assist him.

I have read the probation report, and your probation officer says that you were at the lowest possible level of re-

offending, and whilst I didn’t ask Detective Sergeant O’Brien a question I often ask, which is, have you divorced yourself

from the drug world, I suspect that his answer to that would be in the affirmative, otherwise he would have told me, and

certainly I get that impression from yourself.

You are a young man trying to get on with your life, I think you have learnt a lesson from this episode and I think Miss

Moriarty is right in her assertion about the likelihood of re-offending”

Grounds for review of sentence on appeal

Counsel for the DPP has raised the following grounds for review of sentence on appeal:

The sentencing Court erred in law and in fact in being unduly lenient by failing to attach sufficient weight to the gravity

of the offence for which the maximum penalty is life imprisonment and the existence of a mandatory minimum sentence of

10 years imprisonment.

The sentencing Court erred in law and in fact in being unduly lenient in the weight it attached to the early plea of the

respondent, the favourable probation report, the testimonial of a character witness, and the fact that the respondent

was apologetic and remorseful.

The sentencing Court erred in law and in fact in being unduly lenient in the weight it attached to the fact that the

respondent was in possession of €145,600 of diamorphine and the fact that the respondent had acted as a store man and

delivery man for an unnamed person for financial reward and the fact that the respondent was not a drug addict and that

his motivation was entirely mercenary.

The sentencing Court erred in law and in fact in failing to take into account that the respondent had, by his own

admission, purely mercenary motives.

The sentencing Court erred in law and in fact in failing to take into account the fact that the respondent had by his own

admission engaged in the supply of unlawful drugs on another occasion, some number of weeks prior to the date of the

offences, the subject matter of these proceedings and had received the sum of €2,000.00 in relation to the same.

The sentencing Court erred in law and in fact in deeming the fact that the respondent was not addicted to drugs as being

a factor in mitigation.

The sentencing Court erred in law and in fact in being unduly lenient in failing to have any, or any adequate regard for the

judgment of the Court of Criminal Appeal in the case of DPP v Rory Lernihan [2007] IECCA 21 (Unreported, Court of

Criminal Appeal, 18th April, 2007). The circumstances were not materially distinguishable from the circumstances of the

respondent’s case. The Court of Criminal Appeal quashed the sentence of four years imprisonment with the last two and a

half years suspended as being unduly lenient in respect of possession of €72,000 of cocaine. The Court of Criminal Appeal

imposed a sentence of seven years imprisonment.

The Court failed to pay any or any adequate regard to the provisions of s. 27(3)(3d)(c)(ii) of the Misuse of Drugs Act

1977 and in particular, failed in imposing a sentence of less than ten years to have regard to whether the public interest

in preventing drug trafficking required a sentence of ten years or more.

The sentencing court failed to have any or any proper regard to the deterrent aspect of sentencing.

The Law

Section 2 of the Criminal Justice Act 1993, as amended by s. 23 of the Criminal Justice act 2006, provides that:-

“ 2. - (1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to

as the "sentencing court") on conviction of a person on indictment was unduly lenient, he may apply to the Court of

Criminal Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days or such

longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine, from the day on

which the sentence was imposed.

(3) On such an application, the Court may either—

( a ) quash the sentence and in place of it impose on the convicted person such sentence as it considers

appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

( b ) refuse the application.

(4) . . . "

The sentence in the present case was imposed for an offence under s. 15A of the Act of 1977 as inserted by s. 4 of the Criminal

Justice Act 1999 (hereafter “the Act of 1999). Section 15A(1) provides that:-

"A person shall be guilty of an offence under this section where:-

(a) the person has in his possession, whether lawfully or not, one or more controlled drugs for the purpose of selling

or otherwise supplying the drug or drugs to another in contravention of regulations under section 5 of this Act, and

(b) at any time while the drug or drugs are in the person's possession the market value of the controlled drug or the

aggregate of the market values of the controlled drugs, as the case may be, amounts to £10,000 or more."

Guidance on sentencing for this offence is provided by ss. 27(3A),(3B) and (3C) of the Act of 1977, as inserted by s. 5 of the Act of

1999:-

"s. 27 (3A) Every person guilty of an offence under section 15A shall be liable, on conviction on indictment -

(a) to imprisonment for life or such shorter period as the court may, subject to subsections (3B) and (3C) of this

section, determine, and

(b) at the court's discretion, to a fine of such amount as the court considers appropriate.

(3B) Where a person (other than a child or young person) is convicted of an offence under section 15A, the court shall, in

imposing sentence, specify as the minimum period of imprisonment to be served by that person a period of not less than

10 years imprisonment.

(3C) Subsection (3B) of this section shall not apply where the court is satisfied that there are exceptional and specific

circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less

than 10 years imprisonment unjust in all the circumstances and for this purpose the court may have regard to any matter

it considers appropriate, including:-

(a) whether that person pleaded guilty to the offence and, if so,

(i) the stage at which he indicated the intention to plead guilty, and

(ii) the circumstances in which the indication was given,

and

(b) whether that person materially assisted in the investigation of the offence."

Decision

Onus of Proof

The onus of proof in an application under s. 2 of the Act of 1993 rests upon the DPP. In Director of Public Prosecutions v. Byrne

[1995] 1 I.L.R.M. 279 at pp. 286 - 287 O'Flaherty J. said, of s. 2 of the Criminal Justice Act 1993:-

"In the first place, since the Director of Public Prosecutions brings the appeal the onus of proof clearly rests on him to

show that the sentence called in question was 'unduly lenient'.

…it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a

substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this

Court.”

This passage was cited with approval by Denham J. in DPP v Lernihan [2007] IECCA 21 (Unreported, Court of Criminal Appeal, 18th

April, 2007).

Counsel for the respondent referred this Court to the judgment in DPP v McGinty [2007] 1 I.R. 633 where Murray C.J. stated at para.

35 that:-

“In an appeal of this nature it is not for the court to decide what sentence it would have imposed in the circumstances

but whether the trial judge erred in principle that his sentence should be quashed as being unduly lenient. The onus is on

the prosecutor to establish that this is the case.”

The Court concurs with this statement of law and with the submission of counsel for the respondent, that considerable deference

must be shown to the decision of the trial judge and that, in order for an application to succeed under this section there must be a

substantial departure from what would be regarded as the appropriate sentence.

Application of minimum mandatory sentence under s. 15A

The offence at issue in this case is an offence under s. 15A of the Act of 1977, as amended. This is a grave offence as alluded to by

Denham J. in DPP v Lernihan [2007] IECCA 21 (Unreported, Court of Criminal Appeal, 18th April, 2007) who stated:-

“The gravity of the offence may be seen by the sentencing provisions made, which set a maximum sentence of

imprisonment for life. In addition, the Oireachtas has created a presumptive sentence of ten years. Although widely

referred to as a mandatory minimum sentence it is not a true mandatory sentence, such as is provided for in the crime of

murder. Rather, the Oireachtas has created a basic presumptive sentence of ten years, but has explicitly provided that it

shall not apply where there are exceptional and specific circumstances. Further, the Oireachtas has given a non-

exhaustive list of such exceptional and specific circumstances, as including: (a) a plea of guilty, and (b) whether the

person materially assisted in the investigation of the offence.”

Counsel for the DPP referred the Court to DPP v. Renald (Unreported, Court of Criminal Appeal, 23rd November, 2001) where Murphy J.

stated that:-

“Even where exceptional circumstances exist which would render the statutory minimum term unjust, there is no question

of the minimum sentence being ignored. Perhaps the most important single factor in determining the appropriate sentence

is the ascertainment of the gravity of the offence as determined by the Oireachtas. Frequently, an indication as to

seriousness of the offence may be obtained from the maximum penalty imposed for its commission. This is particularly true

in the case of modern legislation. What is even more instructive is legislation which, as in the present case, fixes a

mandatory minimum sentence. Even though that sentence may not be applicable in a particular case, the very existence

of a lengthy mandatory minimum sentence is an important guide to the Courts in determining the grading of the offence

and the appropriate sentence to impose for its commission. That is not to say that the minimum sentence is necessarily

the starting point for determining the appropriate sentence. To do so would be to ignore the upper material provision, that

is to say, the maximum sentence. It would be wrong to assume that the offence of importing controlled drugs in excess of

the prescribed amount or value would attract only the mandatory minimum sentence, long though it may be.”

The Court was also referred to People (DPP) v Botha [2004] 2 I.R. 375 where the Court of Criminal Appeal per Hardiman J. stated that

maximum and minimum sentences exist as “clear and definitive guidance” for the Court itself.

Nonetheless, in exceptional and specific circumstances where an offence has been committed under s. 15A of the Act of 1977, as

amended, it will be unjust to impose a sentence of 10 years. In such cases, provided the court is satisfied that there are exceptional

and specific circumstances relating to an offence which would make a sentence of not less than 10 years unjust, the court may

depart from the minimum mandatory sentence. This is provided for by s. 27(3C) of the Act of 1977, as amended.

A number of cases have dealt specifically with undue leniency applications in respect of sentences imposed for offences under s. 15A

of the Act of 1977, as amended. In DPP v McGinty [2007] 1 I.R. 633 the accused who pleaded guilty to an offence contrary to s. 15A

of the Act of 1977, as amended, was sentenced to five years imprisonment which was suspended on the accused entering into a

bond to keep the peace and be of good behaviour for a period of five years and to complete a drug rehabilitation course. The

sentencing court took a number of mitigating factors into account namely that; the accused had no previous convictions; had sold

drugs to pay for his cocaine dependency; had co-operated fully with the gardaí; had pleaded guilty; was fourteen months drug free

at the time of sentencing; had reconciled with his son; was in a drug treatment programme and had been appointed group leader in

his drug treatment centre. The appeal on grounds of undue leniency was dismissed. Murray C.J. stated at para. 28 and 29 that:-

“It is clear that the trial judge was conscious of the fact that if one had regard only to the seriousness of the offence in

itself a custodial sentence was merited. As this Court has frequently stated a judge imposing sentence must not only

have regard to the seriousness of the offence but also the particular circumstances of the offender and, in that light,

impose a sentence which best serves the public interest and the interest of justice.

While a custodial sentence would serve certain objectives such as deterrence and punishment it is clear that he

nonetheless had to consider whether it was in the interest of society that the proven substantial progress in rehabilitation

and strong prospects of full rehabilitation through participation in the Coolmine programme would be put at risk by

removing the respondent from that programme and putting him into a prison environment for a significant period.”

A significant factor in DPP v McGinty was that the rehabilitation of drug addicts is “an important part of penal policy since if successful

it reduces dramatically the risk of repeating offences and imprisonment of addicts.” (DPP v McGinty [2007] 1 I.R. 633 at 642) In

McGinty there was a significant risk that the accused’s rehabilitation would be hindered if he were given a custodial sentence.

In DPP v Alexiou [2003] 3 I.R. 513 the accused, a South African national was charged and convicted of an offence contrary to ss. 15A

and 27 of the Act of 1977, as amended. He was sentenced to four years imprisonment which was suspended on condition that he

leave the State immediately. There were a number of exceptional circumstances in that case; the accused was 27 years of age but

there was evidence he was a person of limited intellectual capacity with the reading age of a ten year old; he had a highly dependant

relationship with his South African mother and at the time of the offence when he was approached to bring the package to Ireland,

he was heavily indebted. Murray J., as he was then, stated at pp. 522-523:-

“In the case the court is satisfied that the trial judge approached the question of sentencing with meticulous care. He

took into account the nature and gravity of the offence and the fact that foreign couriers of drugs should be subject to

the severe sanction of the law just as much as any other offender in possession of drugs for the purpose of sale. He also

had careful regard, as he was bound to, to the particular circumstances of the case including those of the accused

himself. He took account of the severe effect of the period, although short, which the accused spent in jail, given his

limited intellectual capacity to cope with the fact that he was in a foreign country cut off from his own family and from

anybody he knew. Of more importance was the consideration which he gave to the accused’s low intellectual capacity

and history of attending remedial schools from his early years. He was also entitled to take into account that the one

thing the accused wished to do, having fully acknowledged the wrongness and gravity of the offence, was to leave

Ireland and return to his own country and in particular to his mother’s home because of his limited intellectual abilities and

dependence on her. Although a severe sanction which marks the gravity of a particular offence should be a deterrent to

others, deterrence is never a basis for punishing an accused for crimes which may have been or may be committed by

others. As the court has already stated, the trial judge was bound to decide this case having regard to its own particular

circumstances and taking into account, as the statute itself provides, matters which he considered appropriate.”

Similarly, in DPP v McCormack [2000] 4 I.R. 356, Barron J. stated at p. 359 that:-

“Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts

but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence

for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of

possible penalties is dependant upon those two factors. It is only when the penalty is below the range as determined on

this basis that the question of undue leniency may be considered.”

Counsel for the DPP referred the court to the judgment in DPP v. Lernihan [2007] IECCA 21 (Unreported, Court of Criminal Appeal,

18th April, 2007) which also concerned an undue leniency application. The accused in that case had pleaded guilty to an offence

under s. 15A of the Act of 1977 having been found in possession of 1 kilo of cocaine with a street value of €72,000. His motives were

pecuniary and he was not a drug addict when he became involved in this trade. The court accepted that the accused was storing the

drugs and not distributing them. The accused was remorseful, had pleaded guilty, had no previous convictions and had taken steps to

obtain counselling. The accused was initially sentenced to four years and ordered to serve eighteen months with the balance of the

sentence suspended. The Court of Criminal Appeal granted the appeal and imposed a sentence of seven years imprisonment. Denham

J. held at para. 8 that:-

“This Court is satisfied that the sentence of four years imprisonment with the final two and a half years suspended was

an unduly lenient sentence, for the reasons to be set out. The Court is satisfied that there was an error in the

sentencing. The gravity of the offence requires to be given due consideration. The fact that the maximum sentence for

the offence is life imprisonment and that the Oireachtas has established a presumptive sentence of 10 years indicates the

approach established in law to the gravity of this type of offence.”

The case at hand whilst similar to DPP v. Lernihan, may be distinguished, as in this case there is strong evidence that the respondent

is very unlikely to re-offend. He is described by in his probation report as being at the “lowest possible level of reoffending”.

Suspended sentences.

In DPP v Alexiou [2003] 3 I.R. 513, Murray C.J. held at p. 522 that:-

“Even where there are exceptional and specific circumstances which would make a sentence of not less than ten years

imprisonment unjust, a substantial term of imprisonment, although less than ten years, will generally be the appropriate

sentence. That does not, however, exclude wholly exceptional and specific circumstances where a suspended sentence

may be considered appropriate in order to do justice in the particular case.”

The use of suspended sentences was also discussed in DPP v McGinty [2007] 1 I.R. 633, Murray C.J. stated at paragraph 16 that:-

“However, insofar as the submission of the D.P.P. contended that a suspended sentence must always, and in every

circumstance, be considered wrong in principle, the Court does not accept that this is a correct principle to be applied.

First of all there is nothing in the legislation to suggest that the Oireachtas intended to compromise to that extent the

judicial function to impose the appropriate sentence in the circumstances of the case. On the contrary, the Oireachtas

expressly provided for a trial judge to exercise his or her judicial discretion according to the justice and circumstances of

the case when it provided for the non-application of s. 27(3B) in certain circumstances. Generally speaking legislation is

incapable of dealing specifically with the vast range of circumstances and factual elements that differentiate one case

from another even though they involve an offence under the same section and this the Oireachtas has recognised in the

provisions just referred to. It cannot be said that there could never be circumstances in which, having regard to the

interests of society as a whole, the facts of the particular case and the circumstances of the accused, where a

suspended sentence would be appropriate. Undoubtedly a trial judge sentencing a convicted person for an offence such

as that in question here is constrained by the considerations already referred to above to consider that a term of

imprisonment is normally what should be imposed. However, where there are special reasons of a substantial nature and

wholly exceptional circumstances, it may be that the imposition of a suspended sentence is correct and appropriate in the

interest of justice. This is a combination of factors which could only arise in a relatively rare number of cases. This Court

has previously upheld a sentence of such a nature in the case of D.P.P. –v- Alexiou [2003] 3 I.R. 513 because there were

such exceptional circumstances and special reasons.”

The deterrent power of suspended sentences is succinctly described by W.N. Osborough in his article “A Damocles’ sword guaranteed

Irish: The Suspended sentence in the Republic of Ireland” (1982) 17(2) Irish Jurist 221, who stated:-

“…the punishment is made to hang over the offender like some sword of Damocles for the duration of a period which the

sentencer has prescribed in advance. If, within this probationary period, the offender offends again or otherwise violates

the trust placed in him, he runs the risk that, in such an eventuality, the sword of Damocles will descend.”

Suspended sentences are particularly suitable in the cases of first offenders where there is little likelihood of re-offending. (See

People AG v McClure [1945] I.R. 275) O’Malley, Sentencing Law and Practice, 2nd Edition, (Dublin, 2006) at para. 22.09 comments

that “a suspended sentence can serve a number of penological goals including just deserts, rehabilitation and individual deterrence.”

Mitigation

Counsel for the respondent argues that there are a number of mitigating factors in the present case, namely; the respondent’s age

and family background; the early guilty plea and fact the respondent had no previous convictions; his full co-operation with the

gardaí; the positive probation and welfare report which included, a risk assessment of the respondent which assessed the respondent

as being at the lowest possible level of risk of re-offending; the respondent’s insight into the inherent wrongness of his activity and

his apology for the events; the testimonials provided to the trial judge and the respondents involvement with the GAA and working

with young teenagers. Counsel for the respondent submits that these factors were correctly taken into consideration by the trial

judge and that he did not make an error in principle but rather imposed a sentence based upon the evidence, the findings that he

made and proper sentencing principles.

In regard to the accused’s financial motivation, Counsel for the DPP refers the court to a paragraph 6.68 from O’Malley, Sentencing

Law and Practice, 2nd Edition, (Dublin, 2006):-

“Financial motive may be an aggravating or mitigating factor, depending on the circumstances. In drug related cases, for

example, those who organise the importation and distribution of drugs are clearly motivated by financial gain which will

almost certainly be treated as an aggravating factor. Others who are employed as couriers may be deeply impoverished

and disadvantaged people who agree to import or distribute drugs as a means of supporting themselves and their families.

They will usually receive some mitigation on that account, although the courts must be careful not to be seen to be

routinely lenient lest this encourage organisers of the drugs trade to target impoverished or marginalised individuals to act

as couriers with the promise that they are likely to be treated leniently even if caught.”

O’Malley, in the text also states at para. 15.04 that:-

“…a person dealing in drugs in a calculating fashion for the purpose of personal gain is usually treated as meriting heavier

punishment that someone who is dealing in drugs out of financial necessity or in order to finance their own addiction,

though offenders in the latter category often receive fairly heavy sentences as well, particularly where there has been a

large quantity of drugs involved.” [Emphasis added]

In this case the respondent’s household was earning €1000 a month whilst the mortgage repayment was €800 a month. His partner

could only work part time and they had to support a young child. Furthermore, the respondent and his partner, in addition to their

mortgage, owed €7,000 to his partner’s parents and the respondent was out of work due to injury and only receiving his flat rate of

pay. It is clear that sympathy must be felt for individuals under financial pressure or necessity such as the respondent, however, this

Court cannot condone engagement in illegal drug dealing activities in order to lessen financial pressure and as such the fact that the

respondent’s motivation was of a financial nature should not be considered as a mitigating factor.

Counsel for the DPP relies on the judgment in DPP v Duffy (Unreported, Court of Criminal Appeal, 21st December, 2001) where the

Court stated that:-

“…those who willingly enter into that trade for financial reward as the Applicant unhappily did simply cannot expect to

receive anything but severe treatment from the Courts. That is the policy plainly and unambiguously laid down in the

Misuse of Drugs Act 1977 as amended by the Criminal Justice Act 1999, a policy which this Court is bound to uphold.”

Nonetheless, other factors in mitigation may be considered in this case. In DPP v Galligan (Unreported, Court of Criminal Appeal, 23rd

July, 2003) the Court of Criminal Appeal stated that the absence of previous convictions and the presence of genuine remorse may be

considered “exceptional and specific circumstances” for the purpose of s.27(3C) of the Act of 1999. Fennelly J. stated at p. 10 that:-

“Whether or not the court is dealing with a first offence is not one of two named “exceptional and specific circumstances”

mentioned in sub-section 3C, but it is clearly capable of being one. It is a matter relating to the person rather than the

offence. It is closely linked also with the evidence of some genuine remorse and purpose of amendment.”

In relation to a guilty plea, O’Malley in his text Sentencing Law & Practice, 2nd Edition, (Dublin, 2006) at p. 338 states that:-

“A guilty plea in itself is rarely treated as an exceptional and specific factor; as has been pointed out, it is anything but

exceptional in s. 15A cases. However, it may justify a downward departure when combined with one or more other factors

such as: an admission to an offence with which the accused had yet to be charged or returned for trial; the provision of

assistance to the law-enforcement authorities (and all the more so when this has led to the apprehension of other

offenders and perhaps even the leaders of a drugs ring); the absence of previous convictions for drugs or other serious

offences; evidence that the offender had been exploited by others on account of his vulnerability through poverty, lack of

education or diminished intellectual ability; evidence that the offender had acted under duress; or evidence of medical or

psychiatric problems.”

Since his arrest, the respondent has completed voluntary work with the local parish priest Fr. Pat Fogarty, the Sisters of Charity and

the Chernoybl Children’s Project. The respondent has a history of active involvement in Glen Rovers Hurling and Football at senior

level. The respondent has helped out with many teams in the club on a voluntary basis. Letters of recommendations in relation to the

respondent were submitted to this Court by; Miriam Forde, Fundraising and Communications manager with the Chernobyl Children’s

Project International; Fr. Pat Fogarty PP.; Sr. Gertrude Power D.C.; Dr. Laurence A. Jordan, Principal Christian Brothers College,

Sidney Hill, Cork; Séan McGrath, Director M.J. McGrath Electrical Ltd; Paul Minihan, human resources and industrial relations manager,

with Musgrave Retail Partners Ireland and Vincent Cassidy, Arrest-a-Pest Ltd. These letters support the respondent’s overall good

character and dedication to beneficial activities in which he was involved.

Furthermore, the probation report concludes noting the “defendant is at the lowest possible level of re-offending. The arresting garda

concurs with this and it is my belief that Mr. Wall will never again appear before the Court.” It also states that “the defendant is of

previous good character; he is in a secure relationship; he has support of his family; he has the ability to find good employment and

to eventually clear his debts; and he is very unlikely to re-offend. In these circumstances, there is no obvious role for Probation

supervision.”

Admissions by the accused to other offences

Counsel for the applicant argues that the sentencing judge failed to have regard to the admission by the accused that he had

engaged in the supply of unlawful drugs on a number of occasions prior to the date of his arrest. In this regard The People (D.P.P.) v.

Patrick Long [2006] IECCA 49 (Unreported, Court of Criminal Appeal, 7th April, 2006) is instructive. In that case, the applicant pleaded

guilty to possession of cannabis worth €12m for supply in contravention of section 15A of the Misuse of Drugs Act 1977, as amended,

and was sentenced to 14 years imprisonment. The applicant appealed against this sentence on the grounds that the trial judge had

erred in his consideration of the aggravating factors at the sentencing stage. The Court of Criminal Appeal upheld the applicant’s

appeal in relation to the actions of the trial judge but held that 14 years imprisonment was an appropriate and proper sentence in the

circumstances of this case.

It was argued on behalf of the applicant that the trial judge had wrongly taken into account matters extraneous to the charge in

question when determining the sentence to be imposed. In particular, the applicant objected to the trial judge’s consideration of his

admissions that he had previously been paid to import drugs on other occasions. The Court held that, in circumstances where an

accused has entered a plea of guilty, a trial or sentencing judge is entitled to have regard to all background matters which clarify or

explain the context of the crime in question and which may be of assistance to the sentencing court in reaching a decision as to the

appropriate sentence to be imposed in a given case. This includes being able to look at and consider the entire of the Book of

Evidence, including any admissions which may have been made by an accused. However, the accused must not be sentenced in

respect of offences with which he was not either charged or convicted and which he has not asked to be taken into account. The

Court of Criminal Appeal in that case found as follows, per Macken J.:-

“A trial or sentencing judge is fully entitled in the case where an accused has entered a plea of guilty to have regard to

all background matters arising which goes to clarify or explain the context of the crime in question and which may be of

assistance to the sentencing court in reaching a decision as to the appropriate sentence to be imposed in a given case.

This includes being able to look at and consider the entire Book of Evidence, including any admissions which may have

been made by an accused. It would be fair to say that counsel for the applicant does not seriously dispute this. The real

difficulty, recognised in the jurisprudence, arises when assessing whether, even if a trial or sentencing judge is so

permitted, that judge has in fact overstepped the mark, so to speak, and fallen into the trap of allowing the context or

the factors, especially admissions, to influence or to be taken into account in calculating the actual sentence being

imposed. In the case DPP v. Galligan, supra, the difficulties with which this exercise is fraught, are well recognised. In the

present case, when considering the transcript, the court is not satisfied that the learned sentencing judge clearly and

unambiguously avoided these difficulties in such a way as to make it clear that the admissions of prior involvement in

importation of, inter alia, drugs and of the payment for the same, did not influence the sentence which he imposed”.

(Emphasis added).

The Court was not satisfied in that case that the trial judge clearly and unambiguously did not allow the applicant’s admission to

influence the calculation of the appropriate sentence. The Court accordingly set aside the sentence.

This Court is persuaded by the dicta of Macken J. in the case of The People (D.P.P.) v. Patrick Long [2006] IECCA 49 (Unreported,

Court of Criminal Appeal, 7th April, 2006). The admissions of the respondent which were not in relation to this case, are matters which

were more properly and fairly to be considered as extraneous to relevant considerations in respect of the specific offences, the

subject of the plea of guilty and therefore, the sentencing judge was correct in not taking these admissions into account in

sentencing in this case.

Deference to decision of sentencing judge

The level of deference to be afforded to the decision of the sentencing judge was considered in DPP v. Christopher Byrne [1995]

I.L.R.M. 279 where O’Flaherty J. stated at p. 287 that:-

“…the court should always afford great weight to the trial judge’s reasons for imposing the sentence that is called in

question. He is the one who receives the evidence first hand; even where the victims chose not to come to court as in

this case…he may detect nuances in the evidence that may not be as readily discernible to an appellate court.”

This point was reiterated in DPP v. Robert Henry (Ex tempore, Court of Criminal Appeal, 15th May, 2002) where the Court of Criminal

Appeal stated that:-

“This court cannot increase a sentence imposed in the court of trial simply because it takes a different view as to the

seriousness of the offence. It is in the first instance a matter for the sentencing court to determine in all the

circumstances what is an appropriate sentence. It is only where this court is satisfied that there has been a significant

departure from the principles which should have guided the court in imposing the sentence that it will intervene.”

Furthermore, in the People (DPP) v. Redmond [2001] 3 I.R. 390 Hardiman J. stated at p. 395 that:-

“[The Court of Criminal Appeal] has no power to impose a greater sentence than the trial judge’s purely because the

members of the Court of Criminal Appeal, if they had been dealing with the matter at first instance, would have thought a

more severe sentence appropriate. This precisely reflects the principle on which the Court of Criminal Appeal deals with a

defendant’s appeal against severity of sentence. In each case, the court is precluded from simply substituting its own

judgment for that of the trial judge. In a defendant’s appeal, the court cannot reduce the sentence simply because its

members would have imposed a lighter one, had they been dealing with the matter at first instance. An error of principle is

required.”

The issue of deference has been discussed extensively in Canadian jurisprudence. In R v. Bratzer (2001) NSCA 166 Bateman J.A.

stated at para. 10 that the deference shown to the decision of the trial judge “reflects a recognition of the unique qualifications of

front line judges and is equally applied whether the sentence arises after a trial or from a guilty plea.” Bateman J.A. cited with

approval judgments in R v. Comier (1975) 9 N.S.R. (2d) 687 at 694; R v. Shropshire [1995] 4 S.C.R. 227 and R. v. C.A.M. [1996] 1

S.C.R. 500. In particular, Bateman J.A. quoted para. 91 of the judgment in R. v. C.A.M. [1996] 1 S.C.R. 500 which stated:-

“This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, at

para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have

had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial,

where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and

written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of

deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being

able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also

possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal

justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which

has suffered the consequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the

particular blend of sentencing goals that will be “just and appropriate” for the protection of that community…”

Sentencing judges given their position at the front line of criminal cases will generally be best placed to adjudicate the appropriate

sentence in light of the fundamental principle that the appropriate sentence should depend not only on the facts but also on the

personal circumstances of the individual. It is for this reason that deference should be shown where possible to the decisions of

sentencing judges unless there has been a substantial departure from adopted principles.

The offence under s. 15A of the Act of 1977 is a grave one, however, each case must be decided on its own particular facts and the

personal circumstances and personality of the accused. A sentence must be an appropriate sentence for the crime because it is

committed by the accused. A number of mitigating factors exist in this case, most significant amongst those are; the accused’s early

plea, his remorse, the fact that the accused has no previous convictions, his co-operation with the gardaí and his probation report

which deems him to be in the lowest category of risk of re-offending. These factors should be considered as “exceptional and specific

circumstances” which justify a departure from the mandatory minimum ten year term. He was a young man, aged 26, who has been

consistently in employment since he left school and had no convictions and was regarded as at a very low risk of offending.

The court also takes into account the fact that the accused is the father of a young child whom he and his partner are supporting.

He has been in steady employment or training since leaving school, but was dismissed from his last job recently after his offence had

been disclosed in the media. Evidence was also submitted that the respondent suffers from a liver complaint called Bilirubin. The

letters of recommendation submitted to the court highlight the respondent’s overall good character. Furthermore, whilst the drugs

themselves in this case had a value of €145,600, the accused by his own admission was to receive €2000 for his role which was

accepted by the gardaí as being that of courier and storeman and not higher up the ladder of organisation of evil trade in contraband.

The evidence also shows that he commenced in this illegal activity when his income was reduced due to his leg injury at a time when

the household income was €1000 and his mortgage repayments were €800, so some sympathy might perhaps be felt for the accused;

however, as noted above the fact that his motivation was financial can hardly be considered as a mitigating factor.

There were many sound reasons for considering that despite the evil trade the respondent had become involved in he had a good

record of employment and good prospects in life and good support in his rehabilitation and efforts to support his partner and child in

life. Hence, the sentence imposed might be considered as lenient and in the hope of good future rehabilitation and prospects,

however, the sentence in all the circumstances was not unduly lenient. The suspended sentence in this case has the value that it

encourages the respondent not to re-engage in this activity.

In the circumstances of this case, the Court is satisfied that there is no error in principle disclosed in the sentencing judgment of the

learned trial judge. The application of the DPP shall accordingly be dismissed.