Court of Appeal dismisses DPP's undue leniency appeal against suspended drug sentences due to exceptional rehabilitation circumstances.

THE COURT OF APPEAL

Sheehan J.

Edwards J.

Butler J.

136CJA/15

135CJA/15

The People at the Suit of the Director of Public Prosecutions

Applicant

V

Warren Bale and Kaide Fowler

Respondents

JUDGMENT of the Court delivered on the 5th day of July 2016 by Mr. Justice Sheehan

1. This is an application by the Director of Public Prosecutions for a review, on grounds of undue leniency, of the sentences imposed

on Kaide Fowler and Warren Bale at the Dublin Circuit Criminal Court on the 7th May, 2015.

2. Each of the respondents had pleaded guilty on an earlier date to committing an offence contrary to s. 15A of the Misuse of Drugs

Act 1977 on the 21st June, 2014, and they were each sentenced to five years imprisonment, which was wholly suspended on the

usual terms, namely, that they keep the peace and be of good behaviour for a period of five years.

3. The applicant based her application in respect of each respondent on eight separate grounds of appeal, seven of which were

common to each case. The seven grounds are as follows:-

1. The learned sentencing judge did not have sufficient regard to the fact that this was a significant professional

operation run for purely commercial benefit.

2. The learned sentencing judge erred in law by overstating the significance between cannabis and other drugs and by

attaching too much weight to the fact that the drug in question was cannabis.

3. The learned sentencing judge erred in law and in fact by failing to attach any weight to the aggravating factors in the

case.

4. The learned sentencing judge erred in law and in fact in attaching undue weight to the mitigating factors in the case.

5. The learned sentencing judge erred in principle in the imposition of a lenient sentence and as such it was not in the

public interest in all the circumstances.

6. The sentence imposed will not act as a deterrent to other persons or assist in the prevention of other crimes.

7. The learned trial judge erred in law and fact in failing to have appropriate regard to the presumptive mandatory

minimum sentencing regimes applying to the offence

4. The additional ground of appeal in respect of Kaide Fowler was that the learned sentencing judge erred in law by failing to give

sufficient weight to his 103 previous convictions.

5. Regarding Warren Bale, the additional ground of appeal stated that the learned sentencing judge erred in law and in fact by failing

to differentiate between the co-accused when determining the appropriate sentence.

6. In order to consider these grounds, it is necessary to set out the background to the case, the personal circumstances of each

respondent and the sentencing judge’s remarks.

Background

7. On the 21st June, 2014, Garda Christopher Sweeney, the investigating officer who was accompanied by other members of An Garda

Síochána, searched premises at Meekstown Close, St. Margaret’s Road, Finglas, Dublin 11. This premises was located in a residential

estate set aside for members of the travelling community. The doors and windows of the property were boarded up with the only

access to the property being by way of the rear door, which was padlocked. When Garda Sweeney entered the property, he observed

four males in the process of cutting cannabis branches from a number of cannabis plants. Two of these men were the respondents:

Warren Bale, who had a key to the premises, and Kaide Fowler, his nephew. Garda Sweeney told the court that three rooms in this

property were being used to cultivate cannabis plants. He said that there were approximately 179 mature cannabis plants as well as

65 cannabis plants in the early stages of growth. Items associated with the production of cannabis, such as high intensity lighting,

electric fans, water hoses, compost and soil, were also found during the search. Garda Sweeney told the court that the value of the

mature plants was €143,200.

8. The other plants had a potential value of over €50,000 when fully matured.

9. At the time of his arrest, Warren Bale told the gardaí he was there to cut down the plants and that he was to receive 3 ozs. of

cannabis in return. He was doing this for another person, whom he did not name. Kaide Fowler made a number of admissions to the

gardaí when arrested, but he said that he did not know who the owner of the cannabis was. He expected to receive between €200

and €300 for his work.

The personal circumstances of the respondents

10. Warren Bale was 43 years old at the time of sentence and originally from London. His family had moved to Dublin when he was 17,

and he worked at attic conversions with his father. He is a married man with three children and has no previous convictions. In 2003

he was involved in a serious road accident, which resulted in a lot of back pain. He tried various treatments to relieve this pain, but

these were unsuccessful, and he started to use cannabis as a painkiller, to which he subsequently became addicted. There was

evidence before the court that, since his arrest, he had made significant efforts to overcome his addiction. There was also evidence

that he was an active member of his community, had helped to train one of the youth football teams and was also involved in other

community work. The court also received a number of testimonials from former employers which confirmed his excellent work record

and his trustworthiness as an employee.

The personal circumstances Kaide Fowler

11. Kaide Fowler was 26 years of age at the time of sentence, and the court was told that he had 103 previous convictions. The last

time he had committed an offence was the 22nd April, 2008, and he had not come to the attention of the gardaí since that time. In

the meantime, he had married and was now living with his wife and three children in Finglas. At the time of the offence, he had a

serious drug addiction problem. Between that time and the time of sentence, he had undertaken and committed to a drug treatment

rehabilitation programme with Coolmine Therapeutic Community. There was evidence before the court that he had successfully

completed phase 1 of that programme and further evidence that he was due to complete the second phase the following August. The

court also received urine analysis reports showing that he was no longer using drugs as well as progress reports from his project

worker. In addition, he had commenced work in a supportive environment. The court was also told about significant difficulties in his

own background, which were a factor in his offending as a youth.

12. Garda Sweeney confirmed that all of Kaide Fowler’s pervious convictions had been dealt with in the Children Court and the District

Court. These were broken down as follows: 73 road traffic offences, 14 public order offences, 6 for failing to appear in court, 3

matters under the Theft Act, 4 for criminal damage, 3 for theft and 2 relating to the possession of knives. A Ms. Cahill from the

Coolmine Therapeutic Community gave evidence about Kaide Fowler’s commitment to his rehabilitation and his successful completion

of the first phase of the treatment programme.

Sentencing remarks

13. The following remarks were made by the sentencing judge prior to sentence:-

“On the date in question the gardaí arrived at the house in question and found four men picking cannabis. Two of the men

were Warren Bale and Kaide Fowler. Now their involvement it seems was that of pickers. They are going to receive some

consideration. It appears Warren Bale was going to get some cannabis to feed his habit and it seems Kaide Fowler was

going to receive some monetary remuneration also to deal with his drug situation. Now the amount or drugs involved or

the estimated amount to drugs involved were in the region of mature plants €143,000 and the immature plants were

valued at €52,000. There were 65 of those and a 179 mature plants. Now obviously, it is obvious that the drug we are

dealing with here is cannabis. It is probably the lesser of the three major type of drugs that are dealt with in this Court,

namely heroin, coke, cannabis is usually the order of seriousness. Now the amount is serious enough, but it is probably,

unfortunately for everybody, not the most serious of amounts that this Court deals with. Now they have pleaded guilty at

a very early stage. They made useful admission even though I have to accept they were caught red-handed and they

cooperated fully with the guards. Both have their own histories.

Warren Bale has a very good history. He is a hardworking man. He seems to be a gifted man with his hands full. It seems

that all of his employers have thought well of him. There are very glowing references particularly by Mr. Tuffy who, I

think, works for the Porterhouse Companies in Bray.

Now Kaide Fowler had a drugs habit. He has some record of conviction. I note that the last conviction is some time ago. I

think about six or seven years ago. It seems that he has taken significant steps to deal with his drug habit. I am satisfied

from the evidence of the witness that gave evidence on his behalf that he has more or less I think conquered that

situation at this stage.

Now they both have significant mitigation in their favour. Warren Bale has excellent mitigation and Kaide Fowler has very

good mitigation in that he has taken significant steps to reform and rehabilitate himself. I am satisfied that he has been

largely successful. Now this is a s. 15A offence, there is a mandatory minimum sentence of ten years, I should say for this

type of offence. Within the same legislation the Oireachtas has given this Court discretion to depart where I find there

are suitable circumstances. I do find their early pleas and their cooperation and admissions allow me to depart from the

mandatory minimum sentence of ten years. But how far should I depart in this case? Both are mature men that should

have known better. They committed a serious misjudgement. I think their involvement is at the very lowest level, they

were picking. . . . At this stage all the evidence I have is they were picking and harvesting the cannabis. They were

useful to the people who own this cannabis and obviously there were some parties who were going to make a lot more

than these two gentlemen out of this enterprise. I have to accept the jurisprudence that I am at large in dealing with this

type of crime. Obviously I am aware of the jurisprudence. There are numerous cases that have support from the higher

courts that have supported the right of this Court to impose a suspended sentence if it feels it is the appropriate case.

Now I think to bring it within the appropriate case there has to be exceptional type cases. The question is do Warren Bale

and Kaide Fowler fall into this category. Obviously cannabis is the less serious drug and I must take that into account.

The amount involved is pretty serious but not the most serious. Warren Bale has very good mitigation in that he has led a

very very good life and Kaide Fowler has taken very concrete steps to deal with his situation. I think I can accede to the

applications of both counsel in this case. I think probably in this case a suspended sentence is the appropriate sentence

taking into account all of the factors obviously particularly the mitigating factors and the nature of the drug involved.

I am going to impose on both gentlemen a sentence of five years imprisonment. I am going to suspend it on the following

basis that both will be of good behaviour for a period of five years and secondly, they will enter into a bond in the sum of

€100. Obviously I am very much aware that they are at the very lowest rung of the ladder and that certainly that has

influenced me in the way I have dealt with this. It is an unusual thing for the court to do. I don’t do it too often and

probably will not do it again for a good while, but in this case I think it is the appropriate sentence.”

14. The principles governing this Court’s approach to undue leniency applications is now well settled.

15. This Court is cognisant of the decision in The People (Director of Public Prosecutions) v. Byrne [1995] 1 I.L.R.M. 279, which is the

recognised authority in relation to appeals pursuant to s. 2 (1) of the Criminal Justice Act 1993, and which states at p. 287 that:-

“Finally, 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.”

16. In its subsequent judgment in The People (Director of Public Prosecutions) v. Derrick Stronge [2011] IECCA 79, the Court of

Criminal Appeal further identified the applicable principles in undue leniency appeals pursuant to s. 2 of the Criminal Justice Act 1993.

The Court stated the following:-

“From the cases cited at the end of this paragraph, the following principles can be said to apply in an application for

review under s. 2 of the 1993 Act. These are:-

(i) the onus of proving undue leniency is on the D.P.P.:

(ii) to establish undue leniency it must be proved that the sentence imposed constituted a substantial or gross

departure from what would be the appropriate sentence in the circumstances. There must be a clear divergence

and discernible difference between the latter and the former:

(iii) in the absence of guidelines or specified tariffs for individual offences, such departure will not be established

unless the sentence imposed falls outside the ambit or scope of sentence which is within the judge's discretion to

impose: sentencing is not capable of mathematical structuring and the trial judge must have a margin within which

to operate:

(iv) this task is not enhanced by the application of principles appropriate to an appeal against severity of sentence.

The test under s. 2 is not the converse to the test on such appeal:

(v) the fact that the appellate court disagrees with the sentence imposed is not sufficient to justify intervention.

Nor is the fact that if such court was the trial court a more severe sentence would have been imposed. The

function of each court is quite different: on a s. 2 application it is truly one of review and not otherwise:

(vi) it is necessary for the divergence between that imposed and that which ought to have been imposed to amount

to an error of principle, before intervention is justified: and finally

(vii) due and proper regard must be accorded to the trial judge's reasons for the imposition of sentence, as it is that

judge who receives, evaluates and considers at first hand the evidence and submissions so made.

The relevant cases are The People (D.P.P.) v. Byrne [1995] 1 ILRM 279, The People (D.P.P.) v. McCormack [2000] 4 I.R.

356 and The People (D.P.P.) v. Redmond [2001] 3 I.R. 390.”

17. In applying these principles, we note from the sentencing remarks of the trial judge that he was fully aware of the seriousness of

the offences he was dealing with, and equally aware of the jurisprudence in this area. No complaint is made by the applicant that he

was not entitled to depart from the statutory minimum ten year sentence, and no complaint is made that the learned sentencing

judge was wrong in measuring the seriousness of these offences by imposing a sentence of five years imprisonment. In the course of

the oral hearing, it emerged that the primary complaint of the applicant was the fact that the sentences in each case had been

wholly suspended.

18. At the end of the day, there is not a great deal between the parties. Counsel for the Director of Public Prosecutions, while

acknowledging that each respondent had demonstrated significant mitigation, nevertheless maintained that the principle of public

deterrence allied to public policy required that both respondents should spend time in prison. It should also be noted that counsel for

the Director of Public Prosecutions was not saying that this was one of those cases where the fact of imprisonment was more

important than its duration. The essential question then for us to ask ourselves is whether the sentences imposed represented a clear

divergence from the norm. As this court has said in numerous cases including the People (DPP) v. Sharon Flanagan [2015] IECA 94,

absent special reasons of a substantial nature and particularly exceptional circumstances that might justify the imposition of a wholly

suspended and immediate and frequently substantial custodial sentence will be the norm for an offender who has committed an

offence under s. 15A of the Misuse of Drugs Act 1977. Our inquiry must therefore be focused on whether special reasons of a

substantial nature and particularly exceptional circumstances in fact existed so as to have justified the trial judge in not requiring

either respondent to have to serve an immediate custodial sentence.

19. This is another example of what is known as a cannabis-grow-house case. The estimated street value of the cannabis was

€143,000, and the court accepted that both offenders were at the lowest level of the operation, being described as harvesters or

pickers, one of whom was due to receive 3 ozs. of cannabis, and the other at most €300, for his participation. While it is fair to

categorise this as a serious commercial operation, the trial judge correctly described the amounts of cannabis as, unfortunately for

everybody, “not the most serious amounts that this Court deals with”.

20. The sentencing judge measured the seriousness of the offences as requiring a five year sentence. There is no dispute between

the parties as to whether or not this was an appropriate starting point. It also, in our view, demonstrates clearly not only that the

sentencing judge regarded the matter as serious but also that he was fully aware of the damage done to society by drug abuse, and

that he was aware as well of the views of the Oireachtas regarding same as expressed in the relevant statutory provisions.

21. Furthermore, a five year suspended sentence is a serious sanction. At para. 22-08 in Sentencing Law and Practice, 2nd Ed.,

(2006, Dublin), Prof. O’Malley states that “[a]lthough a suspended sentence is commonly perceived as a light punishment or, indeed,

as none at all, it is a genuinely punitive measure”. He goes on to state that a suspended sentence can serve a number of penal goals

including just deserts, rehabilitation and individual deterrence. In R. v. Peterson [1994] 2 N.Z.L.R. 533, the New Zealand Court of

Appeal referred in particular to the rehabilitative capacity of the suspended sentence, in the sense that it encouraged reform while

holding out the threat of imprisonment, and went on to point out that it was suitable for use in cases of moderately serious offending

where a sufficient opportunity for reform was considered to exist and the need to deter others was not paramount.

22. When considering the imposition of a prison sentence, especially in the case of married men with families, we need to remind

ourselves of the inevitable adverse impact that imprisonment normally has on family life and the interest of children. Frequently, this is

an unavoidable consequence of imprisonment, but it is important to remember nevertheless that the deprivation of liberty can have

unintended additional adverse consequences.

23. In the case of Warren Bale, he is a married man with three children who has no previous convictions, and who pleaded guilty

promptly. While his early plea of guilty and the fact that he has no previous convictions are key mitigating elements, they would not

normally be sufficient on their own to justify a wholly suspended sentence in a s. 15A case. There are, however, other factors which

distinguish Warren Bale’s case. He became dependent on cannabis following a serious road traffic accident which resulted in frequent

serious back pain. Various medications did not provide the relief he required, and he resorted to this type of illegal self-medication. In

addition, it was clear from the documentary evidence before the court that Warren Bale had an excellent work history and had also

made an exceptional contribution to his own community through his work with local groups and as a football coach. It could therefore

be said that this offence was entirely out of character, and furthermore the sentencing judge found Warren Bale to have engaged in

this offence at the lowest level for a minimal return. The court was also told that he had made significant efforts to deal with his

addiction.

24. In considering the sentence imposed in Warren Bale’s case, we also note that the sentence was imposed by an experienced

sentencing judge, who remarked at the time that it would be a long while before he found himself again in a position to depart from

immediate imprisonment for the kind of offence to which Warren Bale had pleaded guilty. The combination of mitigating factors relating

to this respondent, in our view, provided special reasons of a substantial nature and particularly exceptional circumstances sufficient

to have justified a wholly suspended sentence, and accordingly we dismiss the application to review Warren Bale’s sentence.

25. The case of Kaide Fowler is somewhat different. An understandable and immediate response to his list of previous convictions is

that Kaide Fowler is a person who is not entitled to any leniency. We are obliged, however, to look closely at his record and to situate

it in what was clearly a turbulent youth, arising at least partly from serious family problems. We have been told that all of his previous

convictions were for minor offences and were dealt with in the Children’s Court and the District Court. He has no convictions since he

was nineteen years old. In addition, he got married in the intervening period and now has a young family. Unfortunately, he developed

an addiction to cannabis, which was a substantial factor in his commission of this offence. However, the most important mitigating

factor in this case is undoubtedly his serious engagement with the Coolmine Therapeutic Community. His arrest for this offence led

him with the help of others to confront his addiction, seek help and ultimately engage in a meaningful way with the programme offered

to him. This has had a profound effect on him and was referred to by the sentencing judge. One of the documents before the

sentencing judge indicated that Kaide Fowler was now assisting other people who were endeavouring to overcome their addiction.

26. One of the principle authorities relied upon by counsel on behalf of this respondent, and one which the sentencing judge was no

doubt mindful off, is the judgment of the Court of Criminal Appeal delivered by Murray C.J. in The People (Director of Public

Prosecutions) v. Ingram McGinty [2007] 1 I.R. 633. There are a sufficient number of similarities between this respondent and Ingram

McGinty, such that it is relevant to point to the principal ones. Both men suffered from drug addiction at the time of commission of

their respective offences, and between the time of arrest and sentence both had successfully engaged with the Coolmine Therapeutic

Community. Both men had previous convictions, but neither of them had relevant previous convictions. Both men were fathers whose

parenting had improved in the relevant period. Ingram McGinty was 29 years old at the time of sentence, and Kaide Fowler was 26.

Both men had suffered as a result of particularly difficult family circumstances.

27. In the course of its judgment in McGinty, the Court of Criminal Appeal stated at pp. 642-643:-

“The dilemma faced by the trial judge was that the offence in question was undoubtedly grave enough to normally

warrant a custodial sentence, as argued in this appeal by the prosecutor, while on the other hand any meaningful

custodial sentence, by removing him from the rehabilitation programme in which he was at an advanced aftercare stage,

ran the real risk of seriously damaging his prospects of rehabilitation. This was in the context that the trial judge had

concluded, as he was entitled to do on the evidence before him, that there was a high probability that if he continued

with the advanced stages of that programme his rehabilitation would be complete and successful. Complete rehabilitation

of drug addicts is notoriously difficult while at the same time an important part of penal policy since if successful it

reduces dramatically the risk of repeating offences and imprisonment of addicts. In carrying out this difficult balance as to

where the public interests best lay, the trial judge clearly decided that its interests were best served by permitting the

respondent to see through the rehabilitation to a probably successful conclusion. Such rehabilitation was more likely to

ensure that the accused would be a law abiding citizen in the future than if his rehabilitation programme was terminated

by a prison sentence.”

28. The dilemma faced by the sentencing judge in this case was essentially the same as that faced by the judge in the McGinty case.

29. We are satisfied that the sentencing judge in this case correctly observed that the exceptional factors in Kaide Fowler’s case

were such as to allow him to impose a wholly suspended sentence. It was a finely balanced judgment and one which discloses no

error in principle, and in particular no disregard for the views of the Oireachtas as expressed in the relevant statutory provisions. It is

also important to note that this sentence was imposed by an experienced trial judge, to whom we are obliged to afford a margin of

appreciation. It is not for us to decide what sentence we would have imposed in these circumstances, but rather, in light of the

principles outlined above, whether the sentence imposed ought to be set aside on the grounds that it was unduly lenient. The onus in

establishing that it should be rests on the Director of Public Prosecutions. We are not satisfied that the Director of Public Prosecutions

has discharged the onus in the particular circumstances of this case. On the contrary, we are satisfied that there were special

reasons of a substantial nature and particularly exceptional circumstances justifying a wholly suspended sentence. Accordingly, we

refuse the application.