Court of Criminal Appeal quashes excessive sentence for drug trafficking, substituting 17.5 years after considering mitigation.

THE COURT OF CRIMINAL APPEAL

Record No. 218/2008

MacMenamin J.

Moriarty J.

Hunt J.

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

PERRY WHARRIE

APPELLANT

Judgment of the Court of Criminal Appeal delivered by Hunt J. on the 15th day of February, 2016

Facts

1. The factual background to this matter may be found in the earlier judgment of this Court delivered on 19th April, 2013. Arising from

the factual circumstances set out therein, the appellant was convicted of offences contrary to the provisions of s. 3, s. 15 and s.

15A of the Misuse of Drugs Act 1977, as amended. This Court dismissed the appellant’s application for leave to appeal against these

convictions on the grounds referred to in that judgment.

2. Thereafter, this Court reconvened to consider the appellant’s appeal against the sentence of 30 years imprisonment imposed upon

him by the learned trial judge in respect of the offence contrary to s. 15A of the 1977 Act. As pointed out in this Court’s earlier

judgment, the consignment of cocaine constituting the subject matter of these offences constituted the largest drug seizure in the

history of the State, being variously stated to have values ranging from €100m to €440m. The consignment was of a very high purity

and was packed in bales. The appellant pleaded not guilty, and on arraignment was convicted of these offences after a Circuit Court

trial in Cork, lasting 41 days.

3. Having heard the submissions of the parties on the appeal against this sentence, this Court concluded that the learned trial judge

had erred in principle in imposing this sentence, and adjourned the matter in order to hear further evidence and submissions, for the

purpose of enabling this Court to impose sentence upon the appellant.

Error in Principle

4. The appellant was indicted in respect of these matters together with three other accused persons. One of these individuals

pleaded guilty to the charges at an earlier date. He received a sentence of 10 years. The other two were tried with the appellant.

They were also convicted by the jury, and received sentences of 30 years and 25 years respectively.

5. Two features are of particular relevance to the position of the appellant in this appeal. Firstly, unlike his co-accused, he did not

contest the matter by giving evidence, in circumstances where the jury apparently had no difficulty in convicting all of the accused

men. Secondly, it must be noted that the appellant had a lengthy and serious criminal record in the United Kingdom at the time of his

involvement in these matters.

6. Specifically, this criminal record included convictions for murder, robbery, possession of a firearm with intent to endanger life, and

possession of a firearm while committing a scheduled offence, for which he received sentences of life imprisonment, 15 years

concurrent, 12 years concurrent, and 7 years concurrent at Southwark Crown Court on the 10th April, 1989. Insofar as it may be

relevant, the Court was informed that the conviction for murder was recorded against the appellant as a participant in a joint

enterprise. The unfortunate victim was a policeman. It also appears that the appellant was released on license from the life sentence

in 2005, but, it would appear, failed to adhere to the terms of his release license by leaving the United Kingdom.

7. Both of the other accused persons testified at the trial. The learned trial judge regarded the evidence given by those co-accused

as being an aggravating factor in their cases. This does not apply in the case of the appellant. The learned trial judge correctly

recognised that this was a mitigating factor potentially available to the appellant on the facts of the case. The question is whether

he actually gave the appellant any credit for such mitigating circumstances?

8. In essence, this Court considers that the learned trial judge erred in principle by failing to afford any credit to the appellant for this

significant element of potential mitigation. He considered that it was in fact cancelled out by what the learned trial judge described as

the appellant’s “lamentable antecedence”, in reference to his criminal record. The Court considers that this was an error in principle in

the circumstances of this case. The appellant ought to have received credit in respect of the mitigating factor that he did not

attempt to tender false evidence.

9. The fact that these serious offences were committed by an individual with a significant record of previous criminal convictions is a

matter which ought to be reflected in the fixing a headline sentence appropriate to the offence as committed by the particular

offender. In this case, the withholding of a deduction in respect of a significant mitigating factor, by reference to the existence of

previous offending, amounted to a double punishment. The learned trial judge acknowledged that a discount would otherwise apply,

but failed to consider how the previous offending might apply to the headline sentence, or the fact that a significant sentence

imposed in the United Kingdom respect of the relevant previous offending was still in being.

10. The commission of these offences appears to constitute another breach of the terms of the appellant’s release from his life

sentence. The Court has been informed that the United Kingdom authorities have commenced proceedings to obtain the surrender of

the appellant at the conclusion of whatever sentence is imposed upon him in this jurisdiction, for the purpose of recalling him to serve

the still-extant life sentence.

11. In addition, it appears that the learned trial judge failed to consider whether the appellant was entitled to some minor leeway in

respect of the fact that he was called upon to serve a very lengthy custodial sentence in a country with which he had no apparent

connection.

Appropriate Sentence

12. Having identified these errors in principle in sentencing, the Court must proceed to sentence the appellant afresh, in the light of

the additional materials and submissions provided by invitation of the Court on this issue. The Court will have regard to the totality

and proportionality principles which must apply. The range of sentence available on conviction for an offence contrary to the

provisions of s. 15A of the 1977 Act begins at what is termed a presumptive minimum of ten years imprisonment. It continues up to a

possible maximum of life imprisonment, thereby reflecting the serious view taken by the Oireachtas of offending of this nature. There

are no features in this case which could justify a departure from that presumptive minimum, which must therefore constitute the

starting point in the calculation of the appropriate sentence in this instance.

13. In determining an appropriate headline sentence within the applicable range, a court will have regard to a range of relevant

factors. These include: the nature and quantity of the drugs in question, the level of involvement of an accused in the particular

enterprise and the criminal antecedents (if any) of a particular accused. In this case, the amount of drugs was very large. The

appellant’s criminal history is undoubtedly serious. As already pointed out, the offences were committed while the appellant was on

license, which is also an aggravating factor, but one which will probably attract adverse consequences for the appellant

independently of the sentence to be imposed in respect of this offending.

14. The evidence does not suggest that the appellant was a main organiser or beneficiary of the enterprise in question, but rather

demonstrates that he played a significant role in organising and conducting the transport of this very large quantity of drugs to its

ultimate destination. Consequently, the appellant may be characterised as an important and essential cog in the wheels of this

operation, without being placed at the top level of potential participation in such offences. That being said, the circumstances in

which the perpetrators were apprehended, do not suggest that the appellant, or other persons involved, were particularly competent

or talented criminals.

15. The court was invited to survey the results of a wide range of significant drug prosecutions. These included a number of cases,

which, on their face, had certain similarities with this appeal. It is important, however, to apply the principles of proportionality and

totality in accordance with the particular facts of each case. All cases differ. The citation of sentences of a similar nature is a

process which must be approached with care, bearing in mind that there may be factors of which an appeal court may not be aware.

The Court does not suggest that this consideration arises in the instant case.

16. This Court has had the benefit of particularly careful, measured and candid submissions by Mr. Michael L. O’Higgins, S.C., who

argued the matter on behalf of the appellant. Counsel performed a comparative review of these cases, resulting in his suggestion that

the appropriate sentence should be in the region of 15 years imprisonment. The Court is of the opinion that the offences committed

by the particular offender in this case, having particular regard to the previous convictions, the nature thereof, and the fact that the

offences were committed whilst on parole, merits the imposition of a significantly lengthier sentence than that proposed by Mr.

O’Higgins. However, the Court is also of the opinion that the appellant is entitled to a discount in respect of the mitigating

circumstances which have been identified earlier in this judgment. The Court also must bear in mind the very significant evidence as

to the manner in which the appellant has applied himself while serving the sentence imposed upon him in this case.

17. The appellant is now 53 years of age. He is married and has children. Clearly, his imprisonment in Ireland is an impediment to

ongoing contact between him and those close to him.

18. The Court was provided with an impressive array of testimonials as to the constructive approach of the appellant to imprisonment

itself, and to the prison authorities in this jurisdiction. He is respectful of authority, staff and other prisoners. He has comprehensively

engaged in available educational and cultural activities to better both himself and other inmates. The Court notes that the appellant

has a genuine and advanced talent as an artist, having regard to samples of his work which were supplied to the Court for

consideration. It is regrettable that this talent is such that it could certainly have been deployed, in other more fruitful

circumstances, in order to pursue an honest and legitimate livelihood. The Court takes these new circumstances into account.

19. Lastly, the Court reiterates that, although the appellant hails from a neighbouring jurisdiction, he has no family or other

connection in this country, being imprisoned here by virtue only of the circumstance that the drug transport operation in which he

was involved floundered close to these shores. There is a continuing and ongoing difficulty in respect of inconvenience in the receipt

of family visits, which are somewhat sporadic due to a number of family circumstances.

20. Applying a modest discount in respect of these matters, this Court will quash the sentence imposed by the learned trial judge, and

substitute a sentence of consisting of twenty-two years and six months as a headline sentence, with five years deducted therefrom

to reflect all applicable mitigating factors.

21. The Court, therefore, will quash the sentence imposed by the learned trial judge, and substitute the sentence identified above

(being a sentence of seventeen years and six months) on the charge contrary to the provisions of s.15A of the 1977 Act, the said

sentence to commence from the date upon which the appellant went into custody on these charges.