[2024]_IECA_226 — [2024]_IECA_226 — Ireland courts

THE COURT OF APPEAL

Record Number: 36/2024

Bill Number: KEDP 139/2020

Woulfe J.

Ní Raifeartaigh J.

MacGrath J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC

PROSECUTIONS

RESPONDENT

-AND-

DANIEL BRERETON

APPELLANT

JUDGMENT of the Court delivered on the 27th day of June 2024 by Ms. Justice Ní

Raifeartaigh Issue

1. This is an appeal against severity of sentence. The appellant was convicted by a jury

of one count of unlawful possession of a controlled drug contrary to s. 3 of the Misuse of

Drugs Act 1977, as amended, and one count of possession for sale or supply contrary to

s.15A of the 1977 Act as amended. There were two other counts on the indictment, and he

was acquitted in respect of those.

2. The appellant was sentenced to 6 years imprisonment.

Evidence at the sentencing hearing

3. The sentence hearing took place on 1st February 2024. Detective Garda Williamson

gave a summary of the evidence which had been presented to the jury. The sentencing judge

had also presided over the trial and so was familiar with the facts.

4. The Gardaí received confidential information in relation to the appellant's house in

August 2019. On foot of this the Gardaí kept the house under surveillance for a period of

time and witnessed certain comings and goings by various persons. They obtained a warrant

and searched the house. Four bags containing small amounts of cannabis, described as 'deal

bags' ready for sale, and a weighing scales with traces of cannabis on it were found on the

kitchen top counters. There was a strong smell of cannabis in the bathroom and four larger

bags, three of which were open, were found behind a loose bath panel there. The total weight

of cannabis found was 982 grams, with a value of approximately €19,500.

5. There was nobody in the house at the time of the search, the appellant was said to be

away at a truck show in a different county. The appellant's solicitor contacted the Gardaí

after the search and indicated that the appellant would meet by arrangement. This happened

2 two days later and he was interviewed in the presence of his solicitor. The appellant told

Gardaí that for work he was in the middle of setting up a business relating to second hand

cars. He lived with his partner and three children. The appellant had indicated to Gardaí in

interview that he did not have a lavish lifestyle and that his house had been left to him by

his grandparents, who had raised him.

6. The appellant was 33 years old at the time of the offending. He had 48 previous

convictions: of which 39 were for road traffic offences, 4 for s.3 Misuse of Drugs Act; 1

for s.19 Misuse of Drugs Act (allowing his premises to be used), one for s.112 of the Road

Traffic Act, 1 for public order, 1 was for theft, and 1 for handling stolen property. The

convictions covered a period from January 2005 to December 2023. The conviction under

s.19 Misuse of Drugs Act was committed in February 2020, on a date after the offending in

the instant case, and he received a six month suspended sentence in respect of it.

7. A number of documents were put before the sentencing court; a flyer from the

appellant's car business, a letter from the appellant's partner detailing their relationship and

the good relationship he has with the children, two letters of reference from local business

vouching for his good character and that he is a hard-working family man, two letters of

reference from former employers of the appellant stating that he was a good and reliable

worker, and information about a fundraising tractor run which had the appellant's name and

number at the bottom of it. In the plea in mitigation, it was submitted that the appellant was

a family man who regularly organised local tractor runs 'throughout the community' which

were fundraisers for local charities.

3 Sentencing Remarks

8. The sentencing judge delivered sentence on 6th February 2024. She imposed sentence

on the s.15A count with the s.3 count taken into consideration. She gave a summary of the

evidence and offences, noting the value of cannabis which had been recovered from the

appellant's house and the other materials before the court in relation to the appellant's

personal circumstances. She noted that the legislation set a presumptive mandatory

minimum in respect of s.15A offending of ten years. The aggravating factors that the judge

identified included that there was evidence of 'active drug dealing' going on in the context

of the scourge of drug dealing and the effects on society, that the activity had taken place

'brazenly' in the family home where young children were living (the weighing scales and

'deal bags' having been found on the kitchen counter); that the value and quantity of drugs,

although not determinative of the sentence, are a critical factor in indicating the seriousness

of the offending.

9. In relation to mitigation, the judge noted that the appellant had met the Gardaí by

arrangement, which was to his credit. She noted that how the trial was conducted was to the

appellant's credit, as it was expeditious and the appellant had not given evidence or perjured

himself. She noted the evidence in relation to the appellant's family circumstances, working

history, and voluntary work. The judge also noted that there was an absence of mitigation in

that there had been no plea and no material assistance or cooperation with Gardaí in terms

of the investigation process. She noted there was also an absence of evidence relating to

potential rehabilitation in respect of drugs and an absence of remorse. The judge noted that

the appellant had relevant previous convictions which post-dated the offending in the instant

case.

4 10. The sentencing judge found that the offending fell into the mid-range and set a

headline sentence of 7 years. The judge held that it would be unjust to impose the

presumptive mandatory minimum in this case given the manner in which the appellant

conducted himself at trial, that he is a working man with a young family who volunteers in

the community, and passage of time. She noted the need to observe the public interest in

imposing an overall sentence. The judge reduced the headline to one of 6 years to date from

1st February 2024.

Submissions of the appellant

11. The appellant submits that the headline sentence of 7 years was excessive in all the

circumstances. The appellant refers to DPP v Sarsfield [2019] IECA 260 and submits that

there was no evidence in the instant case of the appellant having any significant financial

gain or trappings of wealth and no evidence of the level of the appellant's involvement in

the drug trade generally. The appellant acknowledges that he has relevant previous

convictions prior to and subsequent to the offending in the instant case, but submits that this

offending history is of a different order to a s.15A offence.

12. The appellant submits that the sentencing judge failed to give sufficient weight to the

mitigation available. Although the sentencing judge rightly identified the relevant previous

convictions post-dating the offence, no credit was afforded to the fact the appellant was of

good character since that offending, which was a period of 4 years. The appellant notes the

comments in DPP v Wojtalski [2018] IECA 361 that such good conduct requires only limited

recognition but submits that in this case it is relevant because his subsequent good conduct

evidences rehabilitation in circumstances where the sentencing judge remarked on the

absence of evidence of rehabilitation.

5 Submissions of the Director

13. The Director submits that the headline sentence of 7 years was justified in this case

having regard to the aggravating factors identified. The evidence established that the

respondent had been in effective control of the drugs and that is the important consideration

which was identified by the Court in DPP v Sarsfield.

14. The Director submits that the sentencing judge did not refer to the mitigating factors

which were absent to the detriment of properly considering those which were present. The

testimonials from former employers and neighbours and evidence of his involvement in

fundraising events cannot gainsay the fact that he was selling drugs within the same

community. The sentencing judge had to take account of the appellant's subsequent relevant

offending and the appellant had further taken a trial date and had not exhibited remorse. The

Director submits that the evidence did not support the proposition that the appellant had

substantially mended his ways between the offending and the trial and sentencing, in

particular where there was a relevant conviction in the intervening period. The Director

submits that the sentencing judge did not err in imposing a sentence of 6 years.

Discussion and Conclusion

15. It may be helpful to recapitulate the Court’s approach to the presumptive minimum

sentence in s.15A as set out in the authorities spanning 25 years. There is a consistent theme

to the effect that, once a decision has been made that it would be unjust to impose the

presumptive minimum by reason of exceptional and specific circumstances, the sentencing

judge is entitled to impose an appropriate sentence but should still bear in mind that there is

a presumptive minimum of 10 years which was selected by the Oireachtas to reflect the

gravity of the offence and the harm to communities done by drug dealing. The leading Irish

6 sentencing textbook, O’Malley, Sentencing Law and Practice (3rd edition, 2016) helpfully

summarises the approach taken by the courts to the sentencing exercise pursuant to s.15A in

the following terms at para 16.12:-

“When selecting sentence for a s.15A or s.15B offence, a judge should begin by

considering the gravity of the offence in order to locate it properly on the overall

scale, bearing in mind that the maximum sentence is life imprisonment.

Appropriate adjustments should then be made for mitigating and aggravating

factors. If the resulting sentence is 10 years’ imprisonment or more, it should be

imposed. If, however, the resulting sentence is less than 10 years, the judge must

take account of the presumptive minimum requirement in s.27(3C) and impose

a 10-year prison sentence unless he or she is satisfied that there are exceptional

and specific circumstances that would render such a penalty unjust. A judge who

is so satisfied may take account of all other relevant factors in deciding on an

appropriate sentence. Even then, regard must be had to the presumptive

minimum sentence in so far as it indicates a legislative assessment of the

seriousness of drug dealing, at least where the drugs have a street value of or

above the specified amount. This may be termed the Renald principle because of

a statement to that effect made by the Court of Criminal Appeal in that case

which has frequently been quoted with approval ever since. There it had been

argued that once a judge decided that there were exceptional and specific

circumstances justifying a sentence less than 10 years, he or she should ignore

the minimum sentence provision completely and should certainly not treat it as

a benchmark. The Court of Criminal Appeal agreed that in such cases, 10 years

should not be treated as a benchmark in the sense of being invariably adopted as

7 the starting point or figure to which reductions for any mitigating factors should

be applied. However, the court also said:

Even where exceptional circumstances exist which would render the

statutory minimum term of imprisonment unjust, there is no question

of the minimum sentence being ignored. Perhaps the most important

single factor in determining an appropriate sentence is the

ascertainment of the gravity of the offence as determined by the

Oireachtas. Frequently an indication as to the 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 gravity 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 other 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 will attract only the

mandatory minimum, long though it may be.

As was common at the time, the court referred to s.27(3C) as specifying a

mandatory minimum sentence whereas it merely specifies a presumptive

8 minimum, as courts have more recently recognised. Aside from that, the Renald

principle remains intact. Courts are always required to take note of the

presumptive minimum, though not as a starting point, even where there are

significant mitigating factors. But in every case, they must have regard to the

grave nature of drug trafficking as reflected in both the maximum and minimum

penalties.”

(Emphasis added. Footnotes omitted: although it may be noted that the citation

for Renald is People (DPP) v Renald, unreported, Court of Criminal Appeal, 23rd

November 2001)

16. The above approach has also been applied by the Court of Appeal since its

establishment in 2015. The approach was confirmed in its decision in People (DPP) v.

Sarsfield [2019] IECA 260, where the Court made some additional comments about guilty

pleas in such cases, as well as cases involving “significant involvement” in “high level

commercial drug dealing” :

“18. […] It has long been recognised that the proper approach to sentencing is for a

judge to identify the appropriate sentence without reference to the presumptive

minimum. If the appropriate sentence is at or in excess of the statutory minimum,

nothing further is required. If the sentence under contemplation is below the

presumptive minimum, the Court will have to address the presumptive minimum and

consider whether the imposition of the mandatory presumptive minimum would, in

all the circumstances of the case, be unjust. Where the offence involves significant

involvement in a very high-level drug offence, the headline or pre-mitigation

sentence is likely to be well in excess of the statutory presumptive minimum. In the

case of high-level commercial drug dealing involving very large quantities of drugs,

9 we would expect that the headline or pre-mitigation sentence is likely to be of the

order of fourteen or fifteen years, and in some exceptional cases, significantly higher.

19. What we have to say about the ultimate sentence is more tentative still, having

regard to the very wide variation in the circumstances of offenders coming before

the Courts. The Court would, however, observe that in the sort of very high-end

commercial drug trafficking cases to which we have been referring, a plea of guilty,

of itself, without something more, is unlikely to justify a reduction below the

presumptive minimum sentence. Such a situation is particularly likely if the plea was

entered against a backdrop of very strong or overwhelming evidence, not an unusual

situation in the context of s. 15A cases.”

17. Given the above statements of the correct approach, we have no hesitation in

upholding the sentence imposed by the judge in this case. First, this was a case where the

appellant did not plead guilty and the trial judge nonetheless chose to exercise her discretion

to depart from the presumptive sentence in light of the focussed way in which the trial was

run on his behalf. This approach was generous to the appellant and indeed many judges

might have taken the view that, in practical terms, a departure from the presumptive sentence

would not be appropriate in the absence of a guilty plea. It may be noted that there was no

suggestion of anything in the way of “material assistance”, another factor explicitly

mentioned in the statutory provision. The height of any co-operation appears to have been

that he met the Gardaí by arrangement after the search had taken place. Secondly, the

cannabis was found at the appellant’s home in various places (four bags behind a loose bath

panel, and deal bags and weighing scales with traces of cannabis on the kitchen top

counters). While there may not have been indications of a lavish lifestyle or a drug value

indicative of top-end commercial dealing (the value being approximately €19,500), the use

10 of the appellant’s family home in the manner described nonetheless suggests that he had a

more than peripheral role in whatever level of supply was taking place, to say the least.

Thirdly, the appellant had a significant criminal record, spanning about 18 years. While

many of these were road traffic offences, some of them were not and, significantly, the

appellant had received a further conviction in respect of drug-related activity (allowing his

premises to be used) which took place after he had committed the instant offence. It is true

that he received a suspended sentence for this, and also that he appears to have stayed out of

trouble in the time between that and the trial and sentence. However, he was very far from

being a person coming before the court on a s. 15A charge for sentencing with no previous

convictions. Taking all of these matters into account, we consider that the sentencing judge

did not err in any way in selecting a headline sentence of 7 years. If anything, he was lucky

to receive the benefit of a departure from the presumptive sentence.

18. Further we see no error in principle in the sentencing judge’s reduction of the headline

to 6 years having regard to the mitigating factors advanced on his behalf. He was a family

man, had a good working record and did voluntary work in the community, but as the

Director points out, this is the very community in which the drug dealing would have its

impact.

19. All in all, there was nothing particularly exceptional or unusual about the

circumstances of the offence or the offender’s situation such that a headline of 7 years and

an ultimate sentence of 6 years for this offence could possibly have been considered unduly

severe.

20. The Court dismisses the appeal.

11