Court of Criminal Appeal upholds mandatory minimum drug sentence despite late guilty plea.

THE COURT OF CRIMINAL APPEAL

No. 186/04

Geoghegan J.

Budd J.

O’Neill J.

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

v.

JONATHAN DUCQUE

Applicant

JUDGMENT of the Court delivered by Mr. Justice Geoghegan on 15th day of July 2005

This is an application for leave to appeal against a twelve year sentence of imprisonment from the 16th June, 2003 which

was imposed on 29th July, 2004 arising out of a plea of guilty in the Dublin Circuit Court in a prosecution for possession of

drugs on 16th June, 2003 for sale or supply in excess of €13,000 contrary to section 15A (as inserted by section 4 of the

Criminal Justice Act, 1999) and section 27 (as amended by section 5 of the Criminal Justice Act, 1999) of the Misuse of

Drugs Act, 1977. The correct approach to sentencing for this offence has given rise to considerable difficulty because of

quite complex statutory provisions requiring prima facie a minimum sentence of ten years but also providing for exemption

from that mandatory requirement in certain circumstances. The maximum sentence for the offence is life imprisonment. It is

important to summarise the facts of this particular case before returning to the legal problems relating to sentencing.

The applicant in consideration of €1,000 was asked to pick up a car at a certain city centre point and drive it to a particular

place. At all material times the applicant knew that a consignment of prohibited drugs was in the car, though he claimed that

he had no idea that it was anything like the quantity which it was in fact. The Garda Síochána, as a consequence of some

prior information which they had obtained, stopped the car within minutes of the applicant driving it with the consignment

and, therefore, for all practical purposes he was caught red-handed. It then emerged that ecstasy tablets to a value

somewhere in the range of €2.09 million to €2.69 million were in various containers in the car. By any standard this was a

huge haul. The applicant was questioned by the gardaí in thirteen interviews intermittently over a period of about thirty

seven hours though in a perfectly lawful manner and from a relatively early stage he indicated that he would plead guilty.

However, he was not prepared to give the gardaí any information relating to the relevant contacts in respect of the

contraband. He indicated that this was because he was frightened. It is not necessary to go into the factual background in

any more detail except to comment that in different interviews with the gardaí the applicant changed his story somewhat and

admitted that he had lied at the previous interview.

There was a certain amount of character evidence given in his favour. He was said to have come from a very tragic

background in that both his father and mother died when he was young and both were drug addicts. He spent his early years

in state care and in foster care. He lived with a foster family from the age of five to eleven years which he found difficult.

From the age of eleven to fourteen he lived in a children’s home in Clontarf. He was ten years of age when his father died

and fourteen years of age when his mother died. After the mother’s death he went to live with his grandmother in Finglas

but to the chagrin of his grandmother he got involved in anti-social behaviour and crime. The grandmother was not really

able to cope as she was bringing up his brother and three cousins. According to a report which was before the Circuit Court

the applicant started drinking and taking drugs (hash and ecstasy) at the age of fifteen to sixteen years and became involved

in crime. When he came to be sentenced in the Dublin Circuit Court by Judge O’Donnell he had some forty previous

convictions, admittedly, most of them for road traffic offences though they included one for burglary and one for receiving

stolen property. On the occasion of his sentencing for this offence, Judge O’Donnell first sentenced him in respect of a

count of aggravated burglary which had taken place at about 7 a.m. on 26th August, 2002 and was on a separate indictment.

It was obviously a particularly brutal burglary involving a terrifying invasion of a house occupied by a Romanian family. The

judge sentenced the applicant to seven years imprisonment in relation to that offence and then went on to sentence him to

twelve years imprisonment in respect of the offence the subject matter of this appeal.

The relevant statutory provisions with which the sentencing judge had to comply are contained in subsections (3A), (3B)

and (3C) of section 27 of the Misuse of Drugs Act, 1977 as inserted by section 5 of the Criminal Justice Act, 1999. These

three subsections read as follows:

“(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 matters 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.”

In this connection, the judge quoted passages from the unreported judgment of this court delivered by Hardiman J. in The

People (D.P.P.) v. Botha 19th January 2004 to which further reference will be made in the course of this judgment. In

referring to the Botha case the judge referred to a passage indicating that people who were in very reduced financial

circumstances and who were additionally foolish, old or very young and impressionable and, therefore, particularly sought to

act as couriers for a pathetically small amount might be distinguished from those who are more calculatedly involved in the

supply of drugs. The judge observed that there was every scope to do this given that the maximum sentence was life

imprisonment and that he had done so. He also referred to the insistence in the Botha judgment that “unenumerated

circumstances” relied upon must be both exceptional and specific. He could not see that any of the circumstances in this

case were exceptional and specific. The judge observed that this was one of the largest amount of drugs involved in a case

that he had ever been asked to deal with and that the applicant had been “motivated entirely by the opportunity to make a

fast buck”.

The court has been referred to three reserved judgments of this court. It would seem desirable to deal with each

chronologically and extract the principles which appear to emerge from them. Having done that exercise it is then proposed

to analyse and discuss a particular submission made to the court by Mr. O’Hanlon, S.C., counsel for the applicant.

The first case of importance is The People (DPP) v. Renald unreported judgment of the court delivered by Murphy J. on

the 23rd November, 2001. As Hardiman J. pointed out in the later case of Botha already cited, Renald has been regularly

cited with approval by the court ever since. Two important principles are to be extracted from Renald but the one which is

relevant to this case is that even in a case where the court is not bound by the mandatory sentence of ten years due to there

being “exceptional and specific circumstances” within the meaning of subsection (3C) of section 27 of the Misuse of

Drugs Act, 1977 as amended by section 5 of the Criminal Justice Act, 1999, the sentencing court should have regard to the

fact that the Oireachtas thought fit to impose on a prima facie basis a mandatory sentence of ten years thereby reflecting the

view of the Oireachtas as to the seriousness of the offence. The existence of the statutory provision for the mandatory ten

year sentence therefore was not to be regarded as irrelevant when considering a sentence in a situation where exceptional

and specific circumstances relating to the offence existed and so subsection (3C) applied. However, especially in the light of

Mr. O’Hanlon’s submissions to which I will be returning, there are, in the opinion of the court, issues to be explored as to

the context in which the principles enunciated in the Renald case are to be applied.

The next case to be considered is one of considerable importance in the context of the submissions made on behalf of the

applicant in this particular case. The People (DPP) v. Duffy, unreported judgment of this court delivered by Keane C.J. on

the 21st December, 2001, was an application for leave to appeal against a sentence in a section 15A case. The former Chief

Justice set out the relevant statutory provisions and then adverted to the fact that section 27(3B) provided for a mandatory

minimum sentence of ten years imprisonment in respect of a conviction under section 15A. He then referred to section 27

subsection (3C) which provided that subsection (3B) was not to apply where the court was satisfied that there were

exceptional and specific circumstances relating to the offence which would make such a sentence “unjust in all the

circumstances”. He further pointed out that there were certain matters to which the court might have regard for that

purpose including a plea of guilty by the accused “and his/her having materially assisted in the investigation of the

offence.”

It is then explained in the judgment how the learned Circuit Court judge had arrived at his sentence. That judge (Judge

O’Leary) had taken the view that he should in the first instance assess the length of sentence which should be imposed on

the assumption that there were no mitigating factors. He should then take into account “the various mitigating factors” and

make whatever deduction was appropriate from that sentence (this court’s emphasis). Keane C.J. went on to explain what

the Circuit Court judge then did as follows:

“If that approach resulted in a sentence which was in excess of the statutory minimum, then that

would be the sentence which he would impose. If, however, that process resulted in a sentence

which was below the statutory minimum, he would consider whether, having regard to the

provision by the Oireachtas for such a statutory minimum sentence, he should increase the sentence

to the statutory minimum.”

The former Chief Justice goes on to explain that the Circuit Court judge said that having regard to the serious nature of the

offences to which the applicant had pleaded guilty and which could attract a sentence up to and including imprisonment for

life, the judge’s initial estimate of an appropriate sentence was twenty years imprisonment but that, having considered

submissions by counsel, he had become satisfied that it should be adjusted down to fifteen years. The next paragraph in the

judgment is worth quoting.

“The learned Circuit Court judge then went on to assess the appropriate deductions that he

considered should be made from that sentence of fifteen years. First, he made a deduction of

slightly less than one third in respect of the plea of guilty, resulting in a sentence of nine years

imprisonment. To allow then for this having been a first offence, he reduced the period by a further

three years, resulting in the sentence of six years actually imposed.”

The judgment of this court, per Keane C.J., then explains that the learned Circuit Court judge went on to consider whether,

that sentence being below the statutory minimum, he should proceed to impose the statutory minimum. Having noted that

there was no indication of any pattern of similar behaviour in the case of the applicant, he said “that the legislature had

made it clear that in applying the provisions in question one was to have regard to whether the applicant had pleaded

guilty. He pointed to the fact that, in the present case, the applicant had also expressed a desire to plead guilty to the

additional charge on which he had yet to be returned. In those circumstances, he concluded that it would be

inappropriate to increase the sentence to the statutory minimum.”

This court does not have the benefit of seeing the transcript of the sentencing by Judge O’Leary in the Duffy case. Without

the benefit of seeing it, the passage just quoted from the former Chief Justice’s judgment presents two possible difficulties.

One is that it would appear from the judgment that the Circuit Court judge had taken all normal factors into account which

are described in the judgment as “the appropriate deductions” and which presumably would have included the plea of

guilty, he arrived at an initial sentence of six years. Indeed, that is the approach favoured by counsel for the applicant in this

case, Mr. O’Hanlon. But if that approach is adopted there would seem to be problems about taking the plea of guilty of

itself into account a second time for the purposes of considering whether the mandatory minimum sentence should apply.

First of all there is nothing exceptional about a plea of guilty, it is one of the commonest occurrences in any criminal trial.

Secondly, it seems to be at least implied in the judgment of this court delivered by Hardiman J. in Botha cited above that

importance must be attached to the conjunctive “and, if so,” in the statutory provision so that a plea of guilty can only be

relevant to an escape from the mandatory minimum sentence if there are other circumstances which effectively can render

the combination of the plea of guilty and those circumstances to be exceptional circumstances. These can include the stage

at which the accused indicated the intention to plead guilty, the circumstances in which the indication was given and whether

that person materially assisted in the investigation of the offence. What seems to have happened in the Duffy case was that

Judge O’Leary in considering whether it would be unjust to impose the statutory minimum sentence took into account the

fact that the applicant had not only pleaded guilty to the offence with which he was dealing but that he had also expressed a

desire to plead guilty on an additional charge on which he had yet to be returned. Presumably, that provided the

“exceptional and specific circumstances”.

What is important however is that Keane C.J. made it clear that the court was “satisfied that the approach adopted by the

learned Circuit Court judge in the present case was essentially in harmony with the law as explained by Murphy J. in

that passage.” This was a reference to the material passage in Renald asserting the relevance of the existence of a lengthy

mandatory minimum sentence even in a case where the court did not consider it should apply. The former Chief Justice

then went on to say the following:

“While there might be other approaches that might be adopted which would also be in harmony

with that statement of the law, it is clear that the trial judge in deciding what sentence he should

ultimately impose took into account as a relevant factor the existence of the statutory minimum

sentence, as he was not only entitled but bound to do.”

The court found no error of principle in the approach of Judge O’Leary and upheld the sentence. What this means is that

although the court consisting of Keane C.J., O’Higgins J. and Butler J. was not laying down any mandatory methodology for

arriving at the appropriate sentence in a section 15A case, it approved the methodology actually adopted by Judge O’Leary.

The significance of that will be dealt with more fully later on in this judgment but before that it would seem important to

refer to the Botha case being the latest of the reserved judgments relied upon at the hearing. This is the judgment delivered

by Hardiman J. who was sitting with O’Sullivan J. and Herbert J. and to which reference has already briefly been made.

One can read the judgment in Botha in different ways and on one reading it might be thought to favour a rather stricter or

perhaps more accurately a rather more restricted view of the circumstances in which the mandatory minimum sentence

would not have to be imposed. But every case has its own facts and obviously a good deal of what Hardiman J. had to say

related in particular to the facts of that case. Although the judgment in Botha mentions that the trial judge in that case had

made reference to Duffy’s case, it does not appear to have been relied on or even referred to in the main body of the

judgment of this court. The Renald case by contrast is heavily relied on and very much approved. That being so, it would

seem that there is no reason to believe that there is any relevant conflict between the judgments in the three cases to which

we have been referred. Keane C.J. clearly regarded Renald as good law but gave it a broad interpretation when endorsing

the methodology adopted by Judge O’Leary.

At this point it is relevant to refer to a passage in the sentencing judgment of Judge O’Donnell in the Circuit Court in this

case. He said the following:

“The offence to which you have pleaded guilty carries with it a maximum sentence of life or such

shorter period as the court may determine. However, the value of the drugs found in the possession

of a person, other than a child or young person, convicted under section 15A, is €13,000 or in

excess of it. The court shall in imposing sentence specify a period of not less than ten years

imprisonment. This mandatory, minimum sentence 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 ten years unjust in all the circumstances

and for that purpose the court may have regard to any matters, any matters it considers appropriate

including: whether the person pleaded guilty to the offence, and if so, the stage at which he

indicated the intention to plead guilty, and the circumstances in which the indication was given,

and whether the person materially assisted in the investigation of the offence. These appropriate

matters are not to be considered in isolation but together. They are joined together by the word

‘and’ a mere plea of guilty is not an exceptional and/or specific circumstance. One may look at all

the circumstances pertaining to the offence or the person in deciding whether they are exceptional

and specific. In this view I quote from the Court of Criminal Appeal case … of Phillipus Botha

given on the 19th January 2004 that in considering the circumstances in the broader sense that,

‘the circumstances in which a sentence less than the one imposed for this offence could be imposed

must indeed be very exceptional.’ The court goes on to say that, ‘unenumerated circumstances

relied upon as putting the case into a category where it would be unjust to impose the minimum

sentence, must be both exceptional and specific.’ And at an earlier passage dealing with those

people who are in very reduced financial circumstances and who are additionally foolish, old or

very young and impressionable are particularly sought to act as couriers for a pathetically small

amount. The position of those persons must be distinguished from those who are more calculatedly

involved in the supply of drugs. There is every scope to do this since the maximum sentence is life

imprisonment, and I do that, and I do take them into consideration. I have also had the opportunity

of reading … yes, as I have said the broad principles enunciated there, and I agree with all of what

the court said there in that case.”

Judge O’Donnell went on to say that he found no circumstance which was exceptional and specific and he pointed out that it

was one of the largest amount of drugs that he had ever been asked to deal with. If it was to be thought that there was some

nuance of difference between Duffy’s case and Botha’s case, it is quite clear that the learned Circuit Court judge, even

though he was never asked to consider Duffy’s case would have been on the side of Botha’s case. For the reasons already

indicated there is not necessarily any conflict. Although the approach adopted by Judge O’Leary is not the only acceptable

approach as pointed out by the former Chief Justice, it nevertheless has considerable merits. There is no doubt that a late

plea of guilty without any other surrounding circumstances would not ordinarily be relevant in considering whether the

imposition of the mandatory minimum sentence would be unjust. But that does not mean that it cannot be taken into

account in any way. This brings us to the special submission made to the court by Mr. O’Hanlon on behalf of the applicant.

Mr. O’Hanlon argues that the first exercise in which a sentencing court should engage is to arrive at the appropriate sentence

as if subsections (3B) and (3C) did not exist but bearing in mind of course the maximum sentence of life imprisonment. He

says that in arriving at that “appropriate sentence” (hereinafter referred to as the “notional sentence”) deductions should

be made on all the normal criteria, one of those being a plea of guilty irrespective of when it is made. Obviously, of course,

the credit for a late plea of guilty is quite different from the credit for an earlier plea. If, having arrived at the notional

sentence, it emerges that it is more than ten years then that is the appropriate sentence. While there is much to be said for

this approach in general as it is in line with the approach adopted by Judge O’Leary and approved by this court in Duffy’s

case, the end part of that submission needs qualification. Bearing in mind the reasoning of this court in Renald, the notional

sentence would normally have to be on the higher end of a range of possible sentences. Subject to that proviso, however,

this court would not disagree with the submission of Mr. O’Hanlon.

If, however, the notional sentence turns out to be less than ten years then prima facie subsection (3B) applies so as to

impose the ten year sentence unless subsection (3C) applies. In considering whether the latter subsection applies or not, a

plea of guilty without more and especially a late plea could not normally be taken into account because it would rarely if

ever constitute “exceptional and specific circumstances”. It is in this exercise, that is to say, the issue of whether

subsection (3C) applies or not that the strict requirements enunciated in the judgment of Hardiman J. in Botha come into

play.

Although the learned Circuit Court judge did not precisely adopt this interpretation of the section, nevertheless, the court is

absolutely satisfied that he arrived at the correct result. The sentence which the judge imposed was twelve years which is

two years more than the minimum statutory sentence. He made no error in imposing such a sentence given the size of the

drugs haul, the previous criminal career of the applicant, the absence of any specific and exceptional circumstance such as

for instance cooperation with the gardaí which there was not. Even if for the purpose of arriving at a so called “notional

sentence” it was right to take the plea of guilty into account as indeed it would have been, the sentence of twelve years was

still quite appropriate. The court considers that a sentence less than twelve years would have been inappropriate.

Accordingly, the application for leave to appeal will be refused.

The People (DPP) v. Ducque