Court of Criminal Appeal dismisses appeal against disproportionate drug trafficking sentence compared to co-accused.

COURT OF CRIMINAL APPEAL

43/07

Finnegan J.

de Valera J.

McMahon J.

DIRECTOR OF PUBLIC PROSECUTIONS

.v.

JOHN COSTELLOE

APPLICANT

Judgment of the Court delivered on the 2nd day of April 2009

by Finnegan J.

The applicant pleaded guilty to the possession of drugs for sale or supply contrary to the Misuse of Drugs Act 1977 as amended. The offence was

committed on the 1st September 2004. He was sentenced to twelve years imprisonment with the last two years thereof suspended. A co-accused Séan

Hanley was sentenced to ten years imprisonment. The circumstances of the offence are as follows.

On the 1st September 2004 Gardai carried out surveillance of a Volvo motor car. The applicant was the driver and the co-accused Séan Hanley a front seat

passenger. The Gardai switched on the flashing blue light and an attempt was made by the Volvo to evade the Gardai. A package was thrown from the

passenger window. This was recovered and was found to contain amphetamines with a value of approximately €45,000. The applicant was arrested and at

interview exercised his right to silence. He did not co-operate with the Gardai. He exercised his right to silence under section 17 of the Criminal Justice

(Drug Trafficking) Act 1996. On the second day of his trial he changed his plea to one of guilty.

At sentencing the applicant relied upon a number of reports. He informed the Probation Service, according to the report, that his passenger, Sean Hanley,

had no knowledge of the drugs and that the applicant had instructed him to throw them from the car. That report contained a risk assessment: the applicant

if he is to reduce the risk of re-conviction in the future must disassociate himself from his companions and address problems in relation to employment and

addiction. A psychiatric report was submitted from which it appears that while he had been a drug user and had difficulties with suppliers in relation to

monies owed for drugs he was off cocaine at the time of the offence.

The applicant was born on the 16th March 1981 and is now aged twenty seven years. He has had a partner for the past eight years and they have two

children aged five years and three years.

He has nine previous convictions including the following:-

15th June 2006: section 49 Road Traffic Act 1961.

15th March 2006: section 6 Criminal Justice (Public Order) Act 1994: sentenced to two months imprisonment suspended for twelve months.

26th October 2004: Criminal Justice (Public Order) Act 1994.

10th March 2004: section 2 Non Fatal Offences against the Person Act 1997 assault: sentenced to community service one hundred and

twenty hours.

10th March 2004: Criminal Justice (Public Order) Act 1994.

18th November 1998: section 112 Road Traffic Act 1961: sentenced to community service two hundred hours.

In the course of the sentencing hearing counsel on behalf of the applicant relied on the applicant’s plea of guilty. He offered the opinion that there was a

statable defence. He concluded as follows:-

“As I say, the only mitigating factor that can be raised at all is the fact that he has put his hands up, to his own detriment and I hasten to

add, and I can tell you on the record I am not one bit happy about it, but there that is the reality.”

The learned trial judge in these circumstances was required to have regard to section 27(3B) of the Misuse of Drugs Act 1977 as inserted by section 5 of

the Criminal Justice Act 1999. On this appeal on behalf of the applicant it was submitted that the sentencing process was truncated and that without

sufficient enquiry the learned trial judge held that none of the relieving features of section 27(3C) applied. Further the learned trial judge failed to give

sufficient weight to the mitigating circumstance relied on and failed to give appropriate credit for the plea of guilty.

The learned trial judge’s ruling on sentence is indeed pithy. In relation to mitigating circumstances he had this to say:-

“I can find no mitigating circumstances. Mr Costelloe went to trial. He changed his plea from that of not guilty to guilty on the second day of

the trial. He, in his interviews, was of no great assistance to An Garda Siochána. I take on board what has been said by his partner, Ms

Wyse, and I can understand his father’s upset. I have before me a Probation Service Report of the 5th February 2007 which sets out pretty

fairly, I think, Mr Costelloe’s background and current circumstances. It also sets out that he owed money to drug dealers; but unfortunately

people who owe money to drug dealers are all the more vulnerable to be used as mules to ferry drugs from point A to point B, which seems to

be part of what was going on on this occasion.

Because of the value of the drugs being at the bottom range of a section 15A offence, although it is a multiple of the €13,000 nominally, I will

impose a sentence of twelve years imprisonment and I will suspend the last two years of that, the condition being that he keep the peace and

be of good behaviour towards the people of Ireland on his own bond of €100, that two years to be suspended for a period of two years, his

bond to be taken before the Governor at whatever prison he is then incarcerated in.”

The maximum sentence for an offence under section 15A as provided for in section 27 as amended of the Misuse of Drugs Act 1977 is one of life

imprisonment. However section 27 as amended goes on to provide as follows:-

“(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 ten 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 ten 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.”

The court is not confined to consideration of the matters mentioned at (a) and (b) in subsection (3C) but will have regard to all the circumstances which are

exceptional and specific relating to the offence. It is likewise the case that all circumstances which are exceptional and specific relating to the offender are

to be regarded. In this case, in the view of the court, the only relevant circumstance that could be relied upon is the plea of guilty. As is clear from the

extract from the sentencing ruling quoted above this circumstance was indeed taken into account by the learned trial judge and he did not regard it as an

exceptional and specific circumstance for the purposes of section 27(3C). The learned trial judge was correct in this. In Director of Public Prosecutions v

Ducque, unreported, Court of Criminal Appeal 15th July 2005 Geoghegan J. said:-

“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’.”

The approach to be adopted by the sentencing judge in relation to this offence appears clearly from the judgments of this court in a number of cases

including Director of Public Prosecutions v Ducque, Director of Public Prosecutions v Chipi Renald, unreported 23rd November 2001, Director of

Public Prosecutions v Galligan, unreported 23rd July 2003 and Director of Public Prosecutions v Lernihan, unreported 18th April 2007. The sentencing

judge’s first task is to arrive at the appropriate sentence. The amount or value of the drugs is relevant. The provisions of section 15A make clear that the

legislature regard this offence as serious in that the maximum sentence provided for is one of life imprisonment and subject to subsection (3C) the

presumptive minimum sentence is one of ten years imprisonment. Even where exceptional and specific circumstances exist which would render the

statutory minimum term of imprisonment unjust the presumptive minimum sentence cannot be ignored. Bearing the statutory provisions in mind a

sentencing judge must first determine the appropriate notional sentence. In so doing he must bear in mind the statutory provisions. He must have regard to

the circumstances of the offence and the particular offender. This requires consideration of circumstances which aggravate or mitigate the offence and

circumstances relating to the offender relevant in mitigation of sentence. If the resulting sentence is a term of ten years or greater then that is the sentence

to be imposed. Only if the notional sentence is less than ten years will it be necessary to consider section 27 subsection (3C).

In this case the learned trial judge in arriving at an appropriate sentence expressly had regard to the value of the drugs. He noted the applicant’s lack of co-

operation with the Gardai at interview. He had regard to the evidence of the applicant’s partner Ms Wyse and of his father. He had regard to the applicant’s

personal circumstances as disclosed in the Probation Service Report and a psychiatrist’s report. Finally he had regard to the plea of guilty and the time at

and circumstances in which it was entered. He having carefully considered these matters the court can find no error of principle in the sentence in fact

imposed.

The fact that the applicant was accepted by the learned trial judge as being “a mule” is a factor to be taken into account in determining the appropriate

sentence. The fact that he owed money for drugs supplied to him is also a factor to be taken into account. The learned trial judge did not regard the late

plea of guilty having regard to the time at which it was entered as a mitigating factor for the purposes of section 27(3C). The learned trial judge gave no

reason for suspending two years of the sentence. The late plea or the nature of the applicant’s involvement in the drugs industry as a mule may explain the

suspension of the last two years of the sentence imposed. However it must be borne in mind that a mule plays an important part in the drugs industry and

without the mule’s involvement those involved at a more significant level would be less likely to escape detection, prosecution and conviction. The role of the

mule is important and significant to those who operate at a higher level. However as the suspension represents a significant concession to the applicant

this court will not interfere with the same notwithstanding that the basis for the same is unclear. The court is satisfied that the sentence imposed is

appropriate having regard to the applicant’s involvement, the circumstances of the crime and the applicant’s circumstances and accordingly the sentence

imposed is not in error of principle.

On behalf of the applicant there were available in court three testimonials. The learned trial judge refused to have regard to the same and confined himself to

oral testimony on oath together with the Probation Report and the psychiatrist’s report. While such testimonials are frequently received and considered on

consent, the learned trial judge was entitled to confine his consideration to evidence on oath and the reports admitted and to exclude from consideration the

written testimonials.

On behalf of the applicant it is submitted that the sentence imposed on him is disproportionate to that imposed upon his co-accused who received a

sentence of ten years imprisonment. It is a settled principle of sentencing that persons who have been parties to the commission of the same offence

should, all other things being equal, receive the same sentence. It is equally well settled that difference in the degree of involvement in the offence and the

personal characteristics of the co-accused such as age, background, previous criminal history and general character will justify a different sentencing

outcome. People (D.P.P.) v Poyning [1972] I.R. 402 and People (D.P.P.) v Conroy (No. 2) [1989] I.R.160. It is irrelevant that the sentences may be

imposed by the same court at the same time or by a different court or at a different time.

The court has had the benefit of the transcript of the sentencing hearing which followed the conviction of the co-accused Séan Hanley. Each co-accused

was sentenced by a different court. The applicant was sentenced on the 26th February 2007 and Séan Hanley on the 10th June 2008. Séan Hanley gave an

account of his involvement consistent with innocence but the same was not accepted by the jury. His account was that he was coming to Dublin for a

wedding and that he got sick on the way. He met the applicant who drove him to Dublin. In Dublin he was not well enough to attend the wedding and

returned to Limerick with the applicant. He was unaware of the presence of the drugs. It is of some significance that the applicant’s account exonerated

Séan Hanley from any guilty involvement save and except that he was asked by the applicant to throw the drugs from the car. Having regard to the fact that

Séan Hanley was found guilty it is reasonable to treat the co-accuseds as having equal involvement in the offence. There are differences in the personal

circumstances of each of the co-accused. Séan Hanley was aged forty eight years at the date of sentence. He had then previous convictions in the period

1980 to 2006. A number of the offences were precipitated by his grief reaction to his son being killed and which killing led to a conviction for manslaughter.

He suffers from a number of physical and psychiatric ailments which are significant and which will make his time in prison particularly difficult. One is a

prolonged grief reaction to the death of his son which had resulted in admissions to a psychiatric hospital. He suffers from diabetes which in his case

reduces his life expectancy. In his history there were a significant number of attempts at suicide. He continued to be at a high risk of completed suicide.

Without going into more detail these personal circumstances are matters which the sentencing judge could take into account and which distinguish him

from the applicant. In addition the sentencing judge was apprised of the sentence imposed on the applicant. These circumstances justify the very minor

discrepancy between the sentences imposed on each of the co-accused.

Having regard to the foregoing the court refuses the applicant leave to appeal.