Court of Criminal Appeal dismissed appeal against sentence for drug possession where judge inferred intent to trade from facts.

THE COURT OF CRIMINAL APPEAL

FINNEGAN J.

MORIARTY J.

HOGAN J.

[2010 No. 315 CCA]

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

DAVID O’NEILL

APPLICANT

JUDGMENT of the Court delivered by Mr. Justice Joseph Finnegan on 15th February, 2012

The existence of a prior good character is one of the surest grounds for mitigation which can be advanced before the sentencing

judge. Where, however, the existence of such prior good character is disputed or is otherwise in doubt, then the sentencing judge

may be presented with a fresh difficulty, not least where, as the facts of this appeal illustrate, the relevant Garda or other

prosecution witnesses either deny or are ambivalent regarding the existence of such a general good character at the sentencing

hearing. These problems are then further compounded where the prosecution witnesses go further in their evidence and convey the

impression that the accused is, in fact, guilty of offences other than the one with which he has been charged. The extent to which

the sentencing judge can receive such evidence is, in essence, the issue which arises for consideration in the present appeal against

sentence.

On the 13th March, 2008, the Gardaí obtained a search warrant and searched the applicant’s family home in Clondalkin, Co. Dublin.

135 grams of cocaine were found in the course of the search and it has a value of approximately €10,000. It is only fair to say that

the applicant made prompt admissions as to ownership of the contraband in question.

The applicant pleaded guilty to the offence in the Dublin Circuit (Criminal) Court in July, 2010 and following a sentencing hearing in

December, 2010 - the background to which we shall presently describe - His Honour Judge McCartan imposed a sentence of five years

imprisonment with immediate effect, with the final year suspended on a bond to keep the peace for one year. To put all of this in

context, it should be noted that the applicant’s prior conduct was not entirely unblemished. He had thirteen previous convictions and

while the vast majority of these related to road traffic offences, he had a relatively recent conviction for possession of a flick knife,

contrary to s. 9(4) of the Firearms and Offensive Weapons Act 1990.

The cocaine had been found in separated weighed out bags which had been secreted in a storage press under the stairs of the

premises in question. The Gardaí also found a digital weighing scales and a mobile telephone SIM card in the cupboard. While the

applicant was generally prepared to co-operate with the Gardaí, this did not go so far as permitting them to activate his mobile

telephone, since he declined to disclose the number for his pin code.

At the sentencing hearing the principal issue was whether these drugs were largely for Mr. O’Neill’s personal consumption or whether

he was engaged in the distribution and sale of drugs, albeit, perhaps, on a relatively small scale. It must be here recalled that

possession of even this quantity of drugs is an inherently serious matter, not least given that the Oireachtas has prescribed a

maximum penalty of life imprisonment for an offence under s. 15 of the Misuse of Drugs Act 1977 (as amended): see, e.g., the

comments of Murphy J. for this Court in The People v. Gethins, Court of Criminal Appeal, 23 November 2011. It is true that possession

of quantities of illicit drugs in excess of a figure of €13,000 (approximately) would expose the accused to a presumptive minimum

sentence of ten years in the light of the provisions of s. 15A of the 1977 Act. Nevertheless, in both cases the maximum penalty

remains that of life imprisonment.

It is also true that the applicant’s own personal circumstances were such as would excite sympathy and would represent generally

mitigating factors. He was an early school leaver who began to abuse drugs and other substances at an early age. His family life

appears to have been unhappy and he was required to provide financial support for his parents, one of whom is sadly blind and

incapacitated. The sentencing judge was fully aware of these factors which, while not expressly mentioned by him during the course

of the sentencing hearing, are necessarily reflected in the otherwise relatively moderate sentence which was, in fact, imposed.

We can turn now to the principal question presented on this appeal. In urging leniency, the applicant’s case was that he was not a

drug dealer as such, but that he simply sold drugs to his own friends in order to facilitate his own drug purchases. It was contended

that the applicant had sold a horse (he is, apparently, an animal lover and has a keen love of horses) and that he had acquired a

significant sum of money as a result. At the sentence hearing, his counsel, Mr. Lawlor, contended that he had used the money to

purchase a quantity of drugs. While he did not, as such profit from the drugs, it was suggested that he had bartered the drugs with

his friends in exchange for other goods, such as horse-tack and the like.

The prosecuting authorities took a rather less benign view of these events and the entire tenor of the evidence given by the principal

investigating Garda, Garda Padraig Shanley, was rather to the effect that the applicant had sold and supplied drugs generally and had

not simply bartered them with his friends. Following a cross-examination by Mr. Lawlor which invited Garda Shanley to accept that the

applicant was involved in the sale and supply of drugs, albeit at a relatively low level, the following exchange then took place:-

“Judge: You believe this man was selling drugs?

A. I do.

Judge: For how long?

A. Possibly a few years, judge.

Judge: Are you aware of his source, do you know where he gets his drugs from?

A. I’m not sure, no. No.

Judge: You’re not?

A. No.

Judge: You don’t know or you’re not sure?

A. I’m not sure. Again, in my time in Clondalkin a lot of drug dealers were associates,….they’re basically mixing in the same

circles.

Judge: They’d be all known to you?

A. They would be, yes?

Judge: Right, I’m obliged, thank you.”

Mr. Lawlor then registered his concern in respect of this sequence of events:

“Judge, one thing I’d ask the Court to note in respect of that, I appreciate the Guard may of himself have a belief and a

concern, I would ask the Court to note, however, that my client doesn’t have any previous convictions relating to the

possession of drugs and I’d ask the Court to note that he has pleaded guilty to one particular offence on the day in

question.”

On appeal to this Court, the principal argument was that Judge McCartan had fallen into error by soliciting the opinion evidence of

Garda Shanley in respect of extraneous matters to the offence to which the applicant had pleaded guilty. We agree that the learned

sentencing judge fell into the error in the manner submitted, but since we were of the view that this error was did not materially

prejudice the applicant and since we would in any event have imposed a not dissimilar sentence, we nonetheless affirmed the

sentence in question.

While we appreciate that the learned sentencing judge was merely endeavouring to clarify aspects of Garda Shanley’s testimony, it is

nonetheless clear from both principle and authority that this line of questioning is not permissible in the course of a sentencing

hearing. So far as authority is concerned, it is sufficient to refer to three earlier decisions of this Court.

We may start with The People v. Delaney, Court of Criminal Appeal, 28th February, 2000. In that case the applicant had pleaded

guilty to possession of drugs contrary to s. 15 of the 1977 Act. Evidence was adduced at the sentencing hearing to the effect that

the drugs had been professionally handled. That in itself led to the inference that the applicant had been significantly involved in the

supply of drugs. The sentencing judge went further, however, and invited the prosecuting Garda to grade the applicant on a scale of

one to ten in terms of his involvement with the supply of illicit drugs. Hardiman J. held that this was highly prejudicial and neither

related to the offence of which he had been convicted or to past convictions to which the judge might have regard.

Next, in The People v. Gilligan (No.2) [2004] 3 I.R. 87 the accused had been convicted on five separate counts of the importation of

cannabis resin. While it was conceded that there might other instances where the accused had imported the drugs in question, it was

stressed that he had not actually been convicted of such importation. On appeal to this Court McCracken J. acknowledged that it

was important that a sentencing court “cannot act in blinkers”. He continued thus:-

“While the sentence must relate to the convictions on the individual counts, and clearly the applicant must not be

sentenced in respect of offences with which he was neither charged nor convicted and which he has not asked to be

taken into account, nevertheless the court in looking at each individual conviction is entitled to, and possibly bound to

take into consideration, the facts and circumstances surrounding that conviction.”

McCracken J. continued ([2004] 3 I.R. 87 at 91) by articulating the following hugely important principles:-

“However, the court does think it important to emphasise that in many cases there may be a very narrow dividing line

between sentencing for offences for which there has been no conviction and taking into account surrounding

circumstances, which may include evidence of other offences, in determining the proper sentence for offences of which

there has been a conviction. It is important that courts should scrupulously respect this dividing line.”

This Court went on to hold that remarks by the presiding judge when pronouncing the sentence of the Special Criminal Court to the

effect that the accused had been responsible for importing “an avalanche of drugs” had unfortunately given the impression that the

Court had “overstepped the line between considering surrounding circumstances and in effect sentencing for criminal activities of

which the applicant had not been convicted.”

This entire topic was extensively traversed in the comprehensive judgment of this Court in The People v. McDonnell [2009] IECCA 16,

[2009] 2 I.R. 105, another s. 15 case where the two accused had pleaded guilty to possession of drugs. The trial judge intervened in

the course of the evidence given by the investigating Garda during the sentencing hearing to ask him about the length of time that

the accused had been involved in the drugs trade. The investigating Garda confirmed that one of them, Mr. McDonnell, “would have

been known to us for a number of years”, although he also conceded that this accused had never been charged with any other

offences.

When it came to imposing sentence, the trial judge made it clear that he was entitled to look behind the absence of any previous

drugs convictions and to discern a pattern of prior illicit drug dealing in view of the opinion evidence given by the investigating Garda.

He proceeded to draw the appropriate inferences from this hearsay evidence.

On appeal to this Court Kearns J. emphasised that in practice hearsay evidence was received on a more informal and relaxed basis in

the course of a sentence hearing than in the case of a criminal trial. While this often operates to assist the accused in those cases

where the investigating Garda gives hearsay opinion about his general character and prospects of re-offending, Kearns J. also

stressed the limitations to this approach, especially where key facts concerning extraneous matters which might be expected to

weigh heavily on a sentencing judge were now disputed ([2009] 4 I.R. 105, 120):-

“Summarising, it seems quite clear to this Court that the admission at a sentencing hearing of hearsay evidence to

suggest the commission of prior criminal offences on the part of a convicted person for which he has not been tried and

found guilty or even if charged, he does not require to be taken into account, would infringe Article 38 and Article 40.4.1

of the Constitution which former provides for a trial in due course of law for any such alleged offence and, which latter

provides that no citizen should be punished on any matter on which he has not been convicted, (The People (Attorney

General) v. O’Callaghan [1966] I.R. 401)

Hearsay evidence of character, antecedents, and as to the background to the particular offence being dealt with,

including the extent of the role played therein by an accused may, at the discretion of the sentencing judge, be received,

subject to the requirement that if a particular fact assumes specific significance or is disputed the court’s findings should

require strict proof. It is a matter for the sentencing judge to decide what weight should be attached to such hearsay

evidence as is received, noting any objection taken thereto and any arguments or evidence offered in rebuttal.”

Kearns J. went on to observe that ([2009] 4 I.R. 103 at 121):

“In relation to the instant case and the particular evidence before the sentencing court, this Court believes it was

permissible for the sentencing judge to receive the evidence of Detective Garda Griffin as to which of several convicted

co-offenders played a greater or lesser role in the particular offence in respect of which sentence was to be imposed. To

rule out the possibility of such evidence being given in every circumstance, particularly in the context of mitigation, would

mean that all co-offenders convicted of the same offence would require equal treatment, the least mature and

inexperienced or the one least involved being treated in precisely the same way as the most experienced participant. The

Court is of the view that such evidence may be received, as occurred in this case, not to aggravate or increase the

sentence, but to assist the judge in determining what mitigating factors (if any) should properly influence the sentence he

was about to impose on the various co-accused. In this case the applicant’s prior history as a drug user was not relevant

to the proof of the offence charged and to which he pleaded guilty. It was offered by counsel for the applicant by way of

explanation of the applicant’s involvement in the particular offence and hence a factor to be considered in mitigation.

However, the question asked by the trial judge crossed the line into the realms of inadmissibility because not only was it

irrelevant, but also because of the suggestion of other uncharged criminality implicit in it. The sentencing judge inquired

whether, and, was specifically told that the applicant had been involved in the drugs trade for “the last number of years”.

The other evidence of Detective Garda Griffin that the applicant was a person who “would have been known to us for a

number of years” and, his further statement, “Mr. McDonnell was the primary target in this operation”, must be seen in

the context of having legitimately arisen from the above concession made by the applicant and, the evidence that Mr.

Doyle was someone who up to that point was virtually unknown to the Gardaí. Furthermore, in re-cross-examination by

counsel for the applicant, the investigating Garda made it clear that the applicant had not been charged with any other

offences. That said, the Court takes the view that the question asked by the sentencing judge as to how long the

applicant had been involved in the “trade” went beyond what was permissible and should not have been asked. It invited

a response clearly suggesting that the applicant had been supplying or selling drugs in the past, and therefore involved in

crimes in respect of which he had not been charged, tried or convicted.”

We can now seek to apply these principles to the present case, a case which once again illustrates the narrowing dividing line

between questions seeking to clarify evidence already tendered on the one hand and those which relate to extraneous matters on the

other. Adherence to this line of demarcation is, perhaps, especially difficult in drugs cases, where questions relating to the

circumstances of possession of the quantity in respect of which the accused has been convicted may inevitably invite a response

which explores issues of the supply and sale in respect of different quantities of drugs in respect of which the applicant has not been

charged, much less convicted. As Macken J. observed in her judgment for this Court in The People v. O’Donoghue [2006] IECCA 134,

[2007] 2 I.R. 336:-

“the difficulties which a sentencing judge faces in balancing the overall context of the crime against the undesirability of

sentencing for matters which could have been the subject of a charge but were not ….cannot be overstated.”

The guiding principle here nonetheless remains rooted in the constitutional fundamental identified by this Court in McDonnell, since the

accused must not to be sentenced in respect of offences with which he was neither charged or convicted. While the sentencing

judge is entitled to receive hearsay evidence and opinion evidence, he or she must also be astute to ensure that extraneous matters

whose evidential value is inherently more prejudicial than probative so far as the accused is concerned are thereby excluded. Should

this not prove possible, a trial judge should then expressly state the extent to which such material is being disregarded in the course

of the sentencing process.

We venture to suggest, however, that the sentencing judge will often be entitled to draw the appropriate inferences regarding the

true background circumstances of the offence, even in the absence of receiving hearsay evidence regarding other possible offences.

This is also true so far as the present case is concerned. Here the applicant was found with almost €10,000 worth of cocaine in

separate weighed out bags, along with a weighing machine and a mobile telephone whose pin number he was not prepared to disclose

to Gardai. It must be recalled, however, that the applicant who was in receipt of social welfare payments, had no other visible means

of support. One might therefore wonder how he was in a position to acquire drugs of this value. It is true that the applicant

maintained that he had sold a horse and used the proceeds to purchase a sizeable quantity of drugs. However, given all the

circumstances, including the utter absence of any vouching documentation or other attestation, this account must frankly be

discounted as an item of credible evidence.

All of this serves to negative the applicant’s account that he was merely casually involved with others so far as the supply of drugs

was concerned and that the drugs were simply principally for personal consumption. Viewed in that light, the applicant’s possession of

this quantity of drugs cannot be regarded in quite the benign fashion which was urged by Mr. Lawlor on his behalf. The applicant

therefore clearly intended to trade in the 135 grams of cocaine which were found in his possession. It was accordingly unnecessary

for the learned trial judge to canvass other possibilities, such as whether the applicant had been engaged in the sale and supply of

other quantities of drugs, apart from the possession of the drugs in respect of which he had been convicted.

In these circumstances, we cannot say that the learned sentencing judge erred in imposing a sentence of 5 years’ imprisonment, with

the final year suspended, even if he had recourse to inadmissible hearsay evidence during the currency of the sentencing process

itself. It was for these reasons that the Court dismissed the applicant’s appeal against the severity of sentence.