Court of Appeal reduces drug possession sentence from 12 to 7.5 years by increasing suspended term due to mitigating factors.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

Appeal No.: 84/2015

The People at the Suit of the Director of Public Prosecutions

Respondent

- and -

Gary Byrne

Appellant

Judgment (ex tempore) of the Court delivered on the 4th day of December 2015 by Mr. Justice Mahon

1. The appellant pleaded guilty and was convicted on 16th March 2015 to two counts of possession of controlled drugs for sale

and/or supply contrary to s. 15A and 27 of the Misuse of Drugs Act 1977. The value of the drugs was approximately €2.5m.

2. The appellant was sentenced at Dublin Circuit Criminal Court on 19th March 2015 to concurrent terms of twelve years

imprisonment, with the final three years suspended, for a period of three years on conditions.

3. In the course of a surveillance operation undertaken by the gardaí, the appellant was seen driving a vehicle from a petrol station to

Unit 4C of the Rosemount Business Park in Ballycoolin, Dublin 15. The appellant entered the lock up premises but was stopped by

gardaí as he left the premises. In a follow up search of the premises, the gardaí found a large number of boxes containing cannabis

herb, to a total of 78.375kg. in weight, and with a street value in excess of €1.5m. The appellant was arrested and he made

admissions in the course of being interviewed.

4. In the second matter, which occurred nearly three weeks after the first drugs seizure, the gardaí searched another unit in the

same business park using keys in the possession of the appellant, and discovered just under €1m. worth of cannabis herb.

5. The total value of the drugs in both instances amounted to approximately €2.5m.

6. The appellant’s only previous conviction, for which he received a three year prison sentence, with the last two years suspended,

concerned the theft of drugs from a pharmaceutical factory in which he had been employed for ten years, for the purposes of

supplying to individuals to whom he owed money for drugs.

The grounds of appeal

7. There are six grounds of appeal. They are:-

(i) The sentence imposed by the learned trial judge was excessive and disproportionate in all the circumstances.

(ii) The learned trial judge failed to consider adequately or at all whether there existed specific and exceptional

circumstances such as would justify her in departing from the presumptive minimum sentence.

(iii) The learned trial judge failed to exercise properly or at all her discretion to depart from the presumptive minimum

sentence.

(iv) The learned trial judge failed to weight correctly in the balance the evidence in respect of the role of the

appellant in the commission of the offences.

(v) The learned trial judge erred in law and in fact in failing adequately to give the appellant due credit for his plea

of guilty and the stage at which the plea was entered.

(vi) The learned trial judge failed to have regard sufficiently or at all to the efforts made by the appellant in respect

of his rehabilitation and further failed to have regard to the objective of rehabilitation insofar as same is a

component part of any sentence.

8. In her sentencing judgement the learned sentencing judge noted the aggravating and mitigating factors in the following terms:-

“Dealing first of all with 121/14, the aggravating factors it seems to the court are the serious nature of the charge and

the amount of drugs involved. The mitigating factors are his plea of guilty, his early plea of guilty, his admissions at

interview, he took responsibility for the drugs, his good employment record, the material assistance he gave in linking

himself to the drugs, the remorse and shame that he has felt, and he is described as a vulnerable person and the court

is taken into account his particular medical condition.

The court in dealing here with 834/14 on count 5, again the aggravating factors are the serious nature of the charge

and the amount of drugs involved. The mitigating factors are his plea, his early plea, his admissions at interview, his

good employment record, the material assistance he gave in linking himself to the drugs, the remorse and shame that

he has expressed, he is described as a vulnerable person and the court is taken into account his illness. The court is also

taken into account that in very recent times he has served a prison sentence for a s. 15 offence and the court is taken

into account that he has served a prison sentence and the court is taking into account the principles of totality and

proportionality in arriving at a sentence in these matters.”

9. The learned sentencing judge then proceeded to outline the relevant legislative provisions applicable to a s. 15A conviction,

referring specifically to the provisions relating to the presumptive minimum ten year term, and the requirement to impose a sentence

of at least ten years unless the court is satisfied that there exists exceptional and special circumstances such as would justify a

departure from that requirement.

10. Without specifying stating so, it appears to be the case that the learned sentencing judge identified exceptional and specific

circumstances such as justified a departure from the imposition of a ten year minimum term in that she proceeded to impose a twelve

year sentence but with the final three years suspended, bringing the effective overall custodial term to one of nine years.

11. The learned sentencing judge mentioned a number of mitigating factors, specifically, including:-

1. The early plea of guilty and admissions made,

2. his assistance and material assistance to the gardaí,

3. his underlying drug addiction and vulnerable personality,

4. his remorse and shame,

5. his good employment record and

6. his efforts to rehabilitate.

12. Other features of the case which undoubtedly were taken into account by the learned sentencing judge was the fact that the

appellant was not the owner of the drugs and the fact that as Det. Gda. Carey stated, his involvement was at “the lower end of

things”.

13. Aggravating factors taking into account included, and most particularly, the enormous value of the drugs consignment; almost

€2.5m. in street value and the havoc they would have caused if released onto the streets.

14. While the appellant was not the owner of the drugs it is nevertheless the case that his role as a so-called “runner” was both

important and essential for a successful and undoubtedly profitable end result of this major drugs operation, had it run its full course.

Thankfully, and thanks to excellent police work, the operation was disrupted at an early stage.

15. The sentence imposed in this case is in reality one of nine years and is therefore less than the presumptive minimum term of ten

years. The reduced term was imposed on the basis that the learned sentencing judge was satisfied that there were exceptional and

specific circumstances such as justified a prison term of less than ten years, and this Court is in agreement with that view.

16. The headline sentence of twelve years is an appropriate sentence in this case having regard to, in particular, the very substantial

value of the drugs haul, and indeed also, the appellant’s previous and relevant conviction, albeit in relation to a s. 15 offence, rather

than a s. 15A offence.

17. In any event the learned sentencing judge discounted her headline sentence of twelve years for the factors identified in her

judgment, and arrived at a net nine year prison sentence.

18. The case made by the appellant is in effect for a further reduction of the sentence to something below nine years, and is

predicated on, essentially, the basis that a number of strong mitigating factors, numbering eleven in total, were either not taken into

account by the learned sentencing judge or, if they were, insufficient weight was afforded to them, or to some of them, and that

therefore the sentence is excessive.

19. Reference has already been made to the mitigating factors specifically referred to by the learned sentencing judge.

20. What appears to this court to have been an error of principle is that the following mitigating factors do not appear to have been

afforded sufficient weight and in particular the following:-

• The appellant’s relatively minor role in the drugs operation,

• a number of significant personal problems and difficulties affecting the appellant for many years, including

homelessness, depression, suicidal ideation and drug addiction, and

• his low risk of re-offending, doubtlessly greatly assisted by his very supportive wife and family.

21. It is therefore appropriate that this court now re-sentence the appellant and to this end it has received a number of testimonials

and certificates which indicate that the appellant has achieved much during his time in prison. It has also heard very supportive

evidence from Det. Gda. Carey which has particularly impressed the court.

22. The headline sentence of twelve years will remain, having regard to the substantial value of the drugs, and the one previous

drugs related conviction. The court will however, for the reasons already indicated, increase the suspended element to four and a half

years with the result that the actual prison term will now be seven and a half years. The sentence therefore now being imposed is

one of twelve years with the final four and a half years suspended, for a period of three years post release. The appellant is required

to enter into a bond in the sum of €100 on the usual conditions.