Court of Appeal quashes unduly lenient sentence for drug smuggling, ordering review of five-year term.

THE COURT OF APPEAL

[101 CJA/12]

The President

Peart J.

Sheehan J.

In the matter of section 2 of the Criminal Justice Act 1993

THE PEOPLE AT THE SUIT OF DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

V. CATHAL MURTAGH

RESPONDENT

JUDGMENT of the Court delivered by the President on the 19th day of January 2015

1. This is an application by the Director of Public Prosecutions under s. 2 of the Criminal Justice Act 1993 for a review of the sentence

of five years imprisonment imposed on the respondent at the Dublin Circuit Criminal Court on the 6th March, 2012 for an offence under

s. 15A of the Misuse of Drugs Act, 1977 as amended.

2. On the 20th April, 2011, two customs officers went to premises in an industrial park on the Malahide Road when they were carrying

out enquiries as to cigarette smuggling. They found the respondent at one of the units where he was opening the shutters. He gave

them a false name. They noticed boxes of different shapes and sizes on the premises and the respondent said that he was employed

by a man named Stephen Devine and his duties included work on the premises such as moving boxes and taking deliveries. The

Customs men opened a box and saw a green plant-like substance which they thought to be drugs. At that stage Mr. Murtagh gave

his correct name. He denied knowing what was in the boxes. The Customs men contacted Detective Sergeant Sheehan of the Garda

National Drugs Unit who got a search warrant.

3. The respondent also had the key of a Transit van which the Gardai searched. Between the unit and the van 16 boxes of drugs

were found as follows:

1. cannabis resin -- 382.4 kg valued at €2,294,760

2. Cannabis herb in the van 9.961 kg valued at €119,138

3. Cannabis herb in the unit 63.9 kg valued at €766,800

4. MDMA tablets 40,168 valued at €o 401,680.

The total market value of the haul was €3,582,778.

4. The Garda evidence in court was that the accused man made admissions during interviews and the fullest account he gave was in

the fifth interview, as follows. He met a man in a pub in Dundalk who offered him employment at a rate of €50 or €60 a day; the job

was to move boxes and tape up boxes in a warehouse; he was given a mobile phone; lifts were arranged from his home in Dundalk but

he did not identify the driver; he was dropped off near the unit but never actually at it; in the fifth and last interview he admitted

that he knew that the boxes contained drugs. He said he discovered this after some time and rang his employer wishing to stop doing

the work but was told to continue on with it, that he could not walk away from it and that is what he did. He had done the work for

about four or five days over a two-week period. He had a key to the warehouse. He said that he got calls on the mobile phone with

instructions to place a particular box into the back of the Transit van and park it up in a location in the industrial estate or other

business premises and leave the key in the visor; he collected the van the next day or later when the contents would have been

removed. He drove the van around and when shown footage from CCTV he accepted it was him.

5. The respondent was born on 22 May, 1983 so he is now aged 31 years. At the time of sentencing on 6 March, 2012 he had a

partner and a young child of about two years. He was unemployed and the Garda witness said that this was his way of seeking

employment "to get a few quid together."

6. The respondent has no previous convictions.

7. In cross-examination, it was established that there were other people involved in the renting of the unit; the Gardai had got

descriptions of a fairly vague nature. When Customs Officers opened the package and saw the resinous material Mr Murtagh made an

exclamation and stepped back, indicating surprise. The Garda agreed that this was a large-scale operation which would require large

financial backing and Mr Murtagh would have had no means to set up that operation.

8. The Gardai had got a photograph from the M1 toll plaza showing the Transit van going through and they were following up trying to

identify the driver. The name that Mr Murtagh gave for the person in charge of the unit was a false one.

9. Mr Murtagh was unemployed and he engaged in a lot of community work in the Dundalk area with younger people.

10. The trial judge said that Mr Murtagh should have known that there was something suspicious going on. He should have reported

the matter but he did not do it for his own reasons. He found that he was probably the lowest cog and the consideration he received

was very minor compared to the risk he was taking. He said he was a decent man, which he inferred from his history. He had no

previous convictions and his references were impressive. He had plenty of good points. He was a good family man and contributed to

his community.

11. The judge departed from the presumptive mandatory minimum sentence of 10 years because of his early plea of guilty and his co-

operation with the investigating Gardai. That left the judge at large in regard to sentence and the fact that he took into account

were the early plea; co-operation; good history; limited involvement with the drug operation and the fact that he was receiving very

little remuneration.

12. The DPP submits that the sentence was unduly lenient by reason of error in principle. The learned trial judge failed to assess the

seriousness of the case in light of the maximum penalty as well as the statutory presumptive minimum so as to identify its location on

the scale of heinousness and calculate the appropriate sentence before applying other considerations, whether mitigating or

aggravating. Instead, he applied mitigating factors to the minimum 10 year sentence. The judge also failed to give sufficient weight to

the nature, quantity and value of the drugs. The respondent was in a position where he was trusted with control of an extremely

valuable stock of drugs. He got involved for financial reward and not because of addiction. The judge attached too much weight to

the mitigating features. In the result, the sentence did not reflect the seriousness of the crime, even when all mitigation was allowed

and represented a substantial departure from what is an appropriate sentence.

13. The respondent argues that the application should be refused. In the first place, it would be unjust to impose an increased

sentence of imprisonment on the respondent at a point nearly three years following the date of sentence and when he has been on

Community Release since the 30th September, 2014. The sentencing judge balanced all the relevant factors, including the seriousness

of the offence and the statutory minimum sentence. The judge was impressed by the respondent and was entitled to hold that he

was the lowest cog who would receive small reward and that he did not realise at first what he was getting into. He held that the

respondent made a fatal mistake in not going to the Gardai when he realised the true situation.

14. Each of the parties cites decisions in previous cases to bolster the case that the instant sentence was unduly lenient in

significant degree or was within the zone of normality that is immune from challenge under s.2.

Jurisdiction to Review: Section 2 of the Criminal Justice Act 1993

15. Section 2 of the Criminal Justice Act 1993, in so far as relevant provides:-

"(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the

‘sentencing court’) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal

Appeal to review the sentence.

(3) On such an application, the Court may either -

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers

appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application."

16. In Director of Public Prosecutions v. Byrne [1995] 1 I.L.R.M. 279 at p. 287, the Court of Criminal Appeal stated four principles to

be applied when a review of sentence under s. 2 of the Act of 1993 is brought:-

a. The onus of proof to show that the sentence was ‘unduly lenient’ rests on the Director of Public Prosecutions.

b. Great weight should be afforded to the trial judge’s reasons for imposing the sentence at issue. In particular, if the trial

judge has kept a balance between the circumstances of the case and the relevant circumstances of the offender the

decision should not be disturbed.

c. The test is not the converse of that when there is an appeal by an appellant; it is not a query as to whether a more

severe sentence could have been imposed and upheld as being right in principle. Rather, it is an inquiry as to whether the

sentence was ‘unduly lenient’.

d. Nothing but a substantial departure from what would be regarded as the appropriate sentence would justify

intervention.

17. The term ‘undue leniency’ was further explored in that court in The People (Director of Public Prosecutions) v. McCormack [2000]

4 I.R. 356. Delivering the judgment of the court Barron J. said at p. 359:-

"In the view of the court, undue leniency connotes a clear divergence by the court of trial from the norm and would, save

perhaps in exceptional circumstances, have been caused by an obvious error in principle.

…. The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime

because it has been committed by that accused. The range of possible penalties is dependant upon those two factors. It

is only when the penalty is below the range as determined on this basis that the question of undue leniency may be

considered."

18. In The People (Director of Public Prosecutions) v. Redmond [2001] 3 I.R. 390, Hardiman J. set out the role of the appellate court

in a matter of this nature. In considering the cases set out above, and reviewing similar statutory provisions in Australia and England,

he held that an error of principle was required for an appellate court to interfere with a sentence given by a sentencing judge. It was

not enough that the members of court might impose a different sentence, whether more lenient or severe, to that given at first

instance. The sentencing judge must have been found to have made an error of principle.

Penalty for section 15A offence: Section 27 of the 1977 Act as amended

19. Section 33 of the Criminal Justice Act, 2007 inserted new subsections (3A) to (3K) in Section 27 of the 1977 Act as follows:

“(3A) Every person guilty of an offence under section 15A or 15B of this Act shall be liable, on conviction on indictment—

(a) to imprisonment for life or such shorter term as the court may determine, subject to subsections (3C) and (3D)

of this section or, where subsection (3F) of this section applies, to that subsection, and

(b) at the court’s discretion, to a fine of such amount as the court considers appropriate.

(3B) The court, in imposing sentence on a person for an offence under section 15A or 15B of this Act, may, in particular,

have regard to whether the person has a previous conviction for a drug trafficking offence.

(3C) Where a person (other than a person under the age of 18 years) is convicted of an offence under section 15A or 15B

of this Act, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of

imprisonment to be served by the person.

(3D) (a) The purpose of this subsection is to provide that in view of the harm caused to society by drug trafficking, a

court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under section

15A or 15B of this Act, shall specify a term of not less than 10 years as the minimum term of imprisonment to be served

by the person, unless the court determines that by reason of exceptional and specific circumstances relating to the

offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so.

(b) Subsection (3C) 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 that purpose the court

may, subject to this subsection, have regard to any matters it considers appropriate, including—

(i) whether that person pleaded guilty to the offence and, if so—

(I) the stage at which he or she indicated the intention to plead guilty, and

(II) the circumstances in which the indication was given,

and

(ii) whether that person materially assisted in the investigation of the offence.

(c) The court, in considering for the purposes of paragraph (b) of this subsection whether a sentence of not less

than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to—

(i) whether the person convicted of the offence concerned was previously convicted of a drug

trafficking offence, and

(ii) whether the public interest in preventing drug trafficking would be served by the imposition of a

lesser sentence.

(3E) Subsections (3C) and (3D) of this section apply and have effect only in relation to a person convicted of a first

offence under section 15A or 15B of this Act (other than a person who falls under paragraph (b) of subsection (3F) of this

section), and accordingly references in those first-mentioned subsections to an offence under section 15A or 15B of this

Act are to be construed as references to a first such offence.

(3F) Where a person (other than a person under the age of 18 years)—

(a) is convicted of a second or subsequent offence under section 15A or 15B of this Act, or

(b) is convicted of a first offence under one of those sections and has been convicted under the other of those

sections,

the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by

the person.

(3G) The power conferred by section 23 of the Criminal Justice Act 1951 to commute or remit a punishment shall not, in

the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised before the expiry of

the minimum term specified by the court under subsection (3C) or (3F), as may be appropriate, of this section less any

reduction of that term under subsection (3H) of this section.

(3H) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall

apply in the case of a person serving a sentence imposed under subsection (3A) of this section and the minimum term

specified by the court under subsection (3C) of this section shall be reduced by the amount of any remission so earned by

the person.

(3I) Any powers conferred by rules made under section 2 of the Criminal Justice Act 1960 to release temporarily a person

serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed under subsection (3A)

of this section, be exercised during the term for which the commutation or remission of his or her punishment is prohibited

by subsection (3G) of this section unless for a grave reason of a humanitarian nature, and any release so granted shall be

only of such limited duration as is justified by such reason.

(3J) In imposing a sentence on a person convicted of an offence under section 15A or 15B of this Act, a court—

(a) may inquire whether at the time of the commission of the offence the person was addicted to one or more

controlled drugs, and

(b) if satisfied that the person was so addicted at that time and that the addiction was a substantial factor leading

to the commission of the offence, may list the sentence for review after the expiry of not less than one-half of the

term specified by the court under subsection (3C) or (3F), as may be appropriate, of this section.

(3K) On reviewing a sentence listed under subsection (3J)(b) of this section, the court—

(a) may suspend the remainder of the sentence on any conditions it considers fit, and

(b) in deciding whether to exercise its powers under this subsection, may have regard to any matters it considers

appropriate.

20. Some relevant elements of the provisions may be summarised. The maximum penalty for an offence under section 15A or 15B is

imprisonment for life. The subsection as inserted also provides for a minimum sentence, for which it expresses a policy justification

that was not part of the provisions that these subsections replace. “In view of the harm caused to society by drug trafficking,” where

a person over 18 years is convicted of an offence under section 15A, the court must specify a minimum term of imprisonment of not

less than 10 years. However, this is not absolute. If it is a first such offence and there are exceptional and specific circumstances

relating to the offence or the convicted person which would make the minimum sentence unjust, the court may impose a lesser

punishment. For this purpose the court may have regard to anything it considers appropriate, including—(i) whether the person

pleaded guilty and if so the stage and circumstances in which the indication to do so was given; (ii) whether the person materially

assisted in the investigation of the offence; (iii) whether the public interest in preventing drug trafficking would be served by the

imposition of a lesser sentence; (iv) the court can also take into account whether the convicted person has a previous conviction for

drug trafficking but a s. 15A offence on the person’s record outrules the discretion to depart from the 10 year minimum—see

subsection 3(H). The power to commute or remit a punishment cannot be exercised before the expiry of the minimum term less any

remission. Neither can temporary release be granted except for a grave humanitarian reason and then only for such time as is justified

by the reason. If the person was addicted to drugs at the time and that was a substantial factor leading to the offence, the court

may review the sentence after the expiration of half the specified term.

21. The subsection envisages that among the exceptional and specific circumstances are an early plea of guilty and material

assistance in the investigation of the offence. The court is entitled but not obliged to take a plea of guilty into account, particularly if

it is signalled early and if it has extra value. As to cooperation, that applies to material assistance in the investigation of the offence,

that is, the crime of possession by the person of controlled drugs having excess value. Information that the person provided about

others, for example, would arguably be considered to go outside the specific and instant offence and to refer to other crimes; for

such assistance the court can if it wishes allow additional mitigation or invoke the clause on the public interest in preventing drug

trafficking. The terms of the section imply that an early indication of guilt and relevant admissions as to the person’s own role cannot

be discounted as being unexceptional. The court may take them into account. It has to be a first such offence to give rise to the

discretion to depart from the minimum sentence but it would be relevant that a convicted person did not have previous convictions of

any kind. It is not sufficient that there are exceptional and specific circumstances in the case, whether relating to the crime or the

guilty person, because the subsection requires that these features make it unjust to apply the minimum.

22. The penalty provisions cited above that are applicable in these cases are similar in all material respects to those that were

considered in a series of appeals to the Court of Criminal Appeal so that jurisprudence is valuable as authoritative precedent. The

present contents of s. 27 (3A) and following subsections are replacements of provisions inserted by s. 5 of the Criminal Justice Act,

1999. There is however one significant difference: now, the statutory purpose behind the mandatory sentence is expressly stated.

The previous court’s authoritative analyses of the earlier provisions make clear that the legislative purpose was indeed understood

although it was then to be inferred. It may be therefore presumed that the explicit iteration of purpose in the present section was

intended to reinforce the authority of the court’s interpretation and to leave no room for uncertainty.

The Authorities

23. S.15A requires both exceptional and specific circumstances about the offence or the perpetrator that make it unjust to impose

the 10 year minimum sentence before the court is able to depart from that regime: DPP v. Botha [2004] 2 I.R. 375. Even if it would be

unjust to impose the 10-year minimum sentence, an offence under s.15A is a very serious one and the court must have regard to the

minimum and maximum punishment –the latter is life imprisonment—when determining the appropriate sentence. The fact that there is

a severe minimum albeit subject to some exceptions is an important guide to gravity: Renald CCA 23rd November 2001. The quantity

and value of the drugs are critically important in assessing gravity: DPP v. Long [2009] 3 I.R. 486. This also follows from the

specification of €13,000 in the section. People who enter into the trade for reward must expect severe treatment from the courts, in

enforcing the statutory policy clearly laid down by the Oireachtas. DPP v. Duffy CCA 21/12/2001; DPP v. Lernihan CCA 2007 IECCA 21.

Couriers play an essential role in the illegal drugs trade and if they willingly go into it for financial reward can’t expect less than severe

treatment from the courts in accordance with the clear and unambiguous policy of the legislation: DPP v. Hogarty– 21/12/2001 per

Keane CJ. Nevertheless, there have been cases under s.15A where wholly suspended sentences were upheld by the CCA; it is clearly

not wrong in principle to do so but that will only arise in rare cases. One such was People v. McGinty [2007] 1 I.R. 633 in which

Murray CJ said that a term of imprisonment is normally what should be imposed. “However, where there are special reasons of a

substantial nature and wholly exceptional circumstances, it may be that the imposition of a suspended sentence is correct and

appropriate in the interests of justice. “

24. In Alexiou [2003] 3 I.R. 513, the Court of Criminal Appeal said that when the trial court held that the statutory proposed minimum

would be unjust there should normally be a substantial term of imprisonment. It also said that considerations of vulnerability on the

part of the guilty person were relevant matters to be taken into account but those “considerations by no means automatically

override others, such as the impact on victims and the gravity of the offence. More often than not, any alleged vulnerability will have

little or only marginal effect on the sentence having regard to the gravity of the offence and the fact that the accused knowingly and

freely committed an offence which entailed the prospect of a serious custodial sentence. They are factors which can arise in any

case and the weight to be given them will vary”.

25. DPP v Botha [2004] 2 I.R. 375 is an early and authoritative analysis of the previous form of the penalty provision which is similar to

the present version. The application for leave to appeal a sentence of five years imprisonment imposed following a plea of guilty to a

charge under s.15 (A) of the Misuse of Drugs Act, 1997 was rejected. The court commented thus on the policy of the legislature:

“The Oireachtas, as it is entitled to do, has indicated that this offence is to be considered a very grave one capable of

attracting a sentence which might be regarded as harsh in certain circumstances and on certain individuals. It is

important that sentencing courts should bear this in mind. Furthermore, consistency of sentencing is desirable in this as in

other areas. It is true that the desideratum of consistency cannot be carried to the point of imposing a sentence which is

actually unjust. We would however say that the circumstances in which a sentence less than the one imposed for this

offence could be imposed must be indeed very exceptional.”

The court concluded that

“There was no error in principle in the sentencing and indeed a somewhat harsher sentence would not, in our opinion,

have been erroneous in principle either. Every mitigating factor was given all the weight it could possibly bear and the

learned trial judge was, if anything, generous to the applicant.”

Discussion

26. The DPP's application has to satisfy a stringent test. Did the learned sentencing judge fall into error of principle and impose a

sentence that represented a clear divergence from the norm? Relevant considerations in regard to the seriousness of the offence are

that the quantity and value of drugs were enormous; the accused was found in possession and he had a key to the unit and the

Transit van; he drove the Transit van around; he provided little enough in the way of assistance to the Gardai in their enquiries; he

did not name the person who brought him up and down although they were able to get a picture of that man from the toll plaza; the

other man's name was false and he did not immediately admit his role.

27. The trial judge accepted that the offence was obviously a serious one carrying a mandatory minimum sentence of 10 years

imprisonment but, he said, “I can depart from that sentence if I find excusing and exceptional circumstances” which he identified as

the early plea of guilty and the respondent’s co-operation with the Gardai. It is of course correct that section 15A requires

exceptional and specific circumstances that make it unjust to impose the minimum specified sentence. It would not be correct to

begin with the minimum sentence and then find mitigating features to reduce it. The section requires the judge to evaluate the

seriousness of the offence by reference to the range of penalties including the maximum and minimum sentences that the Oireachtas

has prescribed. Judged by the quantity and value of the drugs, this was a very serious case. The value of the drugs is of course of

major importance in evaluating the seriousness of the crime. The express purpose of the harsh legislative provision recites the harm to

society that is caused by drugs. The Court of Criminal Appeal in Botha acknowledged the entitlement of the legislature to declare this

offence to be a very grave one capable of attracting a harsh sentence and that it was important that sentencing courts should bear

this in mind.

28. The circumstances in this case are specific but the plea of guilty in the circumstances, although of course of considerable value,

was not exceptionally significant. The accused was, after all, caught more or less red-handed acting as if in charge of the unit and its

contents and he also had the key of the Transit van. As for co-operation, he did not even give the name of the man who drove him

from Dundalk and the name he did give of the other person was false. Nevertheless, his admissions of his own guilt did qualify under

that heading. Moreover, his description of his journeys to the store was of further assistance.

29. Mr. Murtagh got into the business to make money and not because he was a drug addict or in anyway coerced. A person who is

out of work and trying to scrape out an existence on jobseekers allowance is deserving of sympathy but this was a choice that the

respondent made and he did realise after a time that he was dealing with drugs. On the facts as revealed, it is not easy to see how

he could have been under any illusion as to what was going on. Having said that, the judge was entitled to come to the conclusion

that this man was a minor player operating in a big business and the evidence is clear in that regard.

30. In the circumstances, this Court is satisfied that there was an error in principle in this case in that the learned trial judge failed to

assess the gravity of the offence in accordance with the terms of the section and the legal authorities cited above. The facts of the

case indicated that this was a serious instance of a s. 15A offence, a point that the judge acknowledged, but he failed to reflect that

in his evaluation.

31. This court considers that the sentence imposed by the Circuit Court was unduly lenient. In view of the presence in the case of

the guilty plea and co-operation, which are specified in the section as matters that can be taken into account by the sentencing

court, this Court will not disturb the judge’s conclusion in that regard, although we consider that the starting point for this offence as

committed by this respondent could easily have been found higher on the scale of penalties. Having said that, allowing that there was

enough in the case to justify departure and giving maximum value to mitigation, the quantity and value of the drugs and the

circumstances of the case generally demanded that a higher sentence was required to comply with the legitimate statutory purpose.

32. In accordance with established jurisprudence, the court will afford the parties an opportunity of putting forward any up to date

relevant material relevant before imposing the sentence the court considers appropriate as of the present. In doing so, the court will

consider what allowance if any can be made for the anguish occasioned by the imposition of a further period of incarceration.