Irish Court of Appeal
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Cite as: [2015] IECA 166
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Judgment
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THE COURT OF APPEAL Mr. Justice Sheehan Appeal No. 23/14 The People at the Suit of the Director of Public Prosecutions Respondent - and - Shane Ferguson Appellant Judgment of the Court (ex tempore) delivered on the 22nd day of June 2015 by Mr. Justice John Edwards 1. This is a case in which the appellant pleaded guilty on 19th April 2013 to three drug offences before Limerick Circuit Criminal Court, comprising one count of possession of a controlled drug, the market value of which amounted to €13,000 or more for the purposes of selling or otherwise supplying it to another contrary to s.15A of the Misuse of Drugs Act 1977 as amended, one count of possession of a controlled drug for the purposes of selling or otherwise supplying it to others contrary to s.15 of the Misuse of Drugs Act 1977 and one count of possession of a controlled drug contrary to s.3 of the Misuse of Drugs Act 1977. 2. The appellant was sentenced on 17th January 2014 to seven years’ imprisonment on count number 1, this being the s.15A count, and the sentence was to run from 25th May 2012. No order was made on the other two counts they being effectively taken into consideration. The appellant now appeals against the severity of his sentence. Relevant background 4. The appellant then drove the van to Poyntzpass, Newry, Co. Down where he collected a significant quantity of cannabis, that is the cannabis that is the subject matter of this prosecutions. A number of stickers were torn from the exterior of the van and were found in a bin at the address from where the cannabis was collected in Poyntzpass in Newry. The appellant drove the van from Newry south to Co. Limerick. The progress of the van was tracked on the motorway system. The appellant was also captured on CCTV paying at a toll station in the course of his journey. At about 7 p.m. the van was observed close to Ahane school in Co. Limerick. 5. The appellant met an accomplice, Ciaran Nevin, who was driving a Mazda 626 motor car. The two individuals swapped vehicles, Mr. Nevin drove away in the van towards a cottage in Murroe, Co. Limerick. Mr. Ferguson drove away in the Mazda 626. CCTV footage taken from Finnegans, which is a well known licensed premises, connected the appellant to Mr. Nevin’s Mazda. Mr. Nevin moved five large cardboard boxes from the van into the aforementioned cottage. When Mr. Nevin drove away from the cottage his vehicle was stopped and searched by members of an garda siochaná. Later armed with a search warrant the gardaí entered the cottage using a key that Mr. Nevin had in his possession. 6. It was ascertained that the boxes, which contained the cannabis and which were located in the cottage, had stickers placed on them from UPS which is a well known delivery company. It was possible having regard to the labelling on the boxes to reconstruct the movements of the consignment. It was noted that the boxes had travelled by air from Eindhoven in the Netherlands having left at 9.20 a.m. on 24th May 2011. The consignment passed through Cologne and Germany and arrived at Castle Donnington airport in England on 25th May 2011 at 04.38 a.m. The consignment then arrived at Newtownabbey airport on 25th May 2011 at 07.44 a.m. and it was possible then to establish that the boxes had been delivered to an address at Poyntzpass at 10.05 a.m. - all on 25th May 2011. 7. It was established in evidence that a consignment of cannabis, the subject matter of this prosecution, was delivered as part of a sophisticated operation involving the supply and distribution of cannabis. The quantity involved was very large. It amounted to in excess of 52.2 kilos with an established street value of €1,450,138. The sentencing hearing 9. The court was told that the appellant was born on 6th July 1967 and was forty four at the time of the offence. He was a married man, but separated, and was an un-employed carpenter. He had eleven previous convictions, the majority of which were for road traffic offences. However, he had two convictions for assault causing harm contrary to s.3 of the Non Fatal Offences against the Person Act 1990 and one conviction for producing an article capable of inflicting serious injury in the course of a dispute contrary to s.11 of the Firearms and Offensive Weapons Act 1990. All three of these charges arose out of the same incident. He received suspended sentences of four months on each of the assault charges and the s.11 charge was taken into consideration. 10. The court heard evidence from a Mr. Duggan, a building contractor, who had previously employed the appellant for a number of years before the downturn in the building trade had forced him to let the appellant go. Mr. Duggan spoke highly of his skills as a carpenter, expressed shock at the appellant’s involvement in these drug offences and stated that when the appellant became free again he would be in a position to offer him work. 11. The court was also furnished with a number of documents consisting of certificates of participation and achievement on a programme of drug counselling and a report concerning the appellant’s involvement with the Bedford Row project. 12. However, in response to a question to Det. Gda. Crawley from prosecuting counsel concerning whether the appellant in the course of being interviewed following his arrest had offered drug addiction as an excuse or explanation for being involved in these offences the Det. Gda. replied ‘no’. 13. The following matters were highlighted on behalf of the appellant:-
(b) The appellant had made admissions in respect of the offence. (c) The appellant did not own the drugs. (d) The appellant had spent time in custody participating in educational studies and obtaining certificates in addiction studies. (e) The appellant was abusing drugs at the time of the offence, but that he had dealt with his addiction by the time of the sentencing hearing. (f) The appellant did not display any trappings of wealth. (g) The appellant had no previous convictions for any offence related to the drugs.
16. The appellant contends that his sentence ought to be set aside on the grounds that it was excessive and specifically:-
2. The sentencing judge erred in treating the appellant’s failure to mention his drug addiction when interviewed as an aggravating factor. 17. Counsel for the respondent submitted that this case raises a number of issues for consideration by this court. These include:-
(b) the principles governing the sentencing of both offenders; (c) the principles applicable to s. 15A drugs offences. 19. It was urged on the court on behalf of Mr. Ferguson that Mr. Nevin’s culpability was, if anything, greater than the appellant’s in circumstances where he had rented the cottage under a false name specifically for the purposes of warehousing the drugs pending their ongoing distribution, where he had received the contraband and placed it in storage, where he had admitted to have also done so on other occasions in the recent past and where he had, that very morning, collected a mobile phone specially for use in connection with the handling of these drugs and which he admitted it was intended to be disposed of in a nearby river once delivery was taken. 20. Conversely, counsel for the respondent pointed to the detail of the appellant’s involvement as disclosed in the evidence, much of which has been summarised earlier in this judgment. This included evidence that the appellant had been contacted in advance by those who were clearly the owners of the drug shipment, that he was told on the morning what to do, that he was given money to do it, that he had rented the van in his own name and taken out additional insurance to facilitate the rental, that he had made the round trip to Newry, that he had removed stickers from the van to make it less identifiable, that he had rendezvoused with Mr. Nevin on his return, that he had swapped vehicles with Mr. Nevin and that he had then proceeded to Finnegans ostensibly to await the return of Mr. Nevin with the van. 21. Counsel for the respondent also submitted that it was uniquely for the sentencing judge to analyse the evidence. He submitted that the trial judge had taken great care. He submitted that the trial judge’s decision was grounded on the facts. The trial judge did not just act on the garda’s opinion as to where the greater culpability lay, rather he carefully assessed all of the evidence and arrived at a view that he could, and should, differentiate between the involvement of the two accused. 22. In counsel’s submission, there was a rational basis for differentiation. Moreover, it was submitted that a sentencing judge must be afforded a substantial margin of appreciation in his assessment of the evidence. 23. This court readily accepts that an appellant court should be slow to seek to look behind any assessment of the evidence by a sentencing judge. By the same token, it is clear from The People Director of Public Prosecutions v. Poyning [1972] Irish Report 402 and also the decision in The People DPP v. Conroy No. 2 that where an appellant court has concerns about ostensibly disparate sentences imposed on parties to the commission of the same offence, it is entitled to investigate if different sentences were, in fact, justified having regard to the character and antecedents and the respective culpability of the individual offenders. The court has such concerns in the present case. 24. Having examined the character and antecedents and the respective culpabilities of the individual offenders in this case, the court is not satisfied that there was, in fact, a rational basis for differentiating between them, at least to the extent that the sentencing judge did. 25. That having been said, the court is entirely satisfied that the sentence of seven years imprisonment imposed on the appellant was, in fact, appropriate and in accordance with recent jurisprudence of this court such as in The People DPP v. Ryan [2015] IECA 10 (unreported, Court of Appeal, 19th January 2015) and The People DPP v. Bowen [2015] IECA 95 (unreported, Court of Appeal, 1st May 2015). 26. The difficulty in this case is that the sentence imposed on Mr. Nevin was arguably very lenient, possibly even unduly lenient, although this court has not been asked to review it. One of the principles underlining Poyning’s case was what Finlay J. referred to as “The substantial sense of grievance at unfair treatment.” which may be caused by disparate sentences. It is clear from the case of The People (Director of Public Prosecutions) v. Duffy [2003] 2 I.R.192 that this court has jurisdiction to intervene in such circumstances in the interest of justices but also for the maintenance of public confidence in the administration of justice. Consistency in sentencing and predictability are important values in the law of sentencing. 27. This court therefore finds that the sentencing judge erred in principle in differentiating between the two accused to the extent that he did and will uphold the appeal on the first ground. The court is not disposed to uphold the second ground of appeal. 28. The court is satisfied that what the trial judge was concerned about was the fact that the appellant had not been coerced or motivated in any way by circumstances of addiction to drugs to become involved in this crime, and that, on the contrary, the evidence suggested that he had done so for financial gain. Although the judge’s remarks were somewhat infelicitously expressed the court is satisfied that the judge did not, in fact, regard the failure to mention his drug addiction at interviews as being an aggravating circumstance. Rather, he was legitimately pointing to the fact that the appellant himself had failed to produce any evidence that he had been motivated by, or had acted on foot of, his drug addiction, and that to have become involved purely for financial gain was an aggravating factor. 29. Moreover, the evidence of the appellant’s own witness, Mr. Duggan, indicated that the appellant had been holding down a full time job until some months before the incident in which he was arrested, and was ostensibly functioning normally and displaying none of the usual symptoms of severe addiction difficulties. 30. Accordingly, in circumstances where the court has found an error of principle as indicated, it will now proceed to quash the sentence of seven years imposed on the appellant and to sentence him afresh. 31. In accordance with established jurisprudence the parties were invited on a contingent basis to place any additional materials before the Court that they might wish to have taken into account. A number of testimonials were submitted on behalf of the appellant indicating how he had been getting on in prison and these will be taken into account. 32. The aggravating and mitigating factors are well rehearsed at this point. Suffice to say that the court wishes to indicate that it regards this as being a very serious case. The quantity of drugs was really very large and the street value was in the seven figure range. Any offence involving that level of drug trafficking and drug possession and supply must necessarily attract a substantial custodial sentence. 33. The court has already indicated that it does not consider that there was a rational basis for differentiating between the circumstances of Mr. Ferguson and his co-accused, and also that Mr. Nevin, the co-accused, was dealt with significantly more leniently than Mr. Ferguson. The court recognises that in those circumstances Mr. Ferguson may harbour some sense of grievance along the lines referred to by Finlay C.J. in the Poyning’s case. 34. Nevertheless, it is the court’s view that the sentence of seven years imprisonment imposed on Mr. Ferguson’s was, in fact, an entirely appropriate sentence having regard to the gravity of the crime and the court’s view of his culpability. But in recognition of the possibility that a sense of grievance is harboured and in recognition of the need to maintain public confidence in the administration of justice and to promote consistency and predictability in sentencing, the court, as a matter of discretion, has decided to reduce the sentence imposed by the learned trial judge by one year and will impose a sentence of six years in substitution for the sentence of seven years imposed by the sentencing judge. 35. The court has been very strongly influenced in deciding to exercise its discretion in this respect by the positive testimonials that have been handed in this afternoon showing a high level of positive engagement and work by Mr. Ferguson while in custody. The court is impressed by the efforts that Mr. Ferguson has been making towards his rehabilitation and that, amongst other things, has influenced this court in deciding to exercise its discretion in the manner in which it has done so. 36. The message must still go out, however, that insofar as this Court is concerned seven years was not an inappropriate sentence for this crime. The problem was that for recognisable reasons a sense of grievance might be harboured as between the two accused in circumstances were one was treated more leniently than the other despite there being no ostensibly rational basis for that differentiation. |