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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions -v- Murtagh [2015] IECA 3 (19 January 2015)
URL: http://www.bailii.org/ie/cases/IECA/2015/CA3.html
Cite as: [2015] IECA 3
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Judgment
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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:
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. 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
(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."
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.
…. 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." Penalty for section 15A offence: Section 27 of the 1977 Act as amended
(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) the stage at which he or she indicated the intention to plead guilty, and (II) the circumstances in which the indication was given,
(ii) whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence. (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,
(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. 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 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 IR 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:
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. |