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Cite as: [2015] IECA 7

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Judgment


Title:	Director of Public Prosecutions -v- Heaphy
Neutral Citation:	[2015] IECA 7
Court of Appeal Record Number:	9/13
Date of Delivery:	30/01/2015
Court:	Court of Appeal
Composition of Court:	Kelly J., Birmingham J., Sheehan J.
Judgment by:	Court of Appeal
Status:	Approved

___________________________________________________________________________

THE COURT OF APPEAL

Kelly J.
Birmingham J.
Sheehan J.

9CCA/13

Between

Jenna Heaphy

Appellant

And

The People at the Suit of the Director of Public Prosecutions

Respondents

Judgment of the Court delivered by Mr. Justice Kelly on the 30th day of January 2015

Introduction
1. This is an appeal against the severity of sentences imposed on the appellant in the Cork Circuit Criminal Court on the 3rd December, 2012. On that occasion the appellant pleaded guilty to two offences, the first of which occurred on the 23rd May, 2010 and the second on the 1st September, 2010.

2. In respect of the first of the offences, the appellant pleaded guilty to possession of drugs, ie. heroin in the amount of €11,190 contrary to s. 15 of the Misuse of Drugs Act 1977.

3. In respect of the offence of the 1st September, 2010, the appellant pleaded guilty to possession of drugs in the amount of €16, 693 contrary to s. 15A of the Misuse of Drugs Act 1977, as amended.

4. The judge imposed a sentence of five years imprisonment in respect of the first offence and a concurrent sentence of eight years imprisonment on the second offence. He suspended the final two years of the eight year sentence.

5. The appellant contends that the trial judge made an error in principle in imposing these sentences, hence this appeal.

6. One of the main grounds of appeal relied upon is the disparity between the sentence imposed on the appellant and that imposed on her co-accused who also pleaded guilty to a s. 15A of the Misuse of Drugs Act 1977 charge in respect of the incident on the 1st September, 2010. He was sentenced to six years imprisonment on that charge, but it was suspended in its totality for a period of three years. That sentence has not been the subject of any complaint on the part of the DPP as to its leniency.

7. In order to consider this and the other grounds of appeal it is necessary to set out the circumstances of the two offences.

The Offence of the 23rd May, 2010.
8. On the 23rd May, 2010, officers from the Divisional Drugs Squad stopped the appellant and the third party in her car on the South Link road in Cork. Acting on confidential information, the drugs squad officers believed that the appellant and the third party had a substantial quantity of heroin concealed on their persons.

9. Initially the appellant refused to consent to being searched and was arrested and brought to Togher garda station for the purpose of a search. She was subsequently arrested under s. 25 of the Misuse of Drugs Act and a medical practitioner was called to the station because of concerns about her medical condition. She was brought to the South Infirmary where she refused medical treatment. She was returned to Togher garda station where after some time a packet of heroin containing 74.6grams was produced by her. It had a street value of €11,190.

10. The appellant was subsequently interviewed by gardaí and admitted to travelling with another person to England on the previous day. She accepted that she had booked the flights for both her and the third party and that she was bringing drugs back to this jurisdiction to pay off a drugs debt that she had incurred.

The Offence of the 1st September, 2010.
11. On the 1st September, 2010, officers from the Divisional Drugs Unit were monitoring the activities of the appellant. She was stopped while driving her own vehicle at approximately midnight. She was accompanied by her partner who was her co-accused. Both were taken to the Bridewell garda station for the purpose of a search under s. 23 of the Misuse of Drugs Act. The appellant was found to have a small single deal of heroin concealed in her bra. She was in possession of €1,435 in cash and during the course of a search of her motor car 111grams of heroin were recovered from the passenger footwell of the vehicle. The heroin had a street value of €16.693.

12. The appellant was interviewed on three separate occasions. Initially, she refused to cooperate and refused access to a mobile phone that had been seized from her. She would neither switch the phone back on or give the gardaí the code. They ultimately obtained it and found on the phone numerous text messages relating to the sale and supply of heroin. The garda evidence was that the phone clearly showed that the appellant was organising with an unknown person in Dublin for the collection of this heroin by a third party. The phone traffic showed her negotiating a price for the drugs and describing the person who was travelling to Dublin to collect the heroin. She subsequently gave to the Gardaí what they described as “an account which showed some culpability on her part, but it significantly played down her role in this offence”. She stated that when stopped she was driving her partner to a location on the north side to hand over the drugs. She would not identify to whom they were to be handed over and said she was not aware of how much drugs there were. The Gardaí did not accept this version of events. At the hearing in the court below, the garda view given in evidence was that the appellant orchestrated the offence and arranged for the drugs to be collected in Dublin. She paid for them and was going to be involved in the distribution of those drugs on their arrival back in Cork. She claimed that the €1,435 in cash which she possessed was for rent, but the garda view was that it was the proceeds of drug dealing. In cross examination, the Garda officer reiterated that whilst the appellant accepted some responsibility in respect of this offence, he was satisfied that from her mobile phone it was shown that she had a far greater role to play in the matter.

13. The appellant gave evidence and her counsel put to her that she did not make full admissions at the interview with the police, but asked her if she accepted full responsibly of the offence at this stage. She answered in the affirmative, and indicated that she now accepted full responsibility.

The Co-Accused
14. The co-accused in respect of the s. 15A offence was dealt with by the same judge on the 25th February, 2013, almost three months after he sentenced the appellant. The co-accused also pleaded guilty to an offence under s. 15A of the Misuse of Drugs Act 1977 as amended. The Garda evidence referred to the sentence which had been imposed upon the appellant and outlined the circumstances of what occurred.

15. The garda officer admitted that although the co-accused was known to the gardaí he was not “on the radar” in relation to this incident, but rather it was the appellant on whom they were focused. The car was owned by her. The co-accused and the appellant had a number of children together over the years and were described as being “partners on and off for many years”. The appellant was described as the more dominant partner in that relationship. Evidence was recounted of what took place at the interview with the Gardaí.

16. In cross examination the Garda witness said this:

“A: As I said, I think he was well aware of what was going on in the night in question. I am sure he would have profited in some way from being there and in being in a relationship with Jenna Heaphy. He certainly was not the main instigator, and I don’t think he would have been capable of organising what Jenna organised. So, in that respect he would be ……….

Q: Would he be a bit of an eejit? Would that be?

A: Yes possibly.”

17. The trial judge in imposing sentence on the co-accused said inter alia:

“Well, I have listened to what Det. Gda. Kennedy has said in particular about you and I think this is a case where I do not have to apply the rigours of s. 15A. Ms. O’Connell has asked me to approach the case in a particular way, which is on the basis of the decision of the Director of Public Prosecutions v. McGinty and Det. Gda. Kennedy, I thought was very fair to you. He said he did not see you as a significant player on their radar. So, whatever involvement you had was of a very limited nature. I suppose the involvement was that your partner was up to her eyeballs in it . . . you seem to me to be a genuine enough man and concerned about your children; you have three small children. And your probation officer, while she thinks you are at a high risk of re-offending, I think Det. Gda. Kennedy said that that is not really the case. You have been behaving yourself since 2010, you have been to Tabor Lodge. You have had various assistance. You have been to Heron House and you have been doing a lot of things that the people there want you to do. I accept what Det. Gda. Kennedy says that you are not a major player in this. It is just that your partner was involved in it, and you decided to accept responsibility. Whether I am right or wrong, I propose accepting what Ms. O’Connell has said to me and what I propose doing is imposing a prison sentence of six years which I will suspend in its entirety on your entering into a bond to keep the peace and be of good behaviour for a period of three years.”

The Appellant
18. The appellant had 57 previous convictions at the time of her sentence. One of these was a conviction under the Misuse of Drugs Act. She was imprisoned for three months on the 19th October, 2010, for possession of a forged prescription. With the exception of a conviction for robbery and threatening to injure with a syringe for which she received an eighteen month suspended sentence, all of the other convictions were for public order, theft or road traffic offences.

19. At the time of sentence she was 27 years of age and unemployed. She is the mother of four children, two of whom are in the care of her parents and the other two in the care of the Health Service Executive. She was a chronic heroin user. The prosecution took the view that no inquiry under s. 4 as to whether she materially benefited from drug dealing was required. Her drug dealing was for servicing her own chronic drug addiction.

20. There were probation reports before the Circuit Court and the risk assessment made by the Probation Service was that the appellant was at high risk of re-offending.

21. There was evidence that the appellant abstained from the use of drugs during the final six weeks of her pregnancy which resulted in the birth of her fourth child on the 25th October, 2011. But that situation did not last after the birth and the child was removed from her custody. She failed to appear in court on the 1st December, 2011, and a Bench Warrant was issued for her. She went to Northern Ireland and was arrested there on Christmas day 2011.

The Sentence
22. The trial judge in the course of imposing sentence recited the evidence which had been given in respect of the two offences. Insofar as the events of the 1st September, 2010, were concerned, he mentioned the garda view that the appellant had orchestrated the entire affair. He complimented the appellant on becoming drug free for the six weeks prior to the delivery of her fourth child. He described the appellant as someone with plenty of ability and he wondered how she could decide to go on this road of drug dealing and that she had shown little regard for her children. He said that there was no doubt, but that she was very much involved in drug dealing in the city of Cork. He referred to the appalling affect of drugs and her considerable involvement in them. He described her as a serious drug dealer.

23. The judge went on to point out that both offences carry a maximum sentence of life imprisonment. The s. 15A offence was one which required a minimum period of ten years imprisonment to be served unless there were exceptional and specific circumstances relating to the offence or the person convicted of the offence which would make a sentence of not less than ten years imprisonment unjust in all the circumstances.

24. The judge went on to consider whether there were such exceptional and specific circumstances. This is what he said:

“Do I apply the rigours of s. 15A or not? It gives me a certain discretion in the matter. I accept that you pleaded guilty and I think you indicated that you were going to that quite early on. As to whether you materially assisted the gardaí or not it is debatable, because you did not want to give them that telephone of yours, which of course, had all the vital information for them and for their investigation. They eventually were able to, shall I say, open the telephone and they did find the information they were looking for, that you were involved in this drug distribution racket or business. Not a racket, a business, because it is all for money.

I am concerned about the fact that you have four young children and I accept that you have taken steps to reform you lifestyle and that you are anxious to get back with your children if you can and I have considered this and I may be wrong in this, but what I am going to do is I am not going to impose the rigours of s. 3(b). I may be wrong from a legal point of view, but I am going to risk it. However, you were involved in serious drug dealing and both offences took place within a matter of months of one another. Most people would wake up after the first one, having been caught, but you persisted on.”

25. The judge then imposed the sentences under appeal.

Grounds of Appeal
26. The first ground of appeal relates to the sentences imposed for both offences. It is said that the trial judge mischaracterised the appellant as a serious drug dealer. It is also said that he failed to take into account the appellant’s efforts at drug treatment. It is also argued that he failed to have regard to the early pleas of guilty in each case.

27. The court is unable to accept that any of these criticisms of the trial judge have any validity.

28. It is clear from the evidence that it was no misdescription of the appellant to describe her as a serious drug dealer. Although the amounts involved may be regarded as comparatively small when contrasted with amounts in other cases, there is no doubt but that she was the person who made all of the necessary arrangements in respect of the deals. The judge did take into account her efforts at rehabilitation and also the guilty pleas. Given that she was caught red handed on each occasion, the value to be afforded to the guilty plea is diminished.

29. It is questionable as to whether there were in this case exceptional and specific circumstances to trigger the entitlement of the judge to apply the provisions of s. 3(b). Indeed the judge himself was uncertain about this, when he said that he might be wrong from a legal point of view, but was “going to risk it”. However, no appeal has been taken by the DPP against this sentence. The appellant might be considered fortunate to have been given the benefit of s. 3(b) in the circumstances.

30. The next ground of appeal and in truth the only one which raises any real issue, is that which is based upon the alleged disparity of sentence between the appellant and her co-accused.

Disparity
31. The argument is that there was no justification for the disparity in sentence as between the two accused persons on the s. 15A offences. It is further submitted that even if there was a basis for such disparity it is so large as to amount to an error in principle.

32. In Lowe v. Orr [1984] HCA 46, Gibbs C.J. in dealing with the disparity between sentences said:-

“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to taken into account.”

33. In The People (Attorney General) v. Poyning [1972] I.R 402, Walsh J. in delivering the judgment of the Court of Criminal Appeal on the topic of disparity of sentences said this:-

“It follows that when two persons are convicted together of a crime or of a series of crimes in which they have been acting in concert, it may be (and very often is) right to discriminate between the two and to be lenient to the one and not to the other. The background, antecedents and character of the one and his whole bearing in court may indicate a chance of reform if leniency is extended; whereas it may seem that only a severe sentence is likely to serve the public interest in the case of the other, having regard both to the deterring effect and the inducement to turn from a criminal to an honest life. When two prisoners have been jointly indicted and convicted and one of them receives a light sentence or none at all, it does not follow that a severe sentence on the other must be unjust. If in any particular case one of such joint accused has received too short a sentence that is not per se a ground on which this Court would necessarily interfere with the longer sentence passed on the other. Of course, in any particular case the Court must examine the disparity in sentences where, if all other things were equal, the sentences should be the same; it must examine whether the differentiation in treatment is justified. The Court, in considering the principles which should inform a judge's mind when imposing sentence and having regard to the differences in the characters and antecedents of the convicted persons, will seek to discover whether the discrimination was based on those differences.”

34. These quotations are entirely apposite to the position which obtains here.

35. The appellant was the main instigator of the s. 15A offence and organised the whole affair. Her co-accused was described as not being capable of so doing. There was a world of difference between the involvement of the appellant and her co-accused.

36. This difference in role clearly justified a different sentence being imposed on the appellant than on her co-accused.

37. Given the statutory provisions which apply in respect of s. 15A, the appellant’s co-accused can regard himself as fortunate to have had an entirely suspended sentence imposed upon him. It was a lenient sentence, even taking into account the very limited role that the co-accused had. But the fact that he received such a lenient sentence does not mean that it follows that the sentence on the appellant is unjust or that the trial judge was wrong in principle in imposing it. Given the circumstances of the s. 15A offence and the part played by the appellant, the sentence imposed upon her could not be regarded as wrong in principle. Neither does the disparity between her sentence and that of the co-accused amount to such. There is no legitimate criticism that can be made of the sentences imposed on the appellant.

38. Accordingly, this appeal fails.

The suspended sentence
39. The trial judge suspended the final two year period of the sentence on condition that the appellant obtain a place in Coolmine Centre. He did so at the specific request of the appellant. It is now submitted that an order providing for the suspension of the sentence would be more beneficial if it was directed towards the appellant complying with the all the recommendations of the Probation Service concerning drug treatment. This would allow the appellant to access drug treatment centres in addition to Coolmine. Logistical difficulties might be experienced eg. a bed not being available in Coolmine at the relevant period or the appellant might not herself be eligible for Coolmine at the appropriate time. Thus, the form of suspension unduly limits the appellant.

40. The respondent accepts this to be so, but objects to its characterisation as an error in principle on the part of the trial judge.

41. The judge did what was requested of him by the appellant but for the reasons outlined and in ease of the appellant the court proposes to vary the terms of the suspension so as to accord with what is now sought by the appellant namely, that the two year period be suspended on inter alia, condition that she comply with all the recommendations of the Probation Service as regards drug treatment. The specific wording of the proposed order will be discussed with counsel.

Result
42. This appeal is dismissed.

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