Irish Court of Appeal
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Cite as: [2015] IECA 95
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Judgment
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THE COURT OF APPEAL Birmingham J. Sheehan J. Edwards J. Record No: 82 CJA/2014 IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993 The People at the Suit of the Director of Public Prosecutions Appellant v Warren Bowen Respondent Judgment of the Court delivered on the 1st day of May, 2015 by Mr. Justice Edwards
Introduction 2. On the 7th December, 2012 the respondent asked to be re-arraigned and on this occasion he pleaded guilty to the s.15A count, and counsel for the appellant indicated that this was acceptable to her. Following this development the respondent’s case was also adjourned to the 27th February, 2013 for sentencing, with a direction that a probation report be prepared in respect of him. 3. Following a sentence hearing on the 27th February, 2013, when the probation reports that had been directed were before the Court and had been duly considered by the sentencing judge, the sentencing judge decided to adjourn all three cases for a year and directed that up to date probation reports should be made available in respect of the respondent and Sharon Flanagan on the adjourned date. 4. On the 27th February, 2014, having received the up to date probation reports that had been directed, the sentencing judge imposed the following sentences:
• Sharon Flanagan was sentenced to five years imprisonment suspended for five years on a bond in the sum of €100.00 to keep the peace for that period; • Kevin Flanagan was sentenced to three years imprisonment suspended for three years on a bond in the sum of €100.00 to keep the peace for that period. 6. The appellant has also sought to appeal the sentence imposed upon Sharon Flanagan on the grounds that it was unduly lenient, and the appeal in her case will be the subject of a separate judgment. The evidence at the sentencing hearing on the 27th February, 2013 8. After a short while the respondent left the area and then after another short period of time Sharon Flanagan brought one length of timber to the rear of the house where she sawed it in half and then using a chisel and a hatchet she split open the timber pieces. This action revealed that the length of timber had concealed within it a substance quantity of cannabis resin. Sharon Flanagan then left the sawed piece of timber at the rear of the house and she drove off in her car. 9. Kevin Flanagan is the father of Sharon Flanagan. He had been at the residence and was present when the timber was delivered by the respondent. Kevin Flanagan then went to the rear of the house. He picked up the pieces of timber that had been sawed and chiselled and he hid them behind two large barrels and placed a few items over them. Kevin Flanagan then returned to the side of the house and picked up the second piece of timber, which was still intact, and placed this in a shed down in the garden. 10. At 2.20 pm, on the 19th October, 2011, Garda Dermot Gibson and Colin O'Leary executed a search warrant issued under section 26 of the Misuse of Drugs Act on the residence of Sharon Flanagan at Cappacasheen, Kinvara. A search was carried out on these premises and a quantity of cannabis resin comprising seven kilograms in weight, was discovered. This cannabis had a value of €42,596. Gardai continued to search this residence over the subsequent two days and during the course of this search discovered three quantities of cash. €9,800 was found hidden in a couch in the living room, €8,040 was found hidden under chipping stones at the front of the house and €10,050, which had been wrapped up in plastic, was found hidden under gravel at the front of the house. The total cash discovered amounted to €27,890. 11. Sharon Flanagan was arrested by Garda Dermot Gibson for an offence under section 15 of the Misuse of Drugs Act and she was detained under section 2 of the Criminal Justice (Drug Trafficking) Act 1996. She was conveyed to Gort Garda Station where she was interviewed on five occasions. During the interviews she admitted possession of the cannabis. She refused to say who she got the drugs from and maintained that she was not at home when the drugs had been delivered, denied that they were delivered by the respondent, her co accused, and stated that the money found hidden on her property was for the purpose of paying for the drugs seized. 12. As a result of the discovery of the drugs at Sharon Flanagan's residence, a follow up search was carried out at the residence of the respondent. This was carried out on the 19th October, 2011. The warrant was executed by Garda Dermot Gibson. During the course of this search Gardaí located a similar length of timber to the two that had been found at Sharon Flanagan's house, in an adjacent shed that was used as a workshop. This piece of timber was also found to contain a substantial quantity of cannabis, amounting to four and a half kilograms in weight, and worth €28,974. The Gardaí also found a shorter piece of timber which also contained a quantity of cannabis. In addition, yet another quantity of cannabis was found in a bedroom in the house. In total, the amount of cannabis found at the respondent's home came to over six kilograms and had a value of €37,100. 13. The respondent wasn't present during the course of this search. He was arrested later that evening in Barna, detained under section 26 of the Criminal Justice (Drug Trafficking) Act and conveyed to Loughrea Garda Station, where he was interviewed on seven occasions. In interview he admitted to having possession of cannabis at his home and also admitted to delivering cannabis to Sharon Flanagan's residence at Cappacasheen, Kinvara. 14. Garda McWalter further testified that the drugs in this case were concealed in an unusual manner in that they had been cleverly concealed within the timber itself. An ordinary piece of timber was sliced length ways, and one slice was then hollowed out in various chambers. The drugs were then placed in these chambers and expanded foam was placed around them to prevent movement. The other timber slice was then glued back on top of the hollowed out piece and the whole thing was made to again look like a very ordinary piece of timber. Garda McWalter opined that it was a very professional operation. 15. Garda McWalter also testified that Kevin Flanagan was arrested on the 20th November, 2011 and he was interviewed at Galway Garda Station where he admitted his role in the hiding of the cannabis. 16. Dealing with the personal circumstances of this respondent, Garda McWalter testified that he was born in 1967, making him 45 years of age at the date of the Garda’s testimony, and that he had no previous convictions. The Court was told he was originally from South Africa, but that in his youth he moved to England. He had developed a relationship with a woman with whom he has a child: a daughter aged approximately 9 or 10 years. He had subsequently moved to Ireland, and was involved in carpentry work, cabinet making and theatre. 17. When asked where the cannabis had come from, Garda McWalter told the Court that on the 15th October, 2011 the respondent had travelled to the UK by ferry and had returned on the 18th October, 2011. He had travelled in a white English registered van on the outward leg and had been driving a blue English registered van on the return leg. The latter was the van in which he had delivered the cannabis to Sharon Flanagan. 18. Under cross examination, Garda McWalter agreed that the respondent upon being stopped in his van on the occasion of his arrest had immediately given his correct name and address. He agreed that when told that he was being arrested because a large quantity of suspected cannabis had been found at his home, he had responded “Yeah, I know they are there”. Relevant Reports
Of relevance to this assessment are the facts that: (a) the defendant has some very positive, prosocial friends in his life (b) the defendant has cut his links with and former associated in the drugs world (c) the defendant does not have any drug/alcohol or other addiction issues (d) the defendant has not got an mental or ill health problems (e) the defendant has family, employment and healthy additional interests Given the above, I am of the opinion that there are very many positive aspects to this defendant's life. There are no previous convictions. He is also a father to a ten year old daughter with whom he has regular contact. He is a creative, skilled man whose work has been enjoyed by many in the arts/entertainment field. He is assessed at low risk of reoffending. The Court will no doubt have a penalty in mind for the disposal on this case. I would respectfully recommend, however, that some consideration be given to the many positive factors in this defendant's case. I believe he will adhere to any Court Order that might be made and this Service would be willing to continue working with the defendant in the community should a community based option be considered.”
“… So, I think it would be appropriate then that they be adjourned to the first sittings in after Christmas next year.”
I am to inform the Court that the Mr Bowen co-operated fully, keeping all of the appointments arranged for him and engaging fully in the supervision process. He adhered to all of the bail conditions set out for him by the Court and was meticulous in ensuring that he would not give any rise for concern in this regard. I met with Mr Bowen both at the Probation Office in Galway and at his home in Kinvara. At all times he was forthright, co-operative and pleasant with no evidence of disrespect or discourtesy. He was always at least ten minutes early for his appointments at the Probation Office indicating reliability. His interactions with other staff were positive. Mr Bowen continues to be deeply ashamed of his involvement in these offences. This has been and continues to be a profoundly traumatic time for him and he is experiencing a high degree of anxiety relating to his court appearance. As I stated in my original report Mr Bowen clearly knows what he did was wrong and wishes 'he could turn the clock back'. There has been no repeat of this type of activity and the likelihood that he will trouble the Courts again is low. Mr Bowen worked on a regular basis during the year. He continues to work as a carpenter and is employed by a Galway Company which specialises in creating backdrops, sets etc for various dramatic productions across the country. He enjoys this work as he has a keen and inherited interest in art and creativity in its many forms. He has a positive work ethic and this has helped him through this difficult time. He has also a number of positive, supportive friends. Extra to what was required by the Court, Mr Bowen also attended regularly for urinalysis. All of his tests were clear and I understand that he may have a medical report to this effect in Court. He is most anxious to prove that he has moved away from all drug related activity. Having completed the initial assessment and having supervised this defendant over the past year I have found him to be at all times genuine in his effort to adhere to his Court Order and to the conditions that the Court set out. He is compliant and is anxious that this continues to be the case. I respectfully recommend that the Court give consideration to a community option/sanction when finalising this case. Mr Bowen has been excellent in his level of engagement and compliance over the past eighteen months and this is unlikely to change. The likelihood of he re-offending is low. He is not in need of any further intervention by the Probation Service.” 22. Having listened to pleas in mitigation on behalf of the respondent, and his co-accused, the trial judge made the following remarks relevant to the respondent’s case:-
“In respect of Mr MacCarthy's client, Warren Bowen, the first -- the gravity of the offence … warrants a sentence of seven years' imprisonment, having regard to the value of the controlled drugs. I take a … view, having regard to his early plea and the absence of any previous wrongdoing, that there are exceptional specific circumstances that would make -- renders it unjust for me to impose the minimum mandatory presumptive 10-year sentence. So, having regard to the mitigating matters that have been outlined to me, it seems to me that a proportionate sentence is four years' imprisonment, which I will suspend in the circumstances in its entirety on the condition that he enters into a bond to remain of good behaviour. This will remain as an incentive to him to continue the progress that he has made towards tackling this problem and a deterrent against future misbehaviour. Each of the parties will be required to enter into a bond. I directed in the case of -- was it in the case of Warren Bowen, a disqualification period? MR O'DONNELL: Yes, Judge. JUDGE: That disqualification period should be two years.” 23. The appellant contends that his sentence ought to be set aside on the grounds that it was unduly lenient, and specifically:-
(b) That the said sentence did not adequately reflect the nature of the charges and the consequences of the accused's acts and their potential effect on society. (c) That the Learned Trial Judge erred in principle in failing to give any sufficient weight to the evidence of the prosecution as to the circumstances of and surrounding the commission of the offence admitted, and in particular:- (i) The provisions of the legislation in relation to the applicability of a mandatory minimum sentence of 10 years for an offence under section 15 A of the Misuse of Drugs Act of 1977 (as amended). (ii) The sophistication and professionalism of the operation undertaken by Warren Bowen. (iii) The thoroughness of the premeditation involved in the commission of the offence. (iv) The prior history of offending Warren Bowen. (v) The failure to impose a custodial sentence in the matter.” 24. The essence of the appellant’s case is succinctly summarised in paragraph 38 of the written submissions filed by her counsel. The appellant contends therein that while it is accepted that the learned trial judge was entitled to find that it would be unjust to apply the presumptive mandatory minimum sentence of 10 years in this case, he erred in principle in then not having due regard to the inherent seriousness and fundamental gravity of the offending conduct, as he was required to do in accordance with the judgment in The People (Director of Public Prosecutions) v. Renald (unreported, Court of Criminal Appeal, Murray J., 23rd November, 2001). It was submitted that the overwhelming tenor of the case law in relation to sentencing in section 15A cases indicates that custodial sentences are unavoidable in cases involving the proven facts and circumstances in these cases. 25. Before referring with particularity to the passages relied upon in Renald, it may be helpful to set out the terms of s. 27 of the Act of 1977, as amended by s. 84 of the Criminal Justice Act 2006 and s. 33 of the Criminal Justice Act 2007, to which there is considerable reference in that judgment:-
(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—
(ii) the stage at which he or she indicated the intention to plead guilty and (iii) the circumstances in which the indication was given, and (iv) whether that person materially assisted in the investigation of the offence.
(ii) whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence.” “Even where exceptional circumstances exist which would render the statutory minimum term of imprisonment unjust, there is no question of the minimum sentence being ignored…even though that sentence may not be applicable in a particular case, the very existence of a lengthy mandatory minimum sentence is an important guide to the Courts in determining the gravity of the offence and the appropriate sentence to impose for its commission. That is not to say that the minimum sentence is necessarily the starting point for determining the appropriate sentence. To do so would be to ignore the other material provision, that is to say the maximum sentence. It would be wrong to assume that the offence of importing controlled drugs in excess of the prescribed amount or value will attract only the mandatory minimum sentence, long though it may be. Clearly subsection (3C) requires the sentencing Court to examine circumstances relating to the offence or the person convicted of the offence which, it is alleged, are exceptional and specific and which in the opinion of the Court would render a sentence of not less than ten years imprisonment unjust. To perform that task the sentencing Court must form some view of what an appropriate sentence would be having taken into account the matters which the Court considers appropriate including the matters expressly specified in subsection (3C) aforesaid. If the Court is satisfied that factors exist which would render the mandatory minimum sentence unjust then the Court is not required to impose it but the existence of such matters or circumstances does not reduce the inherent seriousness of the offence. It remains the task of the Court to impose a sentence which is appropriate having regard to the relevant circumstances and also the fundamental gravity of the offence as determined by the Oireachtas and reflected in the sentences which it has prescribed. The statute does not expressly authorise the use of the minimum sentence as a "benchmark" in the sense of providing a figure by reference to which particular reductions or discounts should be afforded having regard to material circumstances existing in the particular case. On the other hand the sentencing limitations imposed by the Oireachtas are, as has been pointed out, of the utmost importance in recognising the gravity of the offence and determining the appropriate punishment.” 27. In the present case the basic complaints are twofold. First, that the trial judge failed to attach sufficient weight to the seriousness of the offending conduct. As a subset of this it is complained that he erred in principle in failing to advert to the declaratory principle of section (3D) (a) of the Act of 1977, as amended, and the harm caused to society by drug trafficking. It was further contended that his findings that factors existed which rendered the mandatory minimum sentence unjust did not reduce the inherent seriousness of the offences. Secondly, it is complained that he attached too much weight to the mitigating factors in the case. In that context it was submitted, inter alia, that relatively little weight could attach to the early plea in circumstances where the respondent was effectively caught red handed. 28. This Court was invited to consider a large of number of comparators, including The People (Director of Public Prosecutions) v. John Duffy (unreported, Court of Criminal Appeal, 21st December, 2001); The People (Director of Public Prosecutions) v. Roy Foster (unreported, Court of Criminal Appeal, 15th May, 2002); The People (Director of Public Prosecutions) v. Martin Galligan (unreported, Court of Criminal Appeal, 23rd July, 2003); The People (Director of Public Prosecutions) v. Gary Goodspeed [2009] IECCA 81 (ex tempore, Court of Criminal Appeal, 13th July, 2009) ; The People (Director of Public Prosecutions) v. Robert Henry (unreported, Court of Criminal Appeal, 15th May, 2002); The People (Director of Public Prosecutions) v. David Kinahan [2008] IECCA 5 (ex tempore, Court of Criminal Appeal, 14th January, 2008); The People (Director of Public Prosecutions) v. Rory Lernihan [2007] IECCA 21 (unreported, Court of Criminal Appeal, 18th April, 2007); The People (Director of Public Prosecutions) v. Derek Long [2009] 3 IR 486; The People (Director of Public Prosecutions) v. David Spratt [2007] IECCA 123 (ex tempore, Court of Criminal Appeal, 10th December, 2007); The People (Director of Public Prosecutions) v. Brian Byrne and Eoghan Phayer [2015] IECA 5 (unreported, Court of Appeal, 19th January, 2015); The People (Director of Public Prosecutions) v. Rooney and Ryan [2015] IECA 2 (unreported, Court of Appeal, 19th January, 2015; and The People (Director of Public Prosecutions) v. Cathal Murtagh (unreported, [2015] IECA 3 (unreported, Court of Appeal, 19th January, 2015). 29. The Court has considered each of these cases and they clearly illustrate that in the overwhelming majority of cases a s.15A offence will attract and require the imposition of an immediate, and frequently significant, custodial sentence. In acknowledging that, however, it is important not to lose sight of the requirement that a sentencing judge is not sentencing for the offence per se, but for the offence as committed by the particular offender in the particular circumstances of the individual case. While it is clear that a custodial sentence will be the norm in s. 15A cases, having regard to the position taken by the legislature in especially deprecating the harm caused to society by drug trafficking, and in setting a presumptive mandatory minimum sentence of ten years for such offences that is only to be departed from where exceptional circumstances exist, it cannot be the case that the legislature intended to so emasculate the discretion of a sentencing judge as to preclude him from ever imposing a non-custodial sentence in a wholly exceptional but nonetheless appropriate case. It is accepted, however, that such cases are likely to be rare and infrequent. 30. To state that a sentencing judge must have the freedom to have recourse to the full range of sentencing options open to him, including non-custodial options, even in a s.15A case, is merely to reiterate what was clearly stated in The People (Director of Public Prosecutions) v. Jervis and Doyle [2007] IECCA 14 (unreported, Court of Criminal Appeal, 25th March, 2014), on which the respondent relies. However, as Irvine J., giving judgment for this Court in the Byrne and Phayer case, cited above, succinctly put it:-
However, insofar as the submission of the D.P.P. contended that a suspended sentence must always, and in every circumstance, be considered wrong in principle, the Court does not accept that this is a correct principle to be applied. First of all there is nothing in the legislation to suggest that the Oireachtas intended to compromise to that extent the judicial function to impose the appropriate sentence in the circumstances of the case. On the contrary, the Oireachtas expressly provided for a trial judge to exercise his or her judicial discretion according to the justice and circumstances of the case when it provided for the non-application of subsection (3B) in certain circumstances. Generally speaking legislation is incapable of dealing specifically with the vast range of circumstances and factual elements that differentiate one case from another even though they involve an offence under the same section and this the Oireachtas has recognised in the provisions just referred to. It cannot be said that there could never be circumstances in which, having regard to the interests of society as a whole, the facts of the particular case and the circumstances of the accused, where a suspended sentence would be appropriate. Undoubtedly a trial judge sentencing a convicted person for an offence such as that in question here is constrained by the considerations already referred to above to consider 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 interest of justice. This is a combination of factors which could only arise in a relatively rare number of cases. This Court has previously upheld a sentence of such a nature in the case of D.P.P. v Alexiou [2003] 3 I.R. because there were such exceptional circumstances and special reasons.”
Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts but also upon the personal circumstances of the accused. 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 dependent 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.”
35. The trial judge sought to locate the offence on the range of potential penalties before consideration of any mitigating factors, and in doing so indicated that it warranted a sentence of seven years imprisonment having regard to the value of the controlled drugs. He was satisfied as to the existence of exceptional circumstances sufficient to justify him in departing from the mandatory minimum sentence, and the appellant takes no issue with that. The sophistication and professionalism of the modus operandi of concealment of the drugs was an aggravating factor, but as he had earlier referred specifically to this it may be inferred that he took it into account in arriving at his headline figure of seven years. He was also required to consider the offence as committed by this particular offender, and whether there were any factors such as drug addiction that might reduce culpability. While there is no specific reference to such issues in the sentence ruling, it is clear from the Probation Reports and the evidence that there was nothing with the potential to reduce this offender’s culpability that the trial judge could have taken into account. The first question for this Court is therefore whether the sentencing judge erred in fixing on a headline sentence figure of seven years before mitigation. 36. This Court considers that a headline sentence figure of seven years before mitigation was at the very lowest end of the permissible range for this offence as committed by this offender, but that it was not outside the permissible range. Accordingly there was no error of principle up to this point in the process. 37. It is necessary then to consider whether there was excessive allowance for mitigation. The sentence ruling is somewhat ambiguous as to exactly how much allowance was being made for mitigation. The judge initially said that he would reduce the sentence to one of four years on account of mitigation, but then he went on to suspend the entirety of the proposed four year sentence. He then added that “This will remain as an incentive to him to continue the progress that he has made towards tackling this problem and a deterrent against future misbehaviour.” 38. There were undoubtedly substantial mitigating factors in this case that would have justified a generous allowance in terms of reducing the headline sentence in mitigation. 39. First, there was the plea of guilty. While the Court accepts that the circumstances in which the crime in this case was detected meant that the plea here was not as useful or as valuable as a plea might be in other “thinner” cases, the respondent was still entitled to some credit. The entry of a plea of guilty is an important acknowledgment of culpability and responsibility in and of itself, and it represents an important earnest of true remorse. It addition, it always results in the saving of time and expense in terms of the involvement of Gardai, lawyers, jurors, officials and judges. On account of these factors alone, an accused who pleads guilty is entitled to some credit regardless of the strength of the case against him. 40. Secondly, there was his previous good character and absence of previous convictions. 41. Thirdly, there was his remorse, which is ostensibly genuine. 42. Fourthly, there was his co-operation with the investigation. 43. Fifthly, there was the very positive probation report emphasising his positive engagement with rehabilitation, his low risk of offending, his work ethic and work record, his involvement in theatre and other worthwhile activities, and his drug free status. 44. Finally, there was the fact that he had not come to adverse attention throughout the period of the twelve month adjournment, or indeed at all since his arrest, and he had been assessed as suitable for a community based sanction should the Court be disposed to impose one. 45. The difficulty for this Court however is that while it can readily appreciate how the sentencing Court could have justifiably treated this offender with considerable leniency having regard to all of the facts just listed, there is nothing in his situation that constitutes special reasons of a substantial nature and particularly exceptional circumstances such as to justify a wholly suspended sentence. The Court therefore considers that excessive weight was attached to mitigating factors and to that extent the trial judge was in error. 46. In saying that, the Court recognises that the sentencing judge’s remarks indicated that he was attaching considerable importance to the legitimate sentencing objective of rehabilitation. As has been stated in numerous previous decisions it is important to leave some light at the end of the tunnel if that is a viable option. It has been urged on the Court by counsel for the respondent that special reasons and particularly exceptional circumstances are to be found in the fact that he engaged so positively with the Probation Service during the year long adjournment, and showed himself to be particularly amenable to rehabilitation. While the respondent is to be commended for his positive engagement, and progress towards rehabilitation, we do not consider that this, per se, was sufficiently exceptional. The sentencing judge would certainly have been justified in promoting the objective of his continued rehabilitation by a partial suspension of the figure of four years that he had arrived at after making due allowance for mitigating factors, but he was not justified in the circumstances of this particular case in completely suspending the sentence. Decision |
