Sheehan J.
Mahon J.
Edwards J. Appeal No.: 107/2014
Between
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment (ex tempore) of the Court delivered on 16th day of February 2016 by Mr. Justice Mahon
1. The appellant was convicted on 10th December 2013 at Dublin Circuit Criminal Court of one count of unlawful possession of a controlled drug for the purpose of supply contrary to s. 15A (as inserted by s. 4 of the Criminal Justice Act 1999) and s. 27 (as amended by s. 5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977 and contrary to the Misuse of Drugs Regulations, 1988 and 1993, as made under s. 5 of the Misuse of Drugs Act 1977.
2. The appellant was sentenced on 7th April 2014 to ten years imprisonment to date from 3rd April 2014, with the final three years of that term suspended on certain conditions. The appellant has appealed against that sentence.
3. On 27th February 2013, in the course of an intelligence led operation involving previous information and surveillance, a lock up unit at Cookstown Enterprise Centre, Tallaght, Co. Dublin was placed under surveillance by members of the National Drugs Unit. On that afternoon, the appellant was observed arriving at the lock up unit in a Renault van and loading up the van with several black sacks, and then driving away. The Renault van being driven by the appellant, its sole occupant, was followed by members of the National Drugs Unit and was observed stopping at a slip road off the N7 road. The appellant met another individual when a drop off of the black sacks took place.
4. The receiver was subsequently stopped and an amount of cannabis of just under 10kgs in weight and a value of €199,584 was seized.
5. The surveillance operation on the appellant and the lock up premises continued into the following day, 28th February 2013. On that afternoon, the appellant was observed returning to the lock out and again removing black sacks from it, loading them into his van and then driving away. He was kept under observation until he stopped at Castlewarden, Staffan, in Co. Kildare where a further drop off of drugs took place. The receiver of this consignment of drugs was later stopped and an amount of cannabis weighing 30 kgs and with a value of €601,440 was seized. The appellant was also stopped and arrested.
6. A search of the lock up was undertaken and 64.4 kgs. of cannabis with a value of €1.29m. was discovered and seized. The drugs were concealed in boxes and stacked on pallets.
7. When interviewed, the appellant made certain admissions, and ultimately pleaded guilty to the s. 15A offence. The total value of the drugs involved was just over €2m.
8. Essentially, the appeal is focussed on the suspended element of the ten year sentence. While maintaining that it was excessive, no significant issue is taken by the appellant in relation to the headline ten year term. It is certainly the view of this court that, having regard to the fact that the total drugs all exceeded €2m. in value a sentence in the region of ten years imprisonment was appropriate.
9. Because of the presence of certain exceptional mitigating factors, the learned sentencing judge exercised her discretion to depart from the prescribed mandatory minimum term of ten years. This Court would take no issue with that decision. Having so decided, the learned sentencing judge proceeded to identify the appropriate headline sentence to be one of ten years, and as already indicated this Court does not fault that decision.
10. The learned sentencing judge went on to identify in a fairly comprehensive manner the undoubted mitigating factors present in the case. Paramount amongst these were the appellant’s plea of guilty, his admissions and co-operation, and the fact that he was not the owner of the drugs. In reality however, his role in the operation was nevertheless crucial in many respects in what the learned sentencing judge described as a sophisticated operation.
11. The appellant’s personal circumstances quite appropriately weighed heavily with the learned sentencing judge, including, in particular, his lack of previous convictions and his very difficult family circumstances, including the tragic loss of his wife and daughter in recent times, and his resulting alcohol abuse. Another important factor is the low risk of re-offending identified in this case.
12. The question is, did the learned trial judge fail to afford sufficient weight to these mitigating factors in arriving at her decision to suspend just three years of the ten year sentence? Is the overall sentence so wide off the mark as to amount to an error of principle warranting intervention by the Court?
13. A number of Superior Court decisions were opened to the court by the appellant where sentences for offences involving significant amounts of drugs attracted sentences which involved a substantial suspended element. While many of the cases have broadly similar background facts and also involved large hauls of illicit drugs, other aspects of these cases, and those particularly relevant to the sentencing process, including the offenders’ personal circumstances, are quite varied and different to this case, thus making comparison problematical.
14. Of particular importance in this appeal is the enormous quantity of drugs in question. A person with previous convictions and less tragedy in his personal life could reasonably have expected a custodial sentence of ten years, or indeed significantly more than ten years.
15. The Court is satisfied that the sentence of ten years (with the final three years suspended) was a reasonable and appropriate sentence for this offence, and it cannot identify any error of principle in the manner in which the learned sentencing judge conducted the sentencing process and in arriving in what is in reality a seven year custodial term.
16. The appeal is therefore dismissed.
