THE COURT OF APPEAL
Sheehan J.
Mahon J.
Edwards J.
132CJA/11
The People (at the Suit of the Director of Public Prosecutions)
Prosecutor/applicant
Respondent
Judgment of the Court delivered on the 14th day of March 2016, by
Mr. Justice Sheehan
1. This is an application by the Director of Public Prosecutions for a review of an effective five year sentence of imprisonment imposed on the respondent at Limerick Circuit Court on the 24th May, 2011, in respect of two offences contrary to s. 15 of the Misuse of Drugs Act 1977, as amended, and one offence contrary to s. 15A of the Misuse of Drugs Act 1977, as amended. These three separate crimes took place over a three-month period between December 2009 and March 2010.
The facts
2. The first offence occurred on the 7th December 2009, when the respondent was found to be in possession of Diamorphine with an estimated street value of €61,239.15. He was arrested that day and made full admissions to the gardaí about his own offending. He was charged and brought to the District Court the following day and released on bail.
3. The second offence occurred on the 19th February, 2010, when the respondent was stopped and searched at O’Connell Street, Limerick. He handed the gardaí five deals of Diamorphine. He produced a further nine deals of Diamorphine in the garda station and was then brought to the regional hospital in Limerick , where following a medical examination a package containing 30gms of Diamorphine was recovered from him.
4. The respondent was charged with this offence on the 1st February, 2011, and admitted to bail.
5. The third offence occurred when the gardaí searched the respondent’s apartment on the 4th March, 2010 and found him in possession of 30 deals of Diamorphine valued at €750. The respondent was arrested, charged and admitted to bail.
Submissions of the applicant
6. The applicant submitted that the sentencing judge mistakenly took the view that it would be unjust to impose the prescriptive minimum sentence in respect of the s. 15A offence.
7. In the course of further submissions on behalf of the Director of Public Prosecutions, counsel submitted that the learned sentencing judge erred in principle in the following respects:
(a) Failing to reflect in the sentences imposed the fact that the respondent was dealing in significant quantities of the most insidious of drug for reward.
(b) Failing to reflect in the sentences imposed that the respondent admitted that he was in possession of these drugs for the purposes of selling the same at retail level, he having purchased the drugs at wholesale level.
(c) Failing to reflect in the total sentence imposed the persistent nature of the respondent’s drug dealing.
(d) Failing to treat the offending when on bail as an aggravating factor in itself and failing to reflect that fact in the sentences imposed.
8. Counsel for the applicant concluded by submitting that the sentences imposed looked at individually and globally did not reflect the gravity of the respondent’s offending and accordingly this amounted to a substantial departure form what was appropriate. Counsel relied on The People (Director of Public Prosecutions) v. Lernihan (Unreported, Court of Criminal Appeal, 18th April, 2007); The People (Director of Public Prosecutions) v. Wall (Unreported, Court of Criminal Appeal, 29th July, 2011); The People (Director of Public Prosecutions) v. Ryan and Rooney (Unreported, Court of Appeal, 19th January, 2015).
Personal circumstances of the respondent
9. At the time of sentence, the respondent was a 31 year old single man who had a number of previous convictions. The sentencing judge was told that on the 5th June, 1997, the respondent received a ten month sentence for attempted larceny and that in November of the following year he received a sentence of one year and eight months for assault. In October 2007, the respondent received a suspended sentence of six months imprisonment for an offence under s. 15 of the Misuse of Drugs Act 1977 and the following December received a three year sentence for an offence under the Firearms Act and one under s. 15 of the Misuse of Drugs Act 1977. Part of the background to the sentencing hearing in respect of these offences were two District Court appeals for offending similar to that in counts 2 and 3 on the indictment in which the respondent sought to withdraw the said appeals.
Sentencing remarks of the learned sentencing judge
10. The learned sentencing judge in the course of his sentencing remarks stated that he was taking a global view of the offending and a global approach to sentence. He correctly identified the principle aggravating factor as the fact that the respondent was dealing in significant amounts of drugs hoping to make a substantial profit for himself. The sentencing judge also held that it would be unjust it impose the mandatory minimum ten year sentence because of the plea of guilty, the material assistance given to the gardaí arising out of his frank admissions about the level of his own criminality and the fact that he was a drug addict.
11. The respondent accepted that the sentences imposed were lenient, but did not concede that they were unduly lenient such as to represent a substantial departure from what would be regarded as the appropriate sentence when all the circumstances of these cases were taken into consideration.
12. Counsel for the respondent drew the Court’s attention to the following circumstances:
(1) In relation to the s. 15A count, the admissions made by the respondent were of considerable importance in that the respondent gave full, complete and a non minimising account of mattes insofar as they related to himself and that this approach by him met the requirements of material assistance in a most direct way.
(2) The respondent at the time was a heroin addict with a particularly heavy habit.
(3) The level of detail which the respondent gave to the gardaí in his interviews which included matters outside the scope of the count and matters of earlier behaviour in respect of himself which the gardaí could not have established and possibly did not even know about, was such that it ought not be used to penalise him, but could in another sense be seen as a mitigating factor in terms of his honest and frank disclosure about his own offending.
(4) The amounts involved in the second and third counts were considerably smaller and these offences were consistent with the person who is still a heroin addict.
13. Counsel for the applicant while conceding these amounts to be comparatively small, submitted that they were relevant to show continuing activity by the respondent while on bail. Counsel for the respondent accepted that this was true, but urged the Court to see these matters through the prism of the respondent’s heroin addiction. Counsel for the respondent submitted that the sentencing judge correctly made the sentences for counts 2 and 3 consecutive to count 1 (concurrent inter se) and in the overall circumstances where a significant sentence was being imposed against the background of addiction, the sentences measured for those two counts were not unduly lenient. Counsel for the respondent further submitted that the sentencing judge was entitled to take into consideration the principles of totality and proportionality when coming to sentence in this case. This was particularly so given the nature of the material assistance by the respondent and while the overall result was a lenient sentence it was not unduly lenient in light of the material assistance and admissions of the respondent. To fail to give significant credit for such fundamental material assistance would in all likelihood disinhibit others from engaging in such assistance with foreseeable consequences for investigative results.
14. Counsel also drew the Court’s attention to the fact that this appeal was listed at a time when the respondent had served the entirety of the five year sentence imposed on him. Counsel submitted that this brought additional hardship on the respondent.
Conclusion
15. This matter comes before the Court in a less than desirable fashion. The Director of Public Prosecutions originally filed a notice of application for review of sentence on the 16th June, 2011, but submissions in support of that application were not filed until the 21st April, 2015, some six months after the respondent had completed his five year sentence.
16. Section 2 of the Criminal Justice Act 1993, provides the legislative framework within which to consider a review of a sentence for undue leniency and it states the following: -
17. The principles governing the law in relation to undue leniency appeals pursuant to s. 2 of the Criminal Justice Act 1993 were summarised in a judgment of the Court of Criminal Appeal in The People at the Suit of the Director of Public Prosecutions v Derrick Stronge [2011] IECCA 79 where it was stated that: -
“From the cases cited at the end of this paragraph, the following principles can be said to apply in an application for review under s. 2 of the 1993 Act. These are: -
(i) the onus of proving undue leniency is on the DPP:
(ii) to establish undue leniency it must be proved that the sentence imposed constituted a substantial or gross departure from what would be the appropriate sentence in the circumstances. There must be a clear divergence and discernible difference between the latter and the former:
(iii) in the absence of guidelines or specified tariffs for individual offences, such departure will not be established unless the sentence imposed falls outside the ambit or scope of sentence which is within the judge's discretion to impose: sentencing is not capable of mathematical structuring and the trial judge must have a margin within which to operate:
(iv) this task is not enhanced by the application of principles appropriate to an appeal against severity of sentence. The test under s. 2 is not the converse to the test on such appeal:
(v) the fact that the appellate court disagrees with the sentence imposed is not sufficient to justify intervention. Nor is the fact that if such court was the trial court a more severe sentence would have been imposed. The function of each court is quite different: on a s. 2 application it is truly one of review and not otherwise:
(vi) it is necessary for the divergence between that imposed and that which ought to have been imposed to amount to an error of principle, before intervention is justified: and finally
(vii) due and proper regard must be accorded to the trial judge's reasons for the imposition of sentence, as it is that judge who receives, evaluates and considers at first hand the evidence and submissions so made.
The relevant cases are The People (D.P.P.) v. Byrne [1995] 1 ILRM 279, The People (D.P.P.) v. McCormack [2000] 4 I.R. 356 and The People (D.P.P.) v. Redmond [2001] 3 I.R. 390.”
18. In seeking to apply the above principles it seems to us that this is one of those cases where it is particularly important to have regard to what is sometimes described as the margin of appreciation to be afforded to the sentencing judge. He or she is the one who receives the evidence at first hand and as noted in the Byrne case “may detect nuances in the evidence that may not be as readily discernable to an appellate court”.
19. In the course of the oral hearing before this Court, counsel on behalf of the Director of Public Prosecutions submitted that the principle complaint of the Director was that the global sentence did not meet the gravity of the offending and in particular did not give sufficient weight to the fact that the appellant had persisted in dealing in Diamorphine and committed numerous offences while on bail. On the other hand counsel did not dispute the fact that the learned trial judge was entitled to depart from the mandatory minimum sentence and was also entitled to take a global view in his approach to sentence.
20. It cannot have escaped the sentencing judge’s attention that this respondent was regularly admitted to bail. This Court notes with concern the regular release of the respondent on bail without any apparent attempt to have him remanded in custody following his repeated admissions to serious offending on the occasion of each arrest. It is well known that a person addicted to heroin in the way this respondent was and who was not on a methadone programme is likely to continue offending. The Court also notes the length of time between the completion by the respondent of his prison sentence and the date of the hearing of this appeal.
21. A sentence of four years imprisonment is a substantial sentence for anyone. However, given that the legislature has prescribed a presumptive minimum ten year sentence for an offence contrary to s. 15A of the Misuse of Drugs Act 1977, it is undoubtedly the case that the sentence here was a lenient one. That said the sentencing judge was clearly entitled to depart from the mandatory minimum sentence. Taking all the circumstances of this case into account and in particular the extensive admissions made by the respondent following his arrest in respect of the s. 15A count, and the fact that he was addicted to heroin, we are not satisfied that the sentence actually imposed amounted to a substantial departure from what is appropriate. Equally we are not satisfied that the consecutive one year sentences imposed on the other counts were unduly lenient. Accordingly, we refuse the application.
