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Irish Court of Appeal
You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions v Barton [2019] IECA 282 (25 October 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA282.html
Cite as: [2019] IECA 282
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The President
Kennedy J.
Donnelly J.
BETWEEN/
THE COURT OF APPEAL
[10/2019]
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
- AND -
ROSALIND BARTON
APPELLANT
Judgement of the Court (ex tempore) delivered on the 25th day of October, 2019 by
Ms Justice Kennedy
1. This is an appeal against severity of sentence imposed in Cork Circuit Criminal Court on
the 10th January 2019. The appellant pleaded guilty to two counts, namely; a count of
possession of drugs with a value of €13,000 or more, contrary to s.15A of the Misuse of
Drugs Act 1977 and received a sentence of six years’ imprisonment with the final two
years suspended and a count of possession of controlled drugs for unlawful sale or supply
contrary to s.15 of the Misuse of Drugs Act 1977 and received a concurrent sentence of
three years’ imprisonment.
2. The offences in question took place on the 8th December, 2017. Members of an Garda
Síochána commenced an intelligence-led surveillance operation on the outskirts of
Kanturk, County Cork. Gardaí observed two vans travelling in convoy leaving Kanturk
and heading in the direction of Boherbue. The vans pulled into to the side of the road, to
a layby. The drivers, one of whom was Ms. Barton, got out of the vans and two black
refuse bags were taken from one van and placed into the passenger side of the van Ms
Barton was driving.
3. The Gardaí intercepted the vehicles at this location and on examination of the refuse
sacks, discovered 7Kgs of cannabis herb with an estimated street value of €139,364. A
follow up search of the home of Ms Barton resulted in the recovery of €8,500 worth of
cocaine.
4. The appellant was arrested and taken to Mallow Garda Station. During interview, she
fully admitted her part in the sale and supply of the drugs in question and she admitted
that this was not the first occasion on which she took delivery of such a large
consignment of drugs. In relation to the cocaine, Ms Barton admitted that this was also in
her possession for the purpose of sale and supply to users of the drug in Kerry. She told
the Gardaí that her sole reason for her participation was that of financial gain. She was
paid €500.00 for the large consignment and she said €100 - €200 for the smaller amount.
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She pleaded guilty on the 9th November, 2018 and was sentenced on the 10th January,
2019 along with two co-accused.
5. In sentencing, the trial judge accepted that there was an early plea of guilty and that
there was a high level of co-operation with the Gardaí. Moreover, that admissions were
made which were of benefit to the prosecution. In light of such, the trial judge departed
from the presumptive mandatory minimum sentence of ten years’ imprisonment in
relation to the s.15A offence. However, the trial judge stated that the offences involved a
large quantity of drugs, that the appellant was fully aware of what she was doing and was
an active participant in the distribution of drugs on a county wide basis.
6. Given her culpability, the trial judge identified a sentence of six years’ imprisonment. To
take account of the appellant’s background, the level of progress regarding insight on her
part, and the potential for rehabilitation, the judge suspended the final two years of that
sentence. In relation to the s.15 offence, a concurrent sentence of three years’
imprisonment was imposed.
7. Concerning her co-offenders, Mr O’Donovan received a sentence of five years fully
suspended on terms, and Mr McCann received a sentence of six years’ imprisonment with
the final three years suspended.
Personal Circumstances
8. The appellant was forty-eight years old at the time of sentencing. She had two previous
convictions relating to road traffic matters. In mitigation it was stated that the appellant
suffered from depression and had become involved in the drug trade in order to fund an
animal sanctuary which she ran.
Grounds of Appeal
9. Whilst the appellant puts forward six grounds of appeal in her notice of appeal, Mr
Hourigan BL, advances in essence two grounds on her behalf. No issue was taken at the
hearing before this Court regarding the assessment of gravity at six years. The issues lie
with the discount afforded for mitigation and the contention that the sentence imposed
offends the principle of parity.
10. In the latter respect, Mr Hourigan focusses on the sentence imposed on Mr McCann, which
it will be remembered was a sentence of six years with the final three years suspended on
terms. He argues that as the appellant was frank and forthright in her admissions and
co-operated to a high degree with the Gardaí she should have received greater discount
in mitigation. Mr McCann’s culpability, he argues, was found to be at the same level as
Ms Barton, but he received greater discount by virtue of his medical condition.
11. Ultimately, it is said that Ms Barton’s factors in mitigation were of an equal quality if not
greater than that of Mr McCann.
12. We are not persuaded by this argument. It was accepted amongst other matters that Mr
McCann had addiction issues for some considerable period of time and a tragic
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background. The issue of the appropriate reduction for mitigation was one within the
discretion of the judge and we can find no error in principle in this respect.
13. Moreover, whilst a headline figure of six years was nominated in both instances by the
trial judge, we observe that Ms Barton’s culpability was in our view at a high level, and
perhaps greater than that of Mr McCann as she was, by her own admission, involved in
the distribution of drugs on a county wide basis. Moreover, she was involved solely for the
purposes of financial gain.
14. We now move to the issue as regards the reduction afforded for mitigation. Certainly,
there were mitigating factors; she had no relevant previous convictions, she had entered
a plea of guilty, she was co-operative, she made admissions, her personal circumstances
were taken into account and she had a history of depression and other difficulties.
15. It is apparent from the, albeit brief, but complete remarks by the sentencing judge, that
he addressed his mind to those factors and reduced the sentence accordingly by
suspending the final two years of the sentence imposed on Ms Barton.
16. In the circumstances, we can find no error in principle and accordingly we dismiss the
appeal.
Result: Dismiss