Irish Court of Appeal

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URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA351.html
Cite as: [2019] IECA 351

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THE COURT OF APPEAL

[319CJA/18]

The President

Irvine J.

Donnelly J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

RYAN CALLAGHAN

RESPONDENT

JUDGMENT (Ex tempore) of the Court delivered on the 15th July 2019 by Birmingham

1. This is an application brought by the Director of Public Prosecutions pursuant to s. 2 of

the Criminal Justice Act 1993, seeking to review on grounds of undue leniency a sentence

that was imposed in the Circuit Criminal Court in Meath. The sentences sought to be

reviewed are sentences of three and a half years imprisonment with the final 12 months

suspended that was imposed in respect of a s. 15A Misuse of Drugs Act offence and a

concurrent 9-month sentence that was imposed for money laundering.

2. The background to the case relates to events that occurred on 14th March 2017 at a

racing stables at Drumree, County Meath. The case was dealt with on the basis of a plea

of guilty and on a full facts basis, in particular, on the basis that evidence would be

adduced and taken into account in relation to the possession of a firearm, a semi-

automatic machinegun, in suspicious circumstances.

3. The background to the case is that on the day in question, Gardaí had mounted a

surveillance operation. As part of that operation, the respondent was photographed

hiding a Tupperware box. When that box was subsequently retrieved, it was found to

contain approximately €30,000 worth of heroin and approximately €35,000 worth of

cocaine, along with a sum of €44,230 in cash. In the course of a subsequent search of the

adjoining premises, an 8mm submachine gun and an empty magazine were located. The

firearm was in a sock upon which the DNA of the accused was found. The accused was

arrested, and upon arrest, made admissions. In the course of his evidence to the

sentencing hearing, the investigating Garda accepted that the respondent was under an

amount of duress arising from the loss of a previous quantity of drugs which he was

attempting to pay off, though the Garda also felt that the respondent was receiving some

personal reward for his involvement in this matter.

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4. In terms of the respondent’s background and personal circumstances, he was born on 1st

April 1993. Significantly, he had a previous s. 15A Misuse of Drugs Act conviction, that

offence had occurred in late 2016, and for that he was sentenced to a term of three years

imprisonment with the final 12 months suspended on 8th October 2018. The Director says

that one aspect of this matter, which means that the sentence imposed was clearly

unduly lenient, is that the sentence which she now seeks to be reviewed was directed to

be served concurrently with the earlier sentence, giving rise to what is said to be an

effective sentence of just six months imprisonment. The Court heard that arising from the

loss of the earlier consignment of drugs, that the respondent’s father had paid over the

sum of €10,000 on behalf of his son, that represented his life savings as a tailor. The

respondent, the Court heard, was one of three sons and was himself the father of a young

son. The Court heard that he had gone to Coolmine before entering into custody. There

had been a history of drug use, but by the time of the sentence hearing, the Court was

told that efforts of rehabilitation were underway and were bearing fruit.

5. The approach of the Judge in the Circuit Court was to identify a headline or pre-mitigation

sentence of five years. The Director says that that headline was itself too low, that the

error was then compounded by the reduction that was made and further compounded by

the fact that it was made concurrent with the earlier sentence, so as, the Director says of

this case, the effective sentence was one of six months imprisonment.

6. The Judge commented that he felt there was a basis for departing from the presumptive

mandatory minimum. He went on to say that in a situation where he could depart from

the mandatory presumptive minimum, that he was “at large”. It is said by the Director

that in this regard, the Judge fell into error and that that observation was incompatible

with the established jurisprudence of the courts.

7. By any standards, this has to be regarded as a very serious case. It involved two different

types of drugs; heroin and cocaine. The value of the drugs was significant. Certainly, it

was not a case where it was marginal whether s. 15A was applicable. The finding of a

firearm in proximity adds an additional dimension of seriousness. There would have been

judges who would have debated long and hard as to whether there was a basis for

departing from the presumptive minimum. The case has not been put before us on that

basis. It has not been put on the basis that this was a situation where the mandatory

presumptive minimum had to be imposed and where there could be no departing

therefrom.

8. However, whatever about that, even if one takes the view of the facts most favourable to

the respondent, this was a sentence which was lenient, and not just lenient, but unduly

lenient and unduly lenient to a significant extent. A sentence of six or seven years could

not have been regarded as harsh, particularly if it would have involved some element of

sentences for serious offences being served concurrently.

9. Being of the view that we are, that the sentences were unduly lenient, we are obliged to

resentence. In accordance with the normal practice of this Court, we find ourselves

resentencing as of today’s date. In that regard, we have received a considerable volume

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of information about the progress made by the respondent since the original sentence

hearing. He has now been placed by the prison authorities in open prison. We have been

told about his contact with South West College with a view to pursuing a course in higher

education. Documentary evidence has been put before us indicating that he has applied

himself in an exceptionally diligent fashion while in custody, undertaking a large number

of courses across a very wide range of activities.

10. In those circumstances, while obliged to intervene, we will impose a sentence less than

we would have imposed had we been sentencing at first instance. In doing so, we take

into account the fact that we are resentencing someone who is now well into their

sentence and recognise that it must be a source of considerable disappointment to face

the prospect of having his period in custody extended.

11. The Court will deal with the matter by quashing the sentence in the Circuit Court on the

Misuse of Drugs offence. We will substitute for that a sentence of six years imprisonment

with the final year suspended in a situation where matters have already been before the

Circuit Court and we will not interfere in relation to the money laundering offence or with

the decision to take into consideration the firearms matter.

12. So, the sentence will be one of six years imprisonment with the final year suspended and

we will date that from the same day as the sentence in the Circuit Court.

Result: Allow and Vary