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Cite as: [2019] IECA 260

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THE COURT OF APPEAL

[138CJA/18]

The President

Whelan J.

McCarthy J.

SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

STEPHEN SARSFIELD

RESPONDENT

JUDGMENT of the Court delivered on the 15th day of October 2019 by Birmingham P.

Background

1. This is an application brought by the Director of Public Prosecutions seeking to review on

grounds of undue leniency a sentence that was imposed in the Dublin Circuit Criminal

Court. The sentence sought to be reviewed is one of seven years imprisonment that was

imposed following the entry of a plea of guilty to an offence contrary to s. 15A of the

Misuse of Drugs Act 1977 (as amended) being the possession of drugs with a value of

€13,000 or more, with an intention to supply. The respondent was found in possession of

diamorphine and cannabis with a combined value of €4.1m. In arriving at the sentence of

seven years, the sentencing judge took into account certain other offences relating to the

possession of a stun gun.

2. The background facts are that on 17th July 2017, Gardaí were in possession of

confidential information suggesting that there was an operation in progress involving a

large quantity of drugs in the Ballyfermot area. There was further information that there

was a Heavy Goods Vehicle (“HGV”) parked outside the house where the activity was said

to have been taking place. Members of An Garda Síochána went to Ballyfermot Drive

where they engaged in surveillance of the area. Upon their arrival at the scene, they

found a large curtain-sided HGV parked outside No. 3 and opposite No. 10. They also

observed a large white Mercedes van parked in the driveway of No. 10. Adjoining No. 10

was a large garage, the import of which will soon become apparent.

3. At approximately 1.50pm, the respondent was observed moving the HGV into position on

the footpath immediately opposite No. 10. At the same time, a white Peugeot van pulled

up and parked in front of the truck. Shortly thereafter, two individuals referred to as Mr. C

and Mr. D arrived in separate vehicles. These men were seen removing flat pack boxes

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from the HGV and bringing them into the garage. Mr. C left the scene at around 2.38pm.

Mr. Sarsfield is said to have remained on the premises for the entirety of the afternoon in

question.

4. The Gardaí had, meanwhile, obtained a search warrant in respect of the garage and, at

4. 05pm, the decision was taken to enter the premises when it appeared that the

respondent and Mr. D were about to bring in more empty boxes. It is worth noting that at

this point in time, Mr. Sarsfield was standing on the footpath of the premises and he had

on his person the keys for the HGV as well as a mobile phone. Upon entering the garage,

Gardaí quickly realised it was the centre of a largescale drugs distribution unit due in part

to there being a large amount of controlled substances in plain sight. In particular, there

was a significant number of packs of cannabis herbs, some 378 such packages, which, in

weight, came to 188 kilos and had an estimated value of €3.760620m. Such was the

quantity of cannabis on the premises that Gardaí spoke of people tripping over packs of

the substance. The Gardaí also discovered three stun guns on a shelf in the garage during

their search. On further examination, it emerged that these guns were not in good

condition. In a makeshift office, were three packs of diamorphine which collectively

weighed about 2.9 kilos and had an estimated value of €410,312. Other items seized

were a weighing scales, a money counting machine, and two plastic bag sealing

machines. The evidence of those members who were present indicated that there was an

overpowering smell of cannabis herb on the premises.

5. The respondent was arrested and detained and in the course of his detention was

interviewed on six occasions. For the most part, he exercised his right to silence, though

he did refer to the fact that he had a gambling debt of €60,000 and was addicted to

cocaine, using it three or four times a week. Gardaí confirmed that he was “a small cog

but undoubtedly important cog in the bigger machine”.

The Sentence

6. In terms of the respondent’s background and personal circumstances, he was thirty-nine

years of age at the time his arrest. He had no relevant previous convictions with only

minor recorded convictions for road traffic and public order offences. The Central Criminal

Court also heard that he had been suffering from depression for some ten years and that

there was a history of chronic knee and back pain. A letter from the respondent’s GP

suggests that his vulnerabilities, both mental and physical, had been taken advantage of

at the time of the offences.

7. A number of very positive testimonials were opened to the Court below which highlighted

among other things the efforts made by Mr. Sarsfield to deal with his addictions through

the SMART recovery programme, his role as a coach to a youth football team, and his

having been a supportive family man. Reference was also made to Mr. Sarsfield assisting

others on their own path to recovering from addiction. The approach of the sentencing

judge was to identify a headline sentence of twelve years, but he felt that there were

factors present which would permit him to impose a sentence less than the mandatory

presumptive minimum of ten years. The Judge then proceeded to impose the sentence of

seven years imprisonment which the Director has now sought to review.

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The Undue Leniency Application

8. When the present application was first listed, counsel for the moving party was asked by

members of the Court whether it was the Director’s position that this was a case where

the mandatory presumptive minimum should not have been deviated from. After a

somewhat equivocal initial response, counsel sought an opportunity to take instructions.

Having done so, counsel confirmed that the Director’s position was that this was not an

appropriate case in which to impose a sentence less than the mandatory presumptive

minimum. In those circumstances, the Court indicated that it would welcome further

submissions directed to identifying the circumstances in which a court would or would not

be justified in departing from the mandatory presumptive minimum. The Court further

expressed the view that it would welcome being provided with any information that was

available in relation to sentencing patterns in this area.

9. In response to these requests, helpful submissions have been provided on behalf of the

Director and the respondent. The submissions of the Director address the issues raised

by the Court at the initial listing, but also make points in relation to the specific case

before us. As one would expect, the submissions on behalf of the respondent are far more

case-specific and are directed towards establishing that the sentence imposed in the

circumstances of the case did not represent a substantial departure from the norm.

Instead, the suggestion is that the sentence was “on the nose” such that Director’s

application for a review is unstateable.

Section 15A Offences

10. Unusually, s.27(3D) (a) of the 1977 Act contains a specific statement of the rationale

behind the sentencing regime by justifying those provisions “in view of the harm caused

to society by drug trafficking”. The Courts have long been aware of the effects of drug

trafficking and are called on to deal with those effects, and the affected, on a daily basis.

On very many occasions, the Court has to deal with the fact that those who become

addicted to drugs find their lives destroyed. On other occasions, the Court is dealing with

victims one step further removed i.e. those victims of crimes committed by individuals in

order to feed a habit or to clear a drugs debt.

11. The culpability of those coming before the courts varies considerably. Sometimes, though

perhaps not as often as one would wish to see, the Courts are dealing with those in a

supervisory role: those managing or directing the operations in question. Probably more

frequently, however, those brought before the Courts play a lesser role and could be

described as lower-ranking operatives in a wider criminal enterprise. These lesser roles,

whether they involve storing or transporting drugs, may still be very important and

without which major drug dealing and trafficking could hardly occur.

12. In assessing the gravity of a particular offence, the value and quantity of drugs seized

have long been regarded as critical factors to be taken into account in evaluating where

on the scale of seriousness the offence falls. See, in that regard, the judgment of the

Court of Criminal Appeal in the case of DPP v. Derek Long [2008] IECCA 133. However,

as that judgment itself makes clear, that is not of course to say that the value of a drugs

haul is, in and of itself, determinative of the sentence to be imposed. As the Court of

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Criminal Appeal observed, there may well be cases where the person found in possession

of the drugs is left unaware, or could not have known, of the quantity or value of the

drugs in question. This can arise in the case of a drugs mule who is handed a suitcase at

a foreign airport and asked to import it into Ireland for a reward. As this Court often finds

itself emphasising, each case will necessarily turn upon its own particular facts and the

individual circumstances of an offender may serve to move the dial considerably in either

direction. Even in the case of a very large haul indeed, it is possible to imagine cases

where the evidence will indicate that the individual was playing a totally subservient role.

Those living in abject poverty and deprivation analogous to the situation of the

“gardeners” in cultivation cases is one such situation that comes to mind. On the other

hand, there may be cases where the quantity of drugs is less, though perhaps still

substantial, but the manner in which the individual dealt with the drugs left no room for

doubt that he was the actual owner, was in effective control, and/or was the individual, or

one of the individuals, who stood to make major profit from the exercise. In general, the

greater the authority exercised, the greater the culpability. Where the decision to become

involved in drug trafficking was one taken in order to make a financial gain, that too will

increase the level of culpability.

13. The absence of financial gain and the fact that the offence achieved nothing more for the

offender than being provided with a small quantity of drugs for immediate personal use

would tend to reduce culpability. Duress, even at a level falling short of what would

provide a defence in law, may still be relevant. However, sentencing courts will need to

be conscious that it is easy to assert that one is acting under duress and such assertions

are not infrequent. A factual basis to support the assertion is required. It is not unknown

for the prosecution and for investigating Gardaí to accept that duress was a factor, and

indeed, to introduce the issue of duress into the case. Where that happens it is likely to

have a significant impact on the case.

14. In the case of s. 15A offences, the headline or pre-mitigation sentence is only a first step,

and as always, save where the sentence is a mandatory one, it will be necessary to have

regard to the individual circumstances of the individual offender. Those circumstances will

vary widely from the individual with relevant previous convictions making a conscious and

unforced decision to become involved, to individuals falling into offending in

circumstances of extreme distress and vulnerability. The circumstances can be expected

to vary so widely that there can be no real expectation of uniformity of actual sentences

imposed, as distinct from consistency in identifying a headline or pre-mitigation sentence

and the principles to be applied in arriving at the ultimate sentence.

The Survey

15. In response to the Court’s request for information on sentencing patterns, the Court was

provided with a detailed survey undertaken of 104 misuse of drugs cases dealt with by

this Court, or its predecessor, the Court of Criminal Appeal. Some caution in relation to

the survey is required, in that by definition, the fact that the case went to the Court of

Criminal Appeal or the Court of Appeal meant that one side or another felt that the

sentence originally imposed in the Circuit Court was not appropriate, being either too

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severe or unduly lenient. It is important to recognise that of the 104 offenders, all but

eight pleaded guilty resulting in a guilty plea rate of 92%. This is generally consistent with

the levels of pleas across all s.15A cases which is understood to be running at 95%. Of

the eight who were convicted following trial, six received heavy sentences ranging from

twelve to twenty-five years. The survey is of effective sentences i.e. sentences to be

served, where sentences contained part-suspended elements, only the custodial portion

has found its way into the survey. The results of the survey are as follows:

25 Years

(estimated €108m to €400m)

18 Years

(estimated €6.2m)

17. 5 Years

(estimated €108 to €400m)

14 Years

(€12m)

12 Years

(€43,120 to €2m)

11 Years

(€619,000)

10 Years

(€45,000 to €5.1m)

9 Years

(€748,000 to €1.2m)

8 Years

(564,175 to €2.87m)

7. 5 Years

(€400,000 t0 €2.5m)

7 Years

(€33,000 to €2m)

6. 5 Years

(€140,000 to €143,000)

6 Years

(€101,000 to €1.5m)

5. 5 Years

(€400,000)

5 Years

(€34,386 to €700,000)

4. 5 Years

(€1.4m)

4 Years

(€153,000 to €1.3m)

3. 5 Years

(€90,000 to €350,000)

3 Years

(€444,000 to €1.2m)

2. 5 Years

(€64,000 to €122,000)

2 Years

(€632,000 t0 €1m)

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1. 5 Years

(€43,000 to €45,000)

1 Year

(€60,000 to €40,000)

Fully Suspended 11

(€34,000 to €2.87m)

16. Additional material and statistical information was put before the Court, including a

review of sixty-seven sentence appeals involving offences contrary to s. 15A of the Misuse

of Drugs Act 1977, as amended dealt with by this Court between 2014 and 2019.

Paragraph 1 of that analysis referred to seventeen sentence appeals involving drugs

valued in excess of €1m and it concluded that the average sentence was one of nine

years’ imprisonment with the average suspended sentence being two and a quarter years.

Accordingly, the average time actually served was six and three-quarters years. It was

this extract that caused counsel for the appellant to say that the sentence imposed in this

case was “on the nose” and that the appeal was unstatable on the basis that the sentence

imposed did not represent any departure from the norm, still less, the substantial

departure that would be required to alter the sentence on grounds of undue leniency.

Again, a degree of caution is required because the level of involvement with the drugs

may vary greatly from case to case. There may be times where the evidence does not

indicate that the person before the Court was the beneficial owner of the drugs or the

individual who would make the ultimate profit but nonetheless establishes that the

individual was very actively involved in the project and was committed to its success.

Such persons could not be seen as mere facilitators or low-level operatives and could not

expect to be treated as such.

Discussion

17. The difficulty in addressing the issue of sentencing in this area is that comparators are at

their most useful when one is comparing headline or pre-mitigation sentences with each

other. However, the presumptive minimum sentences identified by the Oireachtas, and

indeed, subject to constitutional issues, the actual mandatory sentences stipulated in

certain cases relate to actual custodial sentences to be served. Matters are further

complicated by the fact that the imposition of sentences less than the mandatory

presumptive minimum is not at all unusual, in part because pleas of guilty in s. 15A cases

are so widespread.

18. Our observations are for that reason, somewhat tentative. It has long been recognised

that the proper approach to sentencing is for a judge to identify the appropriate sentence

without reference to the presumptive minimum. If the appropriate sentence is at or in

excess of the statutory minimum, nothing further is required. If the sentence under

contemplation is below the presumptive minimum, the Court will have to address the

presumptive minimum and consider whether the imposition of the mandatory

presumptive minimum would, in all the circumstances of the case, be unjust. Where the

offence involves significant involvement in a very high-level drug offence, the headline or

pre-mitigation sentence is likely to be well in excess of the statutory presumptive

minimum. In the case of high-level commercial drug dealing involving very large

quantities of drugs, we would expect that the headline or pre-mitigation sentence is likely

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to be of the order of fourteen or fifteen years, and in some exceptional cases, significantly

higher.

19. What we have to say about the ultimate sentence is more tentative still, having regard to

the very wide variation in the circumstances of offenders coming before the Courts. The

Court would, however, observe that in the sort of very high-end commercial drug

trafficking cases to which we have been referring, a plea of guilty, of itself, without

something more, is unlikely to justify a reduction below the presumptive minimum

sentence. Such a situation is particularly likely if the plea was entered against a backdrop

of very strong or overwhelming evidence, not an unusual situation in the context of s.

15A cases.

20. The non-exhaustive list of factors which a sentencing court may have regard to in

determining whether to deviate from the presumptive minimum are set out in s.

27(3D)(b)-(c) as follows:

“(b) …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—

(i) whether that person pleaded guilty to the offence and, if so—

(I) the stage at which he or she indicated the intention to plead guilty, and

(II) the circumstances in which the indication was given,

and

(ii) whether that person materially assisted in the investigation of the offence.

whether a sentence of not less than 10 years imprisonment is unjust in all the

circumstances, may have regard, in particular, to—

(i) whether the person convicted of the offence concerned was previously

convicted of a drug trafficking offence, and

(ii) whether the public interest in preventing drug trafficking would be served by

the imposition of a lesser sentence.”

21. The wording of these sections shows that a particular emphasis is placed on the

assistance, if any, provided by the offender to the Gardaí in combating drug trafficking.

Mr. Sarsfield did offer what has been described by both parties as an “early plea”, albeit it

was one which was provided in a context where he was caught “red-handed”. However,

beyond the plea, nothing very much was put forward by way of material assistance. There

is also, however, the substantial mitigation which was put before the sentencing judge to

consider.

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22. The information provided by the parties, including the survey of 104 cases to which

reference has been made, suggests that the average time to be served, where the drugs

involved are valued in excess of €1m, is 6 and three-quarter years. It is this that caused

counsel for Mr. Sarsfield to observe that the sentence imposed on his client was “on the

nose”. However, it must be said that even for these high-end drug cases, those with an

entry threshold of €1m, the drugs here were four times that amount. It is more than 300

times the statutory threshold for the imposition of the statutory presumptive minimum

sentence.

23. The Court is very conscious of the jurisprudence applicable to cases where reviews of

sentences are sought on grounds of undue leniency. It is fully aware that considerable

regard must be had to the views of the sentencing judge. That general proposition is

reinforced in the circumstances of the present case when the sentence sought to be

reviewed was imposed by one of the most experienced, if not, in fact, the most

experienced sentencing judge in the country. Notwithstanding that, we are of the view

that having regard to the seriousness of the offending in issue, and the enormous scale of

the activity interrupted by Gardaí, that the sentence imposed represented a substantial

departure from what was to be expected and was, indeed, unduly lenient.

24. It therefore falls to this Court to resentence. In the Court’s view, a pre-mitigation or

headline sentence of fifteen years would have been appropriate. Giving full allowance for

all the factors present in favour of Mr. Sarsfield, including his plea of guilty and the

absence of relevant previous convictions, we believe that the ultimate sentence could not

be less than the mandatory presumptive minimum, and indeed, a sentence greater than

the mandatory presumptive minimum could be justified. However, in a situation where we

are intervening to resentence, we will confine ourselves to imposing a sentence of ten

years imprisonment. We do so in a situation where we cannot see any basis for

concluding that the imposition of the presumptive minimum sentence would, in all the

circumstances of the case, be unjust. In so deciding, we confirm that we are resentencing

as of today’s date; that we are conscious that having a sentence increased at this stage

must be deeply disappointing for Mr. Sarsfield, and that we have had regard to the up to

date information put before the Court.

25. Accordingly, we will quash the sentence imposed in the Circuit Court and substitute for it

a sentence of ten years imprisonment.

Result: Allow and Vary