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Irish Court of Appeal
You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions v Morrow [2019] IECA 268 (22 October 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019_IECA_268.html
Cite as: [2019] IECA 268
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Page 1 ⇓
THE COURT OF APPEAL
289/2018
Edwards J.
Kennedy J.
Donnelly J.
BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
- AND -
EOIN MORROW
RESPONDENT
APPELLANT
JUDGMENT of the Court (ex tempore) delivered on the 22nd day of October 2019 by
Ms. Justice Kennedy
1. This is an appeal against severity of sentence imposed on the appellant in Dublin Circuit
Criminal Court on the 7th November, 2018. The appellant pleaded guilty and received a
sentence of eight years’ imprisonment in respect of one count of unlawful possession of
controlled drugs with a value of €13,000 or more contrary to s.15A of the Misuse of Drugs
Act 1977 (as amended).
Background
2. On the 25th July, 2015 Detective Sergeant Donnellan received confidential information in
relation to the transport of what was believed to be a consignment of controlled drugs.
Acting upon this information, which concerned a Scania trailer/ tractor unit, several
members of an Garda Siochána undertook surveillance in the relevant area and the
vehicle was seen at around 6.08pm. It was followed by members of an Garda Siochána
as it made its way to Newcourt Business Park in St Margaret’s Road. A black Volkswagen
Jetta was observed pulling in behind this vehicle and the driver of the Jetta, the appellant,
was observed getting out of that vehicle. The appellant and the driver of the truck, a Mr.
Needham, were then observed unloading pallets filled with boxes from the truck. The
Gardaí intervened once the boxes had been moved inside a container unit and having
conducted a search of the unit itself, boxes similar to those unloaded by the appellant
which contained what appeared to be cannabis resin were found.
3. A full search was carried out and 96.7 kilogrammes of cannabis with a street value of
€580,200 and 400,000 tablets of Zopiclone with a street value of €800,000 were seized.
Both men were arrested, the appellant’s co-accused, Mr Needham, received an eight-year
sentence in relation to the s.15A offence. The appellant failed to appear and a bench
warrant issued on the 31st January, 2017. It transpired that he had fled the jurisdiction.
Subsequently he returned, his solicitor contacted the Gardaí and the warrant was
executed by arrangement.
4. The appellant was then arraigned on the 15th June, 2018 and pleaded guilty and the
matter was adjourned for sentence.
The Sentence
Page 2 ⇓
5. In imposing sentence, the trial judge departed from the presumptive mandatory
minimum of 10 years in relation to Section 15A and did so on the following basis: -
“I have given this aspect of the case some considerable consideration, and I am of
the view that in view of the efforts that have been made by the accused since his
returning to this jurisdiction, the fact that he did in fact present himself, and that
he has effected very significant improvements in terms of his own circumstances,
and the efforts he's made towards his own rehabilitation, I'm of the view that these
are aspects of the evidence that I can consider in concluding that the specific and
exceptional circumstance test is met in this particular case, and that I am at liberty
to depart from the 10-year mandatory sentence. However, I am of the view that,
given the valuation of the cannabis involved, and also the value of the Zopiclone
tablets, and the respective role taken by the accused, Mr Morrow, which was
mirrored by that taken by his co-accused, Mr Needham, that they were trusted
operatives within this particular venture. However, I do accept that he was not a
beneficiary, and was not at the upper end of the hierarchy.
Therefore, in terms of the sentence, I am going to impose a headline sentence of
10 years, but I am going to give Mr Morrow credit for his plea of guilty. I am going
to give him credit for the fact that he was somebody who had addictions at the time
of the offence, and that he was not materially benefitting from his activities. I also
take into account that there may have been an element of coercion involved in his
commission of the offences. I take into account his personal circumstances, the
fact that he has a supportive and decent family. I also take into account the
matters which have been the subject of the many documents that have been
submitted on his behalf, the letter from his GP outlining the mental health issues he
has experienced in the past and in the recent past. I also note that he has not any
previous convictions for drug offences, and that he has not offended since the
commission of these offences. I also take into consideration the fact that he is
embracing the opportunities that he is presented with in Clover Hill, and that he
has, to a very large extent, undergone a complete rehabilitation, and that is
evidenced in the urine analysis that has been presented to the Court.”
6. In light of the mitigating factors the headline sentence was reduced to a sentence of eight
years’ imprisonment.
Personal circumstances
7. The appellant was born on the 8th December 1979. He has fifteen previous convictions
including four previous convictions for theft, a conviction under s.3 of the Non-Fatal
Offences Against the Person Act 1997 and a conviction for aggravated burglary. In his
plea in mitigation, the court heard, inter alia, that the appellant was progressing well in
his rehabilitation and had engaged positively with the Prison Services.
Submissions of the appellant
8. The appellant submits that the trial judge erred in treating the fact that the appellant had
left the jurisdiction as an aggravating factor. It is also submitted that the trial judge erred
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in comparing the sentence imposed on Mr Needham and the appellant in that she
incorrectly held that the appellant had taken a trial date after he had presented himself to
the Gardaí. Furthermore, it is submitted that a prior conviction for a similar offence, which
would have attracted a mandatory minimum sentence if it had occurred in this
jurisdiction, is far more significant than a late guilty plea in circumstances where there is
no evidence that the respondent had had to prepare for a trial, considering the appellant
was not in the jurisdiction.
9. The appellant says that the trial judge did not attach sufficient weight to the fact that the
appellant had not taken part in the transportation for financial gain. In this regard the
imposed a sentence of three years’ imprisonment in respect of an offence concerning the
transportation of heroin and cocaine with an approximate value of 1.3 million euro. It is
submitted that, whilst the value of the drugs in the instant case is similar to Rooney,
there are a number of distinct differences in terms of the absence of certain aggravating
factors highlighted in Rooney. Firstly, the drugs here are, arguably, of a less “serious”
nature than heroin and cocaine. Secondly, the appellant did not take part for financial
gain but was acting under coercion due to a debt accumulated on foot of numerous
addictions.
also remarked on the fact that the appellants in Devlin could be distinguished from many
other section 15A offences on the basis that they had not acted “against a background of
addiction or debt to transport a consignment from place A to place B”. Accordingly, it is
submitted that the learned sentencing judge erred in not giving any/any sufficient weight
Devlin.
11. The appellant submits that the trial judge did not give enough weight to several
mitigating factors including the presence of duress and the significant rehabilitation the
appellant has undergone.
Submissions of the Respondent
12. The respondent submits that the appellant has mischaracterised the trial judge’s remarks
and she did not classify the appellant leaving the jurisdiction as an aggravating factor but
rather was correct in finding that his plea could not be considered to be an early plea. The
respondent further submits that the Court was entitled to consider the various factors
relating to Mr Needham and the sentence received in his case.
13. In relation to the mitigating factors the respondent submits that the trial judge at all
times carefully considered mitigation and the appellant’s personal circumstances with the
due consideration required by the statutory provisions in question. The respondent
emphasises that the street value of the drugs involved is an important consideration to be
weighed by a court in cases of this type. The respondent refers to the remarks of Kearns
Page 4 ⇓
“At the very outset, the Court has no hesitation in concluding that the quantity and
value of drugs seized are critical factors to be taken into account in evaluating the
overall seriousness of the offence. That is implicit from the terms of s.15(A) itself
which provides a separate and more draconian regime of sentencing for a person
found in possession of controlled drugs which exceed a certain value. The Court
thus rejects as mistaken the views of the Circuit Court judge in this case which
were unambiguously to the effect that the value of a particular haul or the
difference in value of a particular haul between €35,000 and €111,370 was “not a
material factor” when it came to sentencing.”
14. The respondent submits that the cases referred to by the appellant, The People (DPP) v.
number of distinguishing factors which differentiate them from the case at hand and
undermine their value as comparators.
Discussion and conclusion
15. It is important to consider the sequence of events as they transpired. The offence
occurred on the 25th July, 2015. The appellant was arrested at the scene in the context of
a surveillance operation and the discovery of illegal substances and was detained in the
usual manner. Nothing of evidential value arose in the course of his detention in garda
custody. The matter then came before the Circuit Criminal Court, a trial date was fixed
on behalf of the appellant and on the 31st January, 2017 he failed to appear and a bench
warrant issued. It transpired that he had fled the jurisdiction and remained at large until
he contacted his solicitor who then made arrangements for the bench warrant to be
executed. This was duly done and he came before the Circuit Criminal Court on the 15th
June, 2018 on which date he pleaded guilty and the matter was adjourned for sentence.
16. Mr Morrow is a person with fifteen previous convictions including those for theft, s. 3
assault, aggravated burglary, public order offences and offences under the Road Traffic
legislation. He has no recorded convictions under the Misuse of Drugs legislation. The
Court heard that he had multiple substance abuse issues and a gambling problem and it
was accepted that he was operating under instructions to participate in the operation and
that he owed a debt due to his multiple substance abuse issues.
17. Moreover, it was accepted at the sentence hearing that he had fled the jurisdiction due to
threats arising from the loss of the drugs in question. Mr Morrow worked in the building
trade. The Court heard that he made efforts to resolve his substance abuse issues whilst
he was at large and also that he has family support. The evidence disclosed that he
suffers from anxiety and depression and documents were furnished to the Court in this
respect. He also attended a counselling service whilst he was at large and it was
indicated to the Circuit Criminal Court that he was eager to achieve enhanced prisoner
status.
18. The sentencing judge adjourned the sentence for urinalysis and on the 7th November,
2018 having received the results thereof, which results were negative, evidence was also
Page 5 ⇓
given of courses he had undertaken in pursuit of rehabilitation and the sentencing judge
then proceeded to sentence.
19. The gravamen of the complaint advanced before this Court is that the sentencing judge
misstated the circumstances leading to the plea of guilty, in that she stated that the
appellant pleaded guilty having taken a trial date on his return to this jurisdiction.
Moreover, it is argued that the sentencing judge erred in imposing the same sentence on
this offender as on his co-accused in circumstances where his co-accused, Mr Needham,
had a previous conviction for the importation of drugs in another jurisdiction.
20. The sentencing judge departed from the presumptive minimum sentence and assessed
the gravity of the offence at ten years’ imprisonment. While she properly considered Mr
Morrow to be a trusted operative within the venture, she noted that he was not a
beneficiary and was not at the upper end of the hierarchy. She took into consideration
the value of the substance involved.
21. She then proceeded to give the appellant credit for his plea of guilty. She acknowledged
that he did not benefit from the operation and she took into account the element of
coercion. In relation to the latter two factors, these are matters which are more properly
considered in the assessment of the culpability of the offender. The judge went on to
consider his efforts as regards his rehabilitation and his health issues and she reduced the
sentence to one of eight years’ imprisonment. In so doing, she noted that he had no
drug-related previous convictions. We observe that that is a factor more properly
considered within the assessment of culpability. However, the appellant is a person with
previous convictions and his previous convictions lead to a progressive loss in mitigation.
22. Issue is taken with the judge’s account of the sequence of events wherein she placed a
trial date as being taken after his return to this jurisdiction. We do not see this error as a
material error. Clearly the judge was speaking in the context of assessing the weight to
be given for his plea of guilty. The plea was undoubtedly, in the circumstances, a late
plea. The trial date was taken before he fled the jurisdiction. This was certainly not a
case of a plea entered at the first available opportunity, therefore the weight to be
afforded to his plea of guilty was less than otherwise might be afforded in circumstances
of an early plea of guilty. It is noted also that the appellant was caught red-handed.
23. The second point is made that the judge erred in imposing the same sentence as she
imposed in respect of his co-accused, that is a pre-mitigation sentence of ten years’
imprisonment and with a reduction to eight years’ imprisonment having considered
mitigation.
24. However, the sentencing judge carefully assessed the evidence and she drew a factual
distinction between the co-accused and the appellant, that being that she considered the
previous conviction for the importation of drugs in the instance of his co-accused but also
considered that the co-accused had made admissions and had entered an early plea of
guilty. As regards this appellant, the judge properly decided that he had not entered an
Page 6 ⇓
early plea of guilty and thus received a reduced discount for the plea of guilty than might
otherwise be the case in the context of an early plea of guilty.
25. The overarching principle of sentencing is that of proportionality. The penalty in each
case must be proportionate to the gravity of the offence and the circumstances of the
offender. Gravity is measured by the assessment of culpability and the harm done or in
the instance of a drugs offence the potential harm which is caused to society by the
scourge of drugs. The fact that harm is at a future date does not lessen the seriousness
of the offence. The market value of a drugs seizure is a relevant consideration when
assessing the gravity of the offence, and in the present case, the value was a significant
one.
26. The value of the substance is an important consideration when assessing this appellant’s
moral culpability. He must have been aware that the drugs were intended for onward
distribution and the greater the amount of drugs the greater the harm to society, thus the
greater an offender’s moral culpability.
27. Other significant factors bearing on the issue of culpability are the elements of
premeditation and planning and the level of involvement in the operation. While the
appellant was not involved in the overall control or management of this operation, his role
was greater than that of, say for example, a courier. He played an important part in the
sequence of events, involved as he was in accepting and storing the drugs for their
onward journey to society.
28. When we look at the ultimate sentence imposed by the sentencing judge we find no error
in a sentence of eight years’ imprisonment for the offence. While some of the factors the
judge considered were more properly within the ambit of an assessment of culpability and
were considered by the judge in the context of mitigation, nonetheless the overall
sentence was the appropriate sentence and as a consequence we will not intervene in the
sentence imposed. We find no error in principle.
29. Accordingly, the appeal is dismissed.
Result: Dismiss