Irish Court of Criminal Appeal

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URL: http://www.bailii.org/ie/cases/IECCA/2006/C164.html
Cite as: [2006] IECCA 164, [2007] 2 IR 622

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Judgment Title: D.P.P.-v- Andrew Dermody

Neutral Citation: [2006] IECCA 164

Court of Criminal Appeal Record Number: 180/05

Date of Delivery: 21 December 2006

Court: Court of Criminal Appeal

Composition of Court: Hardiman J., Budd J., O'Neill J.

Judgment by: Hardiman J.

Status of Judgment: Approved


Judgments by	Result
Hardiman J.	Refuse application

Outcome: Refuse application

- 10 -

THE COURT OF CRIMINAL APPEAL

Hardiman J. 180/05
Budd J.
O’Neill J.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

and

ANDREW DERMODY

Defendant/Applicant

JUDGMENT of the Court delivered the 21st day of December, 2006, by Mr. Justice Hardiman.
This is an application for leave to appeal against a sentence of seven years imprisonment imposed at Carlow Circuit Criminal Court by His Honour Judge O’Shea. The applicant had pleaded guilty to the offence of possession of a controlled drug contrary to s.15A of the Misuse of Drugs Act, 1977. The particulars of offence were as follows:

“Andrew Dermody on the 21st day of April, 2004, at 33 Dereen Heights, Tullow Road, Carlow, had in his possession a controlled drug, namely cocaine, for the purpose of selling or otherwise supplying it to another in contravention of regulations made under s.5 of the Misuse of Drugs Act, 1997, the market value of which drug amounted to €12,697.38 or more.”

The applicant lived at the address stated in the indictment with his mother. The drugs were found in his bedroom during a garda search which took place in his absence. Having been telephoned by his mother and told about the find of the drugs he returned home and spoke to the gardaí. He frankly admitted that the drugs were his but flatly declined to say where he had got the cocaine other than that he had purchased it in Dublin for €18,000. This made the quantity of drugs seized, in the words of the garda witness “the largest seizure that has come before the Courts in Carlow in quite a number of years”.

The applicant is a person who, it was agreed, is addicted to cocaine. He told the gardaí that he was proposing to sell the drugs which were found in his room in small quantities around the Carlow area. A weighing scales was found associated with the drugs.

The applicant spoke freely to the gardaí who interviewed him, though they expressed incredulity at some aspects of what he said. He claimed to have been dealing in cocaine for only three weeks or so and in cannabis for a longer period, about six months. He gave them details of the market price at which he acquired and sold on the drugs. He was untroubled by his activities on the basis that if he didn’t do it someone else would. He said there was a lot of drugs in Carlow:

“If you ask any ten year old of my street, they’d tell you how to weigh grams, sure every second house up my way has a drug dealer in it or they’ve been caught with drugs.”

He said he had bought the cannabis to sell it on to make money, and also to supply himself. A guard put to him:

“I put it to you that are a drug dealer and supplier in Carlow town, that you have a regular client/customer base and that you have been dealing cocaine for more than three months to have such a base formed at this stage. You are a dealer and supplier and a big one at that?”

To which the applicant replied:

“Yeah, and I’m caught now. There will be five or six more to take my place, that’s true. I’m far from big.”

The applicant said often to the gardaí that he would give them no information as to his supplier:

“You’re not going to get the truth out of me, what do you think I am, a fluffy tail?”

This term, he said, was a synonym for “rat”. He said that if he were to “rat” then “maybe my mother’s house could be burned down, the car destroyed”. He said he would be afraid of his suppliers.

He claimed, eventually, to have paid about €4,600 in respect of the cocaine and to have debts for the balance. It was agreed by the gardaí that he was a man in poor financial circumstances with no indications of having any significant sum of money.

The law.
Section 5 of the Criminal Justice Act, 1999, amended s.27 of the Misuse of Drugs Act, 1977, in a way highly material to this case. Section 27 was the penalty provision of the original modern Misuse of Drugs Act and it was amended by the insertion of a maximum penalty of life imprisonment (or such shorter period) “as the Court may, subject to subsections to (3B) and (3C) of this Section determine”.

Subsection (3B) provides as follows:

“Where a person (other than a child or young person) is convicted of an offence under s.15A, the Court shall, in imposing sentence specify as the minimum period of imprisonment to be served by that person a period of not less than ten years imprisonment”.

The next subsection goes on to provide:
(3B) “Subsection (3B) of 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 ten years imprisonment unjust in all the circumstances and for this purpose the Court may have regard to any matters it considers appropriate including

(a) Whether the person pleaded guilty to the offence and if so

(i) the stage at which he indicated the intention to plea guilty, and

(ii) the circumstances in which the indication was given, and

(b) Whether that person materially assisted in the investigation of the offence.”

It would be unrealistic for the Court to ignore the fact that, in the couple of weeks immediately preceding the hearing of this appeal on the 19th December, 2006, strident and repeated public comments, from more than one source, have been made, critical of the judicial interpretation of the legislative provisions set out above.

Since these comments have been given wide and excited coverage in the media, it is perhaps appropriate in giving the judgment of the Court in a case arising so soon after these repeated comments were made, to say that in deciding this case the Court pays the comments in question no attention whatever. The duty of judges is to decide individual cases impartially in accordance with the Constitution and the laws, and without regard to expressions of opinion from any source other than the Director of Public Prosecutions, as prosecutor, and from the applicant, as the person on whom the sentence was imposed. Both, as is usual, have made their submissions through counsel.

The applicant submits that the sentence was too high. He is, of course, fully aware that the sentencing court was obliged to impose a sentence of not less than ten years imprisonment (it might have been up to life imprisonment) unless the provisions of s.15(3C) apply. He was also aware that the learned trial judge had already discounted the minimum sentence of ten years imprisonment by three years and that this clearly gives significant weight to the factors which might be thought to render a ten year sentence unjust.

The submissions.
For the applicant, Mr. Michael Counihan S.C. said that the learned trial judge had not given sufficient weight to the factors just mentioned. He said that the very early plea of guilty was in itself an exceptional and specific circumstance. The exceptionality arose out of the earliness of the plea - the applicant had indicated immediately on being made aware of the find that he was admitting possession of the drugs. In discussion with the Courts, Mr. Counihan had been given information about the result of a Department of Justice study (further discussed below) showing that in fifty-five cases studied, all but one defendant on a s.15A charge had pleaded guilty. Mr. Counihan agreed that he could not say that such a plea was exceptional in the sense of being uncommon and therefore placed its extreme earliness, and the consistency of admission, in the forefront of his submissions. The earliness of the plea is itself a factor specifically mentioned in subsection (3C) at subparagraphs (i) and (ii).

Mr. Counihan also submitted that, on the facts of the case, the applicant had materially assisted in the investigation of the offence. Counsel immediately conceded that the applicant had not identified his supplier, which would be the most effective form of assistance, but pointed to the fact that he was afraid to do this. This factor, he said, was neutral. But his immediate admissions had removed the need to investigate or prove the offence and this was an act of assistance, equally he deprived himself of the possibility of relying on any form of technicality in warrants or otherwise. He accepted that the applicant had some previous drugs convictions but submitted that the sentence was very severe and did not give sufficient weight to the mitigating factors, including those which would render unjust a sentence of ten years.

Mr. Counihan emphasised the fact that there was no application about the Director of Public Prosecutions to review the sentence on the ground of undue leniency.

Mr. Paul Greene for the Director confirmed this: the Director was not seeking to have the sentence increased. In the course of discussion as to the significance of this fact, Mr. Greene said that the Court was entitled to take the view that the Director did not consider the sentence to be unduly lenient. He submitted that the learned trial judge had taken all the relevant factors into account and had extended all reasonable leniency. He pointed out that the defendant had paid, in cash or by incurring debt, €18,000 for the drugs in question here.

Turning to the effect of a plea of guilty, Mr. Greene said that a plea of guilty was a feature that always has a value in mitigation of sentence. This was so even in a s.15A case.

Significantly, Mr. Greene said that the Director was not contending on the hearing of this appeal that the circumstances of the case might be so open and shut as to deprive a plea of guilty of all real value as a mitigating factor, or of all value as a factor that might have the capacity to render it unjust to impose the minimum sentence envisaged in s.(3B).

Decision.
The Court notes the position of the Director of Public Prosecutions on this appeal: he is not seeking to have the sentence increased, and he does not consider it to be unduly lenient and positively states that a plea of guilty must have some weight in all cases, even those which, on the face of them at least, might appear “open and shut”.

The significance of this is considerable. It has not been contended that the state of the evidence in this case is such as to deprive the plea of all value. The Court has already referred to a piece of information provided on the Department of Justice’s website under the heading “Law Reform” and constituting a study of the operation of s.15A over a long period of time ending in early 2005. The researcher, Mr. Patrick McEvoy, was “asked to research the principles applied by the Courts in sentencing under s.15A of the Misuse of Drugs Act, 1977, (as inserted by Sections 4 and 5 of the Criminal Justice Act, 1999) with particular reference to the criteria used by the Courts in determining whether or not to impose the mandatory minimum sentence of ten years”. This paper is the source of the information that, out of fifty-five cases studied, only one featured a plea of not guilty.

Mr. McEvoy’s paper is of course easily accessible as it is on the internet. However it is worth citing his conclusion as follows;

“The Courts have evinced a marked reluctance to impose the mandatory minimum sentence. However where they have applied the exception contained in subsection 3(C) it has largely been by

reference to factors set out in the legislation itself

, namely (i) a plea of guilty on behalf of the accused and (ii) material assistance in the investigation of the offence.

… In conclusion therefore it is suggested that Section 15A has been reasonably successful in its operation. This is borne out by (i) the high rate of pleas and (ii) evidence of considerable cooperation by accused persons with gardaí in the investigation of the offence and (iii) the fact that even where the mandatory minimum sentence has not been imposed, the resulting sentence has often been quite severe, with the bulk of the sentences falling in a range of six - eight years”.

Another feature of the sentencing regime to which little attention has been devoted is that in each and every case the Director of Public Prosecutions has a right to apply for review by this Court if he considers the sentence to be unduly lenient. This has not happened in the present case. However, in the period 2002 - 2005 twenty-three such applications were lodged by the Director. Three await hearing, but of the balance 13 or 65% were successful. This does not, in any way, indicate that each of these cases represents a malfunction of some sort in the sentencing court. The s.15A system is a drastic alteration of the principles of sentencing as they formerly applied and the right of appeal, whether by the applicant or by the prosecutor, is an essential safeguard against undue leniency or undue severity, especially necessary in dealing with a revolutionary alteration superimposed on the conventional principles of sentencing. In no case, according to the figures, was a sentence of more than six years immediate imprisonment made the subject of a D.P.P. application for review, and there was only one case of an attempt to review an immediate custodial sentence of six years.

In the present case, we consider that the applicant has been rather fortunate. The reduction of three years imprisonment in the mandatory minimum sentence is, in our opinion the largest possible reduction which could be justified, having regard to s.15A. There is no feature in the case that suggests any error of principle in not further reducing the sentence.

Conclusion.
The Court will dismiss the application for leave to appeal in this case.

Andrew Dermody