Irish Court of Criminal Appeal

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Cite as: [2006] IECCA 49

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Judgment Title: D.P.P.-v- Patrick Long

Neutral Citation: [2006] IECCA 49

Court of Criminal Appeal Record Number: 227/04

Date of Delivery: 07/04/2006

Court: Court of Criminal Appeal

Composition of Court: Macken J., Lavan J., Murphy J.

Judgment by: Macken J.

Status of Judgment: Approved


Judgments by	Result
Macken J.	Quash sentence and impose sentence in lieu

Outcome: Quash sentence and impose one in lieu

COURT OF CRIMINAL APPEAL

227/04

Macken J.
Lavan J.
Murphy J.

Between:

The People at the Suit of the Director
of Public Prosecutions

AND

Patrick Long

Applicant

Judgment of the Court delivered on the 7th day of April 2006 by Macken J. __________________________________________________________

This is an application for leave to appeal the sentence imposed upon the Applicant’s plea of guilty to a charge in respect of the importation of drugs, the Applicant having been sentenced to 14 years imprisonment by the learned sentencing judge at Dublin Circuit Criminal Court on the 10th November 2004.
Essentially the grounds upon which the application for leave to appeal are that the learned Judge erred in ruling that the prosecution was entitled to adduce evidence of admissions made by the accused to offences with which he had not been charged: and that the cumulative effect of the prosecution’s attempts to do so (and the alleged ruling in of them) was such as to prejudice the learned Judge in his sentencing. In addition it is contended that the learned sentencing judge gave insufficient weight to the mitigating factors existing in the case, in particular the plea of guilty and the Applicant’s previous good character, and wrongly placed excessive reliance on the claimed aggravating factors. In all of the circumstances the sentence was therefore disproportionate to the individual circumstances of the accused.
The Background Facts
The events giving rise to charges in this matter involve the importation of a very substantial quantity of drugs. The Applicant indicated at the return for trial date, and prior to his arraignment on the 28th June 2004, that he intended to plead guilty to one of several charges, namely count number 7. The statement of offence in respect of that count was possession of controlled drugs of value for supply in contravention of the Misuse of Drugs Regulations 1988 and 1993 made pursuant to the Misuse of Drugs Act 1977, and contrary to s.15(A) of that Act, as amended. The particulars of the offence were that on the 29th of May 2003 within Dublin he had in his possession controlled drugs being cannabis resin and cannabis for the purposes of supply to another at a time when the drugs in his possession had an aggregate market value in excess of €13,000.
The evidence, according to the transcript of the sentencing hearing on the 10th November 2004, was that the drugs had a street value of about €12,000,000, and weighed almost one metric tonne. The actual amount was 967 kilograms of cannabis resin and 20 kilograms of cannabis herb. These were found in two separate pallets in the rear of a long distance truck being driven by the Applicant. The truck was searched and he was arrested.
The evidence of Detective Sergeant Sheehan was also to the effect that when arrested the Applicant was cooperative with the gardaí having immediately admitted his role in their importation, and was of material assistance to the gardaí. He admitted that he had collected the drugs, by prior arrangement, on the Dutch-Belgian border, and according to the memos of interviews made on the 29th and 30th May 2003 with him, these pallets were brought back to Ireland in a container carrying genuine computer parts being shipped from Holland to Ireland, as well as eight other pallets of faulty computer parts which were being collected in the United Kingdom. The Applicant had explained that when he got to the United Kingdom he removed the two pallets containing the drugs from his truck, loaded the eight pallets being collected there and reloaded the two containing drugs, the reason being that these two were to be unloaded from the truck first, prior to delivery of the other pallets containing legitimate products.
The evidence also tendered was that in return for bringing these drugs into Ireland the Applicant admitted he would be paid €20,000, or perhaps €40,000 – the exact figure is not clear on the transcript.
The interviews with the Applicant also made it clear that the immediate arrangements for the shipping and delivery of the drugs were made by mobile phone. Two mobile phones were furnished to the Applicant together with telephone numbers already installed in them, one to contact the supplier in continental Europe, and a separate one with a second number to contact the person in Ireland to whom the drugs were to be delivered. When he left Ireland he was handed these two phones and the intention was that he would hand them back when he returned to Ireland. The Applicant also stated in the interviews that he did not know the name of the party from who he obtained the drugs nor the party to whom he was to deliver the drugs, and understood the product was what he called the “lowest level of recreational drugs”. He said he had become involved because he wished to pay off certain debts and other living costs.
Finally the garda witness also gave evidence (notwithstanding objection on behalf of the Applicant) relating to the Applicant’s admissions to a series of importations, the first in around May 2002 involving a box of gold krugerrand coins, the second in or around August or September 2002 which consisted of a “bag of drugs”, being cannabis, and the third in or around December 2002 or January 2003 also in respect of the same type of drugs, and of the fact that he had been paid, in respect of those transactions, a sum amounting to €80,000.
The Sentencing Hearing
Insofar as the sentencing hearing is concerned objection was taken on behalf of the Applicant to an application by the Director to introduce evidence of the manner or style in which the Applicant appeared to be living. This objection concerned, not only to the attempt to introduce such evidence on the part of the prosecution, but also, and in any event, to the introduction or consideration of any evidence which went outside the specific indictment being dealt with. The learned sentencing judge refused to hear the general evidence sought to be adduced, and indicated he would deal with the matter on a two tier basis, deferring the admission of any such evidence to a future possible hearing on forfeiture, and confining the evidence to that going to sentence only on the charge before him. He did, however, allow evidence as to the above admissions, on the basis that they were in the statements of interview in the Book of evidence and he was therefore entitled to read them.
The learned Judge in dealing with the question of sentencing approached it in the following way. First of all he drew attention to the provisions of s.15(A) of the Act of 1977 and to the fact that the legislator had provided for very severe prison sentences, having a maximum sentence of life imprisonment, as well as to the fact that the section also provides for a mandatory minimum sentence of 10 years, unless the Court considers under certain circumstances that such a mandatory minimum sentence would be unjust. In that regard the Judge’s approach to the statutory parameters of the sentencing was perfectly acceptable and appropriate, and no serious suggestion is made to the contrary.
The learned Judge then proceeded to consider the mitigating circumstances in the case, as he is obliged to do, having regard to the personal circumstances of the Applicant. These included the early plea of guilty, following a degree of cooperation with the gardaí, his admission of involvement in the matter in early course, even though this was in the context of driving a truck with a very large amount of cannabis of about a metric tonne. Nevertheless the learned judge pointed out that he had pleaded guilty and that he, the Judge, was satisfied that his early plea of guilty materially assisted the gardaí in the investigation and prosecution of the case. These were proper mitigating factors to take into account. It is the case that, in the grounds of appeal, a ground invoked is that the learned sentencing judge did not take into account specifically the prior good character of the applicant, but during the course of the hearing on this matter, this ground was not addressed in detail on behalf of the Applicant perhaps because of the nature of the rather more fundamental arguments invoked, to be addressed below.
The learned trial Judge, again as he is obliged to do, next considered the aggravating factors, as he said, “on the other side of the balance sheet”. In this regard he took into account the considerable amount of drugs found in the lorry, and although the truck was not owned by the Applicant, nonetheless he knew what was involved, and knew the amount involved although he probably did not know the value. He then referred to the fact that the Applicant was to be paid a substantial amount of money for this trip. He said this was against the background that he had been paid previous amounts in respect of other drugs importations. The learned trial Judge considered that the Defendant could not be described simply as “a courier”, but more as “a transporter”. He also had regard for the fact that it was greed which had got the Applicant involved in these offences. He pointed out that the Applicant was not a young person but rather a 42 year old man who must have known the consequences of his actions if he did get caught.
It is in respect of this latter content of the aggravating factors that objection is raised on behalf of the Applicant to the sentencing judge’s approach. Counsel for the applicant, Mr. Gageby, S.C., argues that the learned sentencing judge committed an error of law of a fundamental nature, namely that he wrongly took into account factors and matters extraneous to the charge to which the Applicant had pleaded, such that these influenced the learned sentencing judge to impose a sentence which was unduly severe. The basis for this argument is as follows. Although a judge sentencing a person who has been found guilty or who has pleaded, may take into account appropriate background factors, he may not under any circumstances have regard to matters which could have been the subject of separate charges brought by the Director of Public Prosecutions, but which were not. This is so even if the Applicant has admitted to events or activities which could form the basis of separate charges, unless the Applicant has not only made such admissions but has also requested the sentencing judge to take them into account, which had not occurred in the present case. Since that had not occurred, it was not permissible for the sentencing judge, to take them into account in the construction of the sentence. In support of this argument, counsel for the Applicant invokes both Irish and English jurisprudence in that regard. It is sufficient for the purposes of this judgment to refer to the decision of the Court of Criminal Appeal in the case of DPP v Gilligan [2004] 3 I.R. 87, in which the English jurisprudence on this issue is considered. This is a decision delivered on behalf of the Court by McCracken, J., in which he stated:

“6 Curiously, there seems to be very little authority in relation to that issue in this country however, the matter was considered by the Court of Appeal in England in the case of Reg. v. Kidd [1998] 1 WLR 604. In that case, the issue was posed as follows at p. 606:-

“The issue may be expressed as follows: if a defendant is indicted and convicted on a count charging him with criminal conduct of a specified kind on a single specified occasion or on a single occasion within a specified period, and such conduct is said by the prosecution to be representative of other criminal conduct of the same kind on other occasions not the subject of any other count in the indictment, may the court take account of such other conduct so as to increase the sentence it imposes if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration when passing sentence?”

7 This was decisively answered by Lord Bingham of Cornhill at p. 607 in the following terms:-

“A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see Reg. v. Anderson (Keith) [1978] A.C. 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit.

It is said that the trial judge, in the light of the jury’s verdict, can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the incidents specified in individual counts. But this, as it was put in Reg. v. Huchinson [1972] 1 W.L.R. 398 at p. 400 is to ‘deprive the appellant of his right to trial by jury in respect of the other alleged offences’. Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle.”

8 That seems to this court to be a clear and unambiguous statement of principle with which the court entirely agrees. Indeed, counsel on behalf of the respondent does not really challenge it. He does seek to argue, however, that the sentencing court is entitled to have regard to the overall evidence of the activities of an accused in determining the gravity of the individual charges in respect of which he has being convicted. In the present case, he points to the fact that the offences took place over a period of some 28 months, that there was clear evidence that these offences were part of organised crime, and that indeed the applicant was closely involved in the organisation, and that he would appear to have been motivated purely by greed.

9 While this court accepts the reasoning in Reg. v. Kidd [1998] 1 WLR 604, quite clearly a sentencing court cannot act in blinkers. While the sentence must relate to the convictions on the individual counts, and clearly the applicant must not be sentenced in respect of offences with which he was not either charged or convicted and which he has not asked to be taken into account, nevertheless the court in looking at each individual conviction is entitled to, and indeed possibly bound to, take into consideration the facts and circumstances surrounding that conviction. Indeed, if that were not so, and these were treated as isolated incidents occurring at six month intervals, it might well be that the proper course for the court to adopt would be to impose consecutive sentences. The court does, therefore, accept the basic principle behind the argument of counsel for the respondent. However, the court does think it important to emphasise that in many cases there may be a very narrow dividing line between sentencing for offences for which there has been no conviction and taking into account surrounding circumstances, which may include evidence of other offences, in determining the proper sentence for offences of which there has been a conviction. It is important that courts should scrupulously respect this dividing line.”

Counsel on behalf of the Director, Mr. Foley, B.L., argues that the learned sentencing judge was fully entitled to look at everything in the Book of Evidence, including the detailed admissions made by the Applicant as to his previous importation activities, and that the prosecution was fully entitled to lead such evidence, as aggravating factors relating to the personal circumstances of an accused in the context of the charges, to be taken into account, in relation to the Applicant, in the same way as mitigating factors relating to the personal circumstances of an accused are also presented and taken into account as part of the sentencing process. In those circumstances, the learned trial judge was doing no more than having regard to the general context or background of the charge for which he was sentencing the Applicant, and was not sentencing him in respect of any of the other specific matters in respect of which he had made admissions but in respect of which he had not been charged.
Further, when judging the overall sentence actually handed down in the present case, having regard to the very serious aggravating factors to be taken into account, as well as to the sentencing parameters found in the legislation, counsel for the Director argues that the actual sentence imposed was in fact very lenient, although accepting it could not be classified as being unduly lenient in the sense understood in the legislation.
On this fundamental issue, which is the real gravamen of the Applicant’s application for leave to appeal, the court finds as follows. A trial or sentencing judge is fully entitled in the case where an accused has entered a plea of guilty to have regard to all background matters arising which goes to clarify or explain the context of the crime in question and which may be assistance to the sentencing court in reaching a decision as to the appropriate sentence to be imposed in a given case. This includes being able to look at and consider the entire of the Book of Evidence, including any admissions which may have been made by an accused. It would be fair to say that counsel for the Applicant does not seriously dispute this. The real difficulty, recognised in the jurisprudence, arises when assessing whether, even if a trial or sentencing judge is so permitted, that judge has in fact overstepped the mark, so to speak, and fallen into the trap of allowing the context or the factors, especially admissions, to influence or be taken into account in calculating the actual sentence being imposed. In the case of DPP v Gilligan, supra., the difficulties with which this exercise is fraught, are well recognised.
In the present case, when considering the transcript, the court is not satisfied that the learned sentencing judge clearly and unambiguously avoided these difficulties in such a way as to make it clear that the admissions of prior involvement in importation of, inter alia, drugs and of the payment for the same, did not influence the sentence which he imposed, and having regard to the above jurisprudence, this court will set aside the sentence actually imposed. In the circumstances, it falls to this court to consider what the appropriate sentence ought to have been. We have not been addressed on any circumstances which ought to be taken into account in respect of the Applicant, considering his position as of the present date, and proceed therefore on the basis that the same mitigating factors and other matters taken into account on his behalf in the court below operate also before this court.
As mentioned above, the learned sentencing judge took account of the correct parameters, of a statutory nature, and this court adopts the same approach, namely that the maximum sentence which can be imposed is life, with a ten year mandatory minimum sentence unless there are exceptional reasons present for not imposing such a minimum sentence. In fairness to counsel for the Applicant, it is not contended that the minimum mandatory sentence is not in all the circumstances, inappropriate. This court agrees. The mitigating factors are the early plea of the Applicant, the material assistance recognised as having been furnished by him to the gardaí during his interviews, and the fact that the applicant was of prior good behaviour. And the Applicant presented letters of commendation as to his character.
The aggravating factors, however, are of an extremely serious nature. The first is the value of the drugs in question. It is understood and appreciated by this Court that the value given was a street value based on the best possible price available. But there was no evidence presented to the sentencing judge that this was an unjustified approach, although the witness giving that evidence was cross examined as to the basis of his calculations. But, even allowing for some discount, it is this Court views that the value of the drugs in question was as close to the 12 million claimed as makes little difference, and by any stretch of the imagination, this was an enormous quantity of drugs, being one metric tonne which, as counsel for the Director mentioned, if divided into smaller quantities among even several hundred people, would nevertheless resulted in those several hundred people each being liable to be treated, if charged, pursuant to S 15A of the Act of 1977.
Secondly, the Applicant was correctly characterised by the learned sentencing judge as not being a mere “courier”. This was according to the transcript evidence, when considered in comparison to some unfortunate people who become involved as drugs “mules” or couriers, because they are already indebted to drugs suppliers or because their personal circumstances are such that they are escaping from a foreign country, or some such. Here the Applicant is a 42 year old man, recently married after a relationship lasting several years, with a full time job, and a wife who is also employed. He suffers from no addiction, no illness, and no deprivation such as might explain why he had become involved in the transport of the drugs, and he freely admitted to becoming involved in importing these drugs for financial gain. In other words, and put plainly, simple greed led to his involvement. He was, in reality, a cog, a very important and essential cog, in a significant drugs importation venture, even if not the mastermind behind the venture. He was part of the sophisticated mechanism set up by those who had, as their aim, the avoidance of identification either of supplier or of the eventual recipient of the drugs, as evidenced from the use of two separate mobile phones, with pre installed numbers to be contacted, and indeed he was unable to identify by name or otherwise either the supplier or the recipient. He clearly knew what was involved, as was found by the sentencing judge, but he considered the drugs were on the lowest rung of recreational drugs.
This court has stated on several occasions the risks for a person in becoming involved in such matters. In the case of D.P.P. v Hogarty, (unreported, Court of Criminal Appeal, 21st December, 2001), in a judgment by then Chief Justice Keane, he stated:

“Couriers play an essential role in the illegal drugs trade and, as the court has pointed out in the judgment it has just delivered in

The Director of Public Prosecutions v Duffy,

those who willing enter into that trade for financial reward, as the applicant unhappily did, simply cannot expect to receive anything but severe treatment from the courts. That is the policy plainly and unambiguously laid down in the Misuse of Drugs Acts 1977, as amended by the Criminal Justice Act, 1999, a policy which this is bound to uphold.”

Having regard to all the circumstances set out above, this court is of the view that it would be wholly inappropriate to impose a sentence less than the minimum mandatory sentence provided for in the legislation. What is, however, of particular seriousness in this case, and perhaps different from the circumstances giving rise to some at least of the sentences in the helpful list provided on behalf of the Applicant, is the combination of the enormous quantity and value of the drugs, even if they were not what are sometimes referred to as “hard drugs”, together with the blatant commercial basis upon which the Applicant embarked on their importation. This would merit a sentence, in this Court’s view, at the very upper end of the scale, even of 18 years, or perhaps more, despite the fact that he was not the mastermind behind the enterprise involved. Having regard to the mitigating factors which the court is also obliged to take into account, as set forth above, and including the latter factor, but specifically ignoring the admissions as to possible earlier criminal activity concerning drugs, the court considers that an appropriate and proper sentence is one of 14 years.