Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Rory Lernihan

Neutral Citation: [2007] IECCA 21


Court of Criminal Appeal Record Number: 147CJA/06

Date of Delivery: 18 April 2007

Court: Court of Criminal Appeal

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Charge 1: Rory Lernihan on the 13th of December, 2004 at Silversprings Lane, Mayfield, Cork had in his possession a controlled drug, namely cocaine for the purpose of selling or otherwise supplying it to another and at the time the drugs were in his possession their market value exceed €13,000 in contravention of the Misuse of Drugs Regulations 1988 and 1993 as made under Section 5 of the Misuse of Drugs Act, 1977 contrary to Section 15A of the Misuse of Drugs Act, 1977 as inserted by Section 4 of the Criminal Justice Act, 1999.

Charge 2: Rory Lernihan on the 13th of December 2004 at 14 Ashmount Court, Mayfield Cork had in his possession a controlled drug, namely cannabis resin contrary to Section 3 of the Misuse of Drugs Act, 1977.

"In the circumstances of this case there has been [a plea] for the possession of 1 kilo of cocaine and a Section 3 plea in relation to the cannabis. The amount of the cocaine was 1 kilo, which allegedly the street value is 72K, perhaps not the biggest amount of drugs in the context of this court to come before the court. But what has struck me in this case over and above any other case is, if you like, this man was in some comfort working. He was not a drug addict when he knowingly got involved in this trade. I accept what the Sergeant says that now that he is caught he is unlikely ever to get involved again. He did it for money. That is all the downside.

The mitigating side: he has pleaded guilty, he pleaded guilty in early course, he has shown remorse, he is unlikely to get involved again.

Now weighing everything one with the other, I believe there has to be a custodial sentence. I know it is going to have a very serious effect on him and bring devastation to his family, but I believe in the context of this case where somebody knowingly gets involved in the trade of drugs, that one of the consequences of that trade is you are going to lose your liberty. There is definitely sufficient, in this case, which allows me to depart [the] from the mandatory 10 years sentence, in other words it would be unjust to impose a 10 year sentence.

So given that the facts allow me to depart from a 10 years sentence. What sentence do I think appropriate? In all of the circumstances I would regard a sentence ... First of all, in the ordinary course of events, without the mitigating factors, I would say a sentence of four years would be appropriate. There are exceptional mitigating factors in this case because of the early plea, the extent of the co-operation and the fact that he has continued to work and rehabilitate himself, I will take that into account. So what I will do is I will suspend the ... he will serve 18 months and I will suspend the balance of the four years."

" 2. - (1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the "sentencing court") on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed.

(3) On such an application, the Court may either—

( a ) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or
( b ) refuse the application.

"What is for resolution before us is whether the sentence imposed in respect of the offences committed against the second woman are in all the circumstances, in the words of the section, 'unduly lenient'.
Since this is the first case brought under the Act it is appropriate to say something about how the court thinks the section should operate.
In the first place, since the Director of Public Prosecutions brings the appeal the onus of proof clearly rests on him to show that the sentence called in question was 'unduly lenient'.
Secondly, the court should always afford great weight to the trial judge's reasons for imposing the sentence that is called in question. He is the one who receives the evidence at first hand; even where the victims chose not to come to court as in this case - both women were very adamant that they did not want to come to court - he may detect nuances in the evidence that may not be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person sentenced; what Flood J has termed the 'constitutional principle of proportionality' (see People (DPP) v. W.C. [1994] 1 ILRM 321), his decision should not be disturbed.
Thirdly, it is in the view of the court unlikely to be of help to ask if there had been imposed a more severe sentence, would it be upheld on appeal by an appellant as being right in principle? And that is because, as submitted by Mr. Grogan SC, the test to be applied under the section is not the converse of the enquiry the court makes where there is an appeal by an appellant. The inquiry the courts makes in this form of appeal is to determine whether the sentence was 'unduly lenient'.
Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court."

"(3A) Every person guilty of an offence under section 15A shall be liable, on conviction on indictment -

(3B) Where a person (other than a child or young person) is convicted of an offence under section 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 10 years imprisonment.

(3C) 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 10 years imprisonment unjust in all the circumstances and for this purpose the court may have regard to any matter it considers appropriate, including:-

and

". . . in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned . . ."

and

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

"Even where exceptional circumstances exist which would render the statutory minimum term of imprisonment unjust, there is no question of the minimum sentence being ignored. Perhaps the most importance single factor in determining an appropriate sentence is the ascertainment of the gravity of the offence as determined by the Oireachtas. Frequently an indication as to the seriousness of the offence may be obtained from the maximum penalty imposed for its commission. This is particularly true in the case of modern legislation. What is even more instructive is legislation which, as in the present case, fixes a mandatory minimum sentence. Even though that sentence may not be applicable in a particular case, the very existence of a lengthy mandatory minimum sentence is an important guide to the Courts in determining the gravity of the offence and the appropriate sentence to impose for its commission. That is not to say that the minimum sentence is necessarily the starting point for determining the appropriate sentence. To do so would be to ignore the other material provision, that is to say, the maximum sentence. It would be wrong to assume that the offence of importing controlled drugs in excess of the prescribed amount or value will attract only the mandatory minimum sentence, long though it may be.

Clearly subsection (3C) requires the sentencing Court to examine circumstances relating to the offence or the person convicted of the offence which, it is alleged, are exceptional and specific and which in the opinion of the Court would render a sentence of not less than ten years imprisonment unjust. To perform that task the sentencing Court must form some view of what an appropriate sentence would be having taken into account the matters which the Court considers appropriate including the matters expressly specified in subsection (3C) aforesaid. If the Court is satisfied that factors exist which would render the mandatory minimum sentence unjust then the Court is not required to impose it but the existence of such matters or circumstances does not reduce the inherent seriousness of the offence. It remains the task of the Court to impose a sentence which is appropriate having regard to the relevant circumstances and also the fundamental gravity of the offence as determined by the Oireachtas and reflected in the sentences which it has prescribed.

The statute does not expressly authorise the use of the minimum sentence as a "benchmark" in the sense of providing a figure by reference to which particular reductions or discounts should be afforded having regard to material circumstances existing in the particular case. On the other hand the sentencing limitations imposed by the Oireachtas are, as had been pointed out, of the utmost importance in recognising the gravity of the offence and determining the appropriate punishment."

"I have taken the view, since this particular piece of legislation was introduced, that the court in dealing with these matters is effectively looking at a sentence of 10 years' imprisonment in relation to the person pleading guilty to such offence. But that in cases where a plea of guilty has been entered and where there has been co-operation that that is a factor that the court can use to reduce that 10 year tariff."

"It has been well established in judgments of this court that it is an error to read this section as providing for a mandatory minimum sentence of ten years imprisonment, which may be mitigated by the trial judge based on identified exceptional circumstances. The maximum sentence has also to be considered. Rather than providing simply for a maximum sentence, the section commences by making the convicted person liable for imprisonment for life or such shorter period as the court may, subject to subsections (3B) and (3C) of this section, determine. The correct approach to the interpretation of the section is expressed in the judgment of this court, delivered by Murphy J. in DPP v Chipi Renald (Unreported 23rd November 2001).

"The Court is of opinion that, in recognition of these features of the case and specifically the possibility that the remorse expressed by the Applicant is genuine, the mandatory minimum sentence of ten years imprisonment should be further mitigated by suspending the last two years thereof on terms, now to be discussed, which will encourage the Applicant to overcome his habit of using drugs. To that extent, the Court will treat the application for leave to appeal as the hearing of the appeal and will impose a sentence of seven years imprisonment to date from the date when the Applicant was taken into custody."

"If, however, the notional sentence turns out to be less than ten years then prima facie subsection (3B) applies so as to impose the ten year sentence unless subsection (3C) applies. In considering whether the latter subsection applies or not, a plea of guilty without more and especially a late plea could not normally be taken into account because it would rarely if ever constitute "exceptional and specific circumstances". It is in this exercise, that is to say, the issue of whether subsection (3C) applies or not that the strict requirements enunciated in the judgment of Hardiman J. in Botha come into play.

Although the learned Circuit Court judge did not precisely adopt this interpretation of the section, nevertheless, the court is absolutely satisfied that he arrived at the correct result. The sentence which the judge imposed was twelve years which is two years more than the minimum statutory sentence. He made no error in imposing such a sentence given the size of the drugs haul, the previous criminal career of the applicant, the absence of any specific and exceptional circumstance such as for instance cooperation with the gardaí which there was not.

Even if for the purpose of arriving at a so called "notional sentence" it was right to take the plea of guilty into account as indeed it would have been, the sentence of twelve years was still quite appropriate. The court considers that a sentence less than twelve years would have been inappropriate. Accordingly, the application for leave to appeal will be refused."