Irish Court of Criminal Appeal

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Cite as: [2008] IECCA 109

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Neutral Citation: [2008] IECCA 109

COURT OF CRIMINAL APPEAL

261/07

Finnegan J.

Budd J.

Herbert J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

STEPHEN ROWLAND

APPLICANT

Judgment of the Court (ex tempore) delivered on the 11th day of July 2008 by Finnegan J.

The applicant in this case pleaded guilty on the 27th April 2007 to one count of possession of drugs for sale or supply contrary to section 15 of the Misuse of Drugs Act 1977. The offence was committed on the 7th March 2006 at Mountjoy Square, Dublin, and the drug in question was cocaine. He was sentenced in the Circuit Court to imprisonment for a term of four years with the last year thereof suspended.

The factors which are relevant in this case are that the value of the drugs was €13,800. It was by the very smallest of margins less than that which would have led to him coming within section 15A of the 1977 Act with a mandatory minimum ten year sentence and again a possible sentence of any period up to life imprisonment. So it must be said that as an offence of this nature it is at the serious end. It is also serious in that the drug is cocaine. His involvement in the drug trade, as explained by him, is that he was a middle man between a supplier and a dealer and that his function was to collect the drugs from the supplier in Dublin, bring them to the dealer in Dundalk, collect the money and bring it back to the dealer in Dublin. For this he was

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paid he said between €500 and €1,000 or €500 and €600. Whichever is the case he engaged in this occupation purely for profit. It is not a case where he is feeding a drug habit.

As to the applicant he was born in Nigeria. He is married to a German citizen. They have one child and reside in Drogheda. He came to Ireland in 2003 and has been working since 2004 and the court has been told that he has three successive tax clearance certificates so it is clear that he is working within the system, paying his tax and social welfare and that is something that counts in his favour. Many who find themselves before the courts on these charges have no history of employment. Again it is clear that he has throughout his life made an effort to improve himself and put himself in a better position to earn his own livelihood and provide for his family. In Nigeria he went to university and studied business studies but did not complete the course. He attended Dundalk Institute of Technology as a full-time student and the court has a letter dated February 2006 in relation to that. He then enrolled with Griffith College Dublin to pursue a B.A. in business and accountancy and finance. That, of course, with the sentence in prison is not going to occur. He did complete a senior school certificate in Nigeria. He has a certificate in computer operations from Nigeria and indeed in 1993 was admitted to a university programme for a bachelor of science in accounting.

The learned trial judge in passing sentence in this case considered the value of the drugs, €13,800, which puts the case at the upper end of the range of seriousness. In considering it at the upper end of the range one must also consider section 15A and the minimum sentence that would have applied had the drugs been of any greater amount. He is not to be sentenced under section 15A but it is an indication of the seriousness with which the legislature views this offence. The learned trial judge had

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regard to his role in the drugs trade as a middle man. She had regard to his cooperation with the Gardai which she described as limited but, having said that, he did co-operate. She took into account that he was acting for gain and she took into account that he pleaded guilty on the first available date but did remark that he was caught red-handed and therefore had an incentive to plead guilty. She took into account his family circumstances, that he has a wife and child and that he was studying and that while he had some previous convictions they are not previous convictions of any relevance to this charge and indeed it would be appropriate to treat him as a man coming before the court with no relevant previous convictions.

This court sees the learned trial judge as having taken into account all those factors which were appropriate. There are, however, others factors that we think should have carried some weight in the present circumstances. Firstly he is a foreign national and it is generally recognised that a term of imprisonment for him is more difficult and a more serious undertaking than it would be for someone who was born in this jurisdiction. Secondly the fact that he has no relevant previous convictions, the fact that he has been consistently employed, the fact that he has attempted to improve his prospects in the labour market by pursuing courses of education are factors that leads this court to take into account the principle enunciated by this court in Director of Public Prosecutions v Jennings, unreported, 15^th February 1999, and that is that in all the circumstances there may be features which encourage the court to hold out some hope or to take a view that this conviction may be the turning point in someone's life and the court hopes that that is what will occur in this particular case. It is an offence that merits a term of imprisonment and indeed the term imposed relative to the offence was somewhat light. This court proposes to mark the seriousness of the offence but to impose a suspension on part of the term to hold out

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this hope to the applicant and to his family that he will be able to pursue what appears to have been his course to date outside this offence. It is also the hope that within the prison systems, where it will be necessary that he spend a considerable amount of time, that he will be able to avail of educational facilities there.

In any event the court feels that the judge erred in principle in this case by not taking into account his foreign nationality and not taking into account the indications that some form of suspension of the sentence beyond that which was allowed coupled with an increase in the sentence to be otherwise served should he not observe the terms upon which the sentence is suspended is the appropriate way in which to proceed in this case.

In those circumstances the court proposes to allow the application for leave and treat the hearing of this application as the hearing of the appeal. In substitution for the sentence imposed the court will impose a sentence of five years imprisonment but will suspend three years thereof upon terms that the applicant keep the peace and be of good behaviour for a period of three years following his release from prison.

DPP v Rowland