Irish Court of Criminal Appeal

COURT OF CRIMINAL APPEAL

238/07

Finnegan J.

Budd J.

Herbert J.

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

V

ABDULLAH ABDI

APPLICANT

Judgment of the Court (ex tempore) delivered on the 31st day of July 2008 by Finnegan J.

The applicant in this case pleaded guilty to a charge of possession of drugs for sale or supply contrary to section 15 of the Misuse of Drugs Act 1977. He was sentenced to a term of imprisonment of four years. That sentence was required by statute to be consecutive to a sentence imposed upon him, in respect of an offence under section 3 of the Misuse of Drugs Act 1977, with two other offences under the same Act being taken into account that sentence being one of six years.

All four offences took place within a very short period of time and the present sentence with which this court is concerned was imposed on the day succeeding that on which the six year sentence was imposed.

The applicant had in his possession when arrested at Talbot Street, Dublin, 50.46 grams of cocaine with a value of €10,092. In relation to the three offences which were dealt with on the proceeding day, not in Dublin but in Cork, the amounts involved were €7,000, €6,000 and €3,000.


 


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In relation to the applicant he was born on 28^th May, 1977 and he is now 28 years of age. He is a Somalian national and has been in Ireland for some ten years. He has worked for a lot of his time in Ireland and had a job as a security man with Dunnes Stores. He is in a relationship and had a partner at the time he was sentenced but his partner was then in prison. Being a foreign national it is noted that he had few visitors while in prison.

There are two matters to be borne in mind when considering the sentence of four years imposed on the offence with which this court is concerned. Firstly section 10 of the Bail Act 1997 which has the effect of making the circumstance that the offence was committed while on bail an aggravating factor and secondly section 11 of the Criminal Justice Act 1984 requires that any sentence imposed must be consecutive to the longest sentence which he is then serving. Counsel for the applicant has confined himself to dealing with what is the only basis upon which this court could be asked to intervene. If one has regard to the value of the drugs in the first offence for which he received the six year sentence it is less than the amount involved in the present case. In addition the aggravating factor that the offence was committed on bail applies in the present case. Indeed it is also the case that on this offence he was no longer before the court as a man with no previous convictions: he had previous convictions. These are factors which are relevant. The court must look at the totality of the sentences to be served. While perhaps it might be easier to do justice in a case such as this if one were in a position to review both sentences it is nonetheless the court's obligation to do justice.

The court feels that looking at the totality of the terms imposed upon the applicant insufficient regard has been had by the learned trial judge who imposed this sentence to the totality principle. This is an error in principle and this court will


 


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intervene. The application will be treated as the hearing of the appeal. The court having regard to the totality principle will intervene by suspending two years of the sentence of four years imposed on terms that the applicant enter into a bond to keep the peace and be of good behaviour for a period of two years following his release from prison.

DPP v Abdi