Irish Court of Criminal Appeal

COURT OF CRIMINAL APPEAL

243/07

Finnegan J.

Budd J.

Herbert J.

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

.v.

BRIAN NELSON

APPLICANT

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

Perhaps the starting point in this case is that the court is faced with a difficulty in that it is not possible to divine from the judgment with certainty how the learned trial judge arrived at the sentence and in particular how she dealt with the provisions of section 15A of the Misuse of Drugs Act 1977 as inserted by section 4 of the Criminal Justice Act 1999. It is in itself an error in principle when this court is not in a position to evaluate the thought processes which resulted in the particular sentence and in those circumstances it falls to this court to look at the circumstances of the case and determine for itself in the light of the information available in the transcript the appropriate sentence for this particular offence and this particular offender.

The information available to us is that on the 6th March 2006 the applicant was stopped driving his van at the junction of South Circular Road and Bulfin Road. The Gardai were acting on information. When the van was searched a very large quantity of cocaine was found, €564,173.00 in value. That led to a charge under section 15A.


 


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So the value of the drugs and the nature of the drugs are factors in the seriousness of the offence. What has to be taken into account in addition by way of mitigation is the fact that he did plead guilty at an early date. However it is well established that where someone if caught red-handed, as in this case, there is little that can be said by way of defence and the plea merits considerably less than might otherwise be the case. So far as his own involvement in the offence is concerned he was forthcoming, he was certainly co-operative when he was arrested and co-operated fully with the Gardai. As very often happens in these cases he was not in a position to co-operate fully in relation to others involved because of fear resulting from threats to himself and to his partner. It is noted he is a man with a partner and two young children. These are the major factors to be taken into account.

The applicant was born in 1975. There is a little vagueness about that as his age was given at 30 but that makes him 33 years of age. He is a tradesman being a plumber. It would appear that he has been hard working. Indeed on the day of his arrest he did not alone his day's work but set about doing another job in the evening before going off to set out upon the escapade that leads to his being in this court. The situation is that in the past he has had problems with drugs and has had very significant support from his family and his partner's family. His mother paid €20,000 which I am sure she could ill afford towards his drug debts. His partner's mother took a great deal of trouble to clear him from drug addiction at an earlier stage and unfortunately he relapsed. His account, and it is not suggested that we should disbelieve it, is that he owed some 630,000 to suppliers for drugs which he had received in the past and his reward for carrying out this escapade of transporting drugs was that that debt would be reduced by €3,000.


 


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These, it seems to the court, are the circumstances that affect both the offence and the offender. This court before taking into account the mitigating factors in terms of seriousness of the offence and the personal circumstances of the offender would consider an appropriate sentence to be eleven years. His plea of guilty and what the court has already said about the value of such a plea in the present case and particularly his co-operation must be taken into account in reduction. The court takes into account his personal circumstances. It certainly is going to be very difficult for him and difficult for his family and his children as what will ensue must of necessity be a, very long time in prison.

Applying these factors to the sentence mentioned as an appropriate sentence prior to applying those factors the court determines that the sentence he should serve is a sentence of eight years imprisonment.

The court will treat the application for leave as the appeal and allow the appeal and in substitution for the sentence often years imposed by the learned trial judge they will impose a sentence of eight years. The court takes into account in arriving at this figure the cases of Director of Public Prosecutions v Dunne, 17^th October 2002, where the value of the drugs involved was £570,000 and the sentence imposed was seven years. It seems that as time has gone on the sentences have marginally increased and in particular in the Director of Public Prosecutions v Galvin, 14^th February 2005, this court considered eight years an appropriate sentence where the value of the dugs involved was €320,000. In both those cases the circumstances are not dissimilar from the present one in terms of the nature of the offender.

DPP v Brian Nelson