Irish Court of Criminal Appeal

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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Brodigan, D.P.P. (People) v. [2008] IECCA 127 (13 October 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_127.html
Cite as: [2008] IECCA 127

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Brodigan, D.P.P. (People) v. [2008] IECCA 127 (13 October 2008)

Macken, J.

Budd, J.

McCarthy, J.

No CCA 74/08


 


THE COURT OF CRIMINAL APPEAL

Between/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-and-

AUDREY BRODIGAN

Applicant

Judgment of the Court (ex tempore) delivered on the 13^th day of October 2008 by Macken, J.

The court is in a position to give its decision now. This is an application brought by the applicant who was charged in relation to very serious drugs offences to which the appropriate S.15A applies, as well as the other Sections of the Misuse of Drugs Acts, as amended. She was charged with a co-accused, but although certain elements were common to the sentence it is proposed to deal with this application on behalf of the applicant, having regard to her particular circumstances.

The court is of the view that it has to bear in mind that when the Section talks about a minimum sentence, that is not to say - as has been made clear in DPP v Power a decision of the Supreme Court delivered in 2007, recently delivered, that the maximum that can be imposed in respect of these type of offences is also ten years. In fact the maximum is exceptionally larger than that.

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In the particular circumstances of this case the court is satisfied that there were in existence exceptional circumstances which entitled the judge to reduce the normal minimum ten year sentence below that ten year sentence on the grounds that it would have been unjust to impose that minimum sentence in the present case. Mr. Hartnett, Senior Counsel, on behalf of the applicant, has set out a series of matters that concern the applicant, who had a very normal and very fine background, had worked all of her life up until the events that had occurred or a very short time before that, had suffered certain disadvantages such as the death of a friend, but of greater importance the enormous pressure of nursing an extremely ill partner while at the same time looking after two teenage children, and came under very significant pressure. There was some monetary reward in respect of the activities that were being carried on which was the activity of storing drugs and she pleaded guilty to the storage of drugs although in a significant amount, having a value of around €140,000.

Of the exceptional matters that the judge was entitled to take into account the court bears in mind in particular the immediate plea and admissions of the applicant, which never changed, and from which she never sought to resile. It could be said that the admissions in particular were of very considerable value, because it would have been necessary for the prosecution to have proven that the applicant was in actual possession of the drugs which were in a place in the house where she was residing, it being well known however that it does not necessarily follow that that would establish, of itself, that she was in possession of the drugs. On that factor alone the court considers that the assistance given by the applicant to the prosecution or to the gardai in relation to the matter was very material assistance, and must be considered together with a plea.

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Mr. Hartnett says however that the exceptional circumstances were not adequately taken into account in this case, and on reviewing the learned sentencing judge's sentence, there is one element that was not taken into account and that is that although the judgment is considered to have been a little bit short, the court's view is that it really was very pithy and covered all that was required to be covered. However it did not have regard to the particular circumstances, at least on the face of the judgment, that not only was the applicant very recently bereaved, but in addition to that bereavement, also had the added burden of attending to two teenage children, who were also bereaved. So in all of those circumstances the court accepts that the sentence in the case was unduly harsh and did not adequately reflect the exceptional circumstances in accordance with the subsection of the Act, and will set it aside, and the court will impose, in its place, a sentence of five years.