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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P. (People) v. O'Reilly [2008] IECCA 83 (30 May 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_83.html
Cite as: [2008] IECCA 83
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Neutral Citation: [2008] IECCA 83
THE COURT OF CRIMINAL APPEAL
Kearns J.
Herbert J.
de Valera J.
[Record No.11 CJA/2008]
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
V
STEPHEN O'REILLY
RESPONDENT
JUDGMENT of the Court (ex tempore) delivered the 30th day of May, 2008 by Kearns J.
In this case the respondent, who is a young man, was stopped at Dublin Ferry Port in a joint Garda/Customs operation on 22nd October, 2006. He was driving a white Opel van and both he and the van were
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taken for a search. He was interviewed and said he had gone to the United Kingdom to visit a relative.
However, the van was retained by the Customs officials and over the next two days was searched and virtually dismantled. On 24th October, 2006 the Customs Officer who was carrying out the search removed some protective plastic insert in the passenger footwell area where one steps into the van and having removed some sheets of plastic soundproofing type material he observed that the metal structure of the van had been interfered with. He prised at the metal panels with the aid of a large screwdriver and found three packages in the cavity. They were sealed in clear polythene and bore labels. This material in the bags tested positive for cocaine which had a street value of over €200,000.
The Customs officials then telephoned the respondent on the pretext of having him to collect the van and on presenting himself the following day he was arrested.
In imposing sentence on 17th December, 2007 the sentencing judge in our view took a very lenient course because there is a presumptive sentence often years for an offence of this nature. This was an offence of possession of drugs for supply under Section 15 A and the judge imposed a sentence of six and a half years, suspending the last two years of the sentence. One would have to query whether the reasons offered by the sentencing judge meet the test of exceptional circumstances at all,
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because the first of the reasons the learned sentencing judge gave was that there were early admissions.
Now, as my colleague Herbert J has pointed out, there were in fact various conflicting accounts given by Mr. O'Reilly at first when questioned and it took some time to get a reasonable picture so that in the particular circumstances the admission was perhaps not as valuable as it might have been in another case.
The second matter which the learned sentencing judge regarded as an exceptional circumstance was the assertion by the respondent that he was under pressure to do this run with the cocaine because he had damaged the property of a hardened criminal who threatened to put two bullets in his head if he failed to do so. It is by no means unusual for this Court to hear such accounts being given by those apprehended and it is impossible to know whether this assertion has any substance whatsoever. It is clear, however, that, if threatened, the respondent did not take that threat to the Gardai or to any law enforcement officers at that time.
He had a large number of previous convictions, some thirty-five in all, and most of them were for motor type offences and the Court in no way criticises the learned sentencing judge for not attaching any great or significant weight to them but that fact can not be turned around the other way and characterised as an exceptional circumstance which would merit a reduction from the normal and appropriate ten year sentence.
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This is a case where the Court would have deemed a ten year sentence appropriate but for the concession which has been made this morning on behalf of the Director that the six and a half years sentence imposed would, if shorn of the final two years suspension, be adequate to meet all the facts of this particular case. The Court is sensitive in these situations and it is not for the Court to second guess the Director where he may be privy to information not made available in open court. That being so and instead of imposing the ten year sentence which the Court may have been of a mind to impose, the Court will simply remove the final two years suspension and leave intact the sentence of six and a half years.