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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Rory Lernihan [2009] IECCA 54 (14 May 2009)
URL: http://www.bailii.org/ie/cases/IECCA/2009/C54.html
Cite as: [2009] IECCA 54
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Judgment Title: DPP -v- Rory Lernihan Composition of Court: Denham J., deValera J., McGovern J. Judgment by: Denham J. Status of Judgment: Approved
Notes on Memo: Certificate granted pursuant to Section 3 of the Criminal Justice Act 1993 | ||||||||||
THE COURT OF CRIMINAL APPEAL Record No: 147/CJA/06 Denham J. DeValera J. McGovern J. In the matter of Section 3 of the Criminal Justice Act, 1993 Between/ The People at the Suit of the Director of Public Prosecutions Prosecutor/Applicant and Rory Lernihan Respondent Ruling of the Court delivered the 14th day of May, 2009 by Denham J. 1. On the 18th day of April, 2007 this Court delivered a judgment on an application brought by the Director of Public Prosecutions for a review of the sentence imposed on Rory Lernihan, the respondent, on the 23rd day of June, 2006, by Cork Circuit Criminal Court, on the basis that the sentence was unduly lenient. 2. The judgment of the Court addressed two issues: (i) the jurisdiction of the Court, and (ii) the appropriate sentence. 3. The sentence under review was one of four years, where the learned trial judge ordered that the respondent serve eighteen months and that the balance be suspended. 4. The offence for which the respondent was sentenced arose under s.15A of the Misuse of Drugs Act, 1977, as amended. 5. This Court determined that the sentence was unduly lenient. 6. The respondent has applied under s.3 of the Criminal Justice Act, 1993 for a certificate to apply to the Supreme Court on the grounds that the determination involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. 7. The point of law raised relates to the jurisdiction of the Court of Criminal Appeal in reviewing a sentence pursuant to s.2 of the Criminal Justice Act, 1993. 8. The jurisdiction of the court of Criminal Appeal was invoked by the application of the Director of Public Prosecutions to review the sentence. The sentence was one of four years imprisonment with the last two and a half years suspended, which this Court found to be unduly lenient. The Director of Public Prosecutions had submitted that four years was lenient and that the suspension was unduly lenient. The Court held that the sentence was a single sentence, which was in issue. Having held that the sentence was unduly lenient the entire sentence was quashed. The Court held that the submissions of the Director do not restrict the jurisdiction of the Court which has to consider the issue of sentence de novo once the unduly lenient sentence was quashed. The judgment of the Court on the 18th April, 2007 is attached. 9. The Court has determined that the case does involve a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. 10. The point of law certified is:- "Is the Court of Criminal Appeal entitled to regard an aspect of the sentence or the sentence itself as being unduly lenient when the Director of Public Prosecutions has not indicated that it is his view that it is unduly lenient, in an application to Court under s.2 of the Criminal Justice Act, 1993." THE COURT OF CRIMINAL APPEAL [C.C.A. No. 147CJA/06] Denham J. deValera J. McGovern J. In the matter of s. 2 of the Criminal Justice Act, 1993. Between/ The People at the Suit of the Director of Public Prosecutions Prosecutor/applicant and Rory Lernihan Respondent Judgment of the Court delivered on the 18th day of April 2007 by Denham J. 1. The Director of Public Prosecutions applied to this Court for a review of the sentence imposed on Rory Lernihan, the respondent, hereinafter referred to as 'the respondent', on the 23rd June, 2006, by Cork Circuit Criminal Court, on the basis that the sentence was unduly lenient in all the circumstances of the case. The sentence in issue is one of four years imprisonment on each of two counts, to run concurrently, the final two and a half years to be suspended. 2. The respondent had been sent forward by the District Court to the Cork Circuit Criminal Court on a signed plea of guilty on two charges. The charges were:
Charge 2: Rory Lernihan on the 13th of December 2004 at 14 Ashmount Court, Mayfield Cork had in his possession a controlled drug, namely cannabis resin contrary to Section 3 of the Misuse of Drugs Act, 1977. 3. In sentencing the trial judge stated:
The mitigating side: he has pleaded guilty, he pleaded guilty in early course, he has shown remorse, he is unlikely to get involved again. Now weighing everything one with the other, I believe there has to be a custodial sentence. I know it is going to have a very serious effect on him and bring devastation to his family, but I believe in the context of this case where somebody knowingly gets involved in the trade of drugs, that one of the consequences of that trade is you are going to lose your liberty. There is definitely sufficient, in this case, which allows me to depart [the] from the mandatory 10 years sentence, in other words it would be unjust to impose a 10 year sentence. So given that the facts allow me to depart from a 10 years sentence. What sentence do I think appropriate? In all of the circumstances I would regard a sentence ... First of all, in the ordinary course of events, without the mitigating factors, I would say a sentence of four years would be appropriate. There are exceptional mitigating factors in this case because of the early plea, the extent of the co-operation and the fact that he has continued to work and rehabilitate himself, I will take that into account. So what I will do is I will suspend the ... he will serve 18 months and I will suspend the balance of the four years." 4. The Director of Public Prosecutions has applied to this Court on the following grounds:- (i) The sentencing court erred in law and in fact in being unduly lenient when having accepted the mitigating factors put forward by the respondent were exceptional and specific circumstances which would make a sentence of not less than ten years imprisonment unjust and having deemed in those circumstances that the appropriate sentence was four years, the sentencing court then relied on the same mitigating factors to suspend the balance of the sentence once the respondent had served eighteen months of the four years. (iii) The sentencing court erred in law and in fact in being unduly lenient when having determined that the appropriate sentence was below the statutory minimum it failed to consider whether the sentence should be increased to the minimum sentence. (iv) The sentencing court erred in law and in fact in being unduly lenient when it determined that the early plea of guilty and the circumstances of the respondent were exceptional and specific circumstances to the respondent which would make a sentence of not less than ten years imprisonment unjust in all the circumstances. (v) The sentencing court erred in law and in fact in being unduly lenient in determining that the respondent materially assisted in the investigation of the offence to the extent that it created exceptional and specific circumstances relating to the offence or the respondent which would make a sentence of not less than ten years imprisonment unjust in all the circumstances. (vi) The sentencing court erred in law and in fact in being unduly lenient in the weight it attached to the early plea of the respondent, the extent of his cooperation, the necessity for rehabilitation, the absence of previous conviction and the degree of remorse when determining the appropriate sentence. (vii) The sentencing court erred in law and in fact in being unduly lenient in failing to attach sufficient weight to the fact that the respondent was not addicted to drugs and consequently not in need of rehabilitation, was employed and admitted engaging in the offence for monetary gain. (viii) The sentencing court erred in law and in fact in being unduly lenient in determining that the consequence for the respondent's family was a matter which it should take into consideration in considering whether or not there were exceptional circumstances that rendered a sentence of not less than ten years imprisonment unjust. 5. The essential facts are that on the 13th December, 2004 members of the drug squad stopped and searched the respondent in Silversprings Lane, Cork, at approximately 6.30 p.m., pursuant to s. 23 of the Misuse of Drugs Act, 1977, as amended. He was brought to Mayfield Garda Station for the purpose of the search and he was found to have a bag on his person containing a kilo of cocaine. He was arrested and detained. A warrant was obtained and his house was searched and a small amount of cannabis resin was found. The kilo of cocaine would have a market value of approximately 72,000 euro. The cannabis was of a nominal street value and it was accepted that it was for personal use. Detective Sergeant Larry O'Brien gave evidence as follows. The respondent gave limited cooperation to the authorities. At interview he claimed he had received the cocaine a short time earlier and that he was holding it for a certain amount of money. He did not otherwise assist the investigation as to where the drugs had come from or what he intended doing with them. He claimed he was to get €500. Detective Sergeant O'Brien accepted that the respondent was storing the drugs. He did not believe that the respondent was distributing them. The respondent is 31 years old, a qualified painter and decorator, he resided in his own home, a home which he owns with his girlfriend, and is in relatively comfortable financial circumstances. He had been employed for a long time as a painter and decorator. Therefore, it is clear that the motive in this case was pecuniary. The respondent pleaded guilty, gave evidence, apologised, and said he was extremely remorseful and sorry for hurting everyone in his family and his community. The respondent has no previous convictions. The respondent has also taken steps to obtain counselling. 6. The application by the Director of Public Prosecutions commenced before this Court on 15th January, 2007. Counsel for the Director of Public Prosecutions submitted that if there was no suspension of the sentence it would be a lenient sentence but that the two and a half year suspension rendered it unduly lenient. Counsel submitted that the sentencing court had applied the mitigating factors twice and that the consequent suspension aspect of the sentence was wrong. Further, counsel submitted that the learned trial judge had not followed normal procedures in sentencing, and in considering the mandatory minimum aspect of the sentence. Counsel on behalf of the respondent accepted that the four year sentence was lenient and that the issue to be considered was whether the suspension was unduly lenient. Counsel stressed that the onus was on the Director of Public Prosecutions. Counsel referred to factors in favour of the respondent, including the absence of previous convictions, his remorse, that he was not a drug addict, and the rehabilitation he had sought. Further, counsel submitted that there was no double mitigation - and referred to the words of the sentencing judge and submitted that the new factors mentioned in relation to the suspension were that the respondent had continued to work and his seeking rehabilitation. Reference was made to the dictum of Walsh J. in The People (Attorney General) v. Michael O'Driscoll (1972) 1 Frewen 351 at p. 359. In reply, counsel for the Director of Public Prosecutions pointed out that the respondent had no addiction at the time of the offence, that he had kept his job, and that the rehabilitation related to events after the drug seizure and charge. The Court reserved judgment. 7. On 2nd February, 2007 the Court had the matter relisted and gave counsel the opportunity to address the issue as to whether the sentence of four years imprisonment was unduly lenient. (Counsel having previously argued that the suspension of two and a half years of the four years sentence was unduly lenient but that the four year sentence itself was lenient). Counsel for the Director of Public Prosecutions repeated the submission that the four year sentence was lenient, but that the suspension of two and a half years was unduly lenient. Counsel for the respondent submitted that the onus was on the Director of Public Prosecutions, and that the Director had abandoned the argument that the four year sentence was unduly lenient. Counsel submitted that as the Director had abandoned the argument that the four year sentence itself was unduly lenient, this Court was not at large to consider that which had been abandoned by the Director, that the Court was not at large as to the terms of the sentence. In reply, counsel for the Director submitted that this Court's jurisdiction is not fettered by the submissions, that if the Court found that a sentence was unduly lenient, then the Court is at large to determine the appropriate sentence. 8. This Court is satisfied that the sentence of four years imprisonment with the final two and a half years suspended was an unduly lenient sentence, for the reasons to be set out. The Court is satisfied that there was an error in the sentencing. The gravity of the offence requires to be given due consideration. The fact that the maximum sentence for the offence is life imprisonment and that the Oireachtas has established a presumptive sentence of 10 years indicates the approach established in law to the gravity of this type of offence. This the sentencing court failed to address and fell into error. Also, the sentencing court applied the mitigating factors twice, and so erred. The Court would quash the sentence of four years with the final two and a half years suspended, and in its place determine the appropriate sentence. 9. Issues There are two issues to be addressed: (i) the jurisdiction of the Court, and (ii) the appropriate sentence. 10. Jurisdiction The jurisdiction of the Court as to the sentence it may impose was queried by counsel for the respondent. Consequently the Court addresses this issue. The jurisdiction derives from statute. 10.1 The Court has jurisdiction to review the sentence pursuant to s. 2 of the Criminal Justice Act, 1993, which provides:-
2. - (1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the "sentencing court") on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence. (2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed. (3) On such an application, the Court may either—
(4) . . . " 10.2 The Director of Public Prosecutions having made the decision referred to in s. 2(1) of the Criminal Justice Act, 1993 and having applied, this Court has the jurisdiction described in s. 2(3) of the said Act. The options for the Court in exercising the jurisdiction are either to quash the sentence or to refuse the application. 10.3 In this case the Court has determined that the sentence should be quashed. The Court is of the view that the sentence of four years with two and a half years suspended is unduly lenient and has indicated that it would order that the sentence be quashed. The sentence is a single sentence: four years imprisonment with two and a half years suspended. It is that sentence which falls to be quashed pursuant to s. 2(3) of the Criminal Justice Act, 1993. 10.4 The sentence having been quashed, the Criminal Justice Act, 1993 requires the Court to impose on the respondent, in place of the quashed sentence, such sentence as the Court considers appropriate, being a sentence which could have been imposed on him by the sentencing court. In exercising this jurisdiction the Court is in the position of the sentencing court and considers the matter de novo. 10.5 The onus rests upon the Director of Public Prosecutions. In considering this matter the principles as stated in Director of Public Prosecutions v. Byrne [1995] 1 I.L.R.M. 279 are applicable. At pp.286 - 287 O'Flaherty J. said, of s. 2 of the Criminal Justice Act, 1993:-
Since this is the first case brought under the Act it is appropriate to say something about how the court thinks the section should operate. In the first place, since the Director of Public Prosecutions brings the appeal the onus of proof clearly rests on him to show that the sentence called in question was 'unduly lenient'. Secondly, the court should always afford great weight to the trial judge's reasons for imposing the sentence that is called in question. He is the one who receives the evidence at first hand; even where the victims chose not to come to court as in this case - both women were very adamant that they did not want to come to court - he may detect nuances in the evidence that may not be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person sentenced; what Flood J has termed the 'constitutional principle of proportionality' (see People (DPP) v. W.C. [1994] 1 ILRM 321), his decision should not be disturbed. Thirdly, it is in the view of the court unlikely to be of help to ask if there had been imposed a more severe sentence, would it be upheld on appeal by an appellant as being right in principle? And that is because, as submitted by Mr. Grogan SC, the test to be applied under the section is not the converse of the enquiry the court makes where there is an appeal by an appellant. The inquiry the courts makes in this form of appeal is to determine whether the sentence was 'unduly lenient'. Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court." 10.6 The Court has applied these principles. It is well established that the onus of proof rests upon the Director of Public Prosecutions to show that the sentence was unduly lenient. The Director made the case that the suspension aspect of the sentence was unduly lenient. In considering the submissions the Court afforded great weight to the trial judge's reasons and the constitutional principle of proportionality. In this analysis the Court has considered whether there has been a substantial departure by the trial judge from the appropriate sentence. 10.7 In considering the sentence the nature of the offence is a relevant factor. The Oireachtas has explicitly addressed the crime of possession of controlled drugs over the value of €13,000 and created a specific offence. The Criminal Justice Act, 1999 came into force on the 26th May, 1999 and s. 4 inserted a new section, section 15A, into the Misuse of Drugs Act, 1977. Section 15A(1) provides that:- "A person shall be guilty of an offence under this section where:- (a) the person has in his possession, whether lawfully or not, one or more controlled drugs for the purpose of selling or otherwise supplying the drug or drugs to another in contravention of regulations under section 5 of this Act, and The sentencing of persons for this offence was addressed in s. 5 of the Act of 1999, which amended section 27 of the Act of 1977, by inserting after section 27(3) the following subsections:-
(b) at the court's discretion, to a fine of such amount as the court considers appropriate. (3C) Subsection (3B) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances and for this purpose the court may have regard to any matter it considers appropriate, including:- (ii) the circumstances in which the indication was given,
Thus, the Oireachtas has legislated for this crime and regarded it as a grave offence. The gravity of the offence may be seen by the sentencing provisions made, which set a maximum sentence of imprisonment for life. In addition, the Oireachtas has created a presumptive sentence of ten years. Although widely referred to as a mandatory minimum sentence it is not a true mandatory sentence, such as is provided for in the crime of murder. Rather, the Oireachtas has created a basic presumptive sentence of ten years, but has explicitly provided that it shall not apply where there are exceptional and specific circumstances. Further, the Oireachtas has given a non-exhaustive list of such exceptional and specific circumstances, as including: (a) a plea of guilty, and (b) whether the person materially assisted in the investigation of the offence. 10.8 In this case the jurisdiction of the Court was invoked by the application of the Director of Public Prosecutions to review the sentence. The Court was very careful to give both parties the opportunity to address the issue of the sentence. The sentence was one of four years imprisonment with the last two and a half years suspended, which the Court is satisfied is unduly lenient. While the Director of Public Prosecutions submitted that the four years was lenient and the suspension unduly lenient, the sentence is a single sentence and it is that sentence which is in issue. Having determined that the sentence was unduly lenient, the entire sentence is quashed. 10.9 In analysing the sentence the Court is satisfied that both aspects of the sentence were unduly lenient. The two and a half years suspension was unduly lenient. Also a sentence of four years imprisonment would be unduly lenient for this offence and offender. 10.10 While the issue of the four year sentence was not raised by the Director of Public Prosecutions, the limitation of the submissions of the Director does not restrict the jurisdiction of the Court which has to consider de novo all the relevant factors for the appropriate sentence once the previous sentence has been quashed. For, pursuant to s. 2(3) of the Criminal Justice Act, 1993, the entire sentence was quashed - not just a portion of the sentence. That being the situation, this Court is required itself to consider the appropriate sentence. 10.11 Section 2(3) of the Criminal Justice Act, 1993 states that having quashed the sentence the Court shall:-
The Court is satisfied that the jurisdiction of the Court is clear from the plain words of the section. The Court, having quashed the sentence, is at large to impose on the convicted person such sentence as the Court considers appropriate, being, however, a sentence which could have been imposed by the sentencing court. At this stage, the sentence being quashed, the Court's jurisdiction is not limited by the submissions of the Director. Rather, this Court is in the place of the sentencing court to determine the appropriate sentence. 11. Sentence Therefore, the Court has proceeded to consider de novo the appropriate sentence for this offence and for the respondent, within the jurisdiction of the sentencing court. 11.1 A person guilty of an offence under s. 15A is liable, on indictment, to a maximum sentence of imprisonment for life or such shorter period as the court may, subject to s. 3B and s. 3C, determine, and a fine. It is a grave offence. Section 3B provides that where a person is convicted of an offence under s. 15A, the court shall, in imposing sentence, specify as the minimum period of imprisonment to be served by that person, a period of not less than 10 years imprisonment. However, this shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or to the person convicted of the offence, which would make a sentence of not less than 10 years unjust in all the circumstances. For this purpose, the Oireachtas expressly provided in s. 3C that the court may have regard to any matters it considers appropriate. The legislation states that these include:- (a) whether that person pleaded guilty to the offence, and, if so, (ii) the circumstances in which the indication was given; and (b) whether the person materially assisted in the investigation of the offence.
Clearly subsection (3C) requires the sentencing Court to examine circumstances relating to the offence or the person convicted of the offence which, it is alleged, are exceptional and specific and which in the opinion of the Court would render a sentence of not less than ten years imprisonment unjust. To perform that task the sentencing Court must form some view of what an appropriate sentence would be having taken into account the matters which the Court considers appropriate including the matters expressly specified in subsection (3C) aforesaid. If the Court is satisfied that factors exist which would render the mandatory minimum sentence unjust then the Court is not required to impose it but the existence of such matters or circumstances does not reduce the inherent seriousness of the offence. It remains the task of the Court to impose a sentence which is appropriate having regard to the relevant circumstances and also the fundamental gravity of the offence as determined by the Oireachtas and reflected in the sentences which it has prescribed. The statute does not expressly authorise the use of the minimum sentence as a "benchmark" in the sense of providing a figure by reference to which particular reductions or discounts should be afforded having regard to material circumstances existing in the particular case. On the other hand the sentencing limitations imposed by the Oireachtas are, as had been pointed out, of the utmost importance in recognising the gravity of the offence and determining the appropriate punishment." The approach of a court to this sentencing scheme was considered also in Director of Public Prosecutions v. Hogarty (Unreported, CCA, 21st December, 2001), where Keane C.J. gave the judgment of the Court. He cited the sentencing judge and then analysed the appropriate approach as follows:-
That passage might suggest that the effect of the provisions is that a person convicted of the offence to which the provisions apply should be sentenced to 10 years' imprisonment, unless a plea of guilty has been entered and there has been co-operation with the investigation, in which case a lower sentence than 10 years can be imposed. The court is satisfied that this is an erroneous construction of the provisions, since it is clear that the legislature envisaged that a sentence in excess of 10 years, including a sentence of imprisonment for life, may be imposed in respect of such offences. Since that approach, however, was, if anything, in ease of the applicant in the present case, the court is satisfied that, although it was erroneous in point of law, it does not of itself provide a ground on which this court should interfere with the sentence actually imposed. As to that sentence the court is satisfied that, making every allowance for the plea of guilty by the applicant, his ready co-operation with the Gardai, the absence of previous convictions and the family circumstances of the applicant, there was no error of principle in the imposition of a sentence of six years and six months in respect of these offences which would entitle this court to interfere. Couriers play an essential role in the illegal drugs trade and, as the court has pointed out in the judgment it has just delivered in The Director of Public Prosecutions -v- Duffy, those who willingly enter into that trade for financial reward, as the applicant unhappily did, simply cannot expect to receive anything but severe treatment from the courts. That is the policy plainly and unambiguously laid down in the Misuse of Drugs Acts 1977, as amended by the Criminal Justice Act 199, a policy which this court is bound to uphold." The applicant in that case had pleaded guilty to two counts of having in his possession a controlled drug, the market value of which exceeded £10,000, for the purpose of selling or otherwise supplying it. He was seen on a motorbike with a saddle bag - the saddle bag contained 10 kilograms of cannabis resin with a street value of £100,000. The correct approach to this legislative scheme was also stated by Fennelly J., giving the judgment of the Court in Director of Public Prosecutions v. Galligan (Unreported, CCA, 23rd July 2003), as follows:-
In that case reference was made to two matters capable of amounting to exceptional and specific circumstances which permitted the judge to depart from the mandatory minimum sentence of 10 years imprisonment, namely his plea and his provision of material assistance. It was also noted that he was an addict. The learned trial judge had imposed a sentence of seven years imprisonment. These two exceptional matters were referred to by this Court, as was the fact that the applicant should be treated as a first offender, and the fact of his remorse. The Court held:
Although the learned Circuit Court judge did not precisely adopt this interpretation of the section, nevertheless, the court is absolutely satisfied that he arrived at the correct result. The sentence which the judge imposed was twelve years which is two years more than the minimum statutory sentence. He made no error in imposing such a sentence given the size of the drugs haul, the previous criminal career of the applicant, the absence of any specific and exceptional circumstance such as for instance cooperation with the gardaí which there was not. Even if for the purpose of arriving at a so called "notional sentence" it was right to take the plea of guilty into account as indeed it would have been, the sentence of twelve years was still quite appropriate. The court considers that a sentence less than twelve years would have been inappropriate. Accordingly, the application for leave to appeal will be refused." 11.3 The Court has considered all the circumstances of the case, which included factors such as possession of cocaine, to a street value of over €70,000, by the respondent, who was not subject to the vicissitudes of being an addict, and who was involved in the transaction purely for commercial gain. The Court also noted the early plea, although the circumstances of his arrest are relevant, the assistance, though rather limited, to the gardai, the absence of any previous convictions, and the remorse. The Court has borne in mind the nature of the offence, and the legislative framework. The Court is satisfied that this is a grave offence. Within the scheme of sentencing established by the Oireachtas, it is an offence at the lower end of a range between life imprisonment and 10 years imprisonment. To this notional sentence the Court has applied the relevant factors in relation to the respondent and to this crime. Thus, the respondent is entitled to a reduction in sentence for his plea - though in the circumstances it does not weigh so heavily, as he was, essentially, caught red handed, and for his assistance to the Gardai, though it was limited. There is a further reduction for his lack of previous convictions and his remorse. In all the circumstances the Court considers that the appropriate sentence is one of seven years imprisonment. Consequently, the Court would order that the appropriate sentence is seven years imprisonment. | ||||||||||