Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Romose Sakpoba

Neutral Citation: [2010] IECCA 83


Court of Criminal Appeal Record Number: 226/08

Date of Delivery: 28/07/2010

Court: Court of Criminal Appeal

In January 2006 the applicant sought to change his plea of guilty to one of not guilty and that application was refused by a ruling of the Circuit Court on the 28^th February 2006.

On 25^th July 2006 the applicant did not appear in court and a bench warrant was issued for his arrest. The explanation given was that his mother had died and that fact was accepted in the Circuit Court. However he did not present himself to the authorities and was next brought before the court of trial on the 10^th March 2008 having been arrested on foot of the warrant the previous day. The matter was then listed for mention before the trial Court on two subsequent occasions. A hearing for the purpose of sentencing the applicant occurred on the 9^th July 2008. Evidence in relation to the circumstances of the offence was given and the matter was adjourned to the 16^th July 2008 when further evidence was given. On that occasion the learned trial judge sentenced the applicant to seven years in prison. An application for leave to appeal against sentence was refused.

The applicant applied to this Court for leave to appeal against sentence and on 5^th July 2008 this Court determined the application and refused the applicant’s application.

This judgment sets out the reasons for the Court’s determination of the application.

Background Facts

On the 21st September 2004 Customs and Excise Officers became aware of a sealed package which arrived on a flight at Dublin Airport which, on examination, was found to contain a white powder believed to be cocaine. It appears that the package originated in Brazil. The package was opened and found to contain shirts, socks, CDs, ties and so forth but attached to the cardboard insert in each shirt was a packet of white powder. Tests identified it as cocaine. The Garda Siochana became involved. The package was due to be delivered by an international courier company through which it had been consigned and it bore the name and address of an individual at Fairview Strand, Dublin. A member of An Garda Siochana, posing as a delivery man, took the package to the address on the package. At this point the applicant, who was at the address in question took the package and signed for it, although he was not the person to whom it was addressed.

Subsequent to delivery members of An Garda Siochana gained access to a flat at that address with the benefit of a search warrant. The applicant was found in the flat as the sole occupant. The Gardaí found that the shirts containing the cocaine had been removed from the package and were recovered from under a bed in the bedroom in the flat. As indicated above, the amount of cocaine found was 603.5 grams with a market value of €43,000 approximately. It is accepted by the Gardaí that the applicant was not the main instigator in the offence and that he was not someone of substantial means.

In sentencing the applicant the learned trial judge took into account the matters referred to by counsel in mitigation of the offence. In the course of his sentencing the trial judge stated:-

“Now, as of the sentence date what was relied on by Mr. Ó Lideadha by way of mitigation in relation to the matters, that he was mannerly and polite in the course of the investigation, he identified the shirts in the boxes and this was said to be of some limited assistance. He didn’t defend the case and it was put forward that his plea was of significance and assistance in the case. There were no signs of wealth on his behalf. It was accepted by Garda Lee that he wasn’t the main instigator of the offence and that there was a relatively small gain on his part. The plea was proffered at an early stage.”

The learned trial judge considered that there were exceptional circumstances within the meaning of s. 15A of the Act and that he could therefore depart from the minimum sentence specified in that section. He pointed out that nonetheless the offence was a significant and serious drug offence committed in the course of a sophisticated organised operation.

Having considered all the circumstances the learned trial judge imposed a sentence of imprisonment of seven years to date from the date on which the applicant was placed in custody namely the 10^th March 2008.

The Application

Counsel on behalf of the applicant has submitted that the sentence was unduly severe and wrong in principle. It was submitted on behalf of the applicant that the learned trial judge in imposing a sentence of seven years:-

Did not give the applicant adequate credit for the combination of having provided material assistance to the investigation, matters offered in mitigation and the guilty pleas;

excluded from his consideration the imposition of a partially suspended sentence in circumstances where a partial suspension of sentence may have been warranted;

erred in holding that a guilty plea and the matters referred to in mitigation were insufficient to amount to “exceptional circumstances” allowing a departure from the presumed mandatory minimum sentence.

It is in any event noted that the learned trial judge, during the course of the sentencing hearing, seemed at one point to be under the impression that this Court had decided, in a case of D.P.P. v. O’Reilly (ex tempore, Unreported, CCA 30^th May 2008) that a guilty plea could not be taken into account in determining whether there are exceptional circumstances in a case which would make a sentence of not less than ten years imprisonment unjust.

On reading the judgment of the Court as delivered by Kearns J. it is quite evident that that case did no more than decide the weight to be attached to certain early admissions made by the accused in the circumstances of the case. It did not decide that admissions or a plea of guilty could not be taken into account in determining whether there are exceptional circumstances. What that case decided, on its own particular facts, was “… that in the particular circumstances the admission was perhaps not as valuable as it might have been in another case.” Of course the fact that somebody pleads guilty, even at an early stage, does not necessarily mean that there are exceptional circumstances which would render a sentence of not less than ten years imprisonment unjust. That would depend on all the circumstances of the case. First of all the gravity of the offence may be such as to warrant the imposition of a term of imprisonment significantly in excess of the statutory minimum ten years. In cases where the minimum sentence of ten years is deemed to apply by virtue of the statutory provision the mere fact that a person has pleaded guilty at some point may not, on the facts of a particular case, mean that there are exceptional circumstances within the meaning of the section. That would be a matter for the sentencing Court to determine in each case according to all the circumstances of the case before it.

Furthermore, it may be appropriate here to state, as this Court has noted on previous occasions, ex tempore judgments, because of their very nature, tend to have limited importance as precedents. Such judgments are, as a general rule, delivered because the issues arising in the case can be readily resolved and determined on its own facts within the ambit of well established principles of law. If a court is reviewing the traditional application of a principle of law or developing the law in a particular issue it is likely to do so expressly in a reserved judgment where the existing law is analysed and the reasons why it should be expanded upon or qualified, explained. It is also generally the position that ex tempore judgments are delivered in the context of the case at hearing which has just concluded and it is not necessary to recite every single fact or circumstance of the case for the purpose of deciding the particular point or points at issue. There may be particular exceptions to this general rule where the Court in an ex tempore judgment, explicitly addresses a particular issue from a particular perspective. Even then it has to be borne in mind that the particular facts and circumstances of each criminal case relating to a particular offence tend to differ in some important respect from one case to another. It is the totality of the circumstances that are usually important in determining issues in criminal cases and the fact that some elements in one case are the same as some elements in another does not necessarily mean that they must be decided in the same way. Issues in criminal cases are not decided in the abstract. For this reason even cases which decide or uphold an important principle of law may fall to be considered or interpreted in the context of other leading cases on the same issue rather than in isolation.

With regard to the facts and circumstances of this particular case the Court notes, as has been noted in previous judgments of this Court, that offences concerned with dealing in or supplying drugs are grave offences under the law, the gravity of which is reflected in s. 15A. The sale and supply of drugs has had a devastating effect on the lives of people throughout our cities, towns and villages. It is also the source and cause of many forms of criminal activity ranging from theft and robbery to organised crime. This situation is not unique to Ireland. Throughout the world crimes connected with the supply or sale of illicit drugs are treated as grievous offences. Every person who commits such a crime must now know that he or she is likely to face a severe term of imprisonment.

In this case the defendant knowingly engaged in a sophisticated operation, as the learned trial judge put it, which involved the sale or supply of a substantial amount of cocaine. The Court does not accept the submission made on behalf of the applicant that this was a case in which the sentencing Court could have considered suspending a portion of a seven year term of imprisonment. Neither does the Court consider that the circumstances give rise to any grounds upon which suspending a portion of the term of imprisonment ought to have been contemplated by the learned trial judge.

It is also quite clear from the ruling of the trial judge, quoted above that he took into account all the mitigating factors relied upon by the applicant.

The gravity of this case lies in the fact that the applicant was knowingly involved in the supply chain for a significant consignment of cocaine. The fact that he was not the instigator of the sophisticated operation involved was taken into account by the trial judge. If he had been the instigator, or the like, the trial Judge would have had to consider imposing a very much greater sentence.

The Court considers that the learned trial judge gave the maximum weight possible to the mitigating factors which were advanced on behalf of the applicant having regard to all the circumstances of the case.

Counsel for the applicant referred to a number of other cases and in particular D.P.P. v. O’Reilly. It is clear from that case that the sentence imposed by the Court of Criminal Appeal was one imposed in the particular circumstances of that case and in the Court’s view has no implications for this case. Neither is there anything in D.P.P. v. Dermody [2007] 2 IR 622 which could be a basis for calling in question the decision of the learned trial judge to impose a sentence of seven years imprisonment in the circumstances of this particular case.

Accordingly the Court is satisfied that the sentence imposed in this case was not unduly severe and that there are no grounds for considering that the trial judge erred in principle.

For these reasons the Court makes an order dismissing the application.