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Cite as: [2011] IECCA 104
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Judgment Title: DPP -v- Joseph Daly Composition of Court: McKechnie J., Budd J., O'Keeffe J. Judgment by: McKechnie J. Status of Judgment: Approved |
THE COURT OF CRIMINAL APPEAL C.C.A. No. 219 of 2008 McKECHNIE J. BUDD J. O’KEEFFE J. BETWEEN The People (at the suit of the Director of Public Prosecutions) RESPONDENT AND
Joseph Daly APPELLANT JUDGMENT of the Court delivered the 20th day of October, 2011, by McKechnie J. 1. The appellant in this case, after a 42 day hearing, was convicted by unanimous jury verdict in Cork Circuit Criminal Court on the 22nd July, 2008, of the three offences alleged against him. Two co-accused, Perry Wharrie and Martin Wanden, who faced similar charges, were likewise convicted on the same occasion. The fourth person named on the indictment, Gerard Hagan, who before trial had pleaded guilty, was subsequently dealt with in the manner later described. 2. Count No. 1 on the indictment, which shall be referred to as the Section 15A offence, reads as follows:- Statement of Offence Possession of a Controlled Drug, to wit, Cocaine, in contravention of the Misuse of Drugs Regulations 1998 and 1993 made under section 5 of the Misuse of Drugs Act 1977, contrary to Section 15A (as inserted by Section 4 of the Criminal Justice Act 1999) and Section 27 (as amended by Section 5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977. Particulars of Offence Joseph Daly had, on the 2nd July, 2007, at Dunlough Bay, Mizen Head, Bantry, Co. Cork, unlawfully in his possession, a Controlled Drug, to wit, Cocaine, for the purpose of the selling or supplying it to another and at the time while the drug was in his possession the market value of the Controlled Drug amounted to €13,000 or more. 3. Count No. 2 was a charge of simple possession with Count No. 3 alleging possession for the purposes of sale or supply, both contrary to ss. 3 and 15 respectively and s. 27 of the Misuse of Drugs Act 1977 as amended (“the 1977 Act”, unless otherwise indicated). The particulars relating to each of these charges were identical to those supporting count number one. 4. On the 23rd July, 2008, Mr. Daly was sentenced by His Honour, Judge O’Donnabhain, to a term of imprisonment of 25 years on the s. 15A conviction, with the other two convictions being taken into account. 5. The appellant now seeks leave to appeal against sentence; originally leave was also against conviction but that is not now being pursued. The appellant appears to have confined himself to two main grounds in support of his application. He contends that the learned trial judge erred in principle: (i) in imposing a sentence of 25 years, which, in all the circumstances, is excessive, and secondly; (ii) in failing to distinguish properly, as he is required to do, between the appellant and his co-accused. In this regard, it should be noted that sentences of 30 years were imposed on both Martin Wanden and Perry Wharrie and a sentence of ten years on Gerard Hagan. It is in particular by reference to this last mentioned sentence that the “parity” submission is made. 6. The correct order in which these submissions should be addressed is as follows. The first question to ask is whether the sentence is so heavy as to attract of itself appellate intervention and secondly, if so, whether it should be corrected by eliminating or diminishing any disparity with another sentence(s) which it could be expected to be equivalent to or comparable with. 7. The events giving rise to this prosecution involve one of the largest drugs seizures ever to have taken place in the history of the State. The evidence of Superintendent Healy, related at the sentencing hearing, was that at approximately 7am on the morning of the 2nd July, 2007, an alarm was raised by one of the appellant’s co-accused, Gerard Hagan, at the home of a local farmer in Dunlough Bay, West Cork. Mr. Hagan told the farmer, Michael O’Donovan, that as a result of an incident which had occurred whilst fishing at sea there was someone in the water whose life might be in danger. Otherwise Mr. Hagan was evasive and was most anxious that formal help would not be summoned. Some conflict now exists about the accuracy of what the Superintendent said, it being suggested that the evidence of Mr. O’Donovan did not quite bear out this summary of Hagan’s cry for help (see para. 92 infra). 8. At around 8am, however, the emergency services were called and went to the scene. They observed another of the co-accused, Martin Wanden, in the sea some 100 – 200 metres from landfall. Mr. Wanden’s presence in the water was in close proximity to a semi-submerged RIB and he was surrounded by a large number of white bales. This RIB had left Glengarriff pier at about 9pm the previous evening and at approximately midnight it rendezvoused with a catamaran some 30 nautical miles south west of the Irish coast. At that point the drugs were transferred with the intention of making landfall somewhere in the region of Sheep’s head at about 3am. Difficulties were encountered during this passage and hence the incident. 9. On further investigation it transpired that there were a total of 62 such bales containing 25 kilogrammes of Cocaine each; amounting to a total weight of 1,554kgs. The purity level was about 75%. A valuation of the drugs, described as conservative, was put as €108 million; this was calculated by reference to a street value of €70 per gram. Given that the average purity level of the street value gram is about 7-8% (Forensic Science Laboratory), it is credible to suggest that the total street value of the haul may have reached €440 million. 10. The Superintendent went on to say that, according to Gardaí intelligence, the Cocaine originated in the Medina region of Columbia and was intended for the UK and European markets. The smuggling operation was devised by an organised criminal group based in the UK and Spain and was executed over a period of several months. It involved the purchase of a catamaran named “The Lucky Day”, three jeeps with trailers, RIBs with engines, mobile phones, satellite phones and GPS systems. In addition, vehicles were hired, accommodation was rented and much international travel was undertaken. The outlay (not including the cost of the Cocaine) was estimated to be in excess of a third of a million euro. 11. The evidence at the hearing further disclosed that on the morning of the 2nd July, 2008, the appellant and Mr. Wharrie were seen by two coast guard officers close to the coastline where the boat was. They belied a certain knowledge of what was going on out at sea and indicated that someone needed rescue, before heading off in an easterly direction through the fields. They were described as having been in a dishevelled state. The appellant and Mr. Wharrie then spent two days hiding in the countryside before their ultimate arrest on the 4th July, 2007. 12. A number of items of evidence linked the appellant to the drugs haul. A fingerprint of his was found in a green jeep that was parked on the headland. Documentary evidence in the form of insurance certificates, containing Mr. Daly’s real name and home address, linked him to the two other jeeps involved in the operation. In fact, he brought one such jeep and the RIB into this country with Martin Wanden, who at all relevant times was travelling under an assumed name. In addition, the appellant’s fingerprints were found on seating which had been removed from the sunken boat and also on a GPS box containing the system used to coordinate the handover. An examination of the system showed that a number of incrimination waypoints were stored in it, including that referable to the rendezvous location (53˚ 13' 0" N; 10˚ 33' 0" W.). Further, there was also CCTV evidence showing the appellant with a number of others involved in the operation in the days running up to the 2nd July, 2007. Finally, his unexplained presence on the headland on the morning of the 2nd July, 2007, coupled with his attempted escape movements, all aroused suspicion. 13. The appellant, like Mr. Wanden and Mr. Wharrie, pleaded not guilty to the offences as charged. The evidence of Superintendent Healy was that in the course of his detention, Mr. Daly mainly exercised his right to silence when asked any questions of relevance. At trial he gave evidence to the effect that he had no involvement in the operation and, to the extent that he was involved, he was acting on behalf of his brother. The jury did not accept this evidence: he was convicted and sentenced, as were Mr. Wanden and Mr. Wharrie, in the manner as above described. 14. Section 15A of the Misuse of Drugs Act 1977, as inserted by s. 4 of the Criminal Justice Act 1999, introduced what is commonly, although erroneously, referred to as the mandatory minimum sentence of ten years for those persons convicted of possessing drugs for sale of supply where the value exceeds €13,000. A court has no discretion to impose a lesser sentence where the person is so convicted, unless there are “exceptional and specific circumstances” which make it unjust to impose the minimum sentence. Given the existence of judicial discretion to deviate from this sentence, even if only in limited circumstances, it may perhaps be more appropriate to refer to the section as containing a ‘presumptive’ minimum rather than a ‘mandatory’ minimum. 15. Because of its importance, the text of s. 27 of the Act of 1977, as amended by s. 84 of the Criminal Justice Act 2006 and s. 33 of the Criminal Justice Act 2007, should be set out in full and is as follows:
(b) at the court's discretion, to a fine of such amount as the court considers appropriate. (3C) Where a person (other than a person under the age of 18 years) is convicted of an offence under section 15A or 15B of this Act, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person. (3D)
(b) Subsection (3C) 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 that purpose the court may, subject to this subsection, have regard to any matters it considers appropriate, including— (i) whether that person pleaded guilty to the offence and, if so— (ii) the stage at which he or she indicated the intention to plead guilty and (iii) the circumstances in which the indication was given, and (iv) whether that person materially assisted in the investigation of the offence. (c) The court, in considering for the purposes of paragraph (b) of this subsection whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to- (i) whether the person convicted of the offence concerned was previously convicted of a drug trafficking offence, and (ii) whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence.” 17. The presumptive minimum period is but one aspect of the relevant statutory provision, and whilst dominant, is not exclusionary. The section provides for a maximum period, which is life. Both in their own way, demonstrate how serious the Oireachtas regard this type of offence; indeed, prescribing a minimum sentence is perhaps even the more instructive. Neither the minimum nor the maximum, however, should be regarded as a starting point in determining what in any given case the appropriate sentence should be. This is quite evident from a passage in Renald which I am about to quote. Before doing so, however, it is important to reiterate that, subject to the presumptive minimum where applicable, the actual sentence imposed must be appropriate to the crime and to the convicted person or, as is sometimes put, proportionate to both. 18. The following passage from Murray J. in The People (D.P.P.) v. Renald (CCA, u/r, 23rd November 2001, at p. 6) is frequently cited in this regard:
20. Tragically, for those whose lives have been devastated by the effects of drugs, for their families and their friends who care for them and indeed, for society generally, the courts have long experience in dealing with hard drugs such as Cocaine. However, not so with a street value of €108 – €440m, a weight of 1,554 kilogrammes, or a purity level of 75%: all such factors applying in this case. Apart from one other case, later dealt with (para. 103 infra), research by all concerned has failed to identify any previous enterprise of such magnitude. Even with appropriate adjustments it has not been possible to recreate any circumstances, against or by which, the circumstances of the instant case can be directly judged. Therefore, the exercise undertaken in response to this submission is essentially one of extrapolation rather than anything more direct. 21. In considering this appeal against severity, it should be said at the outset that in the court’s view the type of drug involved is relevant and that Renald is not an authority for the contrary proposition. As appears from subs. (3)(D)(b) of s. 27 of the 1977 Act, as amended, the requirement to impose the presumptive minimum does not apply where there are exceptional and special circumstances which make the ten year sentence unjust. In determining this issue, the court is entitled to have “regard to any matters it considers appropriate” including those matters then specified by description in the remainder of the subsection. 22. It was argued in Renald (para. 18 supra) that the type of drug involved could be considered as one such matter; the point made being that cannabis is less harmful than some other drugs. The trial judge rejected this argument by indicating that the application of s. 15A “was determined by value rather than the category of the drug involved”. Of course the judge was correct in this regard: for such purpose, value is determinative because once the drug is a “controlled drug” its type is otherwise immaterial. 23. However, quite a different issue is involved when the court comes to consider what actual sentence is appropriate; that is, appropriate to the gravity of the crime and the circumstances of its commission, as well as to the circumstances of the accused. All relevant matters are available for consideration in such an exercise. The fact that for some purpose the Oireachtas has chosen to draw a distinction between cannabis or cannabis resin on the one hand, and other prescriptive drugs on the other, could not be taken under any circumstances as having restricted the matters which a sentencing court is entitled to have regard to when sentencing. There is no rule of interpretation which says that when the legislature deals with some aspect of the common law, but not with related or associated aspects, those other matters are nevertheless inferentially rejected by such intervention. Clear cut language would be required for such a result. Therefore, in grading the penalties for possession of cannabis or cannabis resin by reference to the number of previous convictions had by the accused person, the legislature cannot be taken as having removed from legitimate consideration a matter of some relevance, namely drug type. It need hardly be said that the question of weight or significance is always one for the trial court. Support for this view may be found in a number of cases, discussed below. 24. As stated, there have been very few cases in this State which carry any worthwhile relationship to the instant one. The closest by comparison would appear to include the following. In The People (D.P.P.) v. John O’Toole (CCA, u/r, 25th March 2003), Mr. O’Toole was convicted, after a lengthy jury trial, of the importation and possession, for the purposes of sale or supply, of 325 kilogrammes of Cocaine. The drugs had a street value at the time of over £41.5 million and a purity level of 75%. In sentencing him to 20 years imprisonment, the trial judge took into account the nature, extent and value of the consignment. The Court of Criminal Appeal later reduced the sentence to 16 years, primarily on the basis that evidence of personal duress, accepted by the Garda and so found by the court, should have been considered in the context of the applicant’s culpability. This was despite the jury’s rejection of duress as a legal defence to his criminal liability. Matters such as having a seriously ill wife, being under financial pressure and receiving threats from people involved in importing, exporting and selling drugs, were all mentioned in this context. The second ground justifying the reduction was to prevent any unreasonable disparity between Mr. O’Toole’s sentence and that imposed on his co-accused, which was 12 years. 25. Another case is that of The People (D.P.P.) v Gilligan [No. 2] [2004] 3 I.R. 87. The applicant had been convicted of eleven drug related offences, involving the importation and possession, for the purpose of sale and supply, of cannabis resin between 1994 – 1996. The drugs seized had a street value of over £1 million. The Special Criminal court imposed sentences of 12 and 28 years respectively for the offences, both to run concurrently. The Court of Criminal Appeal upheld the 12 year sentence for importation but reduced that imposed for possession for the purposes of sale or supply to 20 years. The reduction was made on the basis that the trial court did not restrict its consideration to the individual charges as proved. It wrongly had regard to criminal activity for which Mr. Gilligan had not been indicted and which he denied or declined to admit (Reg v. Kidd [1998] 1. W.L.R. 604). In addition, in light of the fact that the applicant was not found to be the leader of the distribution gang, the court felt that the sentences were disproportionate to those imposed on others involved. In relation to the length of the sentence, McCracken J. stated at p. 94:
28. Mr. Daly argues that his sentence is excessive having regard to the mitigating factors including his personal circumstances. The correct approach to sentencing has been stated in a long series of both reported and unreported cases. It requires that the imposed sentence be proportionate to the gravity of the offence and to the personal circumstances of the offender (The People (D.P.P.) v. M [1994] 3 I.R. 306 at 316-317). Adjustments, for aggravating and mitigating factors, is part of this process. 29. This principle was specifically alluded to by the sentencing judge at p. 28 of the transcript, where he also stresses the fact that the appellant had lost out on substantial mitigation for not pleading guilty or cooperating. He said at p. 28:
30. The suggestion has been raised, however, that despite outlining the approach he intended to follow, it is not readily apparent from the transcript that the learned judge in fact proceeded as he intended. For example, it is unclear as what exactly he felt “the appropriate sentence without any reduction” should be. He did say, however, (at p. 28) that the offence was “very much at the top end of the scale on all levels” before noting (at p. 30) that “the penalty is up to and including life imprisonment” for the offence in question. This analysis was carried out by the judge prior to his addressing the “personal circumstances” of the convicted person (at p. 30). As such, the steps taken by him broadly followed the established approach to sentencing as laid down in Kelly. Nonetheless, it must be acknowledged that it would have been much more enlightening, had he identified an appropriate point on the sentencing scale where the crime fitted before proceeding as he did to consider personal circumstances. That way, the manner in which the trial judge dealt with the sentencing process would have been immediately obvious. It is not so at present, although the overall views of the judge are reasonably clear and the court will thus proceed accordingly. 31. There is no doubt but that a failure by a trial judge to have adequate regard to any or all of the mitigating factors concerning a particular accused can be an error in principle. The People (D.P.P.) v. O’Sullivan (CCA, u/r, 22nd March 2002) is authority for this proposition. The appellant argues that the learned sentencing judge breached this principle by giving insufficient weight to the mitigating factors that were present in his case. Accordingly it is necessary to deal with each of these matters in turn. The appellant did not have relevant or serious previous convictions 32. The appellant has four previous convictions of a relatively minor nature from the years 1989 – 1998, none of which warranted a custodial sentence. They are noted on p. 14 of the sentencing transcript. The appellant argues that his previous convictions were of an age and character that he should have been treated as being a first time offender. In this regard he cites Prof. O’Malley in Sentencing Law and Practice (2nd ed., Thomson Round Hall, 2006, p.141) to the effect that “…[f]or a person of previous good character, the first time in prison, is likely to be a severer punishment than a same period would be for a hardened criminal, or even when suffered for the second time.” 33. When dealing with his previous record the trial judge expressly stated at p. 30 that “Mr Daly doesn’t have any conviction that is a concern to me.” In furtherance of this view, he also distinguished the appellant from Mr. Wharrie and Mr. Wanden, both of whom had serious antecedents. However, it is quite a different point to suggest that the appellant should realistically be treated as a first time offender: in the court’s view this is quite doubtful. It should be noted that he was aged between 23 years and 32 years when he committed the offences for which he was convicted, including an assault on a police officer in 1990 and possession of a blade in 1998. Moreover, given the gravity of the offences with which he was convicted, the passage quoted from O’Malley has uncertain application. Whichever, it is clear that the judge viewed the appellant’s previous convictions as having no importance and proceeded accordingly. The appellant did not disguise his identity but used his own name and passport 34. The fact that three of the four co-accused were in possession of false passports was expressly highlighted by the trial judge during the sentencing hearing (at p. 29). That the appellant travelled on his real name and with his own genuine documents was not expressly treated as a mitigating factor; indeed, it is difficult to see how it could have been. As suggested by the court (at p. 16), the reason why Mr. Daly so acted is because the locality was familiar with him and that he was somewhat “amongst his own” in West Cork. Therefore, it would not have made sense for him to have used false documents or otherwise to have disguised his true identity, as he would have been recognised in any event. In addition, however, and in the same context, it should be noted that the appellant’s unique local knowledge of the area was not treated as an aggravating factor either; in fact the trial judge downplays its significance and concedes that there may have been others from the locality involved (at p. 29). The Appellant was engaged in the building trade and had his own business 35. As noted in the submissions of the D.P.P., this was clearly a factor which was in the mind of the trial judge who expressed the view that Mr. Daly’s evidence in relation to his work history was unreliable. On p. 18, the trial judge states that “[w]hen [the appellant] was cross-examined he didn’t appear to me to know anything about work, and less about his accounts”. On the basis that the trial judge listened to and observed Mr. Daly give evidence, and that he considered all documentation offered in support, he was well justified in refusing to see his work record as a mitigating factor. The Appellant was not a financer of, or principle mover, in the operation 36. Superintendent Healy, in evidence, acknowledges that the appellant would not have been financially in a position to make any contribution, however minor, to the logistical cost of the drug smuggling operation. Notwithstanding this, the trial judge appears to take the view that all co-accused played a central role. At p. 29 he states:
38. In any event, Long is not the only case where this point is made. On other occasions, the Court of Criminal Appeal has stated that the risks for a person becoming involved in the transportation of controlled drugs are severe, even when that person is acting as a courier. In the case of The People (D.P.P.) v Hogarty (CCA, u/r, 21st December 2001), Keane C.J. stated:
The appellant’s family circumstances as a married man with three children 39. The trial judge did not specifically allude to the appellant’s family circumstances in handing down sentence, however he stated at p. 28 that:
The appellant’s status as a foreign national 40. One of the points urged by the appellant relates to his foreign status and the hardship which exists on the basis that his wife and children are resident in the United Kingdom. In sentencing all persons involved in this crime, the trial judge specifically had regard to the fact that any sentence served in this jurisdiction would be harder and more difficult for them. On p. 30, he states:
42. Having reviewed these factors, the question therefore is whether in the circumstances the sentence is so severe as to amount to an error in principle. 43. In so suggesting, the appellant uses O’Toole (para. 24 supra) as a comparator for his own circumstances. In the court’s view, he is wrong to so do as O’Toole is entirely distinguishable. The quantity of drugs involved was less than a quarter of the amount in the instant case, 325 kilogrammes as against 1554 kilogrammes. In addition and of noticeable significance were the mitigating factors in O’Toole; in particular that of duress, a circumstance which is entirely absent from the instant case. The other ground justifying a reduction in O’Toole was the need to establish proportionality between co-convicted persons; this forms the subject matter of a separate ground of appeal in the instant case and is discussed later in this judgment. 44. Another case relied upon by the appellant is Gilligan [No.2], (para. 25 supra) where the appellate court sanctioned a sentence of 20 years on the charge of possession, for the purposes of sale or supply, of 180 kilogrammes of Cannabis. The applicant was the mastermind behind a sophisticated procedure for the importation of drugs into Ireland from the Netherlands. He was heavily involved in organised crime, was motivated by greed, showed no remorse and gave no assistance to the Gardaí. There was very little to say in mitigation in his favour. Whilst there are similarities between Gilligan and the appellant’s case, including the absence of remorse and the failure to give assistance, there are also vast differences most notably those between drug type and quantity. 45. The third case referred to is Long (para. 27 supra) where the Court of Criminal Appeal imposed a sentence of 14 years having due regard to the mitigating factors, including the plea. Once again, there is a difference in both the type of drug and quantity involved. Therefore, by any comparison with these cases, the instant one must be regarded as more serious. 46. It cannot be denied but that a 25 year sentence is a severe one; indeed the trial judge recognised so himself (at p. 30). However, the gravity of the offences with which Mr. Daly has been convicted likewise cannot be doubted. The seriousness of such crimes are graphically illustrated by simply referring to the nature and quantity of the drugs involved and the purity level of same, which at around 75% is close to the maximum that is attainable. The haul was truly extraordinary, being one of the largest, if not the largest, ever to have been detected in this country. 47. The operation underlying Mr. Daly’s conviction was meticulously devised, planned and implemented over several months by highly organised criminals. It spanned three continents and involved many different nationals. The capacity of this gang is noteworthy for its access to human resources, logistics and finance. The cost of the operation, exclusive of the drugs, was given as being over €300,000. A yacht purchased in Miami on the 7th March, 2008 for $110,000 was sailed to the Caribbean where it took the drugs on board; from there, it was navigated almost 3000 nautical miles to its rendezvous point, a mere 30 such miles off the coast of Ireland. Its crew included Lithuanians and Mr. Hagan. 48. The role played by the appellant has been described by the trial judge; a description with which we entirely agree. He was a fully integrated member of the gang and must have known key strategic aspects of the enterprise. He was directly responsible for bringing motor vehicles into this country, including the RIB used to accommodate the offload at sea and he had in his possession or was linked to sophisticated equipment without which the operation could not continue. He was in part directly responsible for the inception of the drugs into this jurisdiction, being a member of the group who departed from Glengarriff pier the previous evening. His role, once the haul had safely been landed, was to transport the drugs to some intermediate or end location(s). As the trial judge said (at p. 29) he “booked up” for this criminal enterprise and unashamedly became an avid and engaging participant in it. He was no innocent on a fool’s errand, and his role was strikingly more central than that of a courier’s . His motive was purely greed; he suffers from no infirmities, such as addiction, severe debt or other disabling disorders. His incitement was simply money. 49. In these circumstances and in the light of the gravity of the offence, it is legitimate to consider the principle of deterrence as relevant to the sentence handed down to the appellant. 50. In The People (D.P.P.) v. Preston (CCA, u/r, 23rd October 1984), it was recognised that in sentencing under the Misuse of Drugs Acts 1977, penalties of a deterrent nature may well be appropriate so as to display society’s revulsion at drug abuse and drug trafficking. Deterrence aims to demonstrate to potential offenders and society at large the consequences of a particular type of wrongdoing. Consequently a penalty, part of which is motivated by deterrence, may be legitimately advanced, so long as it does not lead to disproportionately severe punishment. 51. O’Malley, in the work previously cited (para. 31 supra), states on this subject at p. 37:
52. If deterrence is an appropriate factor to have regard to in this case, it means that the offences of which Mr. Daly was convicted must be punished with a sentence which reflects its gravity and discourages its future repetition. The aim is to make offenders involved in crimes of this nature, aware that the Irish courts regard such matters very seriously. The D.P.P., at para. 5.2 of his submissions, points out that the probability of detection in drug smuggling operations of this nature is small, with many drug landings on the Irish coast going unfoiled. If the courts become accustomed to handing down light sentences in cases such as the instant one, it may well be argued that professional criminals will do some form of cost benefit analysis, and at least some would conclude that the gain justifies the risk of detection and punishment. Such course must be confronted and responded to. 53. Having regard to the grave nature of the offences in question and the manner in which they were carried out, on the one hand and on the other, having made due allowance for each point advanced by way of mitigation, this court comes to the conclusion that the trial judge remained within his margin of discretion in assigning Mr. Daly, as an appropriate sentence, a term of imprisonment of 25 years. 54. The second principal submission made on behalf of the appellant is that the learned sentencing judge failed to distinguish properly, as he is required to do, between the sentence imposed on Mr. Daly and those imposed on his three co-accused; in particular on Mr. Hagan. As will be recalled, the latter received a sentence of ten years on a plea of guilty, whilst the other two, tried and convicted on the same indictment as the appellant, each received terms of 30 years imprisonment. The appellant argues that, even making all due allowances for distinguishing features, the disparity, being so great, simply cannot be explained. In support of this argument, it is claimed that the Judge, consciously or subconsciously it matters not, erred in principle by penalising Mr. Daly for having exercised his constitutional right in defending the prosecution taken against him. 55. The law on this issue, described as the rule of parity, was the subject matter of some comment in The People (D.P.P.) v. Poyning [1972] I.R. 402 where Walsh J. stated at p. 408:
57. The Australian courts have taken a similar approach to the parity rule. In Lowe v The Queen (1984) 154 C.L.R. 606, Dawson J. summarised the point as follows, at p. 623:
59. The parity rule is essentially a reflection of the notion of equal justice which is inherent in any rational system of law which citizens are subject to. As such, the underlying basis for the principle is rooted in justice being equal, in equal circumstances. Rarely will that be found to exist without some adjustment; but if correction can legitimately be made the rule will apply. Therefore co-accused, whose personal circumstances, such as age, background, antecedents, etc, are similar and whose legal liability for the crime under sentence is relative, should normally receive comparable sentences. Otherwise the integrity and dignity on which obedience for our laws are based would be undermined, and if continued, would incrementally erode public confidence in our justice system. 60. The rule can also be viewed as a means of supporting the proposition that sentences should not fall outside what might be described as the “general pattern” of sentencing for the crime under consideration (see Street C.J. in R v Tisalandis [1982] 2 N.S.W.L.R. 430 at p. 431). Evidently where relevant factors are similar, it is desirable, absent any contrary consideration, to achieve even handedness. This can be done by imposing a sentence which is within the permissible range, even if not identical to that imposed on a co-accused. However, where such factors are different, it would patently be unjust not to have disparate sentences; otherwise parity would be distorted rather than achieved. 61. As will be observed, this principle has both a public and a personal element to it. In determining the existence of a sense of a grievance, the court will apply an objective test and not a subjective one: a person complaining of disparity in sentence, irrespective of his or her own feelings, must show that a reasonable person, looking at the entire circumstances of the case, would regard the offender’s grievance justified. To have it otherwise would strip the rule of any purpose or value. 62. Thus far, the rule as above stated is largely uncontroversial. However, what is to be done when a disparity in sentencing cannot be explained by reference to individual roles or personal circumstances? For example, what is a trial judge or an appellate court to do when faced with what is described as a “comparator” which, despite making all due allowances for distinguishing features, simply cannot be reconciled with the sentence under appeal? This is particularly so when neither court has been involved in the sentence relied upon. Both the severity and leniency of that sentence may be at issue, with the latter, for example, arising on an application for review under s. 2 of the Criminal Justice Act 1993. In any event, the question is what is to be done when the trial/review court is satisfied that in accordance with due principles, the impugned sentence is and remains the appropriate one? In order to achieve parity, should the court adjust a sentence, otherwise proper, to a level where it would be, or could be regarded as, inappropriate? 63. The answer to this difficulty, at least in Irish law, may be found in Poyning’s case. At p. 408 of the report, Walsh J. said: “If in any particular case one such joint accused has received too short a sentence, that is not per se a ground on which this court would necessarily interfere with the longer sentence passed on the other.” In fact the court in that case ultimately determined the application, not by reference to the sentence imposed on the co-accused but by reference to what, in the circumstances, was the “appropriate sentence” for the appellant. At p. 410 it said:
64. Another approach which has been canvassed and one which supports the opposite view, derives from the suggestion that the attainment of even handiness is such a powerful and desirable objective, that even if the review sentence is proper, it should nonetheless still be reduced, so as to reflect parity with the lesser sentence. 65. In Australia this point has given rise to some debate with different judicial interpretations as to whether, if a co-offender has already received an inadequate sentence, the parity principle requires the imposition of another inadequate sentence. On one view, a prior lesser sentence may justify a further proportionately inadequate sentence. According to a contrary view, however, the parity principle does not justify compounding the error of a preceding inadequate sentence. When looking at authorities from that jurisdiction on this issue, it should be borne in mind that the discussion, at least in part, has been influenced by the particular criteria which exists for appellate intervention in the first place. 66. Postiglione v. The Queen (1997) 189 C.L.R. 295 is an example of the first mentioned response, where the court said at p. 301:
68. Similarly in R v. Tisalandis [1982] 2 N.S.W.L.R. 430, Tisalandis and his co-accused were sentenced on similar charges, malicious wounding, played similar roles and had similar criminal histories. It was said that, if anything, the co-accused played a greater role and had a more serious criminal history yet Tisalandis received three years imprisonment and his co-offender a bond. The major difference was that the co-accused had pleaded guilty and Tisalandis had not. While the Court of Criminal Appeal accepted that the two sentences were “greatly disparate”, Tisalandis’ appeal was dismissed. 69. The crucial issue raised in both Lowe and Tisalandis was whether the parity rule required reducing an otherwise appropriate sentence to an inadequate level to eliminate or reduce disparity with a lesser sentence. It was held that “marked” or “gross” disparity, even with an inadequate sentence, may warrant appellate intervention, but the principle was not extended to require that a manifestly inadequate sentence be imposed for the sake of consistency. As Brennan J. put it in Lowe at p. 617:
“I must confess to the possession of serious doubt concerning the notion that the ‘impassive representative of the community’, the ‘objective bystander’ would perceive greater injustice in the imposition of two or more inadequate sentences in order to maintain parity of treatment of the offenders involved, than that created by the acceptance of a measure of disparity to avoid the handing down of an inadequate sentence on one of them.” 72. The court was similarly circumspect in R v. Kairouz [2005] N.S.W.C.C.A. 247, when stating, at p. 45:
74. Caution must therefore be exercised, lest the rule be extended to a point where its very basis becomes undermined. Situations will arise where the court is perfectly satisfied that the lesser sentence is not an appropriate one; a sentence over which it had no control and one which it cannot interfere with. In such circumstances any requirement to reduce the longer period, which by and of itself is otherwise unobjectionable, would only serve to repeat the error and offend public confidence in the justice system. 75. In any event, in certain cases the reality will be that a review court simply may not be able to avoid some form of disparity existing. As stated in R. v. Glasby [2000] N.S.W.C.C.A. 83 at p. 158:
77. This court therefore respectfully agrees with what was stated in Poyning: it holds that there is no obligation to follow the principle of parity where the earlier sentence was manifestly inadequate or where the differences between the two offenders justify the different result (see p. 408 of the judgment and para. 63 supra). The foremost consideration in sentencing is to ensure the imposition of an appropriate sentence. Whilst parity is a laudable aim, there will exist circumstances where two sentences cannot be reconciled and parity cannot be achieved. In such a case, parity must yield and appropriateness must prevail. 78. The second aspect of this submission is an allegation that the trial judge increased what otherwise should have been a proper sentence by reason of the fact that Mr. Daly exercised his constitution right to defend the case taken against him. 79. The law on this latter point is perfectly clear, leaving no room for ambiguity. It was said in Maloney (1989) 3 Frewen and repeated in The People (D.P.P.) v. Gillane (CCA, u/r, 21st December 1998) that an accused has a legal (and, may I add, a constitutional) right to fight the case tooth and nail, as it was put and that his decision to so do must not add one day to his sentence. 80. The People (D.P.P.) v. Shekale (CCA, u/r, 25th February 2008) considered a similar submission in circumstances where the trial judge had commented that the applicant had not pleaded guilty but rather had fought the case tooth and nail. These remarks raised the suggestion that, instead of treating a guilty plea as simply a mitigating factor, the trial judge penalised the applicant for not so pleading. That, the Court of Criminal Appeal said:
83. Some of the judge’s remarks in the instant case were highlighted in this regard, such as his reference to the “cynical, perjured criminality before [the] jury” which, in his view, had marred the appellant’s trial. This was contrasted with the position of Mr. Hagan who the judge said had not “engaged in [such] calculated perjury”. It should, of course, be noted that these were comments made at Hagan’s sentencing on the 5th November, 2008 and not at the appellant’s hearing, some three and a half months earlier. 84. Nonetheless, in sentencing the appellant, the judge did make reference to the “transparently fallacious” stories told by Mr. Daly and Mr. Wanden to the jury. This showed, he said, “[a] complete contempt for the jury, and…levels of incorrigibility that are hard to fathom” (p. 28). Other general references were noted, including a remark that by failing to plead and co-operate with the Gardaí, the co-accuseds had sought out the full appropriate sentence without deduction. Further, the judge stated on p. 29 that he would have “ameliorated” Mr. Wharrie’s sentence on the basis that he had not given evidence, but for his appalling criminal record. Accordingly, it is asserted that the sum of these comments signal a real danger that the heavy sentence, at least in part, was imposed because of Mr. Daly’s not guilty plea and also because of the manner in which his defence was conducted. 85. The D.P.P.’s answer to this point rests on the following: at the beginning of the hearing on the 23rd July, 2008, the trial judge, being evidently mindful of what he said or was about to say, expressly stated that :
87. The appellant’s specific submissions on parity must now be considered by reference to the background facts and circumstances of the case; recalling that Perry Wharrie and Martin Wanden were tried on the same indictment as the appellant and were sentenced to 30 years imprisonment and that Gerard Hagan on a plea of guilty was sentenced to ten years imprisonment. The Appellant, Perry Wharrie and Martin Wanden
Mr Wharrie’s convictions … [include] a sentence of 3 years in 1985 for obtaining goods by deception; and life imprisonment in 1989 for murder and firearms offences. Moreover, he was released only on licence in April 2005, a situation which continued to exist in July, 2008.” 89. The D.P.P. maintains that the trial judge sufficiently distinguished between these three co-accused by imposing a sentence of five years shorter on the appellant. The judge would appear to have taken the view, based on the evidence, that no one of the three was a ring leader, rather that all were “willing lieutenants” (p. 29). In other words, their contribution to the enterprise was seen to have been approximately equal. 90. The court rejects the appellant’s submission in this regard. The five year discrepancy between the sentences handed down to Wanden and Wharrie, on the one hand, and the appellant on the other, would seem to be fair in light of the evidence that the culpability of all three was similar. The imposition of a lesser sentence on Mr. Daly properly lent weight to the fact that his previous convictions were not as serious or as relevant as those of the other two. In fact his previous convictions were effectively ignored by the judge. Therefore, the parity argument as between these co-accused is not objectively sustainable. The Appellant and Gerard Hagan Hagan: The Crime: Mitigating and Aggravating Factors
94. On the 5th November, 2008, Det. Sergeant Foley outlined Mr. Hagan’s involvement in this crime. Whilst living in Spain, he agreed to become involved in this smuggling operation in return for STG £5,000.00. First, however, a false passport was required. On the 19th February, 2007, he attended at the Irish Embassy in London and handed in counterfeit documentation. An elaborate scheme had been established by other members of the group to support such application. This involved supplying a false address in a prestigious part of London, of a non-existing firm of solicitors with phone and fax numbers, so that the bona fides of the application could be verified when the embassy sought to confirm its genuineness. That in fact is what occurred and the passport duly issued. 95. On the 19th April, 2007, Mr. Hagan arrived in Trinidad and Tobago and went on board the Lucky Day. On the 5th May, 2007, together with two Lithuanians, he crewed the yacht to Barbados where he stayed on board until departing on the 25th May, 2007. At a point approximately 200 to 250 miles off the coast of Trinidad, in mid-Atlantic, the drugs were taken on board the catamaran. It was then sailed by these individuals to the pre-arranged rendezvous point off the south west coast of Ireland where the drugs were transferred to the inflatable RIB. In addition to this involvement, Mr. Hagan was overall responsible for confirming the receipt of the drugs on board the catamaran and for their safe deposit on Irish soil. 96. Given this level of involvement it is very difficult to understand how the role of Mr. Hagan could be considered less culpable than the role of, for example, Mr. Daly. On any objective criteria, it could be strongly argued that Mr. Hagan’s participation in this enterprise was far more blameworthy than that of his co-accused. At a minimum, in the court’s view it could not be considered less so. Yet the range of sentence to reflect Mr. Daly’s involvement was described as being at the top end of the scale, up to and including life imprisonment, whereas the sentencing range to reflect Mr. Hagan’s role was put at ten years plus. 97. Having considered that Mr. Hagan’s motivation, namely money, was an aggravating factor as was the absence of any addiction or such like disability, the trial judge went on to consider the mitigating factors arising. He outlined these as the giving of material assistance, the absence of previous convictions, the age of the accused and his plea of guilty. Whilst initially Mr. Hagan declined to co-operate and gave answers which were self-serving, nonetheless a day or two into the investigation he admitted his real identity and gave certain information to the gardaí which was described as being very helpful. Such information comprised an admission that he was on board the catamaran as well as identifying his fellow crew mates. In addition, he notified the D.P.P. in early course of his intention to plead guilty. This approach of Mr. Hagan was, as the judge noted, in stark contrast to the other three, none of whom gave any co-operation or assistance to the gardaí and all of whom disputed their criminal liability to the very end. In addition, Mr. Hagan’s previous convictions were not relevant and, based on his expression of remorse the trial judge held that there was some possibility of rehabilitation in his case. Testimonials were also advanced in support of Mr. Hagan’s character. 98. Of all such factors which impressed the judge, the most important was the plea and its availability at an early stage. In this regard he said:-
99. From a brief look at the case law, it can be seen that, in a number of s. 15A cases, some involving substantial amounts of drugs, but others less so, sentences of in or around the ten year mark have been handed down on a plea of guilty. In The People (D.P.P.) v. Fitzgerald (Dublin Circuit Criminal Court, 11th March 2005), a man said to have had a history of serious crime, who pleaded guilty to having €50,000 worth of Cocaine, was sentenced to ten years imprisonment as there were no exceptional circumstances to justify a lesser sentence. A ten year sentence was also imposed on the 52 year old accused in The People (D.P.P.) v. Lane (Naas Circuit Court, 15th February 2005) who was found in possession of €615,000 worth of Cocaine. In The People (D.P.P.) v Jegede (Dublin Circuit Criminal Court, 3rd May 2005), the accused received a ten year sentence with the last two suspended for importing €300,000 worth of Cocaine. He had pleaded guilty, had no previous convictions and would be serving his sentence in a foreign country. There are multiple other cases where, like those cited herein, the variants are numerous. “Value” differs greatly but this differentiator is less reliable than quantity or purity. In any event, no particular pattern of sentencing can be deduced from such cases. 100. From such a quick perusal, much the same situation applies to the issue of discounts for early pleas. The Irish courts have no formal provision for the amount of adjustment merited by a guilty plea, preferring instead to uphold judicial discretion, to be exercised in light of the specific circumstances. Whilst there is no mathematical formula by which any such reduction may be arrived at, mention has been made in some cases of an adjustment of up to a third. The People (D.P.P.) v. Benjamin (CCA, u/r, 14th January 2002), is a case in point; it involved a South African woman convicted of a s. 15A offence, the court referred to a one-third discount as being appropriate in cases where an early plea was entered and maintained consistently afterwards. Other cases will show less, such as long where the reduction was four years, but rarely will they show more. In any event what must be stressed is that a plea is but a mitigating factor, admittedly quite an important one, and that at the end of the process the overriding obligation is to ensure that the sentence actually imposed reflects the crime and respects the convict. 101. In the instant case, supposing that the trial judge is correct and that the bar for this magnitude of offence is in the range of 25 – 30 years, is it appropriate to reduce that sentence by 15 – 20 years when, broadly speaking, the only differences between the parties are that the appellant, Wanden and Wharrie did not plead guilty, cooperate or express remorse? If one disregarded the 30 year sentence because of antecedents the reduction is still 15 years. As between Mr. Daly and Mr. Hagan the crucial difference in fact, as identified by the judge, was the plea. Whilst the question of age was alluded to, there is no doubt but that Mr. Hagan, with considerable knowledge of what the undertaking involved, made a fully informed and conscious decision, to gamble with this criminality knowing the risks. At 23 he was well able to make that decision. Age therefore is not a material factor. In the court’s view to reduce a sentence of this scale by substantially more than a half would require something quite extraordinary. We have not being able to identify what that might be in this case. 102. We get no comfort from The People (D.P.P.) v. Philip Doo & Others, which involved another great quantity of cocaine (1,504 kilogrammes) with similar purity (70%), to that found in this case. That offence occurred on 5th November, 2008, post-dating the offence with which the appellant was found guilty. There were three co-accused all of whom were sentenced on a plea of guilty to ten years by Judge Moran at Cork Circuit Criminal Court. Like Hagan, all three had admitted their involvement and expressed remorse at their actions. Other than this brief summary we have no further information about this case. In such situation we are not prepared to accept that it offers any support for the sentence imposed on Mr. Hagan. 103. Having regard to the above, the contrast between Mr. Daly’s and Mr. Hagan’s level of involvement and their respective attitudes to the offences charged would appear to be too severely reflected in the 15 year differential in sentence. This is not to say that a substantially different sentence may have been warranted in the case of Hagan. Nevertheless, the disparity is too great and not immediately explainable. Let us suppose Mr. Hagan had been sentenced before the others; could an additional 15 years have been imposed within the parameters of parity? We strongly doubt it. In fact it is impossible in the present situation to achieve parity between those involved in this crime. To bring Mr. Daly’s sentence in line with Mr. Hagan’s, even if we were minded so to do, would be to further distance if from what Mr. Wanden and Mr. Wharrie received, which were not appealed. To leave it as it is likewise creates a disparity. In such circumstances, whilst the appellant may understandingly wish to associate himself with Mr. Hagan, the court cannot facilitate him in such regard as to so do would be to breach the fundamental sentencing principles above outlined. 104. Further, it would significantly undermine the integrity of the justice system which cannot be countenanced. 105. Consequently, being satisfied that the imposed sentence is an appropriate one, leave to appeal will be refused.
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