Irish Court of Criminal Appeal

Judgment Title: DPP -v- Brian Wall

Neutral Citation: [2011] IECCA 45


Court of Criminal Appeal Record Number: 195/08

Date of Delivery: 29/07/2011

Court: Court of Criminal Appeal

11

“The Oireachtas, in introducing this legislation, gave powers to the courts to in fact impose a prison sentence of not less than ten years unless there were exceptional circumstances. I take the view that there are exceptional circumstances in this case. You got involved in this for the simple sum of €2,000 to help your partner and your child and your way of life.

I have read the various letters that have been handed in on your behalf, I have read the probation report, I have listened to what Mr. Mulcahy said on your behalf, and listened to your own evidence. I accept that you’re remorseful for this, and I accept the havoc it has brought to your partner and your own family.

You are the second young man I have dealt with during the current sitting who has been involved in this type of activity. You have asked me for a second chance, and the other young man asked me for a second chance as well and I took the view I should assist him.

I have read the probation report, and your probation officer says that you were at the lowest possible level of re-offending, and whilst I didn’t ask Detective Sergeant O’Brien a question I often ask, which is, have you divorced yourself from the drug world, I suspect that his answer to that would be in the affirmative, otherwise he would have told me, and certainly I get that impression from yourself.
You are a young man trying to get on with your life, I think you have learnt a lesson from this episode and I think Miss Moriarty is right in her assertion about the likelihood of re-offending”

The sentencing Court erred in law and in fact in being unduly lenient by failing to attach sufficient weight to the gravity of the offence for which the maximum penalty is life imprisonment and the existence of a mandatory minimum sentence of 10 years imprisonment.
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 favourable probation report, the testimonial of a character witness, and the fact that the respondent was apologetic and remorseful.
The sentencing Court erred in law and in fact in being unduly lenient in the weight it attached to the fact that the respondent was in possession of €145,600 of diamorphine and the fact that the respondent had acted as a store man and delivery man for an unnamed person for financial reward and the fact that the respondent was not a drug addict and that his motivation was entirely mercenary.
The sentencing Court erred in law and in fact in failing to take into account that the respondent had, by his own admission, purely mercenary motives.
The sentencing Court erred in law and in fact in failing to take into account the fact that the respondent had by his own admission engaged in the supply of unlawful drugs on another occasion, some number of weeks prior to the date of the offences, the subject matter of these proceedings and had received the sum of €2,000.00 in relation to the same.
The sentencing Court erred in law and in fact in deeming the fact that the respondent was not addicted to drugs as being a factor in mitigation.
The sentencing Court erred in law and in fact in being unduly lenient in failing to have any, or any adequate regard for the judgment of the Court of Criminal Appeal in the case of DPP v Rory Lernihan [2007] IECCA 21 (Unreported, Court of Criminal Appeal, 18^th April, 2007). The circumstances were not materially distinguishable from the circumstances of the respondent’s case. The Court of Criminal Appeal quashed the sentence of four years imprisonment with the last two and a half years suspended as being unduly lenient in respect of possession of €72,000 of cocaine. The Court of Criminal Appeal imposed a sentence of seven years imprisonment.
The Court failed to pay any or any adequate regard to the provisions of s. 27(3)(3d)(c)(ii) of the Misuse of Drugs Act 1977 and in particular, failed in imposing a sentence of less than ten years to have regard to whether the public interest in preventing drug trafficking required a sentence of ten years or more.
The sentencing court failed to have any or any proper regard to the deterrent aspect of sentencing.

“ 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 or such longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine, from the day on which the sentence was imposed.

(3) On such an application, the Court may either—
( a ) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or
( b ) refuse the application.

"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
(b) at any time while the drug or drugs are in the person's possession the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case may be, amounts to £10,000 or more."

"s. 27 (3A) Every person guilty of an offence under section 15A shall be liable, on conviction on indictment -
(a) to imprisonment for life or such shorter period as the court may, subject to subsections (3B) and (3C) of this section, determine, and
(b) at the court's discretion, to a fine of such amount as the court considers appropriate.
(3B) Where a person (other than a child or young person) is convicted of an offence under section 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.

(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:-
(a) whether that person pleaded guilty to the offence and, if so,

and
(b) whether that person materially assisted in the investigation of the offence."

"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'.

…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.”

“In an appeal of this nature it is not for the court to decide what sentence it would have imposed in the circumstances but whether the trial judge erred in principle that his sentence should be quashed as being unduly lenient. The onus is on the prosecutor to establish that this is the case.”

“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.”

“Even where exceptional circumstances exist which would render the statutory minimum term unjust, there is no question of the minimum sentence being ignored. Perhaps the most important single factor in determining the appropriate sentence is the ascertainment of the gravity of the offence as determined by the Oireachtas. Frequently, an indication as to seriousness of the offence may be obtained from the maximum penalty imposed for its commission. This is particularly true in the case of modern legislation. What is even more instructive is legislation which, as in the present case, fixes a mandatory minimum sentence. Even though that sentence may not be applicable in a particular case, the very existence of a lengthy mandatory minimum sentence is an important guide to the Courts in determining the grading of the offence and the appropriate sentence to impose for its commission. That is not to say that the minimum sentence is necessarily the starting point for determining the appropriate sentence. To do so would be to ignore the upper material provision, that is to say, the maximum sentence. It would be wrong to assume that the offence of importing controlled drugs in excess of the prescribed amount or value would attract only the mandatory minimum sentence, long though it may be.”

“It is clear that the trial judge was conscious of the fact that if one had regard only to the seriousness of the offence in itself a custodial sentence was merited. As this Court has frequently stated a judge imposing sentence must not only have regard to the seriousness of the offence but also the particular circumstances of the offender and, in that light, impose a sentence which best serves the public interest and the interest of justice.

While a custodial sentence would serve certain objectives such as deterrence and punishment it is clear that he nonetheless had to consider whether it was in the interest of society that the proven substantial progress in rehabilitation and strong prospects of full rehabilitation through participation in the Coolmine programme would be put at risk by removing the respondent from that programme and putting him into a prison environment for a significant period.”

“In the case the court is satisfied that the trial judge approached the question of sentencing with meticulous care. He took into account the nature and gravity of the offence and the fact that foreign couriers of drugs should be subject to the severe sanction of the law just as much as any other offender in possession of drugs for the purpose of sale. He also had careful regard, as he was bound to, to the particular circumstances of the case including those of the accused himself. He took account of the severe effect of the period, although short, which the accused spent in jail, given his limited intellectual capacity to cope with the fact that he was in a foreign country cut off from his own family and from anybody he knew. Of more importance was the consideration which he gave to the accused’s low intellectual capacity and history of attending remedial schools from his early years. He was also entitled to take into account that the one thing the accused wished to do, having fully acknowledged the wrongness and gravity of the offence, was to leave Ireland and return to his own country and in particular to his mother’s home because of his limited intellectual abilities and dependence on her. Although a severe sanction which marks the gravity of a particular offence should be a deterrent to others, deterrence is never a basis for punishing an accused for crimes which may have been or may be committed by others. As the court has already stated, the trial judge was bound to decide this case having regard to its own particular circumstances and taking into account, as the statute itself provides, matters which he considered appropriate.”

“Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of possible penalties is dependant upon those two factors. It is only when the penalty is below the range as determined on this basis that the question of undue leniency may be considered.”

“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.”

“Even where there are exceptional and specific circumstances which would make a sentence of not less than ten years imprisonment unjust, a substantial term of imprisonment, although less than ten years, will generally be the appropriate sentence. That does not, however, exclude wholly exceptional and specific circumstances where a suspended sentence may be considered appropriate in order to do justice in the particular case.”

“However, insofar as the submission of the D.P.P. contended that a suspended sentence must always, and in every circumstance, be considered wrong in principle, the Court does not accept that this is a correct principle to be applied. First of all there is nothing in the legislation to suggest that the Oireachtas intended to compromise to that extent the judicial function to impose the appropriate sentence in the circumstances of the case. On the contrary, the Oireachtas expressly provided for a trial judge to exercise his or her judicial discretion according to the justice and circumstances of the case when it provided for the non-application of s. 27(3B) in certain circumstances. Generally speaking legislation is incapable of dealing specifically with the vast range of circumstances and factual elements that differentiate one case from another even though they involve an offence under the same section and this the Oireachtas has recognised in the provisions just referred to. It cannot be said that there could never be circumstances in which, having regard to the interests of society as a whole, the facts of the particular case and the circumstances of the accused, where a suspended sentence would be appropriate. Undoubtedly a trial judge sentencing a convicted person for an offence such as that in question here is constrained by the considerations already referred to above to consider that a term of imprisonment is normally what should be imposed. However, where there are special reasons of a substantial nature and wholly exceptional circumstances, it may be that the imposition of a suspended sentence is correct and appropriate in the interest of justice. This is a combination of factors which could only arise in a relatively rare number of cases. This Court has previously upheld a sentence of such a nature in the case of D.P.P. –v- Alexiou [2003] 3 I.R. 513 because there were such exceptional circumstances and special reasons.”

“…the punishment is made to hang over the offender like some sword of Damocles for the duration of a period which the sentencer has prescribed in advance. If, within this probationary period, the offender offends again or otherwise violates the trust placed in him, he runs the risk that, in such an eventuality, the sword of Damocles will descend.”

“Financial motive may be an aggravating or mitigating factor, depending on the circumstances. In drug related cases, for example, those who organise the importation and distribution of drugs are clearly motivated by financial gain which will almost certainly be treated as an aggravating factor. Others who are employed as couriers may be deeply impoverished and disadvantaged people who agree to import or distribute drugs as a means of supporting themselves and their families. They will usually receive some mitigation on that account, although the courts must be careful not to be seen to be routinely lenient lest this encourage organisers of the drugs trade to target impoverished or marginalised individuals to act as couriers with the promise that they are likely to be treated leniently even if caught.”

“…a person dealing in drugs in a calculating fashion for the purpose of personal gain is usually treated as meriting heavier punishment that someone who is dealing in drugs out of financial necessity or in order to finance their own addiction, though offenders in the latter category often receive fairly heavy sentences as well, particularly where there has been a large quantity of drugs involved.” [Emphasis added]

“…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 Act 1977 as amended by the Criminal Justice Act 1999, a policy which this Court is bound to uphold.”

“Whether or not the court is dealing with a first offence is not one of two named “exceptional and specific circumstances” mentioned in sub-section 3C, but it is clearly capable of being one. It is a matter relating to the person rather than the offence. It is closely linked also with the evidence of some genuine remorse and purpose of amendment.”

“A guilty plea in itself is rarely treated as an exceptional and specific factor; as has been pointed out, it is anything but exceptional in s. 15A cases. However, it may justify a downward departure when combined with one or more other factors such as: an admission to an offence with which the accused had yet to be charged or returned for trial; the provision of assistance to the law-enforcement authorities (and all the more so when this has led to the apprehension of other offenders and perhaps even the leaders of a drugs ring); the absence of previous convictions for drugs or other serious offences; evidence that the offender had been exploited by others on account of his vulnerability through poverty, lack of education or diminished intellectual ability; evidence that the offender had acted under duress; or evidence of medical or psychiatric problems.”

“A trial or sentencing judge is fully entitled in the case where an accused has entered a plea of guilty to have regard to all background matters arising which goes to clarify or explain the context of the crime in question and which may be of assistance to the sentencing court in reaching a decision as to the appropriate sentence to be imposed in a given case. This includes being able to look at and consider the entire Book of Evidence, including any admissions which may have been made by an accused. It would be fair to say that counsel for the applicant does not seriously dispute this. The real difficulty, recognised in the jurisprudence, arises when assessing whether, even if a trial or sentencing judge is so permitted, that judge has in fact overstepped the mark, so to speak, and fallen into the trap of allowing the context or the factors, especially admissions, to influence or to be taken into account in calculating the actual sentence being imposed. In the case DPP v. Galligan, supra, the difficulties with which this exercise is fraught, are well recognised. In the present case, when considering the transcript, the court is not satisfied that the learned sentencing judge clearly and unambiguously avoided these difficulties in such a way as to make it clear that the admissions of prior involvement in importation of, inter alia, drugs and of the payment for the same, did not influence the sentence which he imposed”. (Emphasis added).

“…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 first hand; even where the victims chose not to come to court as in this case…he may detect nuances in the evidence that may not be as readily discernible to an appellate court.”

“This court cannot increase a sentence imposed in the court of trial simply because it takes a different view as to the seriousness of the offence. It is in the first instance a matter for the sentencing court to determine in all the circumstances what is an appropriate sentence. It is only where this court is satisfied that there has been a significant departure from the principles which should have guided the court in imposing the sentence that it will intervene.”

“[The Court of Criminal Appeal] has no power to impose a greater sentence than the trial judge’s purely because the members of the Court of Criminal Appeal, if they had been dealing with the matter at first instance, would have thought a more severe sentence appropriate. This precisely reflects the principle on which the Court of Criminal Appeal deals with a defendant’s appeal against severity of sentence. In each case, the court is precluded from simply substituting its own judgment for that of the trial judge. In a defendant’s appeal, the court cannot reduce the sentence simply because its members would have imposed a lighter one, had they been dealing with the matter at first instance. An error of principle is required.”

“This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community…”