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Cite as: [2011] IECCA 99

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Judgment Title: DPP -v- Sophie Malric

Neutral Citation: [2011] IECCA 99

Court of Criminal Appeal Record Number: 289/10

Date of Delivery: 21/12/2011

Court: Court of Criminal Appeal

Composition of Court: Finnegan J, Hanna J., O'Keeffe J

Judgment by: Finnegan J.

Status of Judgment: Approved

COURT OF CRIMINAL APPEAL

CCA 289/10

Finnegan J.
Hanna J.
O’Keeffe J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

SOPHIE MALRIC

APPLICANT

Judgment (ex tempore) of Mr Justice Finnegan delivered on the 21^st day of December 2011

The applicant was charged with and following trial convicted of four offences as follows:-

Count No. 1 Statement of Offence

Possession of a controlled drug for the purposes of selling or otherwise supplying it to another, contrary to section 15 and section 27 (as amended by section 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Particulars of Offence.

On the 18^th day of December 2009 at Dublin Airport in the County of the City of Dublin had unlawfully in her possession a controlled drug to wit cocaine for the purposes of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under section 5 of the Misuse of Drugs Act 1977.

Count No. 2. Statement of offence

Unlawful importation of a controlled drug, contrary to section 21(2) and section 27 (as amended by section 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Particulars of Offence.

On the 18^th day of December 2009 at Dublin Airport in the County of the City of Dublin she unlawfully imported a controlled drug, to wit, cocaine in contravention of Regulation 4(1)(c) of the Misuse of Drugs Regulations 1988 and 1993.

Count No. 3. Statement of offence

Unlawful possession of a controlled drug, contrary to section 3 and section 27 (as amended by section 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

Particulars of offence.

On the 18^th day of December 2009 at Dublin Airport in the County of the City of Dublin had unlawfully in her possession a controlled drug to wit cocaine.

Count No. 4. Statement of Offence.

Unlawful possession of a controlled drug while the value amounted to €13,000 or more 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.

On the 18^th day of December 2009 at Dublin Airport in the County of the City of Dublin had in her possession a controlled drug, to wit, cocaine for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under section 5 of the Misuse of Drugs Act 1977 and at the time when the cocaine was in her possession the market value of the controlled drug amounted to €13,000 or more.

On Count No. 2 and Count No. 4 she was sentenced to a term of imprisonment of ten years to run concurrently and to date from the 18^th December 2009. Count No 1 and Count No. 3 were taken into consideration.

Counsel for the applicant at the trial accepted every matter of which proof is required of the prosecution save the single question of guilty knowledge.

The circumstances of the offence were as follows. On the 18^th December 2009, acting on information, the applicant was interviewed at Dublin Airport by a Customs Officer. She was requested to put her suitcase through an X-ray machine and the image showed an inconsistency. The applicant accepted that the suitcase was hers and that she had packed it herself. She named the hotel at which she intended to stay and said that it had been booked for her by a friend. Her flight had also been booked for her by that friend. A swab taken of the suitcase indicated the presence of cocaine. She could not explain the presence of cocaine. She said that the suitcase had been in her possession at all times and that she did not take cocaine. The applicant made a statement to the Customs Officers. She had been in Senegal and Gambia with a friend Mike who introduced her to his friends Isif and Abdullah. Mike left Senegal two or three days before the applicant and she was to meet him in Dublin. Isif gave her a bag to carry. She flew from Senegal to Lisbon and from Lisbon to Dublin. There were two packages containing the drugs in the base of the suitcase.

Ms M.S. Herlihy, a Customs Officer involved, was cross-examined. She accepted that the drugs were concealed in the base of the suitcase. Mr S. Daly the Customs Officer who removed the drugs from the suitcase gave evidence that he did so by cutting open the back of the suitcase and extracting the drugs. Notes of the interview with the applicant were prepared and she signed them. Garda Ledwith gave evidence of arrest and of the quantity of the drugs, 3.16 kg. The applicant was interviewed by the Gardai and the interview was read into evidence. In the course of interview she said that she was supposed to bring gold dust to Ireland and not cocaine. She had met the people about a week earlier. She met a Gambian girl with a German man who knew she had no money and they gave her €50.00 and offered to look after her. They explained to her that “these people” would pay for her ticket, pay her expenses and give her €2,500.00 plus pocket money to bring a suitcase to Europe. They arranged for her to meet with these people in Gambia. Her friend Mike explained everything to her. She was told that it was gold dust and was told by another lady that she had made the trip once and had no problem and had got money for her family. It was not possible for her to see what was in the suitcase. In the course of the interview she said:-

“I knew that this was illegal, bringing gold from Africa, I did not think it was a big deal.”

She was fully co-operative.

The value of the drugs was agreed at €210,119.00. In evidence she said it did not occur to her that the luggage contained drugs and at all times believed it contained gold. She was dealing with persons she considered friends and she trusted them. She accepted that she did not mention to the Customs Officers her belief that the luggage contained gold dust and that she first mentioned it at interview by the Gardai. She accepted that what she said to Customs Officers about meeting people in a bar was untrue. In fact she met them in a hotel room.

The applicant appeals against the sentence imposed upon her.

The applicant’s application for leave to appeal against her conviction was run solely on the basis of mens rea, that she did not know that the suitcase contained drugs, and no other proofs were required of the prosecution. The application was run solely on the onus of proof imposed upon an accused by section 29 of the Misuse of Drugs Act 1977.

The Applicant’s Submissions
On behalf of the applicant it is submitted that the emphasis and language of the learned trial judge was such that he appeared to equate the sentencing of the applicant with that of a person who is an organiser or a manager of a drug distribution network and who bore all the signs of wealth arising from that trade. There is no evidence to that effect. All the evidence given at trial suggested that the applicant was not materialistic, was financially in reduced circumstances, had never before committed an acquisitive crime, or any crime. It is accepted however that she agreed to carry the bag for gain. However the amount of the gain in comparison with the value of the drugs involved and the risk to the applicant was totally disproportionate.

In the particular circumstances of this case the emphasis placed by the trial judge on the applicant’s plea of not guilty was disproportionate. She accepted fully all the circumstances necessary to ensure her conviction save and except that she maintained that she did not know that what she was transporting was a controlled drug. The defence centred on the onus of proof which rested on her to establish this defence. She co-operated fully. The learned trial judge recognised that she gave considerable information to the Gardai including details of the hotel she was to stay at and whom she was to meet in Dublin and in relation to four if not five people with whom she had contact. It would appear that the learned trial judge from comments which she made did not regard her co-operation as “material assistance”. It is very rare in cases of this nature that an accused person names names.

The sentence imposed did not take adequate account of the mitigating

circumstances personal to the applicant and in particular her age, her gender, that she is a French National and while in prison will have very limited access to family and friends. Because of her age and the length of the sentence imposed it is unlikely that she will now have a family of her own.

Submissions on behalf of the Respondent
The jury in the course of the deliberations asked a question in relation to section 29 of the Act of 1977 and as to the meaning of recklessness. This does not and should not be taken as indicating that the jury found her guilty on the basis of recklessness rather than knowledge. In any event section 15A makes no distinction on the basis that an accused is guilty of an offence whether the state of mind is intention or recklessness. It is not accepted that the language of the learned trial judge was such that he appeared to equate the applicant with a person more deeply involved in the drug trade. The learned trial judge recognised that this was a first offence.

The learned trial judge did take into account the applicant’s co-operation. As the persons named had all been persons whom she met in Africa this was of limited value. The information was not of material benefit to the Gardai.

The applicant’s circumstances were appropriately taken into account by the learned trial judge in arriving at an appropriate sentence.

Discussion
Section 27 of the Misuse of Drugs 1977 as amended by the Criminal Justice Act 1999 provides in subsection 3B that in imposing sentence the court shall specify as the minimum period of imprisonment to be served by that person a period of not less than ten years imprisonment. Subsection 3C provides that subsection 3B 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 ten years imprisonment unjust in all the circumstances and for that purpose the court may have regard to any matters it considers appropriate.

In the present case the court has regard to the following. The applicant co-operated with the Customs Authorities and with the Gardai. She named names and gave as much information as she could in relation to the persons named. The learned trial judge considered this to be of limited value as the persons named were persons she had met in Africa. However they were persons of European origin or persons who had previously travelled to Europe transporting drugs. The information will be of value to European authorities and may will lead to the apprehension, trial and conviction of such persons in the future. The court is satisfied that the learned trial judge underestimated the value of the information which the applicant provided.

The applicant was born on the 31^st May 1979 and is now thirty two years of age. At the time of the offence she was thirty years of age. She is a French National. She obtained a number of qualifications in the course of her education, a Baccalaureat Technologique and a diploma for youth leaders and supervisors in holiday centres and a first-aid training certificate. However she does not appear to have engaged in any long term employment but travelled widely working as she went. She was employed in hotels in inter alia England, France, Tunisia and Corsica and received an excellent reference from Club Mediterrane for whom she worked. She has furnished references from her employers all of which are excellent. Her family doctor certifies that she was not subject to addictive behaviour. She has also furnished a certificate from the Department of Justice in France certifying that she has no convictions. She has furnished details of her financial circumstances which are modest indeed.

Notwithstanding her age the applicant presents are somewhat naive. Thus she did not wish to avail of legal representation in her dealings with the Gardai at interview. It is likely as submitted by counsel that at the time of the offence she was in Africa in reduced circumstances so that she required a gift of €50 from those who involved her in the offence in order to survive.

The applicant is close to her family: her parents and brother travelled to Ireland to attend the trial and her parents also travelled to attend her application for leave to appeal against conviction and the separate application for leave to appeal against sentence. As a French National, prison will be somewhat more difficult for her than would be the case for an Irish National. The only contact with her family which she enjoyed in the Docas Centre is one phone call of six minutes per week. Such lack of contact with her family will exacerbate her isolation while in prison. For a woman of her age the sentence imposed may well prevent her ever having a family of her own.

There was no plea of guilty in this case but that is understandable in the context where having admitted everything else the applicant denied that she was aware that the suitcase contained drugs. She maintained this position throughout. The burden on the prosecution was greatly reduced by the concessions made at her trial.

It is unlikely that the applicant will trouble the courts again. While in prison up to the date of trial she had been a model prisoner.

Disposition
The court is satisfied that the learned trial judge did not adequately take into account the applicant’s personal circumstances and in particular her age, her naivety, her absence of any criminal record and her precarious financial position in a foreign country. The learned trial judge gave insufficient consideration to her co-operation with the Gardai and the Customs authorities and her co-operation at her trial with the prosecution in confining her defence to a single issue the onus in respect of which rested upon her. In addition the applicant has no previous convictions and there is reason to be confident that she will not be involved in criminal conduct in the future. The combination of the foregoing matters relating to the offence and to the offender is such that the court considers the sentence imposed upon her as unjust.

The court has considered up-to-date material provided by the applicant.

In all the circumstances the court will set aside the sentence imposed by the learned Circuit Court judge and in substitution therefore will impose a sentence of seven years imprisonment with the last four years thereof suspended on terms that for the period of the sentence suspended she will be of good behaviour and keep the peace.