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Cite as: [2012] IECCA 72

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Judgment Title: DPP -v- Michael Byrne

Neutral Citation: [2012] IECCA 72

Court of Criminal Appeal Record Number: 117/10

Date of Delivery: 06/07/2012

Court: Court of Criminal Appeal

Composition of Court: Murray J., Hanna J., Hogan J.

Judgment by: Murray J.

Status of Judgment: Approved

THE COURT OF CRIMINAL APPEAL

[No. 117/10 CCA]

Murray J.
Hanna J.
Hogan J.

BETWEEN/

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

PROSECUTOR/RESPONDENT

AND

MICHAEL BYRNE

APPELLANT

JUDGMENT of the Court delivered on the 6th day of July, 2012, by Murray J.

1. On 8th March, 2010, the appellant, Michael Byrne, was found guilty of three counts on the indictment. The most serious offence was comprised in count 3, namely, possession of a controlled drug for the purpose of selling or supplying, contrary to s.15A (as inserted by s.4 of the Criminal Justice Act 1999) and s.27 (as amended by s.5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977. The controlled drug found in his possession was diamorphine, or heroin, which had a value of €6,200,000. Mr. Byrne was also convicted on two other counts namely, the unlawful possession of controlled drugs for the purposes of sale or supply to another. These other two counts, whilst serious in themselves, rather pale in comparison with the more serious s.15A charge.

2. Following a sentence hearing on 20th April, 2010, in which Detective Garda Gregory Sheehan gave evidence for the prosecution in relation to the background to the charges, the learned Circuit Court Judge (His Honour Judge O’Donnell) pronounced sentence a week later on 27th April, 2010. Judge O’Donnell imposed a sentence of eighteen years imprisonment in respect of the s.15A charge and took the other two counts into consideration. Mr. Byrne now appeals to this Court against the severity of that sentence. Before considering the arguments advanced in relation to the severity of sentence, it is necessary first to set out the key background facts.

3. On the 15th January, 2008 following a surveillance operation, Gardai came upon the defendant at the rear of a Volkswagen Caddy van. That van had just performed a circular lap of a particular housing estate and Detective Sergeant Sheehan observed Mr. Byrne filling plastic bags with taped packages from the rear of the van. Mr. Byrne then closed the door of the van and made his way down a laneway while carrying two plastic bags. At that point Mr. Byrne was called upon to stop by members of the Garda Síochána who produced their service firearms. Mr. Byrne did not, however, stop but rather continued down the laneway and ran across a park. Mr. Byrne was ultimately apprehended. Taped packages of diamorphine (heroin) were found in the plastic shopping bags and in the back of the van. Other similarly packed packages were found in the park under a staked tree. Some 32kg of heroin was seized and the value of these seizures was put at €6,200,000.

4. Mr. Byrne’s defence was that the items in question must have been deposited by the person to whom he had just given a lift to the airport and that he had panicked when he discovered the nature of items in question. This explanation was obviously rejected by the jury. Mr. Byrne had 19 previous convictions, mainly for petty crime: assault, public order, larceny, unauthorised taking of a vehicle and other road traffic offences in relation to stolen vehicles. Mr. Byrne had no previous convictions for possession of drugs.

5. The principal grounds of appeal are that (i) the learned trial judge penalised the accused for defending the case against him and (ii) that the sentence imposed was, in any even, too severe as a matter of principle.

Whether the judge may be taken to have penalised the accused for defending the case against him
6. It is perfectly clear, both as a matter of first principle and established authority, that an accused has a complete right to defend the proceedings and he cannot be penalised by reason of the fact that he has elected to plead not guilty, even if this is in the teeth of the evidence. As McKechnie J. observed in The People (Director of Public Prosecutions) v. Daly [2011] IECCA 104 “an accused has a legal (and, may I add, a constitutional) right to fight the case tooth and nail…and his decision to do so must not add one day to his sentence.”

7. Any other conclusion could lead to a situation where an accused might be dissuaded from exercising this constitutional right for fear of retribution by a sentencing judge if he were ultimately convicted by a jury of the charge on the indictment. The only relevance of a not guilty plea in the context of sentencing is that the accused cannot get the benefit of the discount which is otherwise available (save in exceptional cases) to the accused who has entered a timely plea of guilty.

8. In Daly a similar issue arose where it was contended that the trial judge had made remarks which suggested that he had penalised the accused for the manner in which the defence had been conducted:-

“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.

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.”

9. In response, the Director of Public Prosecutions drew attention to the comments which the trial judge in that case made at the start of the sentencing hearing:-

“[t]he accused are entitled to the assurance, and I give it to them at the start, that their sentence will not be increased by one, nor one hour because they fought the case, that is not an aggravating factor; they are entitled to a trial, notwithstanding in Wanden’s case that the evidence against him was absolutely overwhelming, he is entitled to put the State on their proofs and he cannot be punished by an increase in sentence because of that.”

10. Delivering the judgment of this Court, McKechnie J. concluded:-

“Given the express nature of this statement it is quite clear that the trial judge was mindful of the law and of the accused’s right to fully fight the case, even if the judge found the manner of his so doing highly off putting. Being therefore conscious of such entitlement, and having explicitly said so in his judgment, we are satisfied to accept the assurances so given, and to proceed on the basis that the learned judge did not penalise Mr. Daly for defending the proceedings. It needs to be said however, that when commenting on extraneous matters, a judge must exercise not only measured restraint but considerably more, lest a wrong perception or impression might be given. In fact, unless relevant to a particular aspect of sentencing, it would be infinitely better to avoid such remarks entirely. In that way no misunderstanding could arise and no assertion could be made that justice has not been seen to be done.”

11. So far as the present case is concerned, much emphasis was placed by the appellant on the following comments of the learned trial judge:-

“However, when convicted by a jury of their peers, there is very little room for any sympathy or recognition of remorse, particularly when an accused gets into the witness box and perjures himself in relation to the reality of what actually took place…It was a performance Laurence Olivier would have been proud…”

12. But just as in Daly, one must also view these remarks in their full context, because His Honour Judge O’Donnell had prefaced those remarks by observing that while the trial had lasted six days “where every issue was fought and contested”, nonetheless “everyone is entitled to contest each issue in the course of a trial and must not be punished for doing so.”

13. In these circumstances, we consider that the present case is, in this respect, to all intents and purposes indistinguishable from Daly. While we agree with the observations of McKechnie J. that comments of this kind regarding the manner in which the accused defended the proceedings are, on the whole, best avoided in view of the potential for misunderstanding, we cannot agree that these remarks in their proper context must be read as suggesting that the learned trial judge sought to penalise Mr. Byrne for the manner in which the defence was conducted. Rather, just as had happened in Daly, the trial judge was at pains to ensure that the accused would not be penalised by reason of the fact that he pleaded not guilty and had tenaciously defended each and every point of substance. The comments, therefore, regarding there being little room for sympathy and so forth must be therefore be understood as acknowledging that the accused was not entitled to the more sympathetic treatment to which an accused who pleaded guilty and had exhibited true contrition for his crimes would normally be entitled. This is what the trial judge stated and no more.

14. It follows, therefore, that we do not consider that this ground of appeal is well founded.

The sentence itself
15. There is no doubt but that, reduced to its essential facts, the offence itself is an extremely grave one, namely, the possession of a vast quantity of heroin for the purposes of sale or supply. As McKechnie J. noted in Daly, the effect of s.15A is that possession of more than €13,800 in value of such illicit drugs carries with it a “presumptive” minimum sentence save in exceptional circumstances. All of this is provided for in s.27(3C) and s.27(3D) of the Misuse of Drugs Act 1977 (as amended by s.84 of the Criminal Justice Act 2006 and s.33 of the Criminal Justice Act 2007) which provides that:-

“(3A) Every person guilty of an offence under section 15A or 15B of this Act shall be liable, on conviction on indictment—

(a) to imprisonment for life or such shorter term as the court may determine, subject to subsections (3C) and (3D) of this section or, where subsection (3F) of this section applies, to that subsection, and

(b) at the court's discretion, to a fine of such amount as the court considers appropriate.

(3B) The court, in imposing sentence on a person for an offence under section 15A or 15B of this Act, may, in particular, have regard to whether the person has a previous conviction for a drug trafficking offence.

(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.

3(D)(a) The purpose of this subsection is to provide that in view of the harm caused to society by drug trafficking, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under section 15A or 15B of this Act, shall specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so.

(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.”

16. In the present case, there is no suggestion at all that there are any such exceptional circumstances within the meaning of this sub-section. The court of trial was therefore obliged to impose a sentence of at least ten years, with the maximum sentence being that of life imprisonment: see s.27(3A) of the Act of 1977.

17. From a general perspective, it should be noted that the possession of drugs prohibited by the legislation referred to for the purposes of sale or supply has long been regarded as one of the graver offences in the criminal calendar. The gravity of such an offence is evidenced in part by the statutory minimum sentence (subject to exceptions) for which the Oireachtas provided in that legislation, and the severe custodial sentences which the courts have imposed in appropriate cases. The gravamen of the offence is the possession of such drugs for the purposes of sale or supply, since that will always involve promoting or feeding the drug habits of drug abusers and addicts. The drug abuse and the associated addiction to such drugs has had appalling consequences for individuals, their families in cities, towns and villages throughout the country. Those who become involved in the sale or supply of drugs can only do so in the knowledge that if convicted they may be liable to serve very substantial terms of imprisonment. In addition, the illicit drug trade is a major source of capital for organised crime, as well as contributing to the level of violent crime to which “customers” of drug suppliers resort in order to get money to feed their addiction. Thus, independently of any aggravating factors in a particular case, such an offence will, generally speaking, including when mitigating factors are taken into account, attract a significant custodial sentence.

18. The circumstances of the appellant are relatively unusual in that he appears to have been, at the time, in a steady occupation and otherwise gainfully employed, yet he was found in possession of an enormous cache of heroin for the purposes of sale and supply. In this respect, his position is very different from the position of many appellants to this Court, many of whom have either been exploited to work as drug couriers for a pittance (cf. The People (Director of Public Prosecutions) v. Alexiou [2003] 3 I.R. 513) or who are themselves drug addicts struggling to escape from the terrors of their addiction (cf. The People (Director of Public Prosecutions) v. McGinty [2007] 1 IR 633). Yet others have shown true remorse, co-operated with Gardai and pleaded guilty at the earliest opportunity (cf. The People (Director of Public Prosecutions) v. Wall [2011] IECCA). This is not to minimise the seriousness of those offences, but to contrast them with the level of gravity in this case.

19. The appellant falls into none of these categories. There are, moreover, factors in this case which tend to aggravate the gravity of the crime, namely, the (i) type of drugs involved, (ii) the quantity and value of the drugs and (iii) the appellant’s past criminal record. We may now consider these issues in turn.

20. First, so far as the type of drug is concerned, this Court has stated that the type of drug seized may be material as an aggravating factor, but not a mitigating factor, for sentencing purposes: see, e.g., The People (Director of Public Prosecutions) v. Gilligan (No.2) [2004] 3 I.R. 87, 94 per McCracken J., The People (Director of Public Prosecutions) v. Long [2006] IECCA 49, per Macken J. Here the Court can take judicial notice of the fact that heroin is commonly regarded as among the most addictive of controlled drugs and one which has had the most devastating consequence for individuals and society as a whole.

21. Second, so far as the quantity and value of the drugs are concerned, it is the sheer quantity and value of the cache which is an aggravating factor in this case. In large value cases of this kind, the courts are not immediately concerned with fine mathematic niceties in terms of value: what really counts, so far as aggravation is concerned, is whether the amount seized demonstrates an organised and relatively high level of involvement in this criminal activity. In this regard the circumstances of the seizure of a cache of such value, in this case speaks for itself.

22. Third, the appellant’s past criminal record cannot be ignored as an aggravating factor, although a relatively minor one in the context of the aggravated nature of the offence itself. It is true – and in Mr. Byrne’s favour – that none of these offences involved convictions for drugs offences. It is nonetheless impossible to ignore the fact that the appellant has nineteen other convictions, some of them for relatively serious matters such as assault, larceny and stolen vehicles. It accordingly cannot be said that he has just stumbled into crime or that he deserves some degree of leniency which might otherwise be shown to those, otherwise of good character, who, through impetuosity or naïveté engaged in criminal conduct.

23. If the appeal is thus reduced to its essentials, the picture which emerges is one of an appellant with almost no mitigating facts who was has been found guilty following a trial of the possession of a huge quantity of heroin. Viewed thus, we find it impossible to say that the offence in question is towards the upper end of the scale of gravity. Can it be said that the learned trial judge thus erred in principle in imposing a sentence of 18 years’ imprisonment?

24. Here it is appropriate to examine some comparators from the recent cases of this Court. One may start with The People (Director of Public Prosecutions) v. O’Toole, Court of Criminal Appeal, 25th March 2003, a case where the accused was convicted following a jury trial of possession of some 325kg. of cocaine with a value of some IR£41m. His sentence was reduced on appeal by this Court from 20 years to 16 years, but factors such as financial difficulties, a seriously ill wife and – particularly – threats and duress from criminal gangs were factors which were invoked to justify the sentence reduction.

25. In many ways, however, the case with the closest similarity to the present one is The People (Director of Public Prosecutions) v. Long [2006] IECCA 49, although there are important differences as well. There the applicant had pleaded guilty to the possession for the purposes of supply of cannabis resin have a value of some €12m. Macken J. then set out the relevant background facts:-

“Here the applicant is a 42 year old man, recently married after a relationship lasting several years, with a full time job, and a wife who is also employed. He suffers from no addiction, no illness, and no deprivation such as might explain why he had become involved in the transport of the drugs, and he freely admitted to becoming involved in importing these drugs for financial gain. In other words, and put plainly, simple greed led to his involvement. He was, in reality, a cog, a very important and essential cog, in a significant drugs importation venture, even if not the mastermind behind the venture. He was part of the sophisticated mechanism set up by those who had, as their aim, the avoidance of identification either of supplier or of the eventual recipient of the drugs, as evidenced from the use of two separate mobile phones, with pre installed numbers to be contacted, and indeed he was unable to identify by name or otherwise either the supplier or the recipient. He clearly knew what was involved, as was found by the sentencing judge, but he considered the drugs were on the lowest rung of recreational drugs. This court has stated on many occasions the risks for a person in becoming involved in such matters. In the case of D.P.P. v Hogarty, (unreported, Court of Criminal Appeal, 21st December, 2001), in a judgment by then Chief Justice Keane, he stated:

“Couriers play an essential role in the illegal drugs trade and, as the court has pointed out in the judgment it has just delivered in The Director of Public Prosecutions v Duffy, those who willing enter into that trade for financial reward, as the applicant unhappily did, simply cannot expect to receive anything but severe treatment from the courts. That is the policy plainly and unambiguously laid down in the Misuse of Drugs Acts 1977, as amended by the Criminal Justice Act, 1999, a policy which this is bound to uphold.”

26. Having then set out these facts and applicable sentencing considerations, Macken J. then continued:

“Having regard to all the circumstances set out above, this court is of the view that it would be wholly inappropriate to impose a sentence less than the minimum mandatory sentence provided for in the legislation. What is, however, of particular seriousness in this case, and perhaps different from the circumstances giving rise to some at least of the sentences in the helpful list provided on behalf of the applicant, is the combination of the enormous quantity and value of the drugs, even if they were not what are sometimes referred to as “hard drugs”, together with the blatant commercial basis upon which the applicant embarked on their importation. This would merit a sentence, in this Court’s view, at the very upper end of the scale, even of 18 years, or perhaps more, despite the fact that he was not the mastermind behind the enterprise involved. Having regard to the mitigating factors which the court is also obliged to take into account, as set forth above, and including the latter factor, but specifically ignoring the admissions as to possible earlier criminal activity concerning drugs, the court considers that an appropriate and proper sentence is one of 14 years.”

27. What is perhaps noteworthy in the present context is that the Court in Long clearly considered that a sentence of 18 years (or even longer) would have been appropriate, save for the fact that the accused had pleaded guilty and co-operated at the earliest opportunity. Once allowance is made for the guilty plea in Long, the circumstances of that case have a distinct resonance for the present one. In both cases the accused became involved at a relatively high level in the drugs trade. This was not done out of desperation, vulnerability, debt, acute poverty or addiction, but rather for illicit commercial gain. It is true that the cache in Long was more valuable, but the nature of the drugs found in the present case (heroin) pose the most acute risks for those caught in the tragic lair of addiction.

28. Finally, we would note that in Daly this Court upheld a sentence of twenty five years’ imprisonment for possession of enormous quantities of cocaine worth over €108m. An application of the extensive analysis of sentencing policy in that case relating to this kind of offence does not disclose any grounds for calling in question the sentence imposed by the trial judge in this case. On the contrary, it lends support to it.

Conclusions
29. Having regard to all these circumstances, the Court must determine objectively whether the sentence imposed, in the circumstances of this case, represented an error in principle on the part of the learned trial judge. Given the gravity of the offence, and the particular circumstances of this case already referred to, the Court is satisfied that there was no such error of principle.

30. Accordingly, the Court will dismiss the appeal.

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