Drugs Sentences

Cases

People (DPP) v Botha

 

[2004] 2 I.R. 375
JUDGMENT of the Court delivered on the 19th day of January, 2004, by Hardiman J.
On the 20th March, 2003 the applicant was sentenced to five years imprisonment, having previously pleaded guilty to a charge under s.15(A) of the Misuse of Drugs Act, 1997 as amended. This related to an offence committed on the 31st July, 2002 when the applicant, a South African, arrived at Dublin Airport on a flight from Paris carrying with him four large slabs of cannabis weighing a little over 20 kilograms and valued by the Gardaí at just over €52,000.
On arrest, the applicant made a statement in which he said that he agreed to bring drugs to Dublin for a fee of 7,000 Rand. He said he did not know what sort of drugs were in a bag he was given to carry but he knew they would be illegal. He was to bring the bag to Dublin, check into a hotel, make a phone call to South Africa, and wait to be contacted. He was to get his money when he went back to South Africa.

The applicant is 58 years old, having been born on the 15th September, 1945. He explains his offence by pleading poor financial circumstances. He said he worked first in the Navy and then in the fire department for many years. He resigned from this and invested a lump sum he received in a business his son was establishing with a partner. He worked in this business, as did one of his daughters. The partner pulled out, precipitating the collapse of the business. His marriage then collapsed and, after a divorce he said he found himself living on the streets. He did very menial work such as car watching. He was then approached by two persons, who are brothers, and given a pre-packed suit case which contained the cannabis. He has two previous convictions in 1985 and 1986 for fraud and theft respectively. He made a full statement on the day of his arrest which was accepted by the guards as appearing to be correct, on the basis of their contact with the South African authorities.

Submissions in the Circuit Court.
The applicant pleaded guilty at the end of January 2003 and the substantive hearing took place on the 17th February. Senior Counsel for the applicant invited the judge to bear in mind a case mentioned only vaguely in the transcript, where a South African woman had received a sentence of 6 ½ years imprisonment for offences under the same Section. Counsel said he had “brought (it) to the Court of Criminal Appeal for clarification”. He said “She served, I think, about eighteen months of it and when the Court of Criminal Appeal… well less than eighteen months… but when the Court of Criminal Appeal clarified that the recommendation to deport was not to operate at the end of the 6 ½ years, that it is a recommendation just in a blanket way made. The State then is at liberty, only the prison authorities, are at liberty to decide when or how much of that sentence is to be served and they then… assuming that clarification… they promptly deported her a week or two later”.

Apart from that, Counsel submitted that the applicant was entitled to the benefit of his plea of guilty and a statement which he made. The latter, though vague, possibly contained all the information that the applicant had. Counsel also submitted that the previous convictions should be disregarded having regard to the remoteness in time, and the judge agreed to do this. He then relied on his age, his very unfortunate background, his good behaviour in prison. He said “… I think the merits of the situation requires some element of suspension or acknowledgment of the factors I have mentioned. His age, how far away he is, his background, and all the rest”.

The learned trial judge asked counsel to state what had been done in other similar cases of South Africans. From the defence, at the substantive hearing, he received only the somewhat anecdotal assistance summarised above. He asked Counsel for the DPP for assistance in similar terms. Prosecuting counsel first demurred to the question saying that “ordinarily the DPP would not enter into the arena of sentencing so I can’t make submissions”. The judge pressed him saying “I am entitled to ask the question I asked namely: what has been the position relative to similar cases in the past”.

The response to this question was wholly anecdotal. Counsel said he knew of two cases where a suspended sentence had been passed on condition that the courier immediately left the jurisdiction. These, however, were appealed by the DPP. One of these matters, he said, had been heard by the Court of Criminal Appeal but judgment was awaited.

The learned trial judge put the matter back to the 20th March, 2003 in the hope that he would get guidance from the judgment in this unnamed case. On the new date, however, he was told the judgment had not in fact been delivered. The learned trial judge himself drew attention to the case of DPP v. Duffy (Court of Criminal Appeal unreported 21st December, 2001).

Role of precedent.
In the view of the Court, the learned trial judge here was poorly served by Counsel on both sides of the case from whom he sought assistance which ought to have been available. There are now a considerable number of decided cases in this Court relating to the proper approach to sentencing where s.15(a) and s.27(3) of the Misuse of Drugs Act, 1977 as inserted by ss.4 and 5 of the Criminal Justice Act, 1999 apply. On the hearing of this appeal, a number of these cases were referred to by counsel for the applicant, Mr. Michael O’Higgins S.C., who did not appear in the Court below.

In his Notice of Appeal, the applicant complains that “according to previous sentences giving (sic) to South Africans this was a heavy sentence, applicant’s age and good references applied to the Court”.

The first of these matters was essentially a comparative exercise. If that were the thrust of the defence – that the sentence should be proportionate to other sentences imposed on persons of the same nationality – then (without commenting on the line of argument itself: see below) clearly a number of comparators, together with the written judgments, should have been supplied.

In our opinion a trial judge is entitled to make of both sides, but perhaps particularly of the prosecution, the inquiry which was made here. It is to be regretted that he received so little assistance, even after an adjournment. The only case properly referred to in the entire transcript was cited by the learned trial judge himself and its principles applied in his careful sentencing remarks.

Having said this, there is of course a limit to the usefulness of reference to other cases, for the reasons set out in the judgment of Finlay C.J. in DPP v. Tiernan [1998] IR 250. No reference to another case is at all useful unless the facts and circumstances of the offence and the offender in the case referred to are put before the Court in written form. In cases such as the present, which is the subject of special statutory provisions, it is of course useful to consider the decisions of this Court as to the application of those provisions. In the course of preparing this judgment the Court has had regard to six written and nine extempore judgments of the Court of Criminal Appeal delivered between November, 2001 and July, 2003. Approved versions of all the extempore judgments exist. This body of material is readily available to practitioners.

There is also a considerable body of international material on minimum sentences in drugs cases. Looking only at common law countries, or countries heavily influenced by the common law, such provisions were introduced in the United Kingdom, Canada, South Africa, Fiji and in the United States both at Federal and State level. This occurred at various stages between 1970 and 2000. Portions of the laws introduced in Canada and in Fiji were declared unconstitutional for reasons not relevant here because there has been no challenge to the constitutionality of the Irish provisions and, of course, this Court would in any event not be involved in the hearing of such a challenge.

The provisions mentioned vary widely in the length of the minimum sentences (up to 25 years), the circumstances in which and the persons on whom they are to be imposed and the scope for avoiding the imposition of a minimum sentence in any particular case. Having regard to the nationality of the present applicant it is interesting to note the South African provisions, contained in that country’s Criminal Law Amendment Act 1997. The requirement to impose a minimum sentence in South Africa does not apply if the Court is “satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence…”.

No submission was directed to the Court on the legal provisions in other countries, and they have not influenced the Court’s decision in this matter. There are mentioned here partly to demonstrate that the concerns of the Oireachtas manifested in the Criminal Justice Act, 1999 are shared internationally and partly, also, for the purpose of indicating the probable existence, in the jurisprudence of other countries with legal systems cognate to ours, of a body of jurisprudence which may prove useful or illuminating in other cases of this nature.

Submissions on appeal.
In this Court, some of the Irish authorities were deployed in careful and realistic submissions on behalf of the applicant. Apart from the obvious personal circumstances of the applicant the fact that the drug in question here was cannabis was emphasised particularly in the context of a submission that the Judge erred in principle when he said:-
“[Counsel] has invited me to categorise the drug, the cannabis, in a category of less importance perhaps than other drugs. I’m afraid I refuse to go down that road and won’t. The misery that this type of drug brings about is just as miserable as other drugs”.

It was also submitted that the “exceptional and specific circumstances”, referred to in the Statute, are not limited to those specifically mentioned. More controversially, perhaps, it was submitted that circumstances other than those specifically mentioned may be considered in mitigation of the statutory minimum sentence if they are either exceptional or specific: they need not be both.

Decision.
Section 27(3) of the Misuse of Drugs Act, 1977 inserted by the Criminal Justice Act, 1999, provides:-
“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”.

Section 5 of the Act of 1999 amended section 27 of the Act of 1977 by inserting after section 27(3) the following subsections:-
(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 matters it considers appropriate, including:-

(a) whether that person pleaded guilty to the offence and, if so,
(i) the stage at which he indicated the intention to plead guilty, and
(ii) the circumstances in which the indication was given,
and
(b) whether that person materially assisted in the investigation of the offence”.

This was a case where the accused was undoubtedly entitled to have considered his plea of guilty and the assistance to the Gardaí constituted by the statement which he made. The learned trial judge was undoubtedly correct in regarding these factors as being capable of rendering the minimum sentence unjust in the circumstances of this case. That being so, I would respectfully agree with what was said by Murphy J. in giving the judgment of this Court in DPP v. James Chipi Renald (unreported Court of Criminal Appeal 23rd November, 2001):-
“Even where exceptional circumstances exist which would render the statutory minimum term of imprisonment unjust, there is no question of the minimum sentence being ignored. Perhaps the most important single factor in determining an appropriate sentence is the ascertainment of the gravity of the offence as determined by the Oireachtas. Frequently an indication as to the 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 gravity of the offence and the appropriate sentence for it 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 other material provision i.e. the maximum sentence. It would be wrong to assume that the offence of importing controlled drugs in excess of the prescribed amount or value will attract only the mandatory minimum sentence, long though it may be”.

That passage has been cited with approval by this Court on several occasions.

In DPP v. Rossi and Hellewell (Court of Criminal Appeal unreported 18th November, 2002) Fennelly J. rejected the submission that there should be a discount of three years in respect of an early plea of guilty. He said:-
“Firstly it cannot be assumed that ten years is the appropriate sentence in which any discounts are to be calculated. The maximum period is life imprisonment, not to say that these particular offences would have attracted life imprisonment, but it is not correct necessarily to calculate by deduction from ten years and secondly it is not an exercise in a mathematical process where you take away three years for one element and then look for a further calculated discount under the headings and therefore the Court has to approach the matter really on the correct basis which is to see whether the trial judge departed from principle in the sentence that she imposed”.

In DPP v. Robert Henry (Court of Criminal Appeal unreported 15th May, 2002,) the Chief Justice in giving the judgment of the Court said:-
“If the Court is satisfied that factors exist which would render the mandatory minimum sentence unjust, then the Court does not require to impose it but the existence of such matters or circumstances does not reduce the inherent seriousness of the offence. It remains the task of the Court to impose a sentence which is appropriate having regard to the relevant circumstances and the fundamental gravity of the offence as determined by the Oireachtas and reflected in the sentence which it has prescribed. It remains the case that even if a court properly decides that it would be unjust to impose the mandatory minimum sentence, the Court that sentence it imposes must nonetheless reflect the gravity of the offence committed by the respondent having regard to the very draconian penalties which the Oireachtas has seen fit to impose reflecting its view of the seriousness of the offence”.

Having regard to these authoritative dicta, which could be multiplied, it is clear that the effect of the statutory provision is significantly to encroach on the otherwise untrammelled discretion of the sentencing Court. If there are no specific and exceptional circumstances rendering it unjust to impose the minimum sentence then that sentence must be imposed, if indeed a greater one is not considered appropriate. Even if there are such circumstances, both the maximum and the minimum sentence continue to exist as clear and definite guidance to the Court. The Oireachtas, as it is entitled to do, has indicated that this offence is to be considered a very grave one capable of attracting a sentence which might be regarded as harsh in certain circumstances and on certain individuals. It is important that sentencing courts should bear this in mind. Furthermore, consistency of sentencing is desirable in this as in other areas. It is true that the desideratum of consistency cannot be carried to the point of imposing a sentence which is actually unjust. We would however say that the circumstances in which a sentence less than the one imposed for this offence could be imposed must be indeed very exceptional. An example of such circumstances is found in the case of DPP v. Vardacardis (CCA, unreported, 20th January, 2003) where the applicant was a 65 year old South African woman in an “extremely poor state of health in that she suffered from a range of chronic medical conditions including cancer, cardiac problems and osteoarthritis.

It must particularly be borne in mind that, most unfortunately, people in very reduced financial circumstances and who are, additionally foolish, old or very young and impressionable, are particularly sought to act as couriers, often for a pathetically small reward. The position of such persons must of course be distinguished from those who are more calculatedly involved in the supply of drugs. There is every scope to do this, since the maximum sentence is life imprisonment. But it is clearly the policy of the Oireachtas that severe deterrent sentences be imposed unless it is positively unjust by reason of exceptional and specific circumstances to do so. Moreover, it appears clear from the wording of the statutory provision that unennumerated circumstances relied upon as putting the case into a category where it would be unjust to impose the minimum sentence must be both exceptional and specific: the conjunctive form of words leaves no other conclusion open.

In relation to the submission that the learned trial judge failed adequately to distinguish between possession of cannabis, as opposed to other drugs, for supply, we would first observe that this applicant did not in fact know what he was carrying, though he knew it was an unlawful drug. Moreover, the Section does not distinguish between cannabis and other drugs, deliberately opting to provide for the minimum sentence on the basis of the value, rather than the nature, of the substance. The Oireachtas was of course perfectly entitled to do this. The most that can be said on this topic was well expressed by Murphy J. his judgment in Renald, cited above:-
“It was argued on behalf of the applicant that regard should and could have been had to the fact that the controlled drug in question was cannabis and that this is less harmful than other controlled drugs. This argument was rejected by the learned trial judge who pointed out, correctly, that the application of the Section was determined by the value rather than the category of drugs involved”.

Murphy J. then pointed out that the Oireachtas in other provisions had drawn a distinction, for some purposes, between cannabis and other controlled drugs and continued:-
“To that extent and in that context it may be said that offences relating to cannabis might be treated less severely than those relating to other drugs. It is however an argument of very limited value. In cases governed by the value of the drugs rather than their nature the distinction is irrelevant. However, it is a factor to which a sentencing judge in his or her discretion might attach some limited importance”.

In these circumstances it does not seem to the Court that there is any error of principle in the approach of the learned trial judge in this case. On the contrary, there is plain evidence from the transcript that he carefully considered the statutory provisions, sought in the professional literature for cases from which he could derive guidance, aptly considered the unfortunate circumstances of the applicant, disregarded his previous convictions, accepted his sincere remorse and provided for what he described as “light at the end of the tunnel”. He was correct in his conclusion that, in terms of s.27, cannabis is simply not in a category different to other drugs. There was no error in principle in the sentencing and indeed a somewhat harsher sentence would not, in our opinion, have been erroneous in principle either. Every mitigating factor was given all the weight it could possibly bear and the learned trial judge was, if anything, generous to the applicant.

D.P.P.-v- Jonathan Ducque

 

[2005] IECCA 92
Geoghegan J.
Budd J.
O’Neill J.

JUDGMENT of the Court delivered by Mr. Justice Geoghegan on 15th day of July 2005

This is an application for leave to appeal against a twelve year sentence of imprisonment from the 16th June, 2003 which was imposed on 29th July, 2004 arising out of a plea of guilty in the Dublin Circuit Court in a prosecution for possession of drugs on 16th June, 2003 for sale or supply in excess of €13,000 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. The correct approach to sentencing for this offence has given rise to considerable difficulty because of quite complex statutory provisions requiring prima facie a minimum sentence of ten years but also providing for exemption from that mandatory requirement in certain circumstances. The maximum sentence for the offence is life imprisonment. It is important to summarise the facts of this particular case before returning to the legal problems relating to sentencing.

The applicant in consideration of €1,000 was asked to pick up a car at a certain city centre point and drive it to a particular place. At all material times the applicant knew that a consignment of prohibited drugs was in the car, though he claimed that he had no idea that it was anything like the quantity which it was in fact. The Garda Síochána, as a consequence of some prior information which they had obtained, stopped the car within minutes of the applicant driving it with the consignment and, therefore, for all practical purposes he was caught red-handed. It then emerged that ecstasy tablets to a value somewhere in the range of €2.09 million to €2.69 million were in various containers in the car. By any standard this was a huge haul. The applicant was questioned by the gardaí in thirteen interviews intermittently over a period of about thirty seven hours though in a perfectly lawful manner and from a relatively early stage he indicated that he would plead guilty. However, he was not prepared to give the gardaí any information relating to the relevant contacts in respect of the contraband. He indicated that this was because he was frightened. It is not necessary to go into the factual background in any more detail except to comment that in different interviews with the gardaí the applicant changed his story somewhat and admitted that he had lied at the previous interview.

There was a certain amount of character evidence given in his favour. He was said to have come from a very tragic background in that both his father and mother died when he was young and both were drug addicts. He spent his early years in state care and in foster care. He lived with a foster family from the age of five to eleven years which he found difficult. From the age of eleven to fourteen he lived in a children’s home in Clontarf. He was ten years of age when his father died and fourteen years of age when his mother died. After the mother’s death he went to live with his grandmother in Finglas but to the chagrin of his grandmother he got involved in anti-social behaviour and crime. The grandmother was not really able to cope as she was bringing up his brother and three cousins. According to a report which was before the Circuit Court the applicant started drinking and taking drugs (hash and ecstasy) at the age of fifteen to sixteen years and became involved in crime. When he came to be sentenced in the Dublin Circuit Court by Judge O’Donnell he had some forty previous convictions, admittedly, most of them for road traffic offences though they included one for burglary and one for receiving stolen property. On the occasion of his sentencing for this offence, Judge O’Donnell first sentenced him in respect of a count of aggravated burglary which had taken place at about 7 a.m. on 26th August, 2002 and was on a separate indictment. It was obviously a particularly brutal burglary involving a terrifying invasion of a house occupied by a Romanian family. The judge sentenced the applicant to seven years imprisonment in relation to that offence and then went on to sentence him to twelve years imprisonment in respect of the offence the subject matter of this appeal.
The relevant statutory provisions with which the sentencing judge had to comply are contained in subsections (3A), (3B) and (3C) of section 27 of the Misuse of Drugs Act, 1977 as inserted by section 5 of the Criminal Justice Act, 1999. These three subsections read as follows:
“(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 matters it considers appropriate, including –
(a) whether that person pleaded guilty to the offence and, if so,
(i) the stage at which he indicated the intention to plead guilty and
(ii) the circumstances in which the indication was given,
and
(b) whether that person materially assisted in the investigation of the offence.”

In this connection, the judge quoted passages from the unreported judgment of this court delivered by Hardiman J. in The People (D.P.P.) v. Botha 19th January 2004 to which further reference will be made in the course of this judgment. In referring to the Botha case the judge referred to a passage indicating that people who were in very reduced financial circumstances and who were additionally foolish, old or very young and impressionable and, therefore, particularly sought to act as couriers for a pathetically small amount might be distinguished from those who are more calculatedly involved in the supply of drugs. The judge observed that there was every scope to do this given that the maximum sentence was life imprisonment and that he had done so. He also referred to the insistence in the Botha judgment that “unenumerated circumstances” relied upon must be both exceptional and specific. He could not see that any of the circumstances in this case were exceptional and specific. The judge observed that this was one of the largest amount of drugs involved in a case that he had ever been asked to deal with and that the applicant had been “motivated entirely by the opportunity to make a fast buck”.

The court has been referred to three reserved judgments of this court. It would seem desirable to deal with each chronologically and extract the principles which appear to emerge from them. Having done that exercise it is then proposed to analyse and discuss a particular submission made to the court by Mr. O’Hanlon, S.C., counsel for the applicant.

The first case of importance is The People (DPP) v. Renald unreported judgment of the court delivered by Murphy J. on the 23rd November, 2001. As Hardiman J. pointed out in the later case of Botha already cited, Renald has been regularly cited with approval by the court ever since. Two important principles are to be extracted from Renald but the one which is relevant to this case is that even in a case where the court is not bound by the mandatory sentence of ten years due to there being “exceptional and specific circumstances” within the meaning of subsection (3C) of section 27 of the Misuse of Drugs Act, 1977 as amended by section 5 of the Criminal Justice Act, 1999, the sentencing court should have regard to the fact that the Oireachtas thought fit to impose on a prima facie basis a mandatory sentence of ten years thereby reflecting the view of the Oireachtas as to the seriousness of the offence. The existence of the statutory provision for the mandatory ten year sentence therefore was not to be regarded as irrelevant when considering a sentence in a situation where exceptional and specific circumstances relating to the offence existed and so subsection (3C) applied. However, especially in the light of Mr. O’Hanlon’s submissions to which I will be returning, there are, in the opinion of the court, issues to be explored as to the context in which the principles enunciated in the Renald case are to be applied.

The next case to be considered is one of considerable importance in the context of the submissions made on behalf of the applicant in this particular case. The People (DPP) v. Duffy, unreported judgment of this court delivered by Keane C.J. on the 21st December, 2001, was an application for leave to appeal against a sentence in a section 15A case. The former Chief Justice set out the relevant statutory provisions and then adverted to the fact that section 27(3B) provided for a mandatory minimum sentence of ten years imprisonment in respect of a conviction under section 15A. He then referred to section 27 subsection (3C) which provided that subsection (3B) was not to apply where the court was satisfied that there were exceptional and specific circumstances relating to the offence which would make such a sentence “unjust in all the circumstances”. He further pointed out that there were certain matters to which the court might have regard for that purpose including a plea of guilty by the accused “and his/her having materially assisted in the investigation of the offence.”

It is then explained in the judgment how the learned Circuit Court judge had arrived at his sentence. That judge (Judge O’Leary) had taken the view that he should in the first instance assess the length of sentence which should be imposed on the assumption that there were no mitigating factors. He should then take into account “the various mitigating factors” and make whatever deduction was appropriate from that sentence (this court’s emphasis). Keane C.J. went on to explain what the Circuit Court judge then did as follows:

“If that approach resulted in a sentence which was in excess of the statutory minimum, then that would be the sentence which he would impose. If, however, that process resulted in a sentence which was below the statutory minimum, he would consider whether, having regard to the provision by the Oireachtas for such a statutory minimum sentence, he should increase the sentence to the statutory minimum.”

The former Chief Justice goes on to explain that the Circuit Court judge said that having regard to the serious nature of the offences to which the applicant had pleaded guilty and which could attract a sentence up to and including imprisonment for life, the judge’s initial estimate of an appropriate sentence was twenty years imprisonment but that, having considered submissions by counsel, he had become satisfied that it should be adjusted down to fifteen years. The next paragraph in the judgment is worth quoting.

“The learned Circuit Court judge then went on to assess the appropriate deductions that he considered should be made from that sentence of fifteen years. First, he made a deduction of slightly less than one third in respect of the plea of guilty, resulting in a sentence of nine years imprisonment. To allow then for this having been a first offence, he reduced the period by a further three years, resulting in the sentence of six years actually imposed.”

The judgment of this court, per Keane C.J., then explains that the learned Circuit Court judge went on to consider whether, that sentence being below the statutory minimum, he should proceed to impose the statutory minimum. Having noted that there was no indication of any pattern of similar behaviour in the case of the applicant, he said “that the legislature had made it clear that in applying the provisions in question one was to have regard to whether the applicant had pleaded guilty. He pointed to the fact that, in the present case, the applicant had also expressed a desire to plead guilty to the additional charge on which he had yet to be returned. In those circumstances, he concluded that it would be inappropriate to increase the sentence to the statutory minimum.”

This court does not have the benefit of seeing the transcript of the sentencing by Judge O’Leary in the Duffy case. Without the benefit of seeing it, the passage just quoted from the former Chief Justice’s judgment presents two possible difficulties. One is that it would appear from the judgment that the Circuit Court judge had taken all normal factors into account which are described in the judgment as “the appropriate deductions” and which presumably would have included the plea of guilty, he arrived at an initial sentence of six years. Indeed, that is the approach favoured by counsel for the applicant in this case, Mr. O’Hanlon. But if that approach is adopted there would seem to be problems about taking the plea of guilty of itself into account a second time for the purposes of considering whether the mandatory minimum sentence should apply. First of all there is nothing exceptional about a plea of guilty, it is one of the commonest occurrences in any criminal trial. Secondly, it seems to be at least implied in the judgment of this court delivered by Hardiman J. in Botha cited above that importance must be attached to the conjunctive “and, if so,” in the statutory provision so that a plea of guilty can only be relevant to an escape from the mandatory minimum sentence if there are other circumstances which effectively can render the combination of the plea of guilty and those circumstances to be exceptional circumstances. These can include the stage at which the accused indicated the intention to plead guilty, the circumstances in which the indication was given and whether that person materially assisted in the investigation of the offence. What seems to have happened in the Duffy case was that Judge O’Leary in considering whether it would be unjust to impose the statutory minimum sentence took into account the fact that the applicant had not only pleaded guilty to the offence with which he was dealing but that he had also expressed a desire to plead guilty on an additional charge on which he had yet to be returned. Presumably, that provided the “exceptional and specific circumstances”.

What is important however is that Keane C.J. made it clear that the court was “satisfied that the approach adopted by the learned Circuit Court judge in the present case was essentially in harmony with the law as explained by Murphy J. in that passage.” This was a reference to the material passage in Renald asserting the relevance of the existence of a lengthy mandatory minimum sentence even in a case where the court did not consider it should apply. The former Chief Justice then went on to say the following:

“While there might be other approaches that might be adopted which would also be in harmony with that statement of the law, it is clear that the trial judge in deciding what sentence he should ultimately impose took into account as a relevant factor the existence of the statutory minimum sentence, as he was not only entitled but bound to do.”

The court found no error of principle in the approach of Judge O’Leary and upheld the sentence. What this means is that although the court consisting of Keane C.J., O’Higgins J. and Butler J. was not laying down any mandatory methodology for arriving at the appropriate sentence in a section 15A case, it approved the methodology actually adopted by Judge O’Leary. The significance of that will be dealt with more fully later on in this judgment but before that it would seem important to refer to the Botha case being the latest of the reserved judgments relied upon at the hearing. This is the judgment delivered by Hardiman J. who was sitting with O’Sullivan J. and Herbert J. and to which reference has already briefly been made. One can read the judgment in Botha in different ways and on one reading it might be thought to favour a rather stricter or perhaps more accurately a rather more restricted view of the circumstances in which the mandatory minimum sentence would not have to be imposed. But every case has its own facts and obviously a good deal of what Hardiman J. had to say related in particular to the facts of that case. Although the judgment in Botha mentions that the trial judge in that case had made reference to Duffy’s case, it does not appear to have been relied on or even referred to in the main body of the judgment of this court. The Renald case by contrast is heavily relied on and very much approved. That being so, it would seem that there is no reason to believe that there is any relevant conflict between the judgments in the three cases to which we have been referred. Keane C.J. clearly regarded Renald as good law but gave it a broad interpretation when endorsing the methodology adopted by Judge O’Leary.

At this point it is relevant to refer to a passage in the sentencing judgment of Judge O’Donnell in the Circuit Court in this case. He said the following:

“The offence to which you have pleaded guilty carries with it a maximum sentence of life or such shorter period as the court may determine. However, the value of the drugs found in the possession of a person, other than a child or young person, convicted under section 15A, is €13,000 or in excess of it. The court shall in imposing sentence specify a period of not less than ten years imprisonment. This mandatory, minimum sentence 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 unjust in all the circumstances and for that purpose the court may have regard to any matters, any matters it considers appropriate including: whether the person pleaded guilty to the offence, and if so, the stage at which he indicated the intention to plead guilty, and the circumstances in which the indication was given, and whether the person materially assisted in the investigation of the offence. These appropriate matters are not to be considered in isolation but together. They are joined together by the word ‘and’ a mere plea of guilty is not an exceptional and/or specific circumstance. One may look at all the circumstances pertaining to the offence or the person in deciding whether they are exceptional and specific. In this view I quote from the Court of Criminal Appeal case … of Phillipus Botha given on the 19th January 2004 that in considering the circumstances in the broader sense that, ‘the circumstances in which a sentence less than the one imposed for this offence could be imposed must indeed be very exceptional.’ The court goes on to say that, ‘unenumerated circumstances relied upon as putting the case into a category where it would be unjust to impose the minimum sentence, must be both exceptional and specific.’ And at an earlier passage dealing with those people who are in very reduced financial circumstances and who are additionally foolish, old or very young and impressionable are particularly sought to act as couriers for a pathetically small amount. The position of those persons must be distinguished from those who are more calculatedly involved in the supply of drugs. There is every scope to do this since the maximum sentence is life imprisonment, and I do that, and I do take them into consideration. I have also had the opportunity of reading … yes, as I have said the broad principles enunciated there, and I agree with all of what the court said there in that case.”

Judge O’Donnell went on to say that he found no circumstance which was exceptional and specific and he pointed out that it was one of the largest amount of drugs that he had ever been asked to deal with. If it was to be thought that there was some nuance of difference between Duffy’s case and Botha’s case, it is quite clear that the learned Circuit Court judge, even though he was never asked to consider Duffy’s case would have been on the side of Botha’s case. For the reasons already indicated there is not necessarily any conflict. Although the approach adopted by Judge O’Leary is not the only acceptable approach as pointed out by the former Chief Justice, it nevertheless has considerable merits. There is no doubt that a late plea of guilty without any other surrounding circumstances would not ordinarily be relevant in considering whether the imposition of the mandatory minimum sentence would be unjust. But that does not mean that it cannot be taken into account in any way. This brings us to the special submission made to the court by Mr. O’Hanlon on behalf of the applicant.

Mr. O’Hanlon argues that the first exercise in which a sentencing court should engage is to arrive at the appropriate sentence as if subsections (3B) and (3C) did not exist but bearing in mind of course the maximum sentence of life imprisonment. He says that in arriving at that “appropriate sentence” (hereinafter referred to as the “notional sentence”) deductions should be made on all the normal criteria, one of those being a plea of guilty irrespective of when it is made. Obviously, of course, the credit for a late plea of guilty is quite different from the credit for an earlier plea. If, having arrived at the notional sentence, it emerges that it is more than ten years then that is the appropriate sentence. While there is much to be said for this approach in general as it is in line with the approach adopted by Judge O’Leary and approved by this court in Duffy’s case, the end part of that submission needs qualification. Bearing in mind the reasoning of this court in Renald, the notional sentence would normally have to be on the higher end of a range of possible sentences. Subject to that proviso, however, this court would not disagree with the submission of Mr. O’Hanlon.

If, however, the notional sentence turns out to be less than ten years then prima facie subsection (3B) applies so as to impose the ten year sentence unless subsection (3C) applies. In considering whether the latter subsection applies or not, a plea of guilty without more and especially a late plea could not normally be taken into account because it would rarely if ever constitute “exceptional and specific circumstances”. It is in this exercise, that is to say, the issue of whether subsection (3C) applies or not that the strict requirements enunciated in the judgment of Hardiman J. in Botha come into play.

Although the learned Circuit Court judge did not precisely adopt this interpretation of the section, nevertheless, the court is absolutely satisfied that he arrived at the correct result. The sentence which the judge imposed was twelve years which is two years more than the minimum statutory sentence. He made no error in imposing such a sentence given the size of the drugs haul, the previous criminal career of the applicant, the absence of any specific and exceptional circumstance such as for instance cooperation with the gardaí which there was not. Even if for the purpose of arriving at a so called “notional sentence” it was right to take the plea of guilty into account as indeed it would have been, the sentence of twelve years was still quite appropriate. The court considers that a sentence less than twelve years would have been inappropriate. Accordingly, the application for leave to appeal will be refused.

People (DPP) v Lernihan

 

[2007] I.E.C.C.A. 21
Judgment of the Court delivered on the 18th day of April 2007 by Denham J.

 

 

1. The Director of Public Prosecutions applied to this Court for a review of the sentence imposed on Rory Lernihan, the respondent, hereinafter referred to as ‘the respondent’, on the 23rd June, 2006, by Cork Circuit Criminal Court, on the basis that the sentence was unduly lenient in all the circumstances of the case. The sentence in issue is one of four years imprisonment on each of two counts, to run concurrently, the final two and a half years to be suspended.
2. The respondent had been sent forward by the District Court to the Cork Circuit Criminal Court on a signed plea of guilty on two charges. The charges were:
Charge 1: Rory Lernihan on the 13th of December, 2004 at Silversprings Lane, Mayfield, Cork had in his possession a controlled drug, namely cocaine for the purpose of selling or otherwise supplying it to another and at the time the drugs were in his possession their market value exceed €13,000 in contravention of the Misuse of Drugs Regulations 1988 and 1993 as made under Section 5 of the Misuse of Drugs Act, 1977 contrary to Section 15A of the Misuse of Drugs Act, 1977 as inserted by Section 4 of the Criminal Justice Act, 1999.

Charge 2: Rory Lernihan on the 13th of December 2004 at 14 Ashmount Court, Mayfield Cork had in his possession a controlled drug, namely cannabis resin contrary to Section 3 of the Misuse of Drugs Act, 1977.

3. In sentencing the trial judge stated:
“In the circumstances of this case there has been [a plea] for the possession of 1 kilo of cocaine and a Section 3 plea in relation to the cannabis. The amount of the cocaine was 1 kilo, which allegedly the street value is 72K, perhaps not the biggest amount of drugs in the context of this court to come before the court. But what has struck me in this case over and above any other case is, if you like, this man was in some comfort working. He was not a drug addict when he knowingly got involved in this trade. I accept what the Sergeant says that now that he is caught he is unlikely ever to get involved again. He did it for money. That is all the downside.

The mitigating side: he has pleaded guilty, he pleaded guilty in early course, he has shown remorse, he is unlikely to get involved again.

Now weighing everything one with the other, I believe there has to be a custodial sentence. I know it is going to have a very serious effect on him and bring devastation to his family, but I believe in the context of this case where somebody knowingly gets involved in the trade of drugs, that one of the consequences of that trade is you are going to lose your liberty. There is definitely sufficient, in this case, which allows me to depart [the] from the mandatory 10 years sentence, in other words it would be unjust to impose a 10 year sentence.

So given that the facts allow me to depart from a 10 years sentence. What sentence do I think appropriate? In all of the circumstances I would regard a sentence … First of all, in the ordinary course of events, without the mitigating factors, I would say a sentence of four years would be appropriate. There are exceptional mitigating factors in this case because of the early plea, the extent of the co-operation and the fact that he has continued to work and rehabilitate himself, I will take that into account. So what I will do is I will suspend the … he will serve 18 months and I will suspend the balance of the four years.”

4. The Director of Public Prosecutions has applied to this Court on the following grounds:-
(i) The sentencing court erred in law and in fact in being unduly lenient when having accepted the mitigating factors put forward by the respondent were exceptional and specific circumstances which would make a sentence of not less than ten years imprisonment unjust and having deemed in those circumstances that the appropriate sentence was four years, the sentencing court then relied on the same mitigating factors to suspend the balance of the sentence once the respondent had served eighteen months of the four years.
(ii) 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 ten years imprisonment.

(iii) The sentencing court erred in law and in fact in being unduly lenient when having determined that the appropriate sentence was below the statutory minimum it failed to consider whether the sentence should be increased to the minimum sentence.

(iv) The sentencing court erred in law and in fact in being unduly lenient when it determined that the early plea of guilty and the circumstances of the respondent were exceptional and specific circumstances to the respondent which would make a sentence of not less than ten years imprisonment unjust in all the circumstances.

(v) The sentencing court erred in law and in fact in being unduly lenient in determining that the respondent materially assisted in the investigation of the offence to the extent that it created exceptional and specific circumstances relating to the offence or the respondent which would make a sentence of not less than ten years imprisonment unjust in all the circumstances.

(vi) 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 extent of his cooperation, the necessity for rehabilitation, the absence of previous conviction and the degree of remorse when determining the appropriate sentence.

(vii) The sentencing court erred in law and in fact in being unduly lenient in failing to attach sufficient weight to the fact that the respondent was not addicted to drugs and consequently not in need of rehabilitation, was employed and admitted engaging in the offence for monetary gain.

(viii) The sentencing court erred in law and in fact in being unduly lenient in determining that the consequence for the respondent’s family was a matter which it should take into consideration in considering whether or not there were exceptional circumstances that rendered a sentence of not less than ten years imprisonment unjust.

5. The essential facts are that on the 13th December, 2004 members of the drug squad stopped and searched the respondent in Silversprings Lane, Cork, at approximately 6.30 p.m., pursuant to s. 23 of the Misuse of Drugs Act, 1977, as amended. He was brought to Mayfield Garda Station for the purpose of the search and he was found to have a bag on his person containing a kilo of cocaine. He was arrested and detained. A warrant was obtained and his house was searched and a small amount of cannabis resin was found. The kilo of cocaine would have a market value of approximately 72,000 euro. The cannabis was of a nominal street value and it was accepted that it was for personal use.
Detective Sergeant Larry O’Brien gave evidence as follows. The respondent gave limited cooperation to the authorities. At interview he claimed he had received the cocaine a short time earlier and that he was holding it for a certain amount of money. He did not otherwise assist the investigation as to where the drugs had come from or what he intended doing with them. He claimed he was to get €500. Detective Sergeant O’Brien accepted that the respondent was storing the drugs. He did not believe that the respondent was distributing them. The respondent is 31 years old, a qualified painter and decorator, he resided in his own home, a home which he owns with his girlfriend, and is in relatively comfortable financial circumstances. He had been employed for a long time as a painter and decorator.
Therefore, it is clear that the motive in this case was pecuniary. The respondent pleaded guilty, gave evidence, apologised, and said he was extremely remorseful and sorry for hurting everyone in his family and his community. The respondent has no previous convictions. The respondent has also taken steps to obtain counselling.
6. The application by the Director of Public Prosecutions commenced before this Court on 15th January, 2007. Counsel for the Director of Public Prosecutions submitted that if there was no suspension of the sentence it would be a lenient sentence but that the two and a half year suspension rendered it unduly lenient. Counsel submitted that the sentencing court had applied the mitigating factors twice and that the consequent suspension aspect of the sentence was wrong. Further, counsel submitted that the learned trial judge had not followed normal procedures in sentencing, and in considering the mandatory minimum aspect of the sentence.
Counsel on behalf of the respondent accepted that the four year sentence was lenient and that the issue to be considered was whether the suspension was unduly lenient. Counsel stressed that the onus was on the Director of Public Prosecutions. Counsel referred to factors in favour of the respondent, including the absence of previous convictions, his remorse, that he was not a drug addict, and the rehabilitation he had sought. Further, counsel submitted that there was no double mitigation – and referred to the words of the sentencing judge and submitted that the new factors mentioned in relation to the suspension were that the respondent had continued to work and his seeking rehabilitation. Reference was made to the dictum of Walsh J. in The People (Attorney General) v. Michael O’Driscoll (1972) 1 Frewen 351 at
p. 359.
In reply, counsel for the Director of Public Prosecutions pointed out that the respondent had no addiction at the time of the offence, that he had kept his job, and that the rehabilitation related to events after the drug seizure and charge. The Court reserved judgment.
7. On 2nd February, 2007 the Court had the matter relisted and gave counsel the opportunity to address the issue as to whether the sentence of four years imprisonment was unduly lenient. (Counsel having previously argued that the suspension of two and a half years of the four years sentence was unduly lenient but that the four year sentence itself was lenient). Counsel for the Director of Public Prosecutions repeated the submission that the four year sentence was lenient, but that the suspension of two and a half years was unduly lenient. Counsel for the respondent submitted that the onus was on the Director of Public Prosecutions, and that the Director had abandoned the argument that the four year sentence was unduly lenient. Counsel submitted that as the Director had abandoned the argument that the four year sentence itself was unduly lenient, this Court was not at large to consider that which had been abandoned by the Director, that the Court was not at large as to the terms of the sentence. In reply, counsel for the Director submitted that this Court’s jurisdiction is not fettered by the submissions, that if the Court found that a sentence was unduly lenient, then the Court is at large to determine the appropriate sentence.
8. 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. This the sentencing court failed to address and fell into error. Also, the sentencing court applied the mitigating factors twice, and so erred. The Court would quash the sentence of four years with the final two and a half years suspended, and in its place determine the appropriate sentence.
9. Issues
There are two issues to be addressed: (i) the jurisdiction of the Court, and (ii) the appropriate sentence.
10. Jurisdiction
The jurisdiction of the Court as to the sentence it may impose was queried by counsel for the respondent. Consequently the Court addresses this issue. The jurisdiction derives from statute.
10.1 The Court has jurisdiction to review the sentence pursuant to s. 2 of the Criminal Justice Act, 1993, which provides:-
” 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 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.

(4) . . . ”

10.2 The Director of Public Prosecutions having made the decision referred to in
s. 2(1) of the Criminal Justice Act, 1993 and having applied, this Court has the jurisdiction described in s. 2(3) of the said Act. The options for the Court in exercising the jurisdiction are either to quash the sentence or to refuse the application.
10.3 In this case the Court has determined that the sentence should be quashed. The Court is of the view that the sentence of four years with two and a half years suspended is unduly lenient and has indicated that it would order that the sentence be quashed. The sentence is a single sentence: four years imprisonment with two and a half years suspended. It is that sentence which falls to be quashed pursuant to s. 2(3) of the Criminal Justice Act, 1993.
10.4 The sentence having been quashed, the Criminal Justice Act, 1993 requires the Court to impose on the respondent, in place of the quashed sentence, such sentence as the Court considers appropriate, being a sentence which could have been imposed on him by the sentencing court. In exercising this jurisdiction the Court is in the position of the sentencing court and considers the matter de novo.
10.5 The onus rests upon the Director of Public Prosecutions. In considering this matter the principles as stated in Director of Public Prosecutions v. Byrne [1995] 1 I.L.R.M. 279 are applicable. At pp.286 – 287 O’Flaherty J. said, of s. 2 of the Criminal Justice Act, 1993:-
“What is for resolution before us is whether the sentence imposed in respect of the offences committed against the second woman are in all the circumstances, in the words of the section, ‘unduly lenient’.
Since this is the first case brought under the Act it is appropriate to say something about how the court thinks the section should operate.
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’.
Secondly, 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 at first hand; even where the victims chose not to come to court as in this case – both women were very adamant that they did not want to come to court – he may detect nuances in the evidence that may not be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person sentenced; what Flood J has termed the ‘constitutional principle of proportionality’ (see People (DPP) v. W.C. [1994] 1 ILRM 321), his decision should not be disturbed.
Thirdly, it is in the view of the court unlikely to be of help to ask if there had been imposed a more severe sentence, would it be upheld on appeal by an appellant as being right in principle? And that is because, as submitted by Mr. Grogan SC, the test to be applied under the section is not the converse of the enquiry the court makes where there is an appeal by an appellant. The inquiry the courts makes in this form of appeal is to determine whether the sentence was ‘unduly lenient’.
Finally, 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.”

10.6 The Court has applied these principles. It is well established that the onus of proof rests upon the Director of Public Prosecutions to show that the sentence was unduly lenient. The Director made the case that the suspension aspect of the sentence was unduly lenient. In considering the submissions the Court afforded great weight to the trial judge’s reasons and the constitutional principle of proportionality. In this analysis the Court has considered whether there has been a substantial departure by the trial judge from the appropriate sentence.
10.7 In considering the sentence the nature of the offence is a relevant factor. The Oireachtas has explicitly addressed the crime of possession of controlled drugs over the value of €13,000 and created a specific offence. The Criminal Justice Act, 1999 came into force on the 26th May, 1999 and s. 4 inserted a new section, section 15A, into the Misuse of Drugs Act, 1977. Section 15A(1) provides that:-
“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.”

The sentencing of persons for this offence was addressed in s. 5 of the Act of 1999, which amended section 27 of the Act of 1977, by inserting after section 27(3) the following subsections:-
“(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,
(i) the stage at which he indicated the intention to plead guilty, and
(ii) the circumstances in which the indication was given,
and
(b) whether that person materially assisted in the investigation of the offence.”

Thus, the Oireachtas has legislated for this crime and regarded it as a grave offence. 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.
10.8 In this case the jurisdiction of the Court was invoked by the application of the Director of Public Prosecutions to review the sentence. The Court was very careful to give both parties the opportunity to address the issue of the sentence. The sentence was one of four years imprisonment with the last two and a half years suspended, which the Court is satisfied is unduly lenient. While the Director of Public Prosecutions submitted that the four years was lenient and the suspension unduly lenient, the sentence is a single sentence and it is that sentence which is in issue. Having determined that the sentence was unduly lenient, the entire sentence is quashed.
10.9 In analysing the sentence the Court is satisfied that both aspects of the sentence were unduly lenient. The two and a half years suspension was unduly lenient. Also a sentence of four years imprisonment would be unduly lenient for this offence and offender.
10.10 While the issue of the four year sentence was not raised by the Director of Public Prosecutions, the limitation of the submissions of the Director does not restrict the jurisdiction of the Court which has to consider de novo all the relevant factors for the appropriate sentence once the previous sentence has been quashed. For, pursuant to s. 2(3) of the Criminal Justice Act, 1993, the entire sentence was quashed – not just a portion of the sentence. That being the situation, this Court is required itself to consider the appropriate sentence.
10.11 Section 2(3) of the Criminal Justice Act, 1993 states that having quashed the sentence the Court shall:-
“. . . 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 . . .”

The Court is satisfied that the jurisdiction of the Court is clear from the plain words of the section. The Court, having quashed the sentence, is at large to impose on the convicted person such sentence as the Court considers appropriate, being, however, a sentence which could have been imposed by the sentencing court.
At this stage, the sentence being quashed, the Court’s jurisdiction is not limited by the submissions of the Director. Rather, this Court is in the place of the sentencing court to determine the appropriate sentence.
11. Sentence
Therefore, the Court has proceeded to consider de novo the appropriate sentence for this offence and for the respondent, within the jurisdiction of the sentencing court.
11.1 A person guilty of an offence under s. 15A is liable, on indictment, to a maximum sentence of imprisonment for life or such shorter period as the court may, subject to s. 3B and s. 3C, determine, and a fine. It is a grave offence. Section 3B provides that where a person is convicted of an offence under s. 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. However, this shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or to the person convicted of the offence, which would make a sentence of not less than 10 years unjust in all the circumstances. For this purpose, the Oireachtas expressly provided in s. 3C that the court may have regard to any matters it considers appropriate. The legislation states that these include:-
(a) whether that person pleaded guilty to the offence, and, if so,
(i) the stage at which he indicated the intention to plead guilty, and

(ii) the circumstances in which the indication was given;

and

(b) whether the person materially assisted in the investigation of the offence.
11.2 Previous cases have referred to the appropriate approach to be taken to sentencing pursuant to this legislative scheme. In Director of Public Prosecutions v. Renald (Unreported, CCA, 23rd November, 2001), Murphy J., giving the judgment of the Court, stated:-
“Even where exceptional circumstances exist which would render the statutory minimum term of imprisonment unjust, there is no question of the minimum sentence being ignored. Perhaps the most importance single factor in determining an appropriate sentence is the ascertainment of the gravity of the offence as determined by the Oireachtas. Frequently an indication as to the 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 gravity 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 other 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 will attract only the mandatory minimum sentence, long though it may be.

Clearly subsection (3C) requires the sentencing Court to examine circumstances relating to the offence or the person convicted of the offence which, it is alleged, are exceptional and specific and which in the opinion of the Court would render a sentence of not less than ten years imprisonment unjust. To perform that task the sentencing Court must form some view of what an appropriate sentence would be having taken into account the matters which the Court considers appropriate including the matters expressly specified in subsection (3C) aforesaid. If the Court is satisfied that factors exist which would render the mandatory minimum sentence unjust then the Court is not required to impose it but the existence of such matters or circumstances does not reduce the inherent seriousness of the offence. It remains the task of the Court to impose a sentence which is appropriate having regard to the relevant circumstances and also the fundamental gravity of the offence as determined by the Oireachtas and reflected in the sentences which it has prescribed.

The statute does not expressly authorise the use of the minimum sentence as a “benchmark” in the sense of providing a figure by reference to which particular reductions or discounts should be afforded having regard to material circumstances existing in the particular case. On the other hand the sentencing limitations imposed by the Oireachtas are, as had been pointed out, of the utmost importance in recognising the gravity of the offence and determining the appropriate punishment.”

The approach of a court to this sentencing scheme was considered also in Director of Public Prosecutions v. Hogarty (Unreported, CCA, 21st December, 2001), where Keane C.J. gave the judgment of the Court. He cited the sentencing judge and then analysed the appropriate approach as follows:-
“I have taken the view, since this particular piece of legislation was introduced, that the court in dealing with these matters is effectively looking at a sentence of 10 years’ imprisonment in relation to the person pleading guilty to such offence. But that in cases where a plea of guilty has been entered and where there has been co-operation that that is a factor that the court can use to reduce that 10 year tariff.”

That passage might suggest that the effect of the provisions is that a person convicted of the offence to which the provisions apply should be sentenced to 10 years’ imprisonment, unless a plea of guilty has been entered and there has been co-operation with the investigation, in which case a lower sentence than 10 years can be imposed. The court is satisfied that this is an erroneous construction of the provisions, since it is clear that the legislature envisaged that a sentence in excess of 10 years, including a sentence of imprisonment for life, may be imposed in respect of such offences. Since that approach, however, was, if anything, in ease of the applicant in the present case, the court is satisfied that, although it was erroneous in point of law, it does not of itself provide a ground on which this court should interfere with the sentence actually imposed.

As to that sentence the court is satisfied that, making every allowance for the plea of guilty by the applicant, his ready co-operation with the Gardai, the absence of previous convictions and the family circumstances of the applicant, there was no error of principle in the imposition of a sentence of six years and six months in respect of these offences which would entitle this court to interfere. 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 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 Acts 1977, as amended by the Criminal Justice Act 199, a policy which this court is bound to uphold.”

The applicant in that case had pleaded guilty to two counts of having in his possession a controlled drug, the market value of which exceeded £10,000, for the purpose of selling or otherwise supplying it. He was seen on a motorbike with a saddle bag – the saddle bag contained 10 kilograms of cannabis resin with a street value of £100,000.
The correct approach to this legislative scheme was also stated by Fennelly J., giving the judgment of the Court in Director of Public Prosecutions v. Galligan (Unreported, CCA, 23rd July 2003), as follows:-
“It has been well established in judgments of this court that it is an error to read this section as providing for a mandatory minimum sentence of ten years imprisonment, which may be mitigated by the trial judge based on identified exceptional circumstances. The maximum sentence has also to be considered. Rather than providing simply for a maximum sentence, the section commences by making the convicted person liable for imprisonment for life or such shorter period as the court may, subject to subsections (3B) and (3C) of this section, determine. The correct approach to the interpretation of the section is expressed in the judgment of this court, delivered by Murphy J. in DPP v Chipi Renald (Unreported 23rd November 2001).

In that case reference was made to two matters capable of amounting to exceptional and specific circumstances which permitted the judge to depart from the mandatory minimum sentence of 10 years imprisonment, namely his plea and his provision of material assistance. It was also noted that he was an addict. The learned trial judge had imposed a sentence of seven years imprisonment. These two exceptional matters were referred to by this Court, as was the fact that the applicant should be treated as a first offender, and the fact of his remorse. The Court held:
“The Court is of opinion that, in recognition of these features of the case and specifically the possibility that the remorse expressed by the Applicant is genuine, the mandatory minimum sentence of ten years imprisonment should be further mitigated by suspending the last two years thereof on terms, now to be discussed, which will encourage the Applicant to overcome his habit of using drugs. To that extent, the Court will treat the application for leave to appeal as the hearing of the appeal and will impose a sentence of seven years imprisonment to date from the date when the Applicant was taken into custody.”
While bearing the statute and caselaw in mind, each case requires to be decided in light of the particular offence and the particular circumstances of the accused. The Court should first determine what the appropriate notional sentence is, bearing in mind the maximum sentence of life imprisonment, then consider the aggravating and mitigating circumstances, and then apply the mitigating factors. If the consequent sentence is more than 10 years then that is the sentence. However, as stated in Director of Public Prosecutions v. Ducque (Unreported, CCA, 15th July 2005), by Geoghegan J., giving the judgment of the Court:-
“If, however, the notional sentence turns out to be less than ten years then prima facie subsection (3B) applies so as to impose the ten year sentence unless subsection (3C) applies. In considering whether the latter subsection applies or not, a plea of guilty without more and especially a late plea could not normally be taken into account because it would rarely if ever constitute “exceptional and specific circumstances”. It is in this exercise, that is to say, the issue of whether subsection (3C) applies or not that the strict requirements enunciated in the judgment of Hardiman J. in Botha come into play.

Although the learned Circuit Court judge did not precisely adopt this interpretation of the section, nevertheless, the court is absolutely satisfied that he arrived at the correct result. The sentence which the judge imposed was twelve years which is two years more than the minimum statutory sentence. He made no error in imposing such a sentence given the size of the drugs haul, the previous criminal career of the applicant, the absence of any specific and exceptional circumstance such as for instance cooperation with the gardaí which there was not.

Even if for the purpose of arriving at a so called “notional sentence” it was right to take the plea of guilty into account as indeed it would have been, the sentence of twelve years was still quite appropriate. The court considers that a sentence less than twelve years would have been inappropriate. Accordingly, the application for leave to appeal will be refused.”

11.3 The Court has considered all the circumstances of the case, which included factors such as possession of cocaine, to a street value of over €70,000, by the respondent, who was not subject to the vicissitudes of being an addict, and who was involved in the transaction purely for commercial gain. The Court also noted the early plea, although the circumstances of his arrest are relevant, the assistance, though rather limited, to the gardai, the absence of any previous convictions, and the remorse. The Court has borne in mind the nature of the offence, and the legislative framework.
The Court is satisfied that this is a grave offence. Within the scheme of sentencing established by the Oireachtas, it is an offence at the lower end of a range between life imprisonment and 10 years imprisonment.
To this notional sentence the Court has applied the relevant factors in relation to the respondent and to this crime. Thus, the respondent is entitled to a reduction in sentence for his plea – though in the circumstances it does not weigh so heavily, as he was, essentially, caught red handed, and for his assistance to the Gardai, though it was limited. There is a further reduction for his lack of previous convictions and his remorse. In all the circumstances the Court considers that the appropriate sentence is one of seven years imprisonment.
Consequently, the Court would order that the appropriate sentence is seven years imprisonment.