Court of Criminal Appeal allows appeal against sentence, finding no error in applying minimum drug value sentencing.

[2004] IECCA 1

THE COURT OF CRIMINAL APPEAL

50/03

Hardiman J

O’Sullivan J.

Herbert J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

PHILLIPUS BOTHA

Applicant

JUDGMENT of the Court delivered on the 19th day of January, 2004, by Hardiman J.

1. 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.

2. 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.

3. 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.

4. 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”.

5. 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”.

6. 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”.

7. 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.

8. 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.

9. 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.

10. 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”.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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”.

16. 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.

17. 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”.

18. 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.

19. 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”.

20. 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”.

21. 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.

22. 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”.

23. 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”.

24. 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.

25. 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.

26. 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. in 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”.

27. 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”.

28. 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.