Court of Appeal quashed unduly lenient drug sentences due to exceptional circumstances and re-sentenced the respondent.

THE COURT OF APPEAL

Birmingham P.

Edwards J.

Hedigan J.

Record No: 245CJA/17

IN THE MATTER OF S.2 OF THE CRIMINAL JUSTICE ACT, 1993,

AND IN THE MATTER OF:

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

V

ARTURAS SAMUILIS

Respondent

JUDGMENT of the Court delivered the 11th of October 2018 by Mr. Justice Edwards.

Introduction

1. On the 30th of May 2017, the respondent to this appeal pleaded guilty to two counts of unlawful possession of a controlled drug,

to wit cannabis, with a market value of €13,000 or more, for the purpose of selling or otherwise supplying it to another, contrary to s.

15A of the Misuse of Drugs Act, 1977, as amended and inserted (“the Act of 1977”). The remaining six counts on the Bill of

Indictment were to be taken into consideration.

2. On the 17th of October 2017, the respondent was sentenced to two concurrent sentences of five years’ imprisonment in respect

of Counts no’s 7 & 8 on the Indictment, with each sentence backdated to the 31st of December 2016, the date at which the

respondent was arrested and entered into custody. The last two years of each sentence were suspended for a period of two years

on the condition that the respondent remain under the care of the Probation Service during that period.

3. The applicant, namely the Director of Public Prosecutions, now seeks a review of the said sentences under s. 2 of the Criminal

Justice Act 1993 on the basis that they were unduly lenient.

Background facts

4. Detective Garda Andy Barron gave evidence at the “full-facts” sentence hearing on the 17th of October 2017. He gave evidence

that, on the 31st of December 2016, he and his colleague, Garda Sean Finnegan, were patrolling the Castle Park Estate in Dundalk,

Co. Louth, when they noticed that the occupants of a green Audi 6 car, which was travelling in front of the patrol car, appeared to

be acting suspiciously. This car then turned right on Castle Road into a yard, which was no longer in use for any business, but which

led to the back of some houses on that particular side of Castle Road. The evidence was that the person in the passenger seat of the

car (“the co-offender”) appeared to be conscious of the presence of the Garda patrol car, whilst the driver, the respondent, was

noted to be monitoring the patrol car in his rear-view mirror. The patrol car subsequently left but returned to the yard ten minutes

later to find the suspicious car parked directly behind the back of house number 23, Castle Road Estate. At this time, the respondent

was on his own in the car. The Gardaí approached the car, noticing that the respondent was “fiddling in a nervous fashion with two

mobile phones”. The Gardaí asked the respondent why he was there, to which he replied that he had stopped in order to make a call.

The evidence was that both Detective Barron and Garda Finnegan found this response “puzzling”, given what they had just observed.

Further, Garda Finnegan had noticed that the door to house number 23 had been slightly open on their arrival, but that a male had

looked out through the opening and, having seen that Gardaí were outside, immediately closed the door.

5. Following further inquiries made by the Gardaí in respect of where the person in the front seat passenger seat had gone, the

respondent responded that he had dropped him off some distance away. The Gardaí, knowing this response to be false, and having

regard to the suspicious nature of the situation as a whole, decided that it was necessary to conduct a search of the respondent and

his vehicle under the section 23 of the Act of 1977. This search led to discovery of four sets of keys in the vehicle, being keys for 23

Castle Road, keys for a premises at 24 St. Patrick’s Road, Drumcondra, Co. Dublin, and keys for a premises at 84 Dublin Street,

Dundalk. It was established in evidence that these properties were rented properties, the locks of which had been changed and the

keys were for the new locks.

6. Detective Barron used one of the keys obtained to open a rear garden door at 23 Castle Road, before then using another key to

open a garage door in the back garden. Both Gardaí then observed a large pile of black refuse sacks which were full and tied closed.

They also noticed a strong smell of cannabis emanating from them. Materials, plastic trays and electrical items were also observed

which both men concluded were being used for the cultivation of cannabis plants. Detective Barron then proceeded to open one of

the refuse bags which was full of cannabis. The respondent, after caution stated that he had no knowledge of any of these items.

Subsequently, a search warrant was obtained by Detective Barron under s. 23 of the Act of 1977, for the premises at 23 Castle Road.

7. During this search a cannabis cultivation operation was found at the premises. Another person was also found at the premises who

Detective Barron believed to be the co-offender. The evidence was that what was found at the premises was “a sophisticated

cannabis cultivation operation”, and a total of 103 cannabis plants with a market value of €92,280, plus 150 sapling plants were

seized, together with 85 grams of cannabis herb worth €1,700, and 13.7 grams of cannabis herb worth €274. Mature plants, i.e.

plants that were ready for harvesting, were worth c €800 each. Each sapling had a potential to be also worth that much when mature

and harvested. The total value of drug material seized, including the potential street value of all of the immature saplings, was said to

be €210,000.

8. Following a “detailed, careful, thorough and forensic examination of various items” found at 23 Castle Road, the Gardaí found

various items linking the respondent to the properties at 24 St. Patrick’s Road, Drumcondra and 84 Dublin Street, Dundalk namely

photographs on the respondent’s phone of landlord’s details and rent details for these premises. CCTV footage was also obtained,

showing the respondent and the co-offender at a Woodies DIY on the 30th of December 2016, purchasing items thought to be

associated with the cultivation of cannabis. A search warrant was also obtained for a rented property in which the respondent lived,

6 Bryanstown Court, Drogheda, under s. 26 of the Act of 1977, in which a number of probative items were found including a business

card related to a premises known as “The Grow Shop” a place well known to members of the Gardaí that individuals might go to obtain

paraphernalia that would be associated with cannabis cultivation. On foot of the search of the respondent’s house, lists for materials;

floorplans in relation to plant pots; a tick list for hydroponic and growth products; a tick list for nutrients, grow products, and

materials for cultivation, were also found.

9. As a result of the materials found in the course of these searches, the respondent was linked to the premises at 84 Dublin Street

and a search warrant was accordingly obtained for this house. This search yielded €6,405 worth of cannabis herb found in a vacuum

pack bag in an upstairs area of that house. This search also provided the Gardaí with material linking the respondent with the

premises at 24 St. Patrick’s Road, Drumcondra. A search warrant was ultimately obtained in respect of this premises and, on the 4th

of January 2017, it was searched and discovered to be another grow house. A total of 180 mature cannabis plants were found there

with a total street value of €144,000.

10. The respondent was arrested and detained for interview, but maintained his right to silence during the one interview conducted

with him by Gardaí. He was ultimately charged, entered a plea and was sentenced in the terms as outlined above.

Respondent’s personal circumstances

11. The respondent was born on the 11th of May 1983, making him 34 years-old at the time of sentencing. He is a Lithuanian

National, and had moved to the United Kingdom in 2003 where he resided for 12 years before moving to Ireland in or around 2015. He

is a single man and lives in a rented property alone. He did not progress to third level education and has spent most of his working life

working either as a truck driver or a van driver.

12. During the plea in mitigation, defence counsel submitted that, in 2015, whilst the respondent was in Ireland, his sister died at

thirty-six-years-old due to a heart condition. This tragedy, in the words of his counsel, “sent him off the rails”, in that he started

making very poor life choices, causing him to veer towards the criminal lifestyle that he now finds himself involved in.

13. During cross-examination, Detective Barron accepted that the most important pieces of incriminating evidence against the

respondent were on his mobile phone and the respondent freely gave up his passcodes to same, thereby, according to his counsel,

demonstrating his co-operation with the Gardaí investigation.

14. During cross-examination, Detective Barron stated that he believed the respondent “[T]o be an organiser. Perhaps not the head

of the operation but to be the organiser and the arranger of the different addresses to sort out the lease agreements, the rental

agreements, to source the equipment used in the cultivation operation.” It was also accepted in cross-examination that a man

known as “Mr. Z” was the main boss in charge of whole operation.

15. At the time of sentencing, the respondent had spent ten months in Cloverhill Prison, during which time, his defence counsel

submitted, he had completed a drug overdose prevention programme and had also been studying English and music.

16. The respondent has no previous convictions in this jurisdictions. However, he had accumulated 12 convictions for minor road-

traffic offences in the United Kingdom.

The Sentencing Judge’s Remarks

17. In passing sentence upon the respondent, the sentencing judge made the following remarks:

“It appears that Mr Samuilis was the person with the mobile phone containing the important information being the

incriminating evidence in respect of the cannabis growing operation. He had the keys to the property and there was

details of the leases and all bank agreements -- or bank accounts, I should say.

Detective Garda Barron, it is his view that he would be the organiser of -- and, of course, an organiser plays an

important link in any drugs operation, but there was a person higher up than him referred to as Mr Z. He would have

been the director or the overall controller of the cannabis growing operation, or the drugs operation, whereas Mr

Samuilis would have been playing an important link or part in the cannabis drugs operation. I'm satisfied that he would

have been in a lesser category, though nevertheless important link but in a lesser capacity or category than Mr Z.

Also, in respect of the mobile phone, the essential part of the phone, handing a phone by itself is -- goes some way to

cooperation, but giving the access code, meaning that the guards were able to deal with the matter in a very efficient

manner rather than have to go through some other very technical manner if they didn't have the access code, but the

access code was of substantial importance in the investigation and bringing the case to a successful conclusion again

this accused, Mr Samuilis.

Prior to the periods of these offences, Mr Samuilis would not have come to the attention of the guards in this jurisdiction

for the obvious reasons that he had no convictions for any offences, and in particular he had no drug related offences

and he would have been under or outside the radar of the guards. It was the observance by Detective Garda Barron and

Finnegan on the date in question, their observations and suspicions of the accused and the attitude -- and, sorry, and

how they were behaving, these persons were behaving in the green Audi, towards them and their suspicions turned out

to be absolutely correct in the circumstances.

In respect of count No. 7, the maximum custodial prison sentence is life imprisonment, which of course is the starting

base. Then I must decide where does this count lie in respect of the maximum sentence and I would firstly have regard

-- I'd have regard to the provisions of the Misuse of the Drugs Act 1977, and in particular section 27(3), before I --

where I -- before I define what is the headline sentence. Likewise, in respect of Count No. 8, the maximum custodial

prison sentence is life imprisonment and I must decide where does this count lie in respect of the maximum sentence

and, of course, I'd have to first, having regard to the provisions of section 27(3) of the Misuse of the Drugs Act 1977,

and also in respect of both counts, other matters when putting it into the category that I would put it in and to giving

the headline sentence, that's in respect of both counts.

It will be seen that section 27(3B) provides for a mandatory minimum sentence of 10 years' imprisonment where a

person (other than a child or young person) is convicted of an offence under section 15A. Section 27(3C) then goes on

to provide that this section is not to apply where the Court is satisfied that there are exceptional and specific

circumstances relating to the offence which would make such a sentence unjust in all these circumstances. It also

specifies certain matters to which the Court may have regard for that purpose, including a plea of guilty by the accused

and his or her having materially assisted in investigation of the offence, and such other mitigating and person

circumstances that may be relevant, having regard to the particular circumstances of the case.

Now, I must have regard to his personal circumstances first. He has now reached 34 years of age, he is a Lithuanian

national. He has completed his education in Lithuania. He is a transport driver. He came to England in 2003 and Ireland in

2015. His sister tragically passed away in 2015 of a heart attack. In mitigation, there was pleas of guilty. I am satisfied

that he was fully cooperative in respect of the investigation. He cooperated in respect of his mobile phone. He gave the

access code which was containing important information relevant to the offences, containing important and indeed

substantial incriminating evidence against him in respect of the offences. He further assisted the guards in the arrest of

Mr Z, who would have been the controller of the cannabis growing operation. I am satisfied that, in addition to

cooperating fully with the investigation, that he also materially assisted in the investigation on the offences. He has

expressed remorse. While in custody, he is working as a cleaner, meaning that that is a high status of trust. He is

attending the gym and attending educational courses. He has no previous convictions for any drug-related offences in

this jurisdiction, or indeed any other offences in this jurisdiction.

The aggregating factors in the case is the serious nature of the offences, the manner of his involvement in the offences.

He was involved as an organiser in respect of the cannabis growing operations in respect of 23 Castle Road, Dundalk and

24 St Patrick's Road, Drumcondra. He had the details of the properties, of the leases in respect of the properties and

bank accounts relevant. He had the keys to the properties. The cannabis growing operations were for commercial

purposes. Substantial cannabis growing/cultivation operations in respect of both properties. In respect of 23 Castle

Road, Dundalk, the amount of mature cannabis plants and the street value which was a substantial amount of cannabis

plants, substantial street value and then the potential street value of the saplings. In respect of 24 St Patrick's Road,

Drumcondra, the amount of mature cannabis plants, the street value of the cannabis plants, substantial amount of

cannabis plants, substantial street value of the plants. In respect of both properties, 23 Castle Road, Dundalk and 24 St

Patrick's Road, Drumcondra, the cannabis growing/cultivation operation was for the purpose of selling or otherwise

unlawfully supplying drugs. The effect of drugs on society, which is a destructive and devastating effect on society, they

are substantial aggravating factors in the case. I am satisfied that the road traffic offences in England are neutral and

I'll just treat them as neutral.

Then in respect of the offences, in respect of Count No. 7, the maximum custodial prison sentence is life imprisonment.

Then I must decide where does this count lie in respect to the maximum sentence. I am satisfied would be in the middle

to higher range. However then I must have regard -- and also applies in respect of Count No. 8. Then I have to regard

whether there are exceptional and specific circumstances relating to both counts, No. 7 and counts No. 8, which would

make the maximum minimum sentence of 10 years unjust in all the circumstances and I am satisfied that there are

exceptional and specific circumstances relating to both counts 7 and 8, having regard to the mitigating factors that I

have referred to and having regard to the totality of matters that I have referred to, that would make such the

maximum minimum sentence in respect of each count unjust in all the circumstances of the case, but it still remaining

extremely serious matters.

In respect of count No. 7, I must have regard to the serious nature of the offence and to the substantial aggravating

factors and to have regard to the mitigating and the personal circumstances. I am satisfied that the headline sentence

in respect of count No. 7 is five years. Then allowing for the mitigating and the personal circumstances, I propose to

suspend the last two years. So, in respect of count No. 7, I am imposing a five years custodial prison sentence, the five

years to run from the 31st of December 2016, but the last two years to be suspended and to be suspended on the

accused entering into a bond of €200 to be of good behaviour for a period of two years from the date of the release

from custody in respect of the sentence which has been imposed.

In respect of Count No. 8, I must have regard to the serious nature of the offence and to the substantial aggregating

factors and balance it against the mitigating and the personal circumstances and, having regard to the mitigating and

the personal circumstances in respect of the headline sentence, again I am satisfied the appropriate sentence is one of

five years, and that along with the mitigating and the personal circumstances, that the last two years should be

suspended and also that this sentence should run concurrently with the other sentence, having regard to the totality

and proportionality concept. So, in respect of count No. 8 I am imposing a five years custodial prison sentence, the five

years to run concurrent with the other sentence, and I am suspending the last two years of the five-year sentence on

the same terms.”

Grounds of Appeal

18. Counsel for the applicant criticises the trial judge’s sentence in respect of the s.15A offences on seventeen discrete grounds, and

the overall sentencing process on a further five grounds, as follows:

A. In respect of Counts 7 and 8

i. The sentencing judge erred in law, fact and principle in imposing an unduly lenient sentence in all the circumstances,

being a sentences of five years’ imprisonment with two years suspended. The maximum sentence for this offence is life,

with a presumptive mandatory minimum of ten years’ imprisonment.

ii. The sentencing judge erred in law, fact and principle in that he placed the section 15A offence in each instance at the

middle to higher range end of the scale, instead of in the higher range simpliciter, notwithstanding the substantial value of

the cannabis, and that the respondent was not merely a courier or transported of drugs (sometimes referred to

colloquially as a “mule”) but played an active conscious role in organising the business of drug cultivation and the

supplying of drugs so cultivated.

iii. The sentencing judge erred in law, fact and principle in failing to have apt regard to the range of sentences

appropriate to such offences in his approach to sentencing

iv. The sentencing judge erred in law, fact and principle in failing to have appropriate regard to the presumptive

mandatory minimum sentencing regimes applying to offence.

v. The sentencing judge erred in law, fact and principle in failing to specify any or any significant or sufficiently weighty

features within the evidence as would merit a departure from the prescribed minimum sentence.

vi. Further or in the alternative, the sentencing judge erred in law, fact and principle in purporting to identify weighty

features within the evidence which, when viewed in an overall context, were wholly insufficient as to merit the exercise of

the statutory discretion exercised by him in the instant case.

vii. Further or in the alternative, the sentencing judge erred in law, fact and principle in that, having purported to identify

weighty features within the evidence which led to the imposition of the said sentence, he then gave excessive weight

matters urged upon him as mitigating factors in an about the imposition of the sentence of five years with two

suspended.

viii. Further or in the alternative, the sentencing judge erred in law, fact and principle in that having identified weighty

features within the evidence which led to a departure from the prescribed mandatory minimum and to the imposition of

the said sentence, he then gave excessive weight to the matters urged upon him as mitigating factors in and about the

imposition of five years with two years suspended.

ix. The sentencing judge erred in law, fact and principle in determining that five years with two suspended was the

appropriate sentence having regard to its place on the spectrum of seriousness of offences of this kind.

x. The sentencing judge erred in law, fact and principle in attaching undue weight to mitigating factors in the case and in

particular to the personal factors relating to the respondent.

xi. The sentencing judge erred in law, fact and principle in that he imposed a sentence that was disproportionate in that it

gave insufficient weight to the aggravating features of the offences and gave excessive weight to the mitigating factors

bearing in mind the maximum sentence available for the offence.

xii. The sentencing judge erred in law, fact and principle in being unduly lenient regarding the matter of an appropriate

sentence when arriving at the totality of the period of incarceration to which the respondent was to be subjected, the

sentencing court having failed to give any or any sufficient reasons for the suspension of the portion of the sentence in

question.

xiii. The sentencing judge erred in law, fact and principle in that he gave excessive weight to the mitigating factors in the

case to include; the plea of guilty offered in the case, the degree of co-operation of the respondent and the fact that

the respondent has no previous convictions.

xiv. In respect of Count No. 7, The sentencing judge erred in law, fact and principle in that, having given excessive

weight to the plea of guilty offered in the case and in that he gave excessive weight to the degree of co-operation

offered by the respondent to the investigation of the case, he failed to have any or any adequate regard to the fact that

the respondent was “caught red-handed”.

xv. The sentencing judge erred in law, fact and principle in that he gave excessive weight to the fact that the Court

might have regard to the particular difficulties that the respondent might experience as a person of foreign origin

incarcerated in the State.

xvi. The sentencing judge erred in law, fact and principle in failing to have adequate regard to the requirement of

deterrence, both in general terms and in his failure to have adequate regard for the fact that this respondent was not

merely a courier or transporter of drugs (sometimes referred to colloquially as a “mule”), but played an active, conscious

and deliberate role in organising the business of drug cultivation and the supplying of the drugs so cultivated.

xvii. The sentencing judge erred in law, fact and principle in the imposition of such a lenient sentences which was not in

the public interest in all of the circumstances and the sentence imposed would clearly not act as a deterrent to other

persons and the prevention of further crimes.

B. In respect of overall sentencing:

xviii. The sentencing judge erred in law and in fact in that, having regard to ingredients of the offending evidenced before

him in respect of both counts, and having regard to his requirement to apply the totality principle, he failed to have any

or any adequate regard to his discretion to impose a consecutive sentence.

xix. The sentencing judge erred in law and in fact in that he failed to have any or any adequate regard for the fact that

he was sentencing the respondent for two separate occasions of s. 15A offending.

xx. The sentencing judge erred in law and in fact in that, having regard to the fact that he was sentencing in respect of

two occasions of s. 15A offences at two separate locations, he failed to have adequate regard for the fact that at both

locations the respondent was engaged in an operation of industrial proportions in both the cultivation and sale and supply

levels.

xxi. The sentencing judge erred in law, fact and principle in being unduly lenient regarding the matter of an appropriate

sentence when arriving at the totality of the period of incarceration in sentencing for two such s. 15A offences, to which

the respondent was to be subjected; the sentencing court having failed to give any or any sufficient reasons for the

suspension of the portion of the sentence in question in respect of the offences.

xxii. The sentencing judge erred in law and in fact in that he failed to have any or any proper regard for those offences on

the Indictment which was he required to take into consideration when sentencing for Counts 7 and 8, and thus, in effect,

failed to take those offences into consideration either adequately or at all.

19. . When these complaints are examined it is immediately apparent that they can be distilled down to a relatively small number of

core complaints. These are:

• That the sentencing judge under assessed the gravity of the case, having regard to the role and culpability of the respondent, and

the aggravating factors in the case.

• That the sentencing judge was in error in finding that exceptional and specific circumstances existed which permitted him to depart

from the presumptive mandatory minimum sentence.

• That the sentencing judge was too generous in discounting for mitigation, and in particular attached too much weight to the plea

and/or to the respondent’s co-operation and/or to his lack of previous convictions and/or to the fact that prison in Ireland would be

more difficult for him as a foreign national.

• That the sentence ultimately imposed was disproportionate, inappropriately structured, and out of kilter with comparators.

• That the sentence, in various of its aspects, was not properly explained.

Discussion and Decision

20. It seems appropriate to start with the issue of comparators. We were referred by the applicant to a number of cases in that

regard, including The People (Director of Public Prosecutions) v. Murtagh [2015] IECA 3; The People (Director of Public Prosecutions)

v. Botha [2004] 2 I.R. 375; and The People (Director of Public Prosecutions) v. John Ryan [2015] IECA 10. However, these were only

helpful up to a point in as much as they are all generic s.15A cases. However, none of them deal specifically with the situation of a

person or persons involved in the operation of a cannabis “grow-house” and who has in that context been found to be in possession

of cannabis, or plants of the genus cannabis, with a value in excess of €13,000.

21. There is no shortage of cases involving grow houses for use as comparators, and it is disappointing that we were not referred to

any on either side. This Court has dealt with numerous such cases in the four years of its operation to date. A simple search of the

judgments database on the Courts Service website yields up the following as possible comparators: The People (Director of Public

Prosecutions) v. Ba Nguyen and Ha Nguyen [2014] IECA 56; The People (Director of Public Prosecutions) v. Phuc Nguyen Le and Hong

Thi Nguyen [2015] IECA 157; The People (Director of Public Prosecutions) v Xiao Fei Weng and Shi Dong He [2015] IECA 261; The

People (Director of Public Prosecutions) v Choung Vu, Kham Tu and Cong Le [2016] IECA 36; The People (Director of Public

Prosecutions) v Zinck [2016] IECA 368; The People (Director of Public Prosecutions) v Kilkenny [2016] IECA 348; The People (Director

of Public Prosecutions) v Peng Fei He [2017] IECA 313; The People (Director of Public Prosecutions) v Trifonovs [2018] IECA 18; The

People (Director of Public Prosecutions) v Gronski [2018] IECA 22 and The People (Director of Public Prosecutions) v Caldwell [2018]

IECA 183. In addition, the Court itself is aware of the case of The People (Director of Public Prosecutions) v Gerry Coffey [2012]

IECCA 31, an ex tempore decision of the former Court of Criminal Appeal, to which we referred in our judgment in The People (Director

of Public Prosecutions) v. Choung Vu, Kham Tu and Cong Le.

22. It is sometimes the case that the plants found in a grow house are not yet mature and therefore only have a potential market

value, rather than an actual market value, thus precluding the preferment of a s.15A charge. Accordingly, whilst in some of the cases

listed above charges of possession for sale or supply under s.15 and/or s.15A of the Act of 1977 were laid, in other cases the charges

preferred were charges of cultivation contrary to s.17 of the Act of 1977 either in addition to, or instead of, possession charges.

However, what is relevant, and of particular interest in the context of reviewing the sentences imposed in the present case, is how

gravity was assessed in each instance, having regard to the nature of the operation and the particular role being played by the

accused in the operation.

23. In the case of The People (Director of Public Prosecutions) v. Ba Nguyen and Ha Nguyen, a grow house containing 1300 cannabis

plants said to have a potential value of in excess of €1,000,000 was discovered. It was a sophisticated operation. However, the two

accused, who were charged with s.17 offences, were vulnerable economic migrants, who spoke no English, and who were employed

at the lowest level in the organisation to tend the plants. The trial judge had assessed the gravity of their offences as being “at the

highest level” and, in circumstances where a s. 17 offence attracts a maximum penalty of fourteen years’ imprisonment, sentenced

them to six years’ imprisonment with the final two years suspended. The Court of Appeal held that the judge was in error in assessing

gravity as being at the highest level and substituted sentences of three years’ imprisonment and suspended the unserved balance in

each case unconditionally.

24. In the case of The People (Director of Public Prosecutions) v. Phuc Nguyen Le and Hong Thi Nguyen, an industrial unit had been

converted to a grow house. When it was discovered it was found to contain 1,384 plants at various stages of cultivation, with a

potential value of c. €1,000,000. Also found was 29.5 kilos of dried cannabis herb with a value of €590,000. The accused pleaded

guilty to s.17 cultivation (it is unclear if possession charges had also be preferred but dropped). Although the accused, a husband and

wife, were acknowledged to be so-called “gardeners”, the trial judge considered that such persons played a vital role in the

operation, and assessed gravity as being “at the higher end”. Both accused were sentenced to ten years’ imprisonment. On appeal

the Court of Appeal held (at para 6) that:

“… there was an error of principle in the learned sentencing judge’s approach to both sentences. While he correctly

identified the sophistication of the operation as well as the appellant’s essential role in that operation, he failed to

adequately take account of the fact that these appellants were not involved in its setting up, planning and financing, and

that their only benefit from it was the provision of a modest income and very basic living conditions. They were merely

workers, and had been brought into this country for that purpose. They were obviously vulnerable to exploitation and

may not have had absolute freedom to walk away from their involvement. On this basis the placement of the offences

at the higher end of the gravity scale was not appropriate in the particular circumstances of the appellants’

involvement, nor was the sentence of ten years in both cases.”

25. The Court of Appeal substituted sentences of five years with one year suspended in the case of the first appellant (the husband),

and three and a half years with six months suspended in the case of the second appellant (the wife).

26. The case of The People (Director of Public Prosecutions) v. Xiao Fei Weng and Shi Dong He again involved a sophisticated

cannabis growing operation in a large warehouse type premises, inside which a smaller grow house had been constructed. A total of

1,498 cannabis plants and 417 grams of cannabis herb were found. The plants were said to have a potential value of €1,198,400, and

the cannabis herb was valued at €8,342. The accused were each charged with s.17 cultivation and s.15 possession offences. They

were Chinese nationals who had come to Ireland as economic migrants and they were conceded to be “gardeners” living on the

premises, who were not allowed to leave and their food was supplied to them. At first instance the sentencing judge had assessed

the gravity of their offending conduct as being “very, very serious” and had nominated headline sentences of eleven years’

imprisonment. Ultimately, she imposed concurrent sentences of 6 years in respect of each of the s.15 and s.17 offences in the case

of both accused. The Court of Appeal allowed an appeal against severity holding (at para 30):

“The sentencing judge indicated that her starting point before giving a discount for mitigation was eleven years. In this

Court’s view her starting point was clearly too high in the circumstances of this case, and that represented an error of

principle.”

The Court of Appeal substituted sentences of four years’ imprisonment for those imposed by the court below.

27. In the case of The People (Director of Public Prosecutions) v. Choung Vu, Kham Tu and Cong Le, which involved a grow-house

operation that had been established in a rented cottage, 126 cannabis plants were found to be growing with a potential value of

€100,800. The involvement of the three accused was more than that of mere gardeners. Mr Tu had rented the cottage, and Mr Vu

and Mr Cong Lee were apprehended as they arrived at the cottage in a vehicle that contained items necessary for the cultivation of

cannabis. There was evidence that they had visited a B&Q where they were captured on CCTV shopping for these items. The three

accused were charged with a variety of possession and cultivation offences and following their convictions in respect of cultivation,

Mr Vu received a sentence of six years with three suspended, Mr Tu received a sentence of four years with two and a half years

suspended (consecutive to a sentence he was already serving) and Mr Cong Le received a sentence of four years with the final three

years suspended. The Director of Public Prosecutions applied for a review of these sentences on the grounds that they were unduly

lenient. The Court of Appeal found that the sentences imposed, although lenient, were not unduly lenient. With reference to headline

sentences, the Court had this to say:

“62. Counsel for the DPP has submitted that, properly assessed, the offending conduct of each of the convicted persons

in this case fell to be measured as falling into the mid-range, where the range runs from non-custodial options up to

imprisonment for a term of fourteen years. It was further argued that Mr. Tu merited a sentence greater than Mr. Vu

and Mr. Cong Le, though still within that range, in circumstances where he was an admitted primary participant whereas

the involvement of Mr. Vu and Mr. Cong Le was capable of being regarded as secondary participation on the available

evidence.

63. Reference to a mid-range implies dividing the range or spectrum of penalties into at least three tranches, i.e., a low

range, a mid-range and an upper range. Applying a crude mathematical division would result in a low range from zero

(being non-custodial options) to 56 months (i.e., 4 years and 8 months), a mid-range from 57 months to 112 months

(i.e., 9 years and 4 months), and an upper range from 113 months to 169 months (i.e., 14 years).

64. Applying this yardstick, the headline sentence of six years in the case of Mr. Vu fell squarely into the mid-range,

whereas the four year sentences of Mr. Tu and Mr. Cong Le fell into the upper end of the lower range. Mr. Tu’s sentence

was clearly influenced by the sentencing judge’s determination that it should be consecutive to the sentence imposed at

Naas Circuit Court, and the need to respect the totality principle so as to ensure that the resulting overall combined

sentence was a proportionate one. It is reasonable to assume that if Mr. Tu had not faced consecutive sentencing, the

headline sentence for the present offence would probably have been very much greater than four years, and

somewhere in the mid-range. It could very possibly have been in excess of six years in circumstances where the

sentencing judge regarded Mr. Tu as having the greatest degree of involvement, being a primary participant, and also

bearing in mind the judge’s assessment of the seriousness of Mr. Vu’s offending conduct, which on the evidence

amounted to secondary participation. While Mr. Tu’s headline sentence of four years was undoubtedly very lenient, this

Court considers that it was within the sentencing judge’s margin of reasonable appreciation in circumstances where it

was the product of the application of the totality principle in the consecutive sentencing scenario that arose in Mr. Tu’s

case.

65. Whatever about Mr. Tu’s case, it is undoubtedly the position that there was little ostensible justification for

differentiating between Mr. Vu and Mr. Cong Le in terms of fixing their headline sentences, although there was plenty of

scope for differentiating between them once it came to making due allowance for mitigation. Be that as it may, in this

Court’s assessment, neither the six-year headline sentence in the case of Mr. Vu nor the four year headline sentence in

the case of Mr. Cong Le was so far outside the margin of appreciation available to the sentencing judge, in terms of

rating the seriousness of the offending conduct, as to represent a manifest error. Having regard to their roles which on

the evidence involved secondary participation, their conduct could legitimately have been rated as belonging either in

the upper end of the lower range or alternatively in the lower end of the mid-range without the sentencing judge falling

into error; in practical terms, any headline sentence of between four years and six years could not be regarded as being

so divergent from what might have been expected to be the product of a proper application of sentencing principles as

to be erroneous.”

28. The related cases of The People (Director of Public Prosecutions) v. Zinck and The People (Director of Public Prosecutions) v.

Kilkenny both arose out of a substantial grow-house discovered in two industrial units in Piltown, Co Kilkenny, in which 2,504 cannabis

plants at various stages of maturity, and 43.45Kgs of cannabis herb were found. The combined potential value of the cannabis plants,

and the actual value of the cannabis herb, came to €2,874,174. Both Mr Zinck and Mr Kilkenny were charged with s. 15A offences. In

the case of Mr Zinck the garda evidence was that his role was above that of “gardener”, but below that of Mr Kilkenny who was

considered the top man. Mr Zinck claimed that he was a drug addict and that he had become involved due to a need to pay off a

drug debt. He contended that his role was in essence to deliver food and other supplies to the gardeners, who were Chinese people

living on the premises, and that he was to be paid a fee of €5,000 for this work but was not due to get a share in the profits of the

enterprise. The sentencing judge found that there were exceptional and specific circumstances that allowed her to depart from the

presumptive mandatory minimum sentence, and imposed a nine year sentence which she then wholly suspended both to reflect what

she perceived to be substantial mitigating factors in the case and to incentivise continued efforts at rehabilitation. The Director of

Public Prosecutions sought a review of the sentence on the grounds of undue leniency and the Court of Appeal found the sentence to

have been unduly lenient. As Mr Zinck was making good progress towards rehabilitation the Court put the matter back for a year

before re-sentencing, and ultimately re-sentenced the appellant to ten years with the entirety suspended (People (DPP) v Zinck

[2017] IECA 33.)

29. In Mr Kilkenny’s case, he admitted signing a lease for the two industrial units involved using a false name and a false company

name. The court was told that other evidence relating to his involvement included the purchase of a vacuum packer; the placing of

an order for 500 vacuum bags signed for under a false name; and mobile phone top up slips found at the industrial units, which were

traced and found to have been purchased at a particular location in Wexford, where CCTV showed that those buying the top up

credit did so using a van registered to a non-existent owner but used by the respondent. Of particular significance was that a

wrapped kilo of cannabis herb, which was found inside the unit, bore the respondent’s fingerprints.

30. Once again, the sentencing judge found that there were exceptional and specific circumstances that allowed her to depart from

the presumptive mandatory minimum sentence, and imposed a sentence of ten years with the final six years suspended. The DPP

sought a review on the grounds of undue leniency, and the Court of Appeal found the sentence to have been unduly lenient. Giving

judgment for the Court of Appeal, Birmingham J (as he then was) stated:

“10. In the Court’s view, the Piltown matters was a very serious offence indeed. This was commercial cultivation and

production on a grand scale. The operation in Piltown was by any standards a very large one, and the respondent’s role

was a central one. He, it was who had leased the premises, and it was he who was also involved in sourcing machinery.

His role was at an entirely different level to the “gardeners”, whose task it was to tend to the plants, but his role was

also much greater than that of another person who was brought before the courts arising from the Piltown operation;

this person was dealt with at a different sitting of the Circuit Court and by a different judge.”

31. While acknowledging that the threshold for departing from the presumptive mandatory minimum had been met if there was to be

any intervention, the Court went on to hold that:

“This was a case where a starting sentence in excess of ten years was required. Accordingly, the Court will impose a

sentence of twelve years imprisonment, which it feels is the minimum required to meet the situation.”

32. The Court of Appeal went on to suspend four years of the twelve year headline sentence that it had nominated to reflect

mitigation.

33. The case of The People (Director of Public Prosecutions) v Peng Fei He is included in this review, although it was not a grow

house case, because it featured and was cited as a comparator in the case of Caldwell to be considered later in this review. This was

a s.15A case involving a controlled delivery of two packages being transported from Spain to Ireland by DHL, following the earlier

interception of those packages at Dublin Airport by customs officers. The first package contained 3.53 kg of cannabis with a market

value of €70,620 and the second package contained 3.565 kg of cannabis valued at €71,300. The appellant, who claimed to have

gambling debts and to have become involved on that account, accepted responsibility for both packages. He admitted selecting the

locations for delivery having made sure the premises were empty. He admitted ordering the packages from Spain. The sentencing

judge considered that in light of the value of the drugs the offence was one within the mid-range for this type of offending. She

indicated that if the matter had gone to trial and there was no mitigation the appropriate sentence would have been 12 years.

Ultimately, having taken mitigation into account, she imposed a sentence of eight years with the final two years suspended, having

found that exceptional and specific circumstances existed allowing her to depart from the presumptive minimum. There was an appeal

against the severity of the sentence, and the Court of Appeal found that it was too severe. We stated (at para 35):

“We have considered carefully the submissions made to us by both counsel. We have examined the cases to which we

have been referred for comparative analysis of sentencing. The case of People (DPP) v Devlin [2016] IECA 125 is one of

those that bears some consideration. In that case drugs with a value of 1,300,00 Euro were involved in an illicit

transaction. Heroin and cocaine were the drugs in question. A 12 year sentence was upheld by this court. Almost ten

times the value of drugs in this case were involved there. Additionally, cannabis was the drug involved herein. We are of

the view that the headline sentence identified herein was too severe and thus identify an error of principle. We will

therefore quash the sentence and proceed to resentence. We find that the headline sentence in this case should be one

of 9 years. Applying the same mitigating factors outlined above together with the very favourable reports that have

been furnished to us today, we consider the appropriate sentence should be one of 6 years. We also consider that the

same exceptional circumstances exist as specified by the learned sentencing judge which would make the mandatory

minimum sentence of 10 years unjust. Further, as the learned sentencing judge found, we are very impressed by the

manner in which the appellant has conducted himself in prison. The conduct to which she was referred has continued

since sentencing and this is greatly to the credit of the appellant. We hope his positive attitude will continue and to

incentivise that we will suspend the last 18 months of the sentence subject to the same conditions as before.”

34. The case of The People (Director of Public Prosecutions) v Trifonas was another grow house case involving a person who was

charged with a s. 17 cultivation offence. Some seventeen cannabis plants with a potential value of €17,000 were involved. The

appellant was the occupier of the house in a bedroom of which the plants were being cultivated. When asked by the sentencing judge

whether the appellant was “involved in the cultivation or simply a caretaker”, counsel for the prosecution indicated that he was

“involved in the cultivation because he was tending to the plants that were in the room. He indicated that he got the seeds from

[another] person, where his instruction appeared to be general sort of gardening insofar as the plants were concerned. He said to

the guards also that he was told that the person who he was involved with … wanted them for some sort of medical purpose.” The

appellant told Gardaí that the other individual rented the room in question from him for €200 per month. He also said that he was only

involved in cultivation in the initial stages of growing, and that after a certain stage the other individual changed the locks to the

room, and to the front door of the house. Thereafter the appellant was provided with a key to the front door but not to the room.

35. The sentencing judge determined upon a headline sentence of four years, from which he discounted a year to reflect mitigation.

In considering, and ultimately dismissing, a subsequent appeal against the severity of this sentence, the Court of Appeal stated:

“13. It follows that [the sentencing judge] therefore regarded it as belonging towards the upper end of the lower range.

It has been submitted by counsel for the appellant that this was an error. We do not agree.

14. This was not a case of a single cannabis plant, or a small number of plants, being grown in a flowerpot on a window

sill for personal consumption. This was a commercial operation, albeit small by the standards of some of the grow

houses that have featured in prosecutions before our courts in recent years. It was carefully planned and executed, and

engaged in for profit and reward. Moreover, it is clear from the evidence that the appellant’s involvement was

considerable. After all, he procured a rental of the property, he assisted in bringing in and setting up the paraphernalia,

and he tended to the crop. It seems to have been a two-person operation, and while the evidence is inconclusive as to

the exact division of responsibility, and the control exercised by the appellant, it is clear that he was significantly

involved. The sentencing judge characterised the set up as sophisticated, and we agree.

15. Counsel for the appellant referred to him as “a gardener”, but the evidence suggests he was much more than that.

The term “gardener” as often used in these cases has become almost a term of art to describe low level menial

workers, frequently trafficked from another jurisdiction, with little or no English, working as enforced labour employed to

tend the plants in a grow house, often working for food and accommodation alone, or for very, very, low wages, almost

as slave labour, indeed. The appellant’s circumstances were entirely different, as is properly conceded by his counsel.

16. He was the tenant of the building in which the operation was established, he dealt with the landlord, and he

permitted and facilitated the alterations to the property effected in connection with the enterprise, including the

changing of the locks without notice to the landlord, or the provision of keys to the landlord. … In the circumstances we

consider that the offending conduct in this case properly belonged towards the upper end of the lower range.”

36. The lower range was identified as being, in the case of s.17 cultivation, from zero i.e., (non-custodial options) to 56 months (i.e.,

four years and eight months).

37. The case of The People (Director of Public Prosecutions) v Gronski involved a grow house discovered in Co Cavan in which there

were 211 potted cannabis plants at a mature level of growth and with a street value of €268,000. The accused was charged with a

s.17 cultivation offence. The sentencing judge deemed the appellant’s involvement in the drugs operation to be that of a gardener

and determined the seriousness of the offences as being at the lower end of the mid-range. The learned sentencing judge set the

headline sentence at seven years and proceeded to impose a sentence of four years’ imprisonment, describing that term as a “normal

tariff…for somebody who is caught in this particular situation”. On appeal, it was argued that the sentencing judge’s placing of this

offence at the lower end of the mid-range was inconsistent with the headline sentence of seven years’ imprisonment in circumstances

where the maximum potential sentence was fourteen years. This, it was argued, would suggest that the offence was in reality

treated as a mid-range offence. The Court of Appeal agreed. In re-sentencing the appellant, it determined upon a headline sentence

of five to five and a half years, and ultimately imposed a post mitigation sentence of three and a half years (the unserved balance of

which it suspended in particular circumstances then obtaining, and which it is unnecessary to elaborate on.)

38. The penultimate case in this review is the case of The People (Director of Public Prosecutions) v Caldwell. This was another grow

house case, and in this instance the appellant was charged with a s.15A offence. Two grow rooms were found inside a rented house

in West Cork, and 33 fully mature cannabis plants and 7.2 kilos of cannabis herb were seized on the premises. The total value of the

plants and drugs found was €170,000. The appellant, one of four people suspected of being involved, was subsequently arrested at

his residence and later in interview he admitted that he had rented the house; that he had invested €5,000 in equipment to set up

the grow house and that he planned to make €50,000 to €60,000 profit from it. However, the Garda view was that he was inclined to

exaggerate his involvement in as much as he had indicated that he was essentially the boss of the operation with the other three

working for him, whereas the position in fact seemed to be that the appellant and one of the other men arrested were jointly in

charge and the other two were working for them.

39. The judge at first instance imposed a sentence of seven years with the final three years thereof suspended upon conditions,

being satisfied that exceptional and specific circumstances existed so as to allow him to depart from the presumptive minimum. The

appellant unsuccessfully appealed the severity of his sentence. The Court of Appeal, in dismissing the appeal, commented that the

headline sentence of seven years was entirely appropriate to the gravity of the offence.

40. The final case that it is proposed to review is the decision of the former Court of Criminal Appeal in The People (Director of Public

Prosecutions) v Coffey. In this case the appellant was convicted of two s. 17 cultivation offences involving grow houses at two

separate addresses. At one of these addresses cannabis plants with a potential value of €325,000 were found, while at the other

address, cannabis plants with a potential value of €20,000 were found. The appellant, a 56 year old man, was arrested at the scene.

He had a business in garden ornaments, was engaged in ornamental design and had a keen interest in gardening. He had become

involved by demonstrating to others involved how to clone cannabis plants and how to cultivate and develop them. The Court of

Criminal Appeal concluded that it was a major operation and a serious offence, although it accepted that his involvement was not at

the very highest level. The court below had placed the offence at “above the middle level” and the Court of Criminal Appeal agreed

with that. The appeal succeeded in circumstances where the court below had failed to indicate by how much it had discounted for

mitigation, and had simply nominated an ultimate sentence. The Court of Criminal Appeal felt that it could not be satisfied that

adequate discount had been given for mitigation. In resentencing the appellant, the court nominated a headline sentence of eight

years from which it discounted substantially to reflect the mitigating circumstances in the case, ultimately imposing a sentence of

four years imprisonment with the final year suspended.

41. What can be taken from this review is that persons involved in grow house operations, (it is immaterial whether they be ultimately

charged with s. 15 /s.15A possession offences, or with s. 17 cultivation offences) generally fall into three categories in terms of their

involvement and consequently their culpability. There are principal or top tier organisers who fund and orchestrate the setting up of

the operation, and the sale and distribution of the produce, and who get to keep and enjoy the profits earned. Such persons will be

regarded as having a high level of culpability. Then there are second tier managers, who provide logistical and supervisory support,

usually receiving a substantial fee for their efforts, although not sharing in the ultimate profits. The culpability of persons in this

category will usually be located in the mid-range. Finally, there are low level operatives/gardeners who frequently are economic

migrants, usually of foreign nationality, who are exploited due to their poverty, and low level of education and lack of sophistication;

or, worse still, they are persons trafficked illegally into the country as virtual slaves specifically to fulfil the gardening role, and who

receive very low remuneration, if any at all. The culpability of persons in this category will generally be regarded as falling within the

low range.

42. The scale and sophistication of a grow house operation is also clearly a relevant factor in assessing gravity, as is the value of any

actual drugs or mature/harvestable plants seized and the potential value of any immature or not yet harvestable plant material seized.

43. Where a s.15A charge is preferred, and assuming proof exists of value in excess of the threshold figure of €13,000, the

presumptive mandatory minimum sentence also arises for consideration. However, while regard must be had to it, it does not affect

the assessment of gravity per se. On the contrary, gravity must be assessed in the first instance without reference to the

presumptive minimum. Mitigation is then applied to the pre-mitigation or headline figure arrived at. If the ultimate figure arrived at is in

excess of the presumptive minimum, then no further consideration of the presumptive minimum is required and the sentence as so

determined is simply imposed. If, however, the ultimate sentence as so determined would fall below the presumptive minimum if

imposed, the sentencing court must then consider whether there are exceptional and specific circumstances which would render it

unjust to impose the presumptive minimum. If such circumstances are found to exist, the ultimate sentence as determined can be

imposed notwithstanding that it falls below the presumptive minimum. Conversely, if such circumstances are found not to exist then

the presumptive minimum sentence of ten years must be imposed.

44. In the present case, the role played by the appellant was clearly at middle management or second tier level. He was far more

than a low level operative or gardener, and yet he was not at the top level. He was characterised as an organiser but not the head of

the operation. Mr Z appears to have been at the top or first tier level. However, be that as it may, the respondent’s role was

nonetheless a significant one. It was the respondent who was the tenant of the relevant properties. Moreover, the bank statements

found on his phone indicate that he operated, or at least had access to, a bank account used in connection with the illicit business.

In addition, he sourced and purchased supplies for the operations, including making purchases of relevant paraphernalia at Woodies

DIY, and at the so-called Grow Store.

45. In s. 15 and in s.15A cases the range of available penalties (ignoring at this stage any presumptive mandatory minimum) ranges

from zero (i.e., non –custodial options) up to life imprisonment. However, in the great majority of cases the effective maximum usually

tops out at around fifteen years. There will, of course, always be truly egregious cases where even higher sentences might be

justified. If one divides the effective range that operates in most cases by three, that allows for a low range from zero to five years,

a mid-range from five to ten years, and an upper range from ten to fifteen years.

46. We consider that the gravity of the respondent’s offending conduct, when considered with reference to the effective range

spoken of, and taking into account his culpability, the size, scale and sophistication of the operation he was helping to run, the value

of the actual drugs seized, and the potential value of the immature plant material seized, was such that it was properly to be located

well within the mid-range. We would in fact locate it centrally in the mid-range and so, having regard to a sentencing judge’s margin

of appreciation, any headline sentence that fell either side of the mid-point by a year or so would be within the scope of a sentencing

judge’s discretion.

47. In this case the sentencing judge determined upon headline or pre-mitigation sentences of five years in each instance. In our

view these were clearly too low. He then proceeded to determine that two years of those five year terms should be suspended to

take account of mitigation and personal circumstances. We do not accept the respondent’s contention that there were was too much

discount for mitigation. However, even though the discount in mitigation was appropriate the ultimate sentence was manifestly unduly

lenient, caused in the main by the selection of a headline sentence that was simply too low.

48. Even assuming for the purposes of argument at this point that the sentencing judge was correct in finding that there were

exceptional and specific circumstances that justified him in departing from the presumptive mandatory minimum sentence (and that is

disputed), the resultant sentence was far too low in any event, and was unduly lenient in our view.

49. We agree with counsel for the applicant that the ultimate sentences did not sufficiently address the penal objective of

deterrence, both general and specific.

50. The comparators considered support us in our views, indicating as they do that the headline sentences determined upon by the

court below were those more appropriate in the case of low level operatives/gardeners charged with s. 17 offences, than in the case

of a person involved at second tier level, such as the respondent.

51. We have given careful consideration to the appellant’s argument that the circumstances pressed on the respondent’s behalf as

justifying a departure from the mandatory minimum, namely his pleas of guilty, his co-operation, and lack of relevant convictions,

were neither sufficiently exceptional nor specific as to have rendered it unjust to impose the presumptive mandatory minimum. It is

further complained that the sentencing judge does not adequately explain the basis on which he concluded that the required

exceptional and specific circumstances existed. We agree that this aspect of the sentencing judge’s sentencing remarks could have

been better explained and better reasoned. However, although we find the issue to have been finely balanced, we have come to the

conclusion that the pleas of guilty and his co-operation, whatever about his lack of convictions, were, in the circumstances of the

case, sufficient to constitute exceptional and specific circumstances.

52. The statute specifically references a plea of guilty, especially where it is an early one, as being potentially relevant in that

context. While it is claimed that the respondent was caught red handed, the plea offered was nonetheless valuable. Yes, there was

an incentive to plead in the circumstances but it cannot be gainsaid that a plea represents voluntary self-incrimination. A person has

the right not to self-incriminate, and anyone who elects to do so by offering a plea, notwithstanding their constitutional right not to

do so, acts specifically and in doing so behaves exceptionally.

53. Moreover, the co-operation offered in this case was significant and in our view represented material assistance, and therefore

was exceptional. The respondent’s co-operation in unlocking his phone so that it might be inspected by the Gardaí was a matter of

considerable assistance to them. The evidence is silent one way or the other as to whether they could ever have recovered the data

on the phone without his co-operation, but even if that were so his provision of the code is likely to have greatly speeded up their

inquiries. It was as a result of the material found on that phone that the second grow house in Drumcondra was located, leading to

the apprehension of Mr Giniskas, who in turn led the Gardaí to Mr Z. We consider that in the circumstances of this case, in which

there were these exceptional and specific circumstances, it would have been unjust to apply the presumptive mandatory minimum.

54. Having found the sentences on counts 7 and 8, respectively to have been unduly lenient it is appropriate to quash those

sentences and to proceed to re-sentence the respondent.

55. We nominate a headline sentence of eight years imprisonment on each of counts 7 and 8 , respectively, to reflect the gravity of

the appellant’s offending conduct, and we will discount from that by two years in each instance to take account of the mitigating

circumstances in the case. We are satisfied that exceptional and specific circumstances exist that would render it unjust for us to

impose the presumptive mandatory minimum sentences of ten years’ imprisonment, and we therefore will not do so. The net

sentences therefore after discounting for mitigation will be six years on each count. However, with a view to incentivising

rehabilitation, and also to reflect what is sometimes called the disappointment factor in having a sentence imposed at first instance

increased following a review, we will go further and suspend the final year on each count.

56. The ultimate sentences are therefore six years imprisonment on each of counts 7 & 8, with the final year in each case to be

suspended on standard conditions, both sentences to run concurrently and to date from the 31st of December 2016.