Court of Appeal quashes excessive drug trafficking sentence and reduces it to five years imprisonment.

THE COURT OF APPEAL

[CCA No. 117/17]

Mahon J

Edwards J

Hedigan J.

BETWEEN

RAYMOND MOLLOY

APPELLANT

AND

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

RESPONDENT

JUDGMENT of the Court delivered on 20th February 2018 by Mr. Justice Edwards

1. On 10th May 2017, the appellant pleaded guilty to an offence contrary to s. 15A of the Misuse of Drugs Act 1977. On 15th May

2017, the appellant was sentenced by a judge of the Dublin Circuit Court to a sentence of six and half years imprisonment backdated

to 26th January 2016, the date on which he went into custody in the United Kingdom prior to his extradition to Ireland.

2. The appellant was arrested following a surveillance operation by the Gardaí in August 2002. He had been involved in the

transportation by a van of 498kg of Cannabis valued at €6.324m. Upon his detention and interview, the appellant answered questions

and made a number of admissions which were considered to be helpful to the Gardaí in their investigation of these offences. His case

came on for trial in April 2004, the third trial date, and the appellant failed to appear having fled the jurisdiction. A warrant was issued

for his arrest. He was subsequently located living in the Isle of Wight in the United Kingdom and was arrested on foot of a European

Arrest Warrant and detained on 26th January 2016. Following extradition proceedings which were contested, the appellant was

returned to Ireland on 16th August 2016. A trial date was set, but a plea was entered on 10th May 2017. In this appeal, the appellant

claims that the sentence imposed was excessive.

The Appellant’s Circumstances

3. The appellant was born on 16th May 1962. He worked in the Equine industry both in Ireland and in Europe. He received financial

assistance in setting up an Equestrian Centre. It appears that this may have been a front, but it is accepted that the appellant

believed it to be a legitimate business. In relation to this offence, whilst the appellant admitted that he had a very good idea of what

was happening, the Gardaí considered that he was used by other more serious criminals. It was accepted that this was a one-off

situation and there was no suggestion that the appellant had been involved in a large way in this offence. It was accepted that he

was put under pressure and that a number of threats had been issued to him and in respect of his horses. There was no evidence

that he was a gang member or that he was gaining financially from this transaction. Gardaí stated that he was specifically set up in

the Equestrian Centre due to his background in horses and it was seen by others as an ideal cover for a criminal enterprise. From the

time of his detention, the appellant suffered a rapid deterioration of his mental health. He has made several serious attempts at

suicide. There were in-patient stays in Lakeview Psychiatric Unit in Naas General Hospital.

The Sentencing Judge’s remarks

4. In sentencing the appellant the sentencing judge made the following remarks:

“The facts of this case are pretty clear. In one sense, it's not an unusual type of case. It seems parties who were

involved in transporting this large amount of drugs obviously wanted a way to bring the drugs into the country or bring

them from certain other locations, obviously wanted, let's say, the transportation of drugs separated from, so they

would be difficult to follow. It seems the guards had certain information and were following a Mr David Dempsey. They

followed him to the Poitín Stil and it seems there was some interaction with, I think, Mr Molloy at that stage. It seems a

vehicle was given to Mr Molloy. I think he drove back to his equestrian centre and there, there was another vehicle

which had been parked there previously. It seems that contained a large amount of drugs. It was a very significant

amount of drugs, it seems. There was almost 600 kilos, if I'm not mistaken, of drugs involved, 498 kilos valued at €6.3

million in value at the time. It seems Mr Molloy, and probably other people, transported these drugs from this vehicle to

the vehicle that was going to transport the drugs and it seems to me at this point in time, Mr Molloy must have known

what was afoot. It seems he must have known this was illicit substances. He must have known there was a large

amount of drugs involved and he must have known he was doing wrong. Now, at the time, it seems to me, Mr Molloy

was in his 40s. It seems that he was old enough and mature enough to make a decision at this point either to involve

himself or not involve himself. By reasons of fear, I suppose, by reasons of indecision, he didn't make the right decision.

He committed a huge error of judgment. He involved himself in this large drug dealing operation and it seems he loaded

the drugs into this vehicle and drove the -- this vehicle back to the Poitín Stil, where Mr Dempsey again took control of

this vehicle and drove the vehicle until it was stopped by the guards. The guards searched the vehicle, found the drugs

and obviously, it seems, searched Mr Dempsey's residence and found more drugs and, I think, armaments or guns as

well. It seems Mr Molloy eventually was detected and located. It seems he was interviewed, he co-operated and made

admissions and it seems -- but he took a trial date. It seems that he was in difficult -- had mental health problems at

this time and eventually bail was procured and it seems he basically ran. He basically didn't show up for his trial date and

since that time he has been living in the UK, working away and probably hoping that this day wouldn't arrive. Eventually

the guards in Blessington, I think, received certain information and it seems this information was good information, that

the defendant was indeed living in the Isle of Wight and the wheels of justice began to turn and eventually he arrives

back in this Court. Now, in deciding what to do about Mr Molloy, I must take into account the nature of the crime. The

crime is serious. To involve oneself in the transportation of almost 500 kilograms of cannabis is a very serious offence. I

believe there is a life -- the maximum for this type of offending is a life sentence. Obviously, there is a mandatory

minimum sentence of 10 years for this type of behaviour and as everybody here well knows, I have been given the

discretion to depart from this mandatory minimum sentence where I find there is suitable circumstances. Now, suitable

circumstances are -- obviously are a plea, co-operation, admissions and such like. They are present in this case, there's

undoubtedly in the case. Now, Mr Molloy has his own history. It seems that he has no record whatsoever, it seems he

wanted to have an equestrian centre and involved himself with obviously some unscrupulous people. I accept as a fact

in this trial, a sentencing hearing, he didn't know who he was involving himself with at the time by reason of the fact, it

seems, a member of his extended family was the conduit to his involvement and therefore it seems to me he had no

reason to believe that the people behind the financing of his equestrian centre were shady, if you want to put it that

way, but obviously the facts of the crime speak for itself. Obviously he has no record before this event or after this

event. I have to accept, I think, that it's unlikely that Mr Molloy will involve himself in any serious criminality in the

future. I also have to accept that he is remorseful for what he did. I also have to accept that there's a certain toll. He

has -- I suppose he's paid a price for what he did. He has probably been living under pressure and under fear for the last

12 or 13 years. I also have to accept, I think, that he is well capable of contributing to society and I have to accept

that basically, in his case, he doesn't need to be reformed by reason of the fact, I think it's unusual -- unlikely that he

will reoffend in the future. Therefore, whatever sentence I am going to impose on this man is for punishment. He

shouldn't have involved himself in this crime, this very, very serious crime. Obviously what is aggravating in this case is

that he left the jurisdiction and didn't face justice. That's an aggravating factor. Also, it seems that he took a trial date

back when -- in 2003 and again he took a trial date when he came -- when he arrived back from the United Kingdom. So,

therefore his pleas in this case are belated -- or a plea is belated. Obviously in deciding the appropriate sentence, I have

to look at and I have to take into account to some degree -- I think it is, I suppose, persuasive what my colleague

imposed upon Mr Dempsey. I accept that Mr Dempsey's record was -- I think he probably had a record and his

involvement was more serious, but in relation to Mr Dempsey, he pleaded and he didn't flee justice. So, basically, those

are the differentiations. So, I am going to think about this matter until 2 o'clock and I'm going to give my decision at 2

o'clock today after lunch.

2. Having considered the matter over lunch he imposed a sentence in the following terms:

“Now, as I indicated before lunch, I consider this a serious crime. Obviously there is mitigation in the case, as outlined

by your counsel, Ms Crowe. Obviously she has outlined what are the, I suppose, the strong mitigation in the case, but

obviously the aggravating factors, as mentioned, are that you disappeared and … you left and lived in England for a

considerable period of time. Now, I consider the appropriate sentence, taking all the factors into account obviously,

including the mitigating factors, I think the appropriate sentence, is a term of imprisonment of six and a half years and

that's to be backdated to the date when you first went into custody in England. … [T]he warrant should indicate that he

should be given full credit for all periods of time served in custody in relation to this matter alone. Obviously, because

this is a 15A, the mandatory minimum sentence of 10 years, but there is reasons to depart in this case. That's as low as

I can go in the case, taking into account the seriousness of the crime you committed. Obviously it was huge error of

judgment on your part.

The Ground of Appeal

5. The appellant appeals against the severity of his sentence on the following grounds:

a. The sentencing judge erred in law and fact in imposing a sentence, which was disproportionate and overly severe in all

the circumstances.

b. The sentencing judge erred in law in the manner in which he imposed the sentence, a sentence which on its face failed

to accord with the established principles of sentencing and from which it is impossible to determine what weight, if any,

was given to the mitigation outlined above.

Submissions on behalf of the Appellant

6. It is submitted that the sentencing judge erred in principle, both having regard to the facts of the case and the manner in which

the sentence was imposed. It is suggested that there was an over assessment of the gravity of the case and/or insufficient

allowance for the mitigating factors in the case. The appellant draws the court’s attention to the level of offending, the unusual

factual circumstances which led to that offending and which mark this case as one that could be described as exceptional on its

facts. The appellant had no previous convictions and was renowned in mainland Europe and Ireland in Equestrian circles. He believed

his business when it was set up to be a legitimate one. He was not involved in the overall offences. Although he admitted being aware

that what he was doing was wrong, he had been put under considerable pressure, both in the context of threats against him and

threats to kill some of the horses. His involvement in this incident was limited to 30 minutes. He cooperated in full with the Gardaí.

There was no evidence that he was either a gang member or was gaining financially from the transaction. The appellant comes from a

good, law abiding family and the entire process has been upsetting and shocking to him. The effect on his mental health outlined

above has been profound. It was clear that there was no danger of his reoffending. It was accepted that he had the deepest remorse

for his involvement in this offence. His co-accused, one David Dempsey, having pleaded guilty to a charge of s. 15A, received an 8-

year sentence. This sentence represented additional charges to include a further 500kg of Cannabis which placed the total amount of

drugs involved in his case at a value of approximately €11m. When he was arrested, two firearms and ammunition were found in his

house. We have not been made aware, however, as to what were the mitigating factors in his case beyond the fact that he pleaded,

or how the sentencing judge in his case approached sentencing.

Submissions of the Respondent

7. It was submitted that the sentencing judge had correctly identified the relevant aggravating factors as follows:

(i) The serious nature of the crimes;

(ii) the significant amount of Cannabis involved and

(iii) that the appellant did not attend his trial and fled the jurisdiction.

8. The judge also correctly noted that this was an offence which was intrinsically a very serious crime; that it attracted a life

sentence and that that there was a presumptive mandatory minimum of ten years. The sentencing judge correctly identified the

mitigating factors as the appellant’s plea; his cooperation with the Gardaí; his admissions; his remorse; the fact that he had no

previous convictions and that there was no risk of reoffending. The sentencing judge had also noted that the appellant had fled the

jurisdiction, that he had broken bail and that the plea in this case was a belated one. It was submitted that the sentencing judge

could have taken, but did not seem to take, into account the fact that the appellant had fought his extradition. The sentencing judge

also indicated that he had to take account of the sentence imposed by a colleague on David Dempsey, the co-accused, to some

degree. He noted that Mr. Dempsey had pleaded and that he had not fled the jurisdiction. The sentencing judge also noted that there

was a presumptive mandatory minimum sentence of ten years fixed by the Oireachtas. He decided that there were present certain

specific and exceptional circumstances that allowed him to impose a sentence less than the presumptive mandatory minimum provided

for. These were his plea, his admissions and his cooperation.

Discussion and Decision

9. This is yet another case in which this Court is faced with the difficulty that no headline sentence was identified, and no indication

of the quantum of discount afforded for mitigation was given, by the sentencing judge. This creates a real problem for us in

circumstances where the appellant is making the case that by virtue of where the sentencing judge ended up, which we do know,

namely at a sentence of imprisonment for six and a half years, the sentencing judge must have either over-assessed the gravity of

the offending conduct, or failed to have afforded sufficient discount for mitigation, or a combination of both of those things.

10. It is clear that in constructing his sentence as he did the sentencing judge has not followed the recommended best practice of

this court as stated in The People (DPP) v Flynn [2015] IECA 290; The People (DPP) v Kelly [2016] IECA 204; The People (DPP) v

Molloy [2016] IECA 239; The People (DPP) v Lynch [2018] IECA 1 and numerous other cases.

11. The practice commended involves a staged approach in which gravity is assessed in the first instance, with reference to the

range of penalties available and taking into account culpability (including factors tending to aggravate or mitigate the intrinsic gravity

of the offending conduct) and the harm done, leading to the nomination of a so-called “headline sentence”; and then in the second

stage discounting from the headline sentence to take account of any mitigating factors not already taken into account (which will be

those not bearing on culpability), and in that way to arrive at the appropriate ultimate sentence.

12. In The People (DPP) v Flynn we pointed out that:

“18. Since its establishment this Court has repeatedly and consistently sought to emphasise that this approach is

regarded by it as best practice and we have sought to commend to trial judges that they explain the rationale for their

sentences in that structured way, not least because a sentence is much more likely to be upheld if the rationale behind

it is properly explained. Equally if this Court when asked to review a sentence cannot readily discern the trial judge’s

rationale or how he or she ended up where they did having regard to accepted principles of sentencing such as

proportionality, the affording of due mitigation, totality and the need to incentivise rehabilitation in an appropriate case,

it may not be possible to uphold the sentence under review even though the trial judge may have had perfectly good,

but unspoken reasons, for imposing the sentence in question.”

13. This may well be one of those cases. However, before addressing whether that is so it seems appropriate to say something

further about the best practice commended by this Court. In jurisdictions such as our own where there is no rule making sentencing

body such as a Sentencing Commission or Council established on a statutory basis, to formulate and promote sentencing guidelines,

nor even a more informal system of appellate review assisted by an advisory non-rule making sentencing body, judicial discretion in

sentencing is largely unconstrained. Judges must, of course, have regard to such statutory guidance as exists, for example where a

statute sets a maximum penalty, or a presumptive mandatory minimum penalty, or specifies that a particular factor shall be regarded

as aggravating, or indeed mitigating. Apart from that regard must also be had to constitutional principles such as the requirement that

sentences should be proportionate, to sentencing principles as formulated by the superior courts at appellate level, to guideline

judgments where they exist, and to relevant comparators where they are drawn to the attention of the court.

14. A judge is, however, otherwise at large in terms of how he or she constructs his/her sentence. The main reasons for the Court of

Appeal’s present reluctance to insist upon the adoption of such a procedure, as opposed to merely commending it as best practice,

stem firstly from a concern that to impose too rigid and formulaic an approach could potentially unduly inhibit the exercise of

legitimate judicial discretion; and secondly from a recognition that, as stated more than once by the former Court of Criminal Appeal,

the failure to adhere to a particular sentencing method or formula will not necessarily result in an incorrect sentence. Neither will

adherence to a method or formula guarantee the imposition of a correct sentence.

15. Thus in People (DPP) v Fitzgibbon [2014] IECCA 12 the Court of Criminal Appeal had remarked with respect to the process of

sentencing that “[t]here is no one way in which this needs necessarily to be done. There is no requirement for a sentencing judge to

stick slavishly to any particular method or formula.”

16. Similarly, in People (Director of Public Prosecutions) v O’Byrne [2013] IECCA 93, the same court said:

“This Court does not consider that sentencing should be approached in an overly punctilious or pedantic way. The

formulaic repetition of a checklist is not necessarily the sign of a proper sentence. The function served by having

standard steps and criteria which are expected in any sentence is in the first place to remind the sentencer of the

factors which need to be addressed, secondly to explain to interested parties and the public at large the reasoning

process by reference to which the particular sentence is arrived at, and thirdly thereby to facilitate review in an

appropriate case. However, it remains possible to arrive at a correct sentence without specifically invoking familiar

headings as it is indeed possible to name check standard criteria and yet arrive at an incorrect sentence.”

17. Sentencing should therefore be about substance over form, rather than the reverse, although it is increasingly recognised based

on parallel developments in the field of judicial review (see for example Mallak v Minister for Justice [2012] 3 IR 297 and Rawson v

Minister for Defence [2012] IESC 26) that as an aspect of constitutional due process (see in that regard People (DPP) v Murphy

[2017] IECA 6), and as an aspect of the right to a fair trial guaranteed by Article 6 ECHR (see Van de Hurk v Netherlands (1994) 18

EHRR 481 [61]; Ruiz-Torija v Spain (1995) 19 EHRR 553 [18-19] ; Hiro Balani v Spain (1995) 19 EHRR 566, 574 [27]; Also Taxquet v

Belgium (2012) 54 EHRR 26), an accused is entitled to have the reasoning process, by means of which a sentencing court has arrived

at the sentence which it has imposed upon him or her, rationally and adequately explained.

18. For many years there had been an intense debate amongst sentencing law scholars concerning whether it is best for a sentencing

judge to adopt a discretion-orientated ‘instinctive synthesis’ approach as opposed to a staged, two (or more) tier, approach. In the

former, the judge identifies all the factors that are relevant to the sentence, evaluates their significance and then makes a value

judgment as to what is the appropriate sentence given all the factors in the case. In this approach, the sentence is determined only

at the end of the process. The principal alternative approach is the staged, two (or more) tier, approach to sentencing in which the

judge first assesses gravity and fixes a headline sentence, and then proceeds in a second stage or subsequent stages to discount for

mitigating and other considerations, so as to arrive at a final or ultimate sentence. The staged, two (or more) tier approach still

involves the exercise of judicial intuition or instinctive synthesis in each of its stages, but involves a more structured methodology,

and some would argue that it provides for greater transparency in terms of how a sentence is constructed.

19. The debate in this regard has received considerable judicial attention in other countries, particularly in Australia where the

(Federal) High Court of Australia, which had previously refused to be drawn into the methodological debate, finally grasped that nettle

in the landmark case of Markarian v R [2005] HCA 25, an appeal from the Supreme Court of New South Wales, and favoured the

instinctive synthesis approach over the staged approach. They declined however to set down a universal rule enshrining instinctive

synthesis as the only permissible sentencing methodology, but instead opted to emphasise the discretionary nature of sentencing.

20. We have instead favoured the staged approach because it seems to us that it is likely to best focus judges at first instance on

the overriding criterion of ensuring that sentences are proportionate both to the gravity of the offence and the circumstances of the

offender, and in particular that the sentence “to be imposed is not the appropriate sentence for the crime, but the appropriate

sentence for the crime because it has been committed by that accused” – see The People (DPP) v McCormack [2000] 4 IR 356. In

addition, it has the advantage of producing better reasoned sentencing judgments, that better explain to the interested parties why a

particular sentence was imposed and which are also more readily amenable to review at appellate level. Finally, we are not persuaded

by the arguments against staged sentencing, namely that they do not allow for sufficient individualisation of sentences, that this

methodology tends to give rise to more punitive sentences, that sentencing discretion is in some way corralled or restricted if a

staged approach is adopted, and that the process is in a way illusory because judicial intuition has to be applied in any event at each

stage.

21. Consequently, we do not consider the trial judge in this case to have been in error for his failure to follow the staged methodology

that we recommend. However, it remains the fact that much of his reasoning is opaque to us as a result. We have said before that

we will not interfere with a sentence imposed at first instance if at the end of the day that sentence “looks right”, but in this case we

are not persuaded that that is the case. If the sentence had been better explained we might have been able to uphold it, but in the

absence of any information concerning what level of discount was afforded for mitigation we are prevented from upholding the

sentencing judge’s judgment in the particular circumstances of this case.

22. Once again we have had to have recourse to the unsatisfactory process of trying to reverse engineer what was done. Counsel for

the respondent conceded that the appellant was entitled to a considerable discount for mitigation on account of his plea of guilty,

albeit that it was late; his absence of previous convictions; his otherwise positive good character and contributions to his community

as testified to in the numerous testimonials submitted on his behalf; his co-operation with the investigation, his mental health

difficulties, his stated remorse, the fact that he has not been in trouble since, and the fact that it is accepted that he is unlikely to

re-offend. When the Court posited the suggestion that cumulatively these factors might have entitled him to a discount of

approximately a third on whatever the headline sentence was, counsel did not demur.

23. Approaching the matter on that basis, to have ended up at six and a half years the sentencing judge would have to have started

somewhere north of nine years. We consider that that was too high in the particular circumstances of this case having regard to the

individual culpability of this offender. We therefore consider that there was an error of principle in the assessment of the gravity of

the case. It is true that the amount of drugs involved was substantial but that is only one factor to be taken into account in

assessing gravity. The appellant’s involvement was relatively brief. While it seems that he knew, or certainly realised, what was afoot,

it is accepted by the State that he acted under a degree of duress from shadowy and sinister figures who had set him up to be used.

24. In circumstances where we have found an error of principle with respect to the assessment of gravity it is unnecessary to

consider the further grounds of appeal. It is appropriate to quash the sentence imposed in the Court below, and proceed to re-

sentence the appellant. We note that he is an enhanced prisoner and has a good disciplinary record.

25. In terms of the assessment of gravity, the relevant range is from non-custodial options up to life imprisonment. There is also a

presumptive mandatory minimum sentence of ten year’s imprisonment to be considered. We agree with the sentencing judge in the

court below that exceptional circumstances exist in this case, having regard to the plea and the material assistance rendered, to

permit this Court to depart from the presumptive mandatory minimum. Having regard to this accused’s individual culpability, including

the aggravating factors identified by the respondent and the mitigating factor of duress, but also taking into account the quantity of

drugs involved, we consider that the appropriate headline sentence was one of seven and a half years. We would reduce that by one

third to reflect the mitigation in his case not already taken into account, to arrive at a final sentence of five years’ imprisonment. The

sentence is again to be backdated to the 26th of January 2016.

26. We are not suspending any portion of the final figure of five years in circumstances where there is no pressing need to do so to

specifically incentivise rehabilitation. It is accepted that this accused is unlikely to re-offend. We want to emphasise that this is a

factor we have taken into account and it does not go unrewarded. It requires to be stated that but for this fact this accused would

certainly have received a higher sentence, and while it might have had associated with it a partly suspended sentence to incentivise

rehabilitation, the appellant would have been required to serve more actual prison time.