Appeal dismissed; sentence disparity justified by appellant's greater personal stake and business role versus co-accused's subordinate position.

THE COURT OF APPEAL

Record Number 260/2017

The President.

Edwards J.

McCarthy J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

DANIEL HIGGINS

APPELLANT

Judgment of the Court (ex tempore) delivered on the 4th day of December 2018 by Mr. Justice McCarthy

1. On the 22nd June, 2017 the accused pleaded guilty to one count of conspiracy to possess the controlled drug, cannabis, for the

purpose of selling or supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s.5 of the

Misuse of Drugs Act, 1977 and contrary to s.15 thereof as amended. His co-accused, Mr. Cronin pleaded guilty to a count of

possession of cannabis for sale or supply contrary to s.15A of the same Act.

2. The offences occurred on the 15th September, 2016 and sentence was imposed on the 22nd November, 2017. Both accused were

sentenced to seven years’ imprisonment. In the appellant’s case the last three years thereof were suspended and in that of Mr.

Cronin, the last five years.

3. The focus of this appeal has very firmly been placed on the disparity in the sentences imposed. On the date of the offence the

Gardaí searched the home of a Mr. Fawzi at Mallow Road, Cork and found Mr. Cronin on arrival. Examination of his mobile phone was

indicative of drug related activity. The Gardaí found a large quantity of drugs at the rear of the premises, on the roofs of sheds and in

a wooded area adjacent to the dwelling. The total quantity recovered from the roof of a shed was 3.4 kilogrammes of cannabis to the

value of €68,680. A further bag was found in a separate location in the wooded area which contained just under a kilogramme and

was valued at €18,950. When the Gardaí were searching that area, the accused arrived to the front of the house, saw the Gardaí,

made a detour and climbed a ditch into it searching for the bag. He did not find it as it was dark and when intercepted by the Gardaí

he was close to it.

4. The Gardaí overheard him on the phone enquiring as to its whereabouts from some third party. When approached by the Gardaí, he

gave a false name and claimed he was out for a walk though he was from Crosshaven, some twenty miles or so away. The accused

accepted that there were numerous text messages on his phone during the course of the day about the collection of the cannabis in

question, that he had seen the Garda cars, that he had sent a text to the supplier about the search and notwithstanding the Garda

presence, he continued to believe that there was a chance he might recover the drugs and as was put in evidence, “get away with

it”. Both he and the co-accused were however, cooperative.

5. Mr. Cronin was renting a room in the house. He took delivery of consignments of drugs, arranged them and put them away for

delivery to customers. Mr. Cronin had no significant or appreciable gain in relation to the enterprise run from the house. He might,

according to the evidence of the investigating Garda Detective Sgt. O’Brien have received small amounts of money from time to time.

This is to be distinguished from the case of the appellant which anticipated a profit on his own admission of about €3,000 on the sale

of the cannabis for which he was looking. Detective Sgt O’Brien said that he would be surprised if he saw the co-accused again in

terms of any activity of the kind in question. He agreed that he had a secondary role and that he might have been taken advantage

of and that Mr. Cronin “wouldn’t have the personal ability to organise this himself”.

6. In the case of the appellant, it was accepted that his arrest was a “wake up call”, that he had found employment shortly before

the sentencing date and that he had been drinking heavily at the time. Though he was not a drug addict he had taken the controlled

drug cocaine for recreational purposes only. It is of significance that at the very commencement of his sentencing remarks, the

learned Circuit Court judge said: -

“they must, I must say from the start, be distinguished as to their crimes and their involvement because there is most

definitely a distinction to be made.”

Crucially he referred to the fact that the appellant had said “he was trying to keep the supply going for customers in

Crosshaven.”

7. The question for us is whether or not the distinction made between the appellant and his co-accused was justified. The factors in

Mr. Higgins’ favour are that no presumptive mandatory minimum sentence was applicable in his case, and that the amount with which

he was directly linked was substantially less than that in Mr. Cronin’s case. However, it is clear that Mr. Cronin was subordinate to the

principal, Mr. Fawzi, whereas Mr. Higgins was in business on his own account and the fact of his engagement in that business was

obvious from an examination of his phone. He had what might be regarded a personal stake in the drugs, going beyond a subordinate

position like that of Mr. Cronin.

8. The Court must also ask whether or not the sentence of seven years, the last three years of which were suspended giving an

effective sentence of four years, one which was in itself erroneous in principle. Given the commercial nature, the enterprise in which

he was engaged, we are unable to say that the sentence fell outside the available and appropriate range.

9. We find accordingly that there is no error in principle and we dismiss this appeal.