Court of Appeal dismisses appeal against drug trafficking sentence, upholding severity based on appellant's managerial role.

THE COURT OF APPEAL

[152/2018]

Birmingham P.

Whelan J.

McCarthy J.

BETWEEN

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

RESPONDENT

AND

WILLIAM POWER

APPELLANT

JUDGMENT of the Court delivered on the 22nd day of July 2019 by Ms. Justice Máire Whelan

1. This is an appeal against severity of sentence. The appellant pleaded guilty on the first day of trial to one count of possession of

cannabis, a controlled drug, for the purpose of selling or otherwise supplying it to another contrary to section 15 of the Misuse of

Drugs Act, 1977, as amended. On the same day, the appellant pleaded guilty to another charge of possession of cannabis worth

approximately €71,114 for the purpose of selling or otherwise supplying it to another, in circumstances where the market value of said

controlled drug amounted to €13,000 or more, contrary to section 15A of the Misuse of Drugs Act 1977.

2. On 26th April, 2018 the appellant was sentenced in the Cork Circuit Criminal Court to five years imprisonment in respect of

possession of approximately €9,000 worth of cannabis and to ten years imprisonment in respect of the possession of cannabis worth

approximately €71,114. The trial judge suspended the last two years of the latter sentence conditionally to encourage rehabilitation.

3. At the sentencing hearing, Detective Garda Eoin O’Toole gave evidence to say that arising from an intelligence and surveillance led

operation targeting Mr. Power, it was established that he was using No. 4 Hogans Cottages, Ballinlough Road, Co. Cork to store and

distribute cannabis. It was also established that he was not residing at this address and that there was a co-accused, Mr. Ronald

McKenzie, who was the sole occupant of this house.

4. On the 31st of January, 2017, a warrant was obtained by Detective Garda O’Toole under section 26 of the Misuse of Drugs Act,

and surveillance continued on that date. At approximately 14:40 pm, the appellant arrived at the scene and parked approximately 100

yards away from the house. He exited his vehicle and entered the premises. Twenty-five minutes later, the appellant left the house

with a shopping bag in hand and returned to his vehicle. At this point he was intercepted and searched pursuant to section 23 of the

Misuse of Drugs Act. Approximately €9,000 worth of cannabis was recovered from the appellant’s vehicle and a sum of €1,245 in cash.

The appellant was then arrested, brought to the Bridewell Garda Station, and detained under section 2 of the Criminal Justice (Drug

Trafficking) Act. A search of the dwelling house at 4 Hogans Cottages was then undertaken pursuant to section 26 of the Misuse of

Drugs Act.

5. At the residence, Detective O’Toole met the occupant, Mr. Ronald McKenzie (the co-accused). During the search of the one-

bedroom cottage, in the bedroom there were found two holdall bags with four packages of cannabis in one and three packages of

cannabis in the other. Several white latex gloves were found in each bag. In the kitchen area, the search uncovered smaller amounts

of cannabis together with an electronic scale, clear bags, Aldi cling film and room spray, an electronic food sealer and a box of latex

gloves. There was a receipt from Aldi recovered in the premises for cling film and room spray. CCTV was retrieved from that store

which showed Mr. Power paying for these items.

6. When the search was completed, Mr. McKenzie was arrested and conveyed to the Bridewell Garda Station. Mr. Power was

interviewed on four occasions. While at no point did he take responsibility for what was found in the house, he made full admissions as

to what was recovered outside the house in his possession. Mr. McKenzie was questioned, interviewed on two occasions and was

open and frank about his reason for storing the cannabis in the house, that he was being paid €100 a week and being provided with

some cannabis. Both men were charged at this time and brought before the Court and released on bail. The total value of the drugs

located in the house was €71,114. Exhibits also sent from the house for DNA and fingerprint testing proved positive for a fingerprint

on the latex glove box for the appellant. A set of latex gloves showed a profile of DNA matching the appellant. It also showed two

other profiles; one main contributor and two minor contributors, one of which belonged to the appellant.

7. The appellant had one relevant previous conviction under section 3 of the Misuse of Drugs Act for possession of cocaine for

personal use in 2005. Detective Garda O’Toole gave evidence to say that the appellant herein was the main organiser in the

enterprise, and that his co-accused, Mr. McKenzie, played a much lesser role in the enterprise.

8. The appellant is married and has four children. His wife Ms. Rebecca Power gave evidence to say that he has struggled with

addiction issues but had been doing better since engaging with the organisation ‘Arbour House’. He had notified the Department of

Social Welfare that he has re-engaged in employment and was working as a landscaper.

9. A letter was handed to the Court from a senior counsellor from Arbour House, Mr. David Wyse, stating; “[the appellant] is genuine

in his endeavours to understand his addiction and become skilful and confident in his recovery. He has consistently demonstrated

commitment, engaged well with staff and peers, increased insight and awareness of what the effects of addiction on himself, his

wife and his four children.”

10. The trial judge determined a sentence of five years imprisonment as appropriate in respect of the section 15 offence. He

considered the appellant’s guilty pleas but noted that the appellant was effectively caught red handed.

11. In respect of the section 15A offence, the trial judge noted that the main aggravating factor was that the appellant was an

organiser and manager of the offence and determined a sentence of ten years imprisonment to be appropriate. The judge noted the

appellant’s personal circumstances and the efforts he had made in rehabilitation. The judge considered the appellant to be a person

capable of rehabilitation, and therefore suspended the final two years of the sentence to incentivise that.

Grounds of Appeal:-

12. The appellant submits the following grounds of appeal in that the sentencing judge erred:-

1) in failing to have regard to the principle of parity when sentencing the appellant and his co-accused;

2) in considering the opinion and/or hearsay evidence of Detective Garda O’Toole;

(i) that the appellant was using the premises to store and distribute cannabis,

(ii) that the appellant was the main organiser of the drugs enterprise,

(iii) that he was the man profiting from the enterprise and

(iv) that he was at a good level of management in the organisation and dealing of drugs;

3) in failing to have proper regard for the fact that the appellant’s only previous conviction (apart from some minor road

traffic offences) was for possession of a small amount of cocaine for personal use in 2005.

Submissions:-

Ground One

13. The appellant submits that despite the fact that there was evidence that both the appellant and his co-accused Mr. McKenzie

were addicted to illegal drugs and that they both may have committed the offences to feed their respective drug habits, and despite

the fact that Mr. McKenzie (unlike the appellant) had a previous conviction for possession of approximately €200,000 worth of

cannabis, the trial judge imposed an eight year custodial sentence to be served by the appellant whilst only imposing what was

characterised as amounting to a de facto five year custodial sentence on his co-accused. The appellant refers to DPP v Poyning

[1972] IR 402, where it was stated by Walsh J.:-

“Of course, in any particular case the Court must examine the disparity in sentences where, if all other things were

equal, the sentences should be the same; it must examine whether the differentiation in treatment is justified. The

Court, in considering the principles which should inform a judge’s mind when imposing sentence and having regard to the

differences in the characters and antecedents of the convicted persons, will seek to discover whether the discrimination

was based on those differences.”

14. Reference is also made to the judgment of Keane C.J. in DPP v Duffy & O’Toole [2003] 2 IR 192:-

“There appear to be two reasons underlying the principle that an appellate court will interfere where there is a

significant and unjustifiable disparity between the sentences imposed on two or more persons involved in the same

criminal offence. The first, identified by Finlay C.J. in The People (D.P.P.) .v. Conroy (No. 2) [1989] I.R. 160 is the

substantial sense of grievance at unfair treatment which may be caused by apparently unequal sentences. It could be

added that the appellate court should only take into account a grievance which, objectively viewed, could be reasonably

entertained by the accused person: a person who has received what appears to him/her to be a severe sentence may

be unable or unwilling to recognise that the disparity between that sentence and a lighter sentence imposed on his/her

co-accused is, in the particular circumstances, justifiable. The second reason is the harmful effect on public confidence

in the administration of justice resulting from a significant disparity in the sentences which seems incapable of being

justified...”

15. In DPP v. Ferguson [2015] IECA 166, the appellant and his co-accused had pleaded guilty to possession of approximately

€1,450,138 worth of cannabis with intent to supply contrary to section 15A of the 1977 Act, as amended. At the sentence hearing,

evidence was given by the prosecuting Garda to the effect that the appellant’s culpability was higher than that of his co-accused.

Evidence was also given that the appellant had two previous convictions for assault causing harm and one previous conviction for

producing an article in the course of a dispute contrary to section 11 of the Firearms and Offensive Weapons Act 1990. The

sentencing judge had imposed a sentence of seven years imprisonment on the appellant and a sentence of five years imprisonment on

the co-accused. The appellant appealed against the sentence imposed on the basis that the sentencing judge erred in differentiating

to the extent that he did between the appellant and his co-accused in circumstances where the difference in degree of involvement

between the two was marginal. Edwards J. speaking for this Court stated the following:-

“The court has already indicated that it does not consider that there was a rational basis for differentiating between the

circumstances of Mr. Ferguson and his co-accused, and also that Mr. Nevin, the co-accused, was dealt with significantly

more leniently than Mr. Ferguson. The court recognises that in those circumstances Mr. Ferguson may harbour some

sense of grievance along the lines referred to by Finlay C.J. in the Poyning’s case.

Nevertheless, it is the court’s view that the sentence of seven years imprisonment imposed on Mr. Ferguson’s was, in

fact, an entirely appropriate sentence having regard to the gravity of the crime and the court’s view of his culpability.

But in recognition of the possibility that a sense of grievance is harboured and in recognition of the need to maintain

public confidence in the administration of justice and to promote consistency and predictability in sentencing, the court,

as a matter of discretion, has decided to reduce the sentence imposed by the learned trial judge by one year and will

impose a sentence of six years in substitution for the sentence of seven years imposed by the sentencing judge.”

16. Having regard to the decision of this Court in Ferguson, the appellant submits that there is a significant and unjustifiable disparity

between the eight-year custodial sentence imposed on the appellant and what is claimed to be the de facto five-year custodial

sentence imposed on his co-accused.

17. The respondent submits that two persons convicted of the same offence may be dealt with differently having regard to personal

circumstances and differences in such matters as age, background, general character and their respective levels of involvement in

the commission of the offence. Reference is made to the following passage from O’Malley’s Sentencing Law and Practice (Round Hall,

2nd Ed., at p 179):-

“Two or more offenders involved in the same criminal enterprise may come up for sentence at the same time or,

perhaps, in different courts and at different times. Co-accused who are convicted should, where possible, be sentenced

at the same time and, in any event, by the same judge. It does not, of course, follow that all must receive the same, or

even a similar, sentence. Each offender must be considered individually and given a sentence reflecting his level of

involvement in the crime, his personal circumstances and previous record.”

18. The respondent submits that the operation of the principle of parity is modified in

circumstances in which one, but not both, co-accused persons are subject to a mandatory

minimum sentence as was the case with the appellant’s co-accused. In the present case,

the appellant’s co-accused was sentenced pursuant to the provisions of section 27 of the

Misuse of Drugs Act, 1977, as amended by section 33 of the Criminal Justice Act, 2007.

Section 27 of the Misuse of Drugs Act, 1977, as amended provides:-

“(3E) Subsections (3C) and (3D) of this section apply and have effect only in relation to a person convicted of a first

offence under section 15A or 15B of this Act (other than a person who falls under paragraph (b) of subsection (3F) of

this section), and accordingly references in those first-mentioned subsections to an offence under section 15A or 15B of

this Act are to be construed as references to a first such offence.

(3F) Where a person (other than a person under the age of 18 years)—

(a) is convicted of a second or subsequent offence under section 15A or 15B of this Act, or

(b) is convicted of a first offence under one of those sections and has been convicted under the other of those

sections,

the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to

be served by the person.”

19. Thus, the respondent submits that the sentencing judge had no discretion to impose a sentence of less than ten years in

circumstances in which the appellant’s co-accused was being sentenced for his second offence contrary to section 15A of the Misuse

of Drugs Act.

Ground Two

20. The appellant submits that the trial judge clearly viewed the opinion and/or hearsay evidence of Detective Garda Eoin O’Toole

that the appellant was using the premises to store and distribute cannabis, that the appellant was the main organiser and manager of

the drugs enterprise, and that he was the individual profiting from the enterprise as an aggravating factor.

21. The appellant relied on DPP v Furlong (Unreported, Court of Criminal Appeal, 20th December, 2002), whereby the appellant sought

to appeal against the severity of consecutive sentences of five and six years imprisonment (aggregating to eleven years) imposed on

him in the Cork Circuit Court following his plea of guilty to drug related offences which were committed on two occasions. The

appellant was on bail for the first offence when he committed the second offence. At the sentencing hearing, a Chief Superintendent

gave evidence that the appellant was one of the main suppliers of drugs in Cork City. Evidence was also given asserting that he had a

number of previous convictions but only one was drug related being a conviction in 1994 for possession of drugs for which he was

fined £50.00. The Court held:-

“It does appear to this Court, and indeed Ms Boyle on behalf of the prosecution accepts, that this was inadmissible

evidence of opinion with no basis to it and that it should not have been taken into account by the learned Judge in his

sentencing and he should not have used it to build up a suspicion that the accused was operating quite a considerable

business prior to being apprehended: so that in taking that into account this Court feels that the learned Circuit Judge

did err in principle.”

22. Further, in DPP v. McDonnell [2009] IECCA 16, the Court of Criminal Appeal held that the uncorroborated, hearsay evidence of a

Prosecuting Garda should not be taken into account by a sentencing judge in order to aggravate or increase a sentence, which is

claimed to have occurred in the present case, amounting to an error in law.

23. The respondent submits that the sentencing judge was entitled and obliged to receive the evidence of Detective Garda O’Toole

concerning the levels of participation of the appellant and his co-accused in the offences at issue. In his text Sentencing Law and

Practice, O’Malley identifies the need for such relaxation as the necessity for a sentencing judge to have the fullest information

possible concerning a defendant’s life and characteristics prior to the selection of an appropriate sentence. O’Malley cites the

judgment of the Court of Criminal Appeal in DPP v McDonnell [2009] 4 IR 105:-

“..the admission at a sentencing hearing of hearsay evidence to suggest the commission of prior criminal offences on

the part of a convicted person for which he has not been tried and found guilty or even if charged, he does not require

to be taken into account, would infringe Article 38 and Article 40.4.1 of the Constitution…Hearsay evidence of character,

antecedents, and as to the background to the particular offence being dealt with, including the extent of the role played

therein by an accused may, at the discretion of the sentencing judge, be received, subject to the requirement that if a

particular fact assumes specific significance or is disputed the court's findings should require strict proof. It is a matter

for the sentencing judge to decide what weight should be attached to such hearsay evidence as is received, noting any

objection taken thereto and any arguments or evidence offered in rebuttal.”

24. The respondent submits that the case of DPP v Furlong cited by the appellant can be distinguished from the instant case in that

the learned sentencing judge in Furlong made reference to the accused ‘operating, I suspect, quite a considerable business prior to

being apprehended.’ It is inappropriate for a sentencing judge to infer the commission of previous offences which had never been

prosecuted. However, the sentencing judge in this case gave a measured consideration to the totality of the evidence.

Notably, no requisition was made on behalf of the appellant to the evidence of Detective Garda O’Toole and therefore this ground of

appeal offends the principles established in DPP v Cronin (No.2) [2006] 4 IR 329.

Ground Three

25. The appellant submits that in the plea of mitigation, counsel for the appellant referred to the fact that the appellant had no

previous convictions apart from possession of a small amount of cocaine for personal use in 2005. However, in pronouncing sentence,

the trial made no reference to the fact that the appellant’s only relevant previous conviction was for possession of a small amount of

cocaine for personal use thirteen years earlier.

26. Reliance was placed on the decision in DPP v Galligan (Court of Criminal Appeal, 23rd July, 2003) the appellant had pleaded guilty

to a drugs offence contrary to section 15A of the Misuse of Drugs Act, 1977 and had been sentenced to seven years imprisonment.

The Court of Criminal Appeal, in suspending the last two years of the seven year sentence held that the trial judge had not given

sufficient weight to the fact that the appellant had no previous convictions of a material kind. Further, in DPP v Philpott [2011] IECCA

52, the appellant was sentenced to eight years imprisonment for possession of approximately €100,000 worth of cannabis with intent

to supply contrary to section 15A of the 1977 Act, as amended. In reducing the custodial sentence to seven years imprisonment, the

Court of Criminal Appeal held that a “significant factor” that the sentencing judge had not taken into account was the fact that the

appellant was a person with no previous convictions. It is submitted that in the present case, the trial judge erred in law and in fact

in failing to have proper regard for the fact that the appellant’s only relevant previous conviction was for possession of a small

amount of cocaine for personal use and that same had occurred thirteen years earlier.

27. The respondent submits that while the appellant only had one previous conviction in respect of drugs offences, same

distinguishes the appellant from the appellants in both Galligan and Philpott. The appellant had no previous convictions in respect of

drug offences in Galligan and no previous convictions whatsoever in Philpott.

28. The respondent submits that the judge sentenced the appellant in a manner proportionate to his culpability and that the

operation of the principle of parity is modified in circumstances in which one of two co-offenders is subject to a mandatory minimum

sentence, that the judge had appropriate regard to the evidence of Detective Garda O’Toole (which was not challenged at the

sentencing hearing), and that the judge had appropriate regard to the appellant’s antecedents.

Discussion

29. This is an appeal against severity of sentence. The offences occurred on 31st January, 2017. Both the appellant and the co-

accused (also convicted of an offence under section 15A) were drug addicts. The appellant was sentenced to a term of imprisonment

of 10 years, the last two of which were suspended on terms and to a term of 5 years in respect of the offence under section 15, the

sentences to run concurrently. The presumptive mandatory minimum sentence of 10 years contemplated by the 1977 Act, as

amended, was applicable to him. He has one prior conviction for possession of cocaine for personal use dating from 2005 which given

the significant lapse of time is not material.

Disparity

30. Whilst the appellant entered a plea, the evidence against him was relatively strong. The house was under Garda surveillance. The

sequence of events is outlined in detail above at paras. 3-6. After arrest, the appellant was interviewed on a number of occasions but

nothing of evidential value was forthcoming. During interview, he was informed that co-operation with the Gardaí could accrue to his

benefit at sentencing, having regard to the provisions of section 27 of the Misuse of Drugs Act, 1977, as amended.

31. DNA was obtained from the appellant following his arrest and his fingerprints were taken. DNA matching that of the appellant was

found on a set of latex gloves and a fingerprint was found on the latex glove box. DNA of the co-accused was not found in those

locations.

32. The Garda witness described Mr. Power as "using number 4 Hogan's cottages Ballinlough Road to store and distribute cannabis".

There was evidence before the Court from which the sentencing judge could readily draw such an inference independent of any

observation of the Garda witness. The appellant was not living there but his co-accused was, a factor which spoke to the inequality

in status between them. The latter was characterised as a storeman and a pawn who was in receipt of €100 per week and a quantity

of cannabis to feed his drug habit. The co-accused co-operated at interview with the Gardaí and, significantly, there was no forensic

evidence to connect him to the drugs being stored at the premises. He had, however, a prior conviction in 2008 pursuant to s15A of

the Misuse of Drugs Act, 1977, as amended, for possession of cannabis valued of about €200,000 and on a plea of guilty a sentence

of five years imprisonment had been imposed on him.

33. Having regard to the previous s15A conviction of the co-accused, the Circuit Court judge had no option but to impose a sentence

of 10 years but he availed of the jurisdiction in s27 (3J) of the Misuse of Drugs Act, 1977, as amended to list the sentence thus

imposed for review after five years in light of the fact, of which he was satisfied, that Mr. McKenzie was addicted at the time of the

offence to a controlled drug and such addiction was a substantial factor leading to the commission of the offence. There was clear

evidence before the sentencing judge that the provisions of s27 (3J) of the 1977 Act, as amended were engaged in the case of the

co-accused. By contrast, there was no evidence to suggest that the appellant was so addicted at the time of commission of the

offences that same was a substantial factor leading to the commission of same by him.

34. Subsequent to being apprehended, the appellant engaged with an organisation called Arbour House for the purpose of obtaining

treatment for his addiction and a favourable report was available confirming both his progress from April 2017 to the date of sentence

and his commitment to recovery from addiction. His wife gave evidence in support of this.

35. The Court is satisfied that the relative situations of Mr. McKenzie and Mr. Power were entirely different, both in terms of the roles

they played in the commission of the section 15A offence and their relevant personal circumstances. There is ample evidence to

support the proposition that Mr. Power could fairly be described as someone acting in a managerial or organisational capacity and it

was properly open to the judge to draw that conclusion from the totality of the evidence incriminating him.

36. The judge observed –

"it appears that Mr Power was an organiser; I cannot say he was the sole organiser, he was an organiser. And he was

cynical enough in his management of this trade but he placed a distance between himself and his living quarters and

where the drug was being stored. So there was a cottage which was not occupied by him, but in which he had the drug

addict [Mr.] McKenzie minding the stuff and he came then to distribute and it was in the act of distribution that he was

caught. So, he has a good level of management in this organisation of dealing in drugs."

37. The conclusion reached by the learned trial judge is criticised on the basis that he must have relied on Detective Garda O’Toole’s

evidence that "I would be confident that he [the appellant] was the man profiting from this and that he was the main organiser of

this enterprise”. In the Court’s view, the totality of the evidence entitled the sentencing judge to reach this conclusion independently

of the observations in question. Further, in the absence of objection, to rely on what the witness said when summarising the

prosecution case.

38. The separate basis upon which the sentence is impugned is a claimed unlawful disparity between the sentence imposed on Mr.

McKenzie and the appellant. In the Court’s view, there can be no valid or legitimate basis for such criticism, having regard to the

materially different circumstances demonstrated to obtain in respect of each accused.

39. It is of the essence of proper sentencing that each individual is sentenced by reference to his personal culpability and personal

circumstances. There may well be circumstances in which a disparity of sentence might give rise to a basis for criticism, but having

regard to the respective roles of the parties and the fact that the mandatory minimum sentence was rightly imposed on the co-

accused by the learned trial judge, there is no indication of disparity. The review of Mr. McKenzie's sentence of five years from the

date of sentence does not in any sense import of the implication that he will be released at that stage. Such conjecture was entirely

misplaced and based on a misunderstanding of the relevant statutory provision.

40. This Court considers it significant, as did the sentencing judge, that the co-accused appears to have cooperated with the Gardaí

in a way which the appellant elected not to. For the reasons stated, no error of principle having been identified, this Court finds no

basis to interfere with the sentence imposed and would dismiss this appeal.