Court of Appeal quashes sentence for drug dealing due to excessive mitigation discount and allows departure from mandatory minimum.

THE COURT OF APPEAL

Record Number: 308/2018

Edwards J.

McCarthy J.

Kennedy J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

LIAM O’CONNELL

APPELLANT

JUDGMENT of the Court (ex tempore) delivered on the 23rd day of July 2019 by Mr. Justice Edwards

Introduction

1. The appellant herein pleaded guilty to a single offence under section 15A of the Misuse of Drugs Act, 1977, said offence having

been committed on the 27th of October, 2017. The guilty plea was entered on the first return date of the appellant before Cork

Circuit Criminal Court on the 23rd of October, 2018, and he was then sentenced on the 23rd of November, 2018. The appellant

received a sentence of 10 years’ imprisonment with the last 3 years suspended on certain terms, to date from when he had gone into

custody, i.e., the 23rd of October, 2018.

2. The appellant now appeals against the severity of his sentence.

Background Facts

3. The court heard evidence from Detective Sergeant Joanne O’Brien concerning the offence. She relayed to the court that in

October 2017, the Cork West Divisional Drugs unit at Bandon Garda Station received confidential information as to the storage of

cannabis by Liam O’Connell at his home at 11, Presentation Terrace, Kinsale, Cork. After surveillance operations added weight to this

proposition, a search warrant was obtained and a search of the property was subsequently carried out. Liam O’Connell was present

along with other members of his family. He voluntarily directed the gardaí to a wardrobe in his own bedroom, and removed three

separate bags and handed them to Gardai. He continued to co-operate and produced other items to the gardaí. In total, the gardaí

recovered several kilograms of cannabis, along with smaller amounts of cocaine and MDMA, with a total value of €269,109. Also found

during the search was a ledger which was revealed to be a tick list.

4. The appellant was arrested and interviewed. Detective Sergeant O’Brien accepted that he had co-operated fully with the

investigation, making significant admissions and accepting responsibility for all the drugs recovered. During his interview, the appellant

confirmed that the tick book was for the purpose of detailing the location and quantities of drugs he was moving. He admitted that he

had moved quite significant amounts of cannabis, confessing that this had amounted to 22 kilos, 18 kilos and 12 kilos on separate

occasions. He told the gardaí that after collecting twelve kilograms of cannabis in September, he had delivered nine, whilst the gardaí

had seized the remaining three. He also admitted to having previously delivered a kilogram of MDMA. These admissions were

corroborated by a telephone examination and by the tick list. It was further accepted by Detective Sergeant O’Brien that the

appellant had only received a total of €6,700 over the course of his offending. This assertion was consistent with the information the

gardaí had. There was no application for a s.4 enquiry.

5. Detective Sergeant O’Brien confirmed that the appellant had no previous convictions and had not come to the adverse attention of

the gardaí outside of this offence, and that he entered a plea of guilty at the earliest possible opportunity.

The Relevant Legislation

6. Subsection 3C of Section 27 of the 1977 Act (as amended), provides that:

` “Where a person (other than a person under the age of 18 years) is convicted of an offence under Section 15A or 15B

of this Act, 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.”

7. Subsection 3D (a) goes onto provide:

“The purpose of this subsection is to provide that in view of the harm caused to society by drug trafficking, a court, in

imposing sentence on a person (other than a person under the age of 18 years) for an offence under section 15A or 15B

of this Act, shall specify a term of not less than 10 years as the minimum term of imprisonment to be served by the

person, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or

the person convicted of the offence, it would be unjust in all the circumstances to do so.”

8. Subsection 3D (b) provides:

“Subsection 3C of this section shall not apply where the court is satisfied that there are exceptional and specific

circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less

than 10 years’ imprisonment unjust in all the circumstances and for that purpose the court may, subject to this

subsection, have regard to any matters it considers appropriate including-

(i) Whether the person pleaded guilty to the offence and, if so-

(i) The stage at which he or she indicated the intention to plead guilty, and

(ii) The circumstances in which the indication was given, and

(ii) Whether that person materially assisted in the investigation of the offence.”

9. Subsection 3D (c) provides that:

“The court, in considering for the purposes of paragraph (b) of this subsection whether a sentence of not less than 10

years’ imprisonment is unjust in all the circumstances, may have regard, in particular, to-

(i) Whether the person convicted of the offence concerned was previously convicted of a drug trafficking offence,

and

(ii) Whether the public interest in preventing drug trafficking would be served by the imposition of a lesser

sentence”.

Appellant’s Personal Circumstances

10. At the date of his sentencing the appellant was 49 years old, and presented no previous convictions. Moreover, he had not come

to the attention of the gardaí other than for the current offence. He has an admirable work history, having had long-term

employment, initially as a fisherman for around twenty years, and then as a builder. His ability to work was impacted negatively by a

hand injury in 2013.

11. The appellant at the time of sentencing was in a committed relationship and had children, one of whom, his adult son, resided

with him and his partner.

12. The sentencing court heard that was involved as a coxswain on the Kinsale Lifeboat for over fourteen years, and had been

directly involved, at considerable personal risk, in many rescues at sea and in the saving of many lives. The court received numerous

impressive testimonials as to his good character, apart from his involvement in this offending, and concerning the positive contribution

that he had made to his community over many years. Further, the court below heard that whilst in prison awaiting sentencing he had

begun working in the officers’ mess.

Sentencing Judge’s Remarks

13. When sentencing the appellant, the judge stated the following:

“This man has pleaded guilty to an enormous amount of drugs in his possession and the drugs were a combination of

cannabis, cocaine, MDMA, to a total value of in excess of €269,000. He was a storeman/mover of the drugs on his own

admissions and there were dealers a plenty who were calling to his house, as a result of which the guards got a warrant.

Now, he made very fulsome admissions which would suggest that he was involved in this trade for a while. That's by

way of background. In this case, he is fully involved at a high level in the storing and distribution of drugs of a multiple

nature. There's a combination. So, this man was a vital cog and he is, because of his standing in the community,

apparently he may have been the coxswain, on occasion, of the lifeboat, so he's a man in the community that people

would know, respect and rely on and he used that position to trade in drugs. So, in this particular case, notwithstanding

what the guard said about his significant admissions, notwithstanding what the guard said about the level of his co-

operation, notwithstanding the fact that he has no previous convictions, I am not going to depart from the indicative

mandatory sentence. I think the appropriate sentence for this man, even with a plea, given the level of his involvement

and the amount of the drugs and the fact, which everybody seems to have glossed over, that he is not a drug abuser, a

drug taker, he is a person who was involved in this trade for profit. So I think 10 years would be the appropriate

sentence.

Now, he is not a person who is -- he's not a person without merit. Those in the lifeboat speak extremely highly of him.

That is a very dangerous existence. They do great work; they do great work for people in peril. It's not a job that a lot

of us would do and it's not a lot -- a job that -- so, he is a person capable of contributing to society and he will hopefully,

in the future, achieve some kind of good, but there has to be, for a person in his position, who abuses his position, some

level of deterrence, but in all the circumstances, from the 10-year sentence, I will suspend three years of that on

condition that on his release, he will keep the peace and be of good behaviour for three years. He doesn't have any

addiction that would require him to be supervised by the probation service.”

Grounds of Appeal

14. The appellant pursues his appeal on the following grounds:

(a) That the sentencing judge erred in failing to adequately consider the provisions of s. 27 of the Misuse of Drugs Act

1977 insofar as they allow a sentencing judge to depart from the presumptive minimum sentence in offences of this

nature.

(b) That the sentencing judge erred in failing to adequately consider and give due weight to the mitigating factors

present and to the personal circumstances of the appellant.

Submissions on behalf of the appellant.

15. It is submitted on behalf of the appellant that the sentencing judge erred in failing to locate the offending within the exception to

the presumptive minimum sentence of 10 years. It appears that the sentencing judge did ultimately employ the exception by

suspending 3 years of the sentence; however, his sentencing remarks make clear that he felt bound to the presumptive minimum

sentence of 10 years.

16. The provisions setting forth the circumstances under which a sentencing court may depart from the presumptive minimum

sentence are found in s.27 of the Misuse of Drugs Act, 1977 (as amended), and in particular s.s.3D. Under the legislation, factors

which may render it unjust to impose the presumptive minimum sentence include the entrance of a plea of guilty and the stage at

which it was entered, and the circumstances in which it was entered, whether there was material assistance in the investigation of

the offence, and all other circumstances which a Court would consider to be exceptional and specific relating both to the offence or

the offender.

17. There were many factors in the present case which, under the Act of 1977, would have permitted the sentencing judge to

deviate from the presumptive minimum sentence of 10 years. The appellant gave his full co-operation, displaying no resistance to the

gardaí and assisting them in showing where the drugs were hidden. Furthermore, in circumstances in which there were at least two

other adults residing in the property, it should be noted that the appellant accepted full responsibility for all incriminating evidence

and entered a plea of guilty at the earliest opportunity.

18. In circumstances in which the accused is not the sole resident at the property in which illegal drugs are found, the co-operation

of the accused is a relevant factor under the s.27(3D) provisions. In furtherance of that point, the appellant makes reference to the

case of People v Fawzi [2019] I.E.C.A. 64 in which McCarthy J. applied the said principle:

“Mr. Heneghan rightly accepted that the headline sentence was within the discretion of the trial judge when he fixed 10

years. He placed the primary emphasis on the admissions of the accused and his plea of guilty. These, he submitted,

were of exceptional weight having regard to the extent to which the appellant was distant (by which he did not mean

merely physically distant) from the controlled drugs found at the house. Of course, one of the factors relevant to the

weight which should be attached to a plea of guilty is the strength of the evidence against the accused. Thus, as here,

where difficulties, perhaps not fatal, but undoubtedly existing, in proof of an essential element of the offence without the

admissions (possession) the plea was of particular value. Absent any other factor we think that any reduction should

have been towards the higher level of what is usual appropriate, viz, up to a third.”

Also relevant in this regard is the evidence of the gardaí to the effect that the appellant had made “significant admissions”.

19. The appellant’s early guilty plea was of particular value given that the drugs were not found in the hands of the appellant.

Further, “material assistance” was given in assigning responsibility for the offending. Furthermore, the admissions of the appellant

were by all accounts truthful and not self-serving, as evidenced by Detective Sergeant O’Brien’s confirmation that the gardaí

considered his information factually in accordance with the other information they had available to them.

20. The appellant further submitted that there were other exceptional factors present in the case, the first of these being that he

was a man of 49 years of age presenting no previous convictions, and that he had not come to the attention of the gardaí since the

offence.

21. In addition to this, it was submitted that all evidence suggested that beyond the scope of the specific offence, the appellant was

a man of exceptional previous character, having maintained steady, honest work throughout of life until his serious injury arising from

work in 2013. He was a pillar of his local community and volunteered in a dangerous role in the local lifeboats service. He remains well

thought of by his community, who were eager to provide references as to his good character in full knowledge of the reasons for

which he was being prosecuted.

22. In the appellant’s submission these factors render the unwillingness of the sentencing judge to depart from the presumptive

minimum sentence to be an error in principle. It was said to be evident from the remarks of the sentencing judge that he had formed

the belief that the appellant had made use of his position in his community to trade drugs. This was without any evidence to support

such a theory, and the appellant submits that the sentencing judge appeared to hold his previous good character against him rather

than counting it as true mitigation.

23. Thereafter, the appellant submitted that in finally suspending three years of the sentence, the trial judge did not adequately or at

all consider, or give due weight to, the significant mitigating factors and relevant personal circumstances of the accused in the case.

Submissions on behalf of the respondent

24. It is accepted on behalf of the respondent that the sentencing remarks of the sentencing judge depict a view that the facts as

presented did not allow him to depart from the presumptive minimum sentence of 10 years. However, in effect he did depart

substantially therefrom by suspending the final three years.

25. The crux of the appellant’s complaint is that the imposition of the presumptive minimum term albeit with the final three years’

imprisonment represents an error in principle in light of his early plea, his cooperation with the investigation, his lack of previous

convictions and his previous good character.

26. It was submitted therefore that the appellant’s complaint is one of form only and not of substance. The respondent says it should

be remembered that the maximum available sentence was one of life imprisonment. It was suggested that according to recommended

best practice a judge, when selecting a sentence for a s.15A offence, should begin by considering the gravity of the offence in order

to locate it properly on the overall scale, bearing in mind that the maximum sentence is life imprisonment. Appropriate adjustments

should then be made for mitigating and aggravating factors. If the resulting sentence is 10 years’ imprisonment or more, it should be

imposed. If, however, the resulting sentence is less than 10 years, the judge must take account of the presumptive minimum

requirement in s.27(3C) and impose a 10-year prison sentence unless he or she is satisfied that there are exceptional and specific

circumstances that would render such a penalty unjust.

27. It is noteworthy that the clear terms of s.27 of the Act require that a minimum 10-year sentence be imposed, in the absence of

exceptional and specific circumstances. A guilty plea can scarcely be treated as exceptional as the statistical evidence in drugs cases

consistently shows. Where the offence is sufficiently serious, a guilty plea will not always bring the sentence below the presumptive

minimum threshold, though it may still afford some mitigation as occurred in the instant case by the suspension of three years.

28. In so far as the appellant relies on the decision in DPP v Fawzi to ground the submission that the guilty plea was of particular

value in this case, in circumstances where there were two other adults were residing in the property, it is pointed out that in contra

distinction to Mr Fawzi’s situation, the appellant was actually in the house when the warrant was executed. Therefore, whilst his

admissions and cooperation in terms of pointing out the whereabouts of the three types of drugs was of course of assistance, the

strength of the evidence against him was nonetheless great.

29. Moreover, Mr Fawzi was in control of cannabis and cocaine with a combined market value of less than €100,000 whereas in the

instant case there are three types of drugs involved with a market value of just under €270,000. It was noteworthy that McCarthy J.

in Fawzi had commented that counsel for the appellant in that case “rightly accepted that the headline sentence was within the

discretion of the trial judge when he fixed 10 years”. He went on when re-sentencing to again nominate a headline sentence of 10

years but to reduce it to take account of mitigating factors by three years to one of seven years with the final six months suspended

upon conditions. Thus, whilst the respondent acknowledges that comparators are difficult to rely on in drugs cases, the point is made

that the appellant has chosen to rely on the Fawzi decision and therefore he cannot really be heard to complain when an effective

seven-year sentence was imposed on him for what was, on any objective analysis, a more serious offence in terms of its gravity.

30. The respondent also says that the sentencing judge was explicit in affording credit for the appellant’s good character and in

particular his involvement with the local lifeboat.

31. It was submitted that the sentencing judge gave appropriate and due consideration to the mitigating factors and the personal

circumstances of the appellant and made specific references to same during the sentencing hearing. He appropriately balanced all the

factors in the case including the appellant’s personal circumstances and this is reflected in the sentence actually imposed by the

suspension of 3 years.

32. It was submitted that the court should not reduce a sentence simply because its constituent members would have imposed a

lighter one had they been dealing with it at first instance; and that deference should be afforded to the decisions of sentencing

courts unless there has been a substantial departure from established principles. It was submitted that in this case that threshold has

not been reached by the appellant and the sentence imposed should not be interfered with.

Discussion and Decision

33. It is correct to say that the trial judge’s treatment of the presumptive mandatory minimum sentencing provisions was not in

accordance with best practice, and somewhat equivocal. On the one hand he seemed to be saying that he felt constrained to impose

the mandatory minimum sentence. However, in terms of the sentence that he actually imposed, he, in fact, departed from it.

34. We are satisfied that there were circumstances that would have permitted the trial judge to depart from the presumptive

mandatory minimum. There was an early plea and there was material assistance.

35. It seems to us that the real issues in this case come down to just two. The first is, was the headline sentence of ten years too

high a starting point in the circumstances of this case? The second is, did the appellant receive sufficient discount by way of

mitigation?

36. We have no hesitation in saying that the ten-year headline sentence could not be considered to have been inappropriate on any

view of the case. Indeed, if the headline sentence that was nominated had been higher by a year or two it is unlikely that it would

have been interfered with. This was commercial drug dealing, at a significant level. It involved a mix of drug types, including not just

cannabis but also cocaine and MDMA. The value at just below €270,000 was significant. There was evidence of some of the

“paraphernalia” and indicia of drug dealing in the finding of the tick list and in the findings following the examination of the appellant’s

mobile phone. Moreover, there was an admitted history of earlier drug dealing, so that this was not an isolated incident.

37. We therefore reject any complaint based on the headline sentence.

38. The second complaint has more substance in our view. This appellant could lay claim to very strong mitigation. He had pleaded

guilty at the first opportunity and would have been entitled to at least a medium level of discount for his plea. He had also been co-

operative. He had no previous convictions, and a strong employment history. Moreover, he was of positive previous good character.

He had contributed to the community very significantly through his long service with the RNLI, and we have been particularly

impressed with the testimonials received on his behalf. He was directly involved in numerous rescues at sea in hazardous conditions

and contributed directly to the saving of many lives. The discount that he received for mitigating circumstances in his case amounted

to an effective 30% of the headline sentence. We are inclined to agree with counsel for the appellant that that was simply not

enough in his particular case, given the very strong mitigation which he could rely upon, and that was an error of principle.

39. In the circumstances we will quash the sentence imposed by the court below. In re-sentencing the appellant today we nominate

a headline sentence of eleven years. However, that is a pre-mitigation figure, and on any view of the case the ultimate post-

mitigation figure is likely to take us below ten years unless we consider ourselves bound to apply the presumptive mandatory minimum

term of ten years. We are of the view, as already indicated, that it is an appropriate case in which to depart from the presumptive

mandatory minimum sentence. The justice of the case requires it, and we will do so. To reflect the higher than usual mitigation

available to this particular appellant, we will discount by five years from the headline figure of eleven years leaving a net post

mitigation sentence of six years’ imprisonment.