Court of Appeal quashes unduly lenient sentence for drug trafficking and imposes 7.5 years with 3.5 years suspended.

THE COURT OF APPEAL

Record Number: 66CJA/23

Edwards J. McCarthy J. Kennedy J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

- AND -

ANDREW LAWLOR RESPONDENT

JUDGMENT of the Court delivered (ex tempore) on the 27th day of November 2023 by Ms. Justice Isobel Kennedy.

1. This is an application brought by the Director of Public Prosecutions pursuant to the provisions of s. 2 of the Criminal Justice Act, 1993, seeking a review on grounds of undue leniency of a sentence imposed on the respondent herein.

2. On the 17th February 2023, the respondent was sentenced to four and a half years’ imprisonment with the final two and a half years suspended for an offence contrary to s. 15A of the Misuse of Drugs Act, 1977, to which offence he pleaded guilty on the 27th April 2021. Background

3. The offence the subject of the within application was discovered as a result of an intelligence led operation. On the 11th July 2020, gardaí were in possession of information which led them to place a Scania truck that had arrived from Northern Ireland under surveillance. This vehicle was observed by gardaí travelling along the M1 and ultimately entering Ashbourne Business Centre where it was joined by a second vehicle, a Volkswagen Caddy.

4. Following observations and the interaction of the vehicles, a decision was made by gardaí to intercept both drivers. The Volkswagen vehicle, driven by the respondent herein, was stopped and searched pursuant to s. 23 of the Misuse of Drugs Act, 1977.

5. A search of the Volkswagen vehicle ultimately uncovered 17 packages of cocaine, which were concealed in a sophisticated manner in the back of the vehicle within the interior of a red cylindrical vessel. This vessel had bolts which required the use of tools to open it and reveal the concealment. Such was the length of time it took gardaí to access the concealment that the respondent had to be released from the s. 23 detention.

6. The total amount of drugs seized was approximately 16.7 kilograms of cocaine with an estimated street value in the region of €1,187,000. The respondent presented himself voluntarily, was interviewed and made admissions to possession. He also provided gardaí with a pre-prepared statement in the course of which he accepted possession of the drugs found in the Volkswagen vehicle. Nothing of evidential value arose in two subsequent interviews.

7. The co-accused was sentenced by a different court and received a sentence of 3 years with

18 months suspended. Personal Circumstances of the Respondent

8. The respondent has a partner and two children, one of whom is an adult and the other of whom is a teenager. Gardaí were satisfied based on their dealings with the respondent and their reading of the reports before the sentencing court that the respondent suffered from an alcohol and cocaine addiction. The psychological report details that the respondent’s addiction resulted in a number of suicide attempts and hospitalisations. He has four previous convictions, all pertaining to road traffic matters.

9. There were a number of references before the sentencing court written in support of the respondent and outlining the efforts at self-rehabilitation undertaken by him while awaiting sentence. These letters detailed the respondent’s engagement with the Liberty Soup Run, Cocaine Anonymous Ireland and the DARA Project and the respondent’s drug dependency. There is no doubt, that the respondent made serious efforts to rehabilitate himself. Sentencing Remarks

10. The sentencing judge had regard to the cases of People (DPP) v Stephen Sarsfield [2019] IECA 260 and People (DPP) v Derek Long [2008] IECCA 133 and acknowledged the statutory framework to which cases contrary to s. 15A are subject.

11. The judge listed the aggravating factors as the significant amount of cocaine uncovered, that it was a careful operation where the respondent arrived with a pre-prepared concealment, that a significant amount of planning was involved and that the guard described this as a sophisticated arrangement with regard to the concealment.

12. In terms of mitigation, the judge took into account the very early admission reflected in the pre-prepared statement, the very early plea of guilty, the passage of time since the plea was entered and the respondent’s use of that time, the respondent’s alcohol and cocaine issues and that those were related to the offending behaviour. The judge also bore in mind the sentence imposed on the respondent’s co-accused, a sentence of three years’ imprisonment with the final

18 months suspended but noted that the co-accused suffered from serious health difficulties. The judge considered that the respondent has no relevant previous convictions and that the gardaí have accepted that the respondent has experienced something of a “wake-up call.”

13. The judge nominated a headline sentence of six and a half years, reducing this to a sentence of four and a half years with the final two and half years suspended leading to an effective sentence of two years’ imprisonment. Submissions of the Director

14. The Director relies on several grounds of application, in essence, she contends that the judge erred in her nomination of the headline sentence, in particular given the value of the drugs and the manner of their concealment. Moreover, she argues that the judge gave excessive discount for mitigation and erred in the manner in which she partially suspended the sentence. Thus, imposing a sentence which, it is said, was unduly lenient.

15. It is noted that the concealment involved in this case was not temporary or ad hoc.

16. The Director relies on several comparator cases, but in particular makes reference in oral submission to People (DPP) v Morrow [2019] IECA 268 where this Court did not interfere with a sentence of 8 years’ imprisonment imposed for a seizure of €1.4 million in value. It is said that the circumstances of that case are broadly similar to the circumstances in the present case save that the accused in Morrow made no admissions and an early plea was not entered.

17. Reliance is also placed on People (DPP) v Witowski and Sowa [2020] IECA 10, where this Court stated that a headline sentence of less than 10 years was not appropriate in a case where the value of the cannabis seized was €1.3 million.

18. While acknowledging that the respondent was entitled to a reduction from the headline on account of his prior good character, efforts at rehabilitation and early plea of guilty, in respect of the latter, it is submitted that the accused was caught “red-handed” and that in People (DPP) v O’Dwyer [2020] IECA 353 a reduction from 14 to 12 years’ imprisonment was considered appropriate where the accused in that case was caught “red-handed.”

19. It is submitted that the level of discount applied, being 60%, was excessive in all the circumstances. Submissions of the Respondent

20. The respondent submits that while the sentence may be lenient, it is not unduly so and that the sentence imposed was the appropriate sentence having regard to the circumstances in the case.

21. The respondent says that the case law is clear that sentencing judges can depart from the presumptive minimum sentence of 10 years for s. 15A offending where there are exceptional and specific circumstances which would render it unjust to so impose. Attention is drawn to the respondent’s cooperation and early guilty plea, which it is submitted are the most important factors set out under s. 27(3D) of the 1977 Act.

22. Reliance is placed on several cases where a suspended sentence was considered appropriate for s. 15A offending involving a significant quantity of drugs: People (DPP) v McGinty [2007] 1 IR 633, People (DPP) v Alexiou [2003] 3 IR 513, People (DPP) v Burke [2011] IECCA 1. Considerable reliance is also placed on the judgment of People (DPP) v Ryan and Rooney [2015] IECA 2 in which case this Court substituted a three-year sentence for the fully suspended sentence imposed at first instance for the transportation of €1.2 million worth of heroin and other drugs. It is submitted that this respondent’s case is far more compelling in terms of the mitigating factors.

23. It is accepted that the value of the drugs in this case is substantial but stressed that in cases of this type, the value of the drugs is frequently a matter over which the accused has no control.

24. In relation to the applicant’s reliance on Morrow supra, it is submitted that the circumstances in this case are very different from those in Morrow. Discussion

25. The core of this review relates to the value of the drugs seized and the manner of their concealment. Both factors feed into the gravity of the offending conduct. The potential harm to society by controlled drugs is also a factor to be taken into consideration. The quantity and value of the drugs are critical factors to be considered in assessing the appropriate headline sentence. Whilst these are not determinative, they are nonetheless critical. It is undoubtedly the position that the particular circumstances of each case must be carefully examined, and this is strongly argued on behalf of the respondent. It is the position that he has addiction difficulties and became involved in the offending as a direct consequence. He was to receive the sum of €1000.00 and a quantity of cocaine for his role.

26. There can be no doubt that there was an element of planning involved in this operation.

16.7 kilos of cocaine were concealed within a hydraulic press compressor bolted to the floor of the vehicle driven by the respondent. It took the gardaí some time to open the hydraulic press to access the drugs. All of this points to a sophisticated, planned operation.

27. The point is made by the respondent that the judge distinguished this case from that of the co-accused and imposed a higher headline sentence and a higher ultimate sentence. In that regard it is said that she carefully assessed the evidence pertinent to this respondent and that is a factor to which we must have regard. It is said that the sentence is not unduly lenient and does not reach the threshold.

28. However, it has been said by this Court that while parity of sentence is a laudable aim, the efforts to achieve that cannot result in an inappropriate sentence. In the present case, it seems that the Director instituted a review of sentence in respect of the co-accused, which was later withdrawn due to the ill health of that respondent.

29. We do not intend to rehearse the law on review of sentence, it is a well-trodden path. The dual factors of drugs to a value of €1,187,000 and the manner of concealment lead us to conclude that the headline sentence nominated by the judge of 6 years is unduly lenient.

30. The Director contends that the appropriate pre-mitigation sentence ought to have been in and around the presumptive mandatory minimum and with this we agree. The value of the drugs was very high and it was an organised, well-planned operation. Drugs are a scourge in our society and the potential impact of such a vast quantity of cocaine landing on our streets cannot be ignored.

31. As we have found an error in principle, we will quash the sentence and re-sentence the respondent de novo as of today. Re-Sentence

32. We have reviewed the evidence adduced in the court below and the material furnished on behalf of the respondent. Aside from his plea of guilty, we acknowledge his personal circumstances, his difficulties with alcohol and substance abuse, and the significant efforts he made to address his problems, all of which were before the court of sentence. We take into account that he made his way back to the Garda Station having been released from the search under the Misuse of Drugs Act, made admissions and provided a prepared statement to the gardaí in which he acknowledged his wrongdoing.

33. In the circumstances, we consider the appropriate headline sentence to be that of 10 years’ imprisonment.

34. In light of the mitigation present, we reduce that sentence to one of 7 ½ years’ imprisonment. Had this court been sentencing the respondent in the first instance, we would have been minded to suspend the final 18 months of that sentence leaving a sentence of 6 years to serve.

35. However, the rehabilitative efforts of the respondent in this case require acknowledgment. He had moved forward in his efforts to recover from his addiction difficulties. We are told that he is now in an open prison and that he engages with the Community Prison links service. We have documentation to this effect. It is noted that he is extremely motivated and focused on his recovery. He has an offer of employment and has support from his family. All this serves to assist him in his recovery. He attends counselling and is said to be over 3 years substance free.

36. One of the objectives of sentencing is rehabilitation. This man is clearly working very hard in that regard and is to be commended for that and encouraged in his endeavours. Consequently, we propose taking the unusual step of suspending much more of the sentence than might otherwise be done.

37. We will suspend the final 3 ½ years of the sentence of 7 ½ years on the same conditions as imposed in the court below, save that the nominated period is to be that of 3 ½ years.

38. So, we impose a sentence of 7 ½ years with the final 3 ½ years suspended.