Court reduces drug possession sentence from 8.5 to 7 years citing early plea and rehabilitation efforts.

APPROVED

THE COURT OF APPEAL

Neutral Citation: [2024] IECA 323

Record No.: 87/2023

Edwards J. McCarthy J. MacGrath J.

BETWEEN:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

GAVIN MINTO

APPELLANT

Judgment of the Court delivered by MacGrath J. on the 10th day of December 2024.

1. This is Mr Minto’s appeal against severity of sentence. He was born on the 16th of September 1994. On the 31st January 2023, he pleaded guilty to possession of significant quantities of cannabis, MDMA and Eutylone contrary to s. 15A of the Misuse of Drugs Act 1977. The total value of the drugs seized was €2,216,530. On the 23rd March 2023 he was sentenced to eight and a half years in prison. No portion of the sentence was suspended.

2. The offence was detected on the 16th July 2020 when a search was conducted at residential premises in Clondalkin. Garda O’Flaherty gave evidence to the sentencing judge that following the execution of a search warrant at 5:25pm, drugs and other items (including scales, a powder mix, a tablet press and food mixers) were discovered in a garage at the rear of the property. The owner of the premises was interviewed. She informed the Gardai that the garage had been rented to a third party. CCTV footage harvested from cameras located at the perimeter of the premises showed the accused arriving at the property on that day at 2:36pm and remaining there until between 4pm and 5pm, during which time he was in the constant company of the person who was renting the garage. He entered and exited the rear of the garage on a number of occasions, spending a total of 56 minutes in there. A white Renault Trafic van arrived at the property. It was seen reversing into the rear of the garage. CCTV cameras were not positioned to capture this area, but it was clear that the appellant was also in the garage during this time. Earlier footage demonstrated that the appellant had been at the property on the 9th and 10th July 2020. Subsequent examination of the appellant’s phone showed that there had been contact between him and the person renting the garage.

3. On the 17th September 2020, the appellant was arrested, detained and interviewed. Nothing of evidential value emerged. Another male suspect was charged but died in 2022. The appellant’s trial was due to take place in July 2023. He pleaded guilty when arraigned. While the respondent accepts that the plea was an early one, controversy surrounds whether the plea was entered at the earliest opportunity.

4. The appellant has nine previous convictions, including four for offences under s. 3 of the Misuse of Drugs Act 1977, as amended, four for public order offences and one for possession of knives or other articles. He has a drug addiction and was homeless at the time of the offending. Garda O’Flaherty accepted that the appellant’s involvement in the offending was at the “lower rung of the ladder”. The person who rented the premises was also due to be tried. The person who owned the drugs was a relative of the appellant and has since died.

5. At the sentencing hearing, emphasis was placed by counsel for the appellant on the contents of a psychological report prepared by Dr Rioghnach O’Leary, Chartered Forensic and Counselling Psychologist. Referencing his long history of chronic substance abuse and mental health issues, she expressed the opinion that if the appellant could maintain longterm abstinence from substances, his risk of re-offending should be considered low. The report is very detailed, and aspects of it are considered below.

Presumptive Mandatory Minimum

6. The offence to which appellant pleaded guilty carries a presumptive mandatory minimum sentence of 10 years in prison. Having considered the circumstances, the sentencing judge departed from the presumptive minimum and imposed a sentence of eight and a half years.

The Sentencing Remarks

7. In departing from the presumptive minimum, the sentencing judge took into consideration the appellant’s low level of culpability and involvement in the drug dealing operation. He referenced mitigating factors which included the guilty plea, co-operation and admissions. He considered the appellant’s previous convictions not to be significantly relevant. The sentencing judge also took cognisance of the appellant’s homelessness and work history. He noted that the appellant had a tough upbringing but had made the best of his life. Other personal circumstances which were considered by the sentencing judge included the recent death of someone to whom he was close. This appeared to the sentencing judge to have brought the appellant to his senses. In conclusion, the sentencing judge remarked: “Now, obviously, this is a section 15A, there is a mandatory minimum sentence of 10 years. The Act that created this offence allows this court to depart where it finds suitable excluding circumstances. The question is, should I depart in this case, by reason in this case at all? Obviously, normally the plea of guilty and cooperation would allow me to depart. There’s a large amount of drugs here, he had some involvement with it, and the higher courts have indicated even people at a low level who were involved in drug dealing at a large and high level, or a big level, should suffer severe penalties. I think there is some scope to depart, but it seems the appropriate sentence for him, taking everything into account, including his low level of culpability and that he was at a low level in relation to this drug dealing operation, I think the appropriate sentence for him is a term of imprisonment of eight and a half years.”

Submissions

8. While eight grounds of appeal have been advanced in the notice of appeal, they may be summarised as follows:

(1) The sentence was excessive.

(2) Insufficient weight was attached to the early plea of guilty and the absence of relevant previous convictions.

(3) The sentencing judge failed to have regard to the principle of proportionality and to the personal circumstances of the appellant which included his homeless state, challenging upbringing, violence at home, history of substance addiction, history of serious depression and lack of relevant previous convictions. Other factors which are relied on are a supportive family at the time of sentencing and cooperation with the investigation.

(4) The sentencing judge failed to have sufficient regard to the role of the appellant. He did not own the drugs, did not profit significantly from his involvement in the enterprise and was placed at the lowest rung of offending by the investigating garda.

(5) The sentencing judge erred in failing to suspend any portion of the sentence and thereby did not have sufficient regard for rehabilitation as a guiding principle in the formulation of a sentence.

Early Plea

9. The appellant brought an application to have the charge dismissed pursuant to s. 4 E of the Criminal Procedure Act 1967, as amended. Counsel for the appellant explained that the book of evidence was complicated. On initial examination there did not appear to be evidence connecting the appellant to the premises and hence the application was brought. On the day it was due for hearing, additional evidence was served. Once examined, the connection as alleged was observable, instructions were taken, and the appellant pleaded guilty. In those circumstances the sentencing judge was requested to consider the plea to be an early one, as no trial date had been sought.

10. The respondent does not agree with the positive characterisation of the appellant’s record in light of his previous convictions, particularly for drug offences. In this context, the respondent also takes issue with certain observations made by the sentencing judge regarding cooperation and the making of admissions. On the contrary, the respondent maintains that nothing of evidential value emerged at interview and there is little evidence of cooperation. It is submitted that the sentence imposed was well within the range of the sentencing judge’s discretion, cannot be considered to be severe and that the sentencing judge struck an appropriate balance. Emphasis is placed on the value of the drugs and dicta in DPP v Lindsay [2024] IECA 77, where this Court stated at para. 32: - “The value and quantity of drugs seized is a highly significant factor when evaluating the gravity of the offence, although it is well recognised that it is not determinative. Obviously, the role of an offender plays a significant part in this assessment. Therefore, the usefulness of comparator cases is equivocal as while each offender’s role may have some similar factors, other factors may well feature in that assessment which may lessen or increase gravity.”

11. Reliance is placed by both parties on several authorities as suggested comparators, including DPP v Stephen Sarsfield [2019] IECA 260, DPP v Andrew Lawlor [2023] IECA 304, DPP v Morrow [2019] IECA 268, DPP v Devlin [2016] IECA 125 and DPP v Sowa and Witkowski [2020] IECA 10. While of some assistance, it need hardly be repeated that each case must be determined on its own facts.

Dr O’Leary’s Report

12. A detailed report was prepared by Dr Rioghnach O’Leary. It is dated the 23rd March 2023, the same day as the sentencing hearing. She identified factors relevant to the appellant’s history of involvement in crime, his risk of reoffending and his future rehabilitation. The appellant had a difficult upbringing, with drug addiction issues against a volatile family background and parental separation at a young age. His mother is protective and continues to support him. The appellant found academic work difficult and was often in trouble in school. He had a full-time special needs assistant. He is reported to have spoken candidly about his offending, substance abuse and addiction. Dr O’Leary expressed the opinion that, with her assistance, the appellant evidenced the capacity for self-awareness and an ability to verbalise his thoughts and feelings. When the appellant was 22 years of age, a neighbour on whom he had relied for support, and his grandmother, died within a short space of time, following which his mental health deteriorated. He became heavily depressed and anxious. The appellant’s drug use escalated, and he voluntarily became homeless because, according to the report, he wished to protect his mother from his drug abuse and its consequences. Dr O’Leary referred to his reported history of drug induced psychotic episodes requiring hospitalisation and self-reported attempted suicide on two occasions. At paras. 8.4-8.7 she recorded: - “Mr. Minto reported that he incurred a large drug related debt to the sum of €35,000 when drugs belonging to his cousin, for which he was responsible, were stolen.

Mr. Minto reported that a high-level drug dealer then put a threat on his life if he did not repay this debt.

Mr. Minto reported that he was then instructed to go to Fieldhouse, Kingswood Cross, Dublin 22 on 16th July 2020 and receive a delivery of drugs as a means of working off this debt.

Mr. Minto reported that he agreed to do this as he feared for his life.”

13. Dr O’Leary also records that following the offending and a particularly difficult diagnosis of his mother’s medical condition, his drug abuse escalated, and he began using heroin. He seems to have self-detoxed in December 2021, although he admitted to smoking small amounts of cannabis to assist him in falling asleep. She also makes reference to his intermittent employment on building sites and to his attendance at Narcotics Anonymous. The appellant reported to her that if he received a custodial sentence, he was willing to engage positively in any therapy, work programmes and education afforded to him. He aimed to make the best of his situation.

14. The outcome of cognitive functioning tests showed the appellant to be in the borderline range of cognitive ability. His thinking and reasoning abilities are exceeded by 95% of adults his age. Dr O’Leary concluded that given such results the appellant’s cognitive capacity should be considered compromised. In her opinion this affected him in a number of critical ways including that he had a reduced capacity to control his impulses, his ability to comprehend and process information quickly was compromised, as was his capacity to think logically and make accurate judgments and decisions in his own best interests. The tests indicated that the appellant was vulnerable and easily led.

15. Dr O’Leary concluded that the appellant met the diagnostic criteria for ADHD as defined in DSM-5 and had overall poor mental health. She expressed the opinion that the offence needed to be understood in the context of drug addiction driven by poor mental health, which itself was driven by traumatic events and a lack of coping skills. His compromised intellectual functioning and ADHD also increased the likelihood of him having committed the offence because his capacity to resist impulsive decisions was minimised. Dr O’Leary expressed the opinion that he required to stabilise his mental health and to abstain from substance abuse. In the event that he could maintain long-term abstinence, in her opinion, he should be considered at low risk of reoffending. In this context, the appellant informed her that he had actively abstained from almost all intoxicating substances since December 2021 and had attempted to self-monitor his achievements in recent months by providing urine samples through his GP and attending Narcotics Anonymous meetings. The appellant expressed a willingness to attend addiction services including therapy to address his drug addiction and underlying mental health issues. Dr O’Leary stated the following at paras 15.12-15-13:

“Throughout this assessment, Mr. Minto evidenced self-awareness, responsibility taking and insight into the contributing factors to his criminal history and substance abuses. These qualities are indicative of a capacity to engage in and respond positively to therapeutic intervention.

In addition to his willingness to attend more intensive addiction services Mr. Minto had the support of his family and has also commenced building a home on his mother’s property to ensure future stability. These are all positive factors which would assist him on his road to recovery and rehabilitation.”

Recommendations for future rehabilitation were made by Dr O’Leary, which included a period of residential treatment. If imprisoned for a significant period, engagement with the psychology service within the prison was recommended, as was severance of contact with persons involved in substance abuse and criminality.

Discussion

16. The Misuse of Drugs Act 1977, s. 27 3D, as amended, provides:

“(a) 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.

(b) 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 that 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.

(c) 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.”

17. This legislative policy has been determined by the Oireachtas in view of the serious and adverse impact which drugs and drug trafficking have on society and it must be reflected in the construction of an appropriate and proportionate sentence.

18. In DPP v. Daniel Brereton [2024] IECA 226, Ni Raifeartaigh J. reiterated the Court’s observations DPP v. Stephen Sarsfield as to the proper approach to the construction of a sentence where a presumptive minimum term applies. O’Malley on Sentencing Law and Practice (3rd edn, Roundhall 2016), para 16.12, is considered as helpfully summarising the approach taken by courts to sentencing under s.15A: “The above approach has also been applied by the Court of Appeal since its establishment in 2015. The approach was confirmed in its decision in People (DPP) v. Sarsfield [2019] IECA 260, where the Court made some additional comments about guilty pleas in such cases, as well as cases involving “significant involvement” in “high level commercial drug dealing”:

“18. […] It has long been recognised that the proper approach to sentencing is for a judge to identify the appropriate sentence without reference to the presumptive minimum. If the appropriate sentence is at or in excess of the statutory minimum, nothing further is required.

If the sentence under contemplation is below the presumptive

minimum, the Court will have to address the presumptive minimum

and consider whether the imposition of the mandatory presumptive

minimum would, in all the circumstances of the case, be unjust. Where the offence involves significant involvement in a very high-level drug offence, the headline or pre-mitigation sentence is likely to be well in excess of the statutory presumptive minimum. In the case of high-level commercial drug dealing involving very large quantities of drugs, we would expect that the headline or pre-mitigation sentence is likely to be of the order of fourteen or fifteen years, and in some exceptional cases, significantly higher.

19. What we have to say about the ultimate sentence is more tentative still, having regard to the very wide variation in the circumstances of offenders coming before the Courts. The Court would, however, observe that in the sort of very high-end commercial drug trafficking cases to which we have been referring, a plea of guilty, of itself, without something more, is unlikely to justify a reduction below the presumptive minimum sentence. Such a situation is particularly likely if the plea was entered against a backdrop of very strong or overwhelming evidence, not an unusual situation in the context of s. 15A cases.”

19. The aim of the sentencing of an offender is to impose a sentence which is constitutionally permissible. It must therefore be proportionate in every way; proportionate to the crime committed and to the personal circumstances of the offender. This was best expressed by Denham J. in DPP v M [1994] 3 IR 306 at p.3:

“…sentences must also be proportionate to the personal circumstances of the appellant. The essence of the discretionary nature of sentencing is that the personal situation of the appellant must be taken into consideration by the Court. In People (A.G.) v. O'Driscoll Frewen Vol. 1p. 351 at 359 Walsh J. stated "The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the Courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case - not only in regard to the particular crime but in regard to the particular criminal."”

20. There is no one way of structuring a sentence and there is no one formula which must be slavishly adhered to. As was stated by Clarke J. in DPP v Fitzgibbon [2014] IECCA 12, however, to enable the proper exercise of its constitutional role, a court of review should not be left to guess, or infer to any impermissible extent, the reasoning of the sentencing judge. Best practice involves, in the first instance, identifying the appropriate headline sentence having regard to the available range based on the assessment of the gravity of the offence, taking into account aggravating factors (where seriousness is measured with reference to the offender’s moral culpability and the harm done) and then considering mitigating factors, so as to ultimately arrive at a proportionate sentence mandated by the Constitution: see DPP v Flynn [2015] IECA 290 and DPP v Molloy [2016] IECA 239. When this, or indeed any similar type of exercise, is performed by the sentencing court, it is likely to result in greater transparency, greater clarity and provide a deeper understanding of the sentencing judge’s reasoning. It also enables a reviewing court to engage properly with the sentence in the exercise of its constitutional role. It has also long been recognised, however, that a failure to assess a headline sentence does not necessarily amount to an error in principle warranting intervention. In DPP v Shaw [2024] IECA 24 the court observed: “We have repeatedly stated that whilst it is helpful if a headline sentence is identified so as to enable transparency so that this court can assess the sentence imposed, a failure to do so does not necessarily amount to an error in principle” (para. 19).

21. The sentencing judge did not approach the structure of the appellant’s sentence by first addressing the headline sentence. Nevertheless, as the value of the drugs seized was multiples of the value threshold which attracts the presumptive minimum, a factor which was pivotal in the sentencing judge’s expressed reasoning, we are satisfied that it can be inferred that had a headline sentence been expressed, in view of the value of the drugs and the culpability of the appellant and the harm occasioned to society generally, it would have been in the higher range of between 10 and 15 years in prison; and likely at the lower end of that range. Again, the sentencing judge referred to the entitlement of the sentencing court to depart from the sentence of 10 years where it considered that suitable excusing circumstances existed. He concluded that there was some scope for doing so and he determined that the appropriate sentence was eight and a half years in prison.

22. Having arrived at a sentence which was below the presumptive minimum, it was incumbent on the sentencing judge to impose the presumptive minimum unless he was satisfied “…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”. It may be inferred from the imposition of a sentence lower than the presumptive minimum and the sentencing judge’s reference to factors in mitigation, including the guilty plea, that he concluded that such circumstances existed.

23. It may be said that the significant thrust of the appellant’s contention on this appeal is that insufficient weight was afforded to mitigation. Emphasis was placed by counsel for the appellant on the failure of the sentencing judge to expressly consider the imposition of a part suspended sentence in furtherance of the goal of rehabilitation. Counsel for the respondent submits that implicit in the sentencing judge’s remarks is that he took into account factors which might lead to partial suspension and thereby achieved proportionality in a global way. This is not, however, entirely evident to this Court.

24. We note that the respondent submits that there was limited evidence that the appellant had successfully rehabilitated himself. While evidence of past attempts at rehabilitation and the level of success in so doing are important considerations, nevertheless rehabilitation is an ongoing process. Dr O’Leary expressed the opinion that if the appellant could maintain long-term abstinence from substances, he should be considered at low risk of reoffending. He evidenced self-awareness, responsibility taking, and insight into the factors which contributed to his criminal history and substance abuse. Dr O’Leary described these qualities as being indicative of a capacity to engage in, and respond positively to, therapeutic intervention. While it may be said that much of what is contained in of Dr O’Leary’s report is based on the appellant’s subjective reporting and recording of events, nevertheless, the assessment of cognition and other psychological functioning on the basis of recognised tests was undertaken and no issue appears to have arisen at the sentencing hearing, or on this appeal, as to the validity of Dr O’Leary’s findings.

25. Rehabilitation is an important goal of sentencing. In determining whether to impose a suspension or part suspension of a sentence, a sentencing judge has a wide discretion. There must be an evidential basis for suspension. Even when such evidence is present, it may be within the proper exercise of a sentencing judge’s discretion not to suspend any portion of the sentence. Each case is fact dependent.

26. Where, however, significant evidence is advanced in support of rehabilitation and where relevant findings and recommendations are made, a failure to afford sufficient weight to such considerations, whether by way of part suspension or otherwise, or to provide reasons for not so doing, may warrant intervention.

27. A difficulty which presents on this appeal is that given the extensive reporting, findings, recommendations and conclusions of Dr O’Leary, the report of the appellant’s GP and other factors advanced and referred to above, there is little in the sentencing judge’s remarks to indicate that, in the consideration of principles of totality and proportionality, sufficient weight was attached to many of the factors outlined in the reports, including his cognitive functioning assessments results, his efforts at rehabilitation and his willingness to engage in future rehabilitation, whether by way of part suspension of the sentence (even for the purposes of discounting it), or otherwise.

28. Taking into consideration the evidence advanced, the sentencing judge’s remarks and the submissions of the parties on this appeal, we are satisfied that the trial judge failed to attach sufficient weight to Dr O’Leary’s findings, the appellant’s assessed psychological impairments and his willingness to engage in and address his problems, such that an error of principle has arisen warranting the intervention of the court.

29. The court therefore quashes the sentence imposed.

Re- Sentencing

30. In re-sentencing the appellant, taking into account the gravity of the offending, the high value of the drugs involved, the appellant’s culpability, the role he played in the offending and the harm occasioned to society, we are satisfied that the appropriate headline sentence lies within the higher range of sentences, being 11 to 15 years in prison. It is accepted that appellant was on a low rung of the operational ladder, and we are satisfied that the headlines sentence is at the lower end of that range. We therefore determine that the headline sentence is 11 years in prison.

31. With regard to mitigation, we take into consideration the appellant’s personal circumstances which have been outlined above, including any relevant previous convictions and his addiction. Controversy exists about the extent to which his plea of guilty is to be regarded as being “early”. While we accept that this was an early plea and a valuable one, it is difficult to conclude that it was made at the earliest possible opportunity. In the assessment of how early a plea ought to be considered, that it was made after legal advice based on a consideration of all evidence notified does not necessarily invite the conclusion that it was made at the earliest opportunity. Signed pleas are invariably made without requiring the service of the book of evidence. We are satisfied, nevertheless, that this was an early plea for which appellant must be given appropriate credit. It likely saved the authorities, Gardai and the courts considerable time and expense.

32. The court also considers his attempts at rehabilitation and the observations and findings of Dr O’Leary. In this regard, the court has given consideration to the suspension of part of the sentence by reason of the matters outlined in that report, including those related to rehabilitation. In the circumstances which pertain here we are satisfied that the appellant’s efforts at rehabilitation and the incentivisation of future rehabilitation are more appropriately addressed, in accordance with the principles of totality and proportionality, in a manner similar to that recommended by the Law Reform Commission in its Report on Suspended Sentences. When addressing the topic of part suspended sentences, the Commission observed as follows at paragraph 5.51:

“[T]he Commission deems it is best practice that the sentencing court begin by asking itself whether the justice of the case requires a reduction from the headline sentence, as opposed to part suspension, in order to give effect to the totality principle”.

33. We believe that this approach ought to be adopted in this case and that the matters outlined in Dr O’Leary’s report relating to rehabilitation and the results of cognitive testing, should, in accordance with the justice of the case, be factored into a reduction from the headline sentence, as opposed to part suspension. We conclude that the appropriate reduction from the headline sentence to include those, and all mitigating factors, is four years.

34. As this sentence is below the presumptive minimum, we must consider whether there are exceptional and specific circumstances relating to the offence, or the appellant, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances. In this context, the court is entitled to have regard to any matters it considers appropriate, including the appellant’s plea of guilty, the stage at which that plea was indicated, any prior convictions and whether he materially assisted in the investigation of the offence. When the appellant was interviewed nothing of evidential value was forthcoming in what was effectively a “no comment” interview. Thus, while certain factors referred to in legislation are absent, we are nevertheless satisfied that exceptional and specific circumstances exist which would make a sentence of not less than 10 years imprisonment unjust. No significant issue about this arose at the sentencing hearing or at the hearing of the appeal.

35. In the circumstances, the appellant is re-sentenced to seven years imprisonment, backdated to the date on which he initially went on to custody in respect of this offending, being the 23rd March 2023.