Court of Appeal dismisses appeal against suspended sentence for drug offences due to exceptional rehabilitation prospects.

THE COURT OF APPEAL

Approved

No Redaction Needed

Neutral Citation: [2025] IECA 180

Record No: 299CJA/2024

Kennedy J. O’Moore J. MacGrath J.

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE

CRIMINAL JUSTICE ACT 1993

Between/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

Applicant

V

MOHAMED ADEAGBO

Respondent

JUDGMENT of the Court delivered by Mr. Justice O’Moore on the 29th day of July, 2025.

Introduction

1. Before this Court is an appeal brought by the Director of Public Prosecutions (“the applicant” or “the Director”) pursuant to s. 2 of the Criminal Justice Act 1993 (“the 1993 Act”)

for review of the sentence imposed on Mohamed Adeagbo (“the respondent”) by the Circuit Criminal Court, Cork on grounds that it was unduly lenient.

2. On the 21st April 2023, the respondent entered guilty pleas in respect of one offence contrary to s. 15A of the Misuse of Drugs Act, 1977 (as amended) and one offence contrary to s. 7 of the Criminal Justice (Money Laundering and Terrorist Financing) Act, 2010.

3. On the 27th October 2023, counsel for the respondent applied for an adjournment of sentence on the basis that the Probation Report before the Court referenced that the respondent was still using a small amount of cannabis for anxiety, but that he was adamant about reducing his usage and working towards eliminating his use entirely. This application was granted and sentencing was adjourned to the 13th November 2024.

4. On the 13th November 2024, the Court below sentenced the respondent to three and a half years in respect of the s. 15A offence, which was fully suspended for a period of three and a half years. A sentence of one year fully suspended was imposed concurrently in respect of the money laundering offence.

5. The applicant seeks a review of the sentence in the Court below on the grounds that the trial judge placed excessive weight on the mitigating factors in the case, that the facts of the case were not sufficiently exceptional to justify the award of an entirely suspended sentence, and that the ultimate sentence failed to adequately reflect the principles of specific and general deterrence.

Factual Background

6. At the first sentencing hearing on the 27th October 2023, a Detective Sergeant Fergal Long gave evidence in relation to the factual background to the respondents’ offending.

7. On the 25th April 2022, members attached to Cork City Divisional Drugs Unit executed a search warrant pursuant to s. 26 of the Misuse of Drugs Act 1977-1984 at an address in Ballincollig, which was the respondent’s address. The respondent was present for the search. During the search, the gardaí recovered 1.623 kilogrammes of cocaine with an estimated street value of €113,610, a smaller quantity of cannabis, €1,530 in cash, and an iPhone. The respondent was subsequently arrested, detained, and interviewed.

8. At interview, the respondent admitted possession and control of the cocaine seized during the search for sale or supply. He informed gardaí that he was acting as a storeman and delivery man for an unidentified third party and for these services he received approximately €500 per week. During his second interview, the respondent admitted that the majority of the cash seized was the proceeds of drug dealing.

9. The respondent’s iPhone was examined and the gardaí found messages associated with drug dealing activity. When the mobile phone evidence was put to the respondent at interview, he admitted that the messages were associated with such activity.

10. An application was made to the court for orders that the €1,530 cash seized be declared forfeit to the state and that the drugs be destroyed; both orders were acceded to.

Personal Circumstances of the Respondent

11. The respondent was born on the 11th December 2000. He was 21 years old at the date of the offending and 23 years old when sentence was imposed. He is originally from Nigeria but is an Irish citizen.

12. He lived at the Ballincollig address with his mother and his younger brother for approximately eight years prior to the offending. The respondent has two sisters; one lives in Nigeria and the other is married and lives in Douglas with her own family. His father has not been present in his life since he was five years of age. The respondent came from a family of limited means.

13. The respondent was educated in Ballincollig where he completed his Leaving Certificate. He attended the College of Commerce for a period of time but dropped out during the COVID 19 pandemic. He previously held a number of part time positions in retail but had not worked between the offending date and the sentencing date.

14. With the assistance of his training and employment officer who was attached to the Probation Service, the respondent commenced a fashion design course in St John’s College between the offending and the first sentencing hearing. Between the first and second sentencing hearings, the respondent did not continue with the course at St John’s College. He instead interviewed for, and successfully obtained, a full time job.

15. The respondent had no previous convictions. He has not come to any adverse subsequent attention from the gardaí since the initial offending. The respondent got into taking cannabis which ultimately led him to this offending.

Sentencing Judge’s Remarks

16. On the 13th of November 2024, the judge in the Court below passed sentence on the respondent. The judge noted the factual background of the case as described by Detective Sergeant Long.

17. The sentencing judge stated that “I don’t see any particularly aggravating factors in your case.”

18. The sentencing judge then considered whether or not she could depart from the mandatory ten year sentence for s. 15A offences, noting that: “the first thing I have to decide is whether or not I can deviate from the mandatory 10- year sentence. You have pleaded guilty, indeed you’ve come forward on a signed plea of guilty and you have been fully co-operative with the gardaí and I am of the view that I can depart from that. I will measure the headline sentence in this case as one of five years’ imprisonment.”

19. In relation to mitigation, the sentencing judge identified the following factors: “In terms of the mitigating factors you have entered a signed plea of guilty. You are entitled to a discount from any sentence on that basis. You have saved the state the time and expense of a trial and you have saved the witnesses the time of coming to Court. You were fully co-operative and I’m satisfied that you were of material assistance to the gardaí. You have no previous convictions and you have not come to any garda attention since. You were a young man at the time. I have the benefit of a number of probation reports, all of which are positive. They set out that you did your Leaving Certificate, you had gotten into third level…”

20. The sentencing judge also outlined the positive assessments of the probation reports, the respondent’s consistent compliance with the probation service, and the fact that the respondent had ceased the use of illicit substances. She stated that “I am satisfied that you have done your best and you have -- you’ve done your best to extricate yourself from a very serious and unfortunate situation that you got yourself into.”

21. Having regard to the mitigating factors, the sentencing judge reduced the sentence to three and a half years’ imprisonment.

22. Finally, the sentencing judge turned to the question of suspending part of the respondent’s sentence, where she noted that: “I am of the view that because you had no previous convictions, that because you have not come to garda attention since, the fact that it is clear you were taking drugs when you became involved in this offence and there is concrete evidence before the Court that you have ceased taking drugs, the fact that you have complied entirely with everything that was asked of you by the Probation Service, you’ve done your level best to get yourself back on track…”

23. The sentencing judge stated that she therefore viewed this as “an exceptional case” and thus she suspended the entire three and a half years for a period of three and a half years. The sentencing judge imposed a number of conditions on the suspension, those being: “…on condition that you enter into a bond to keep the peace and be of good behaviour and that you remain under the supervision of the Probation and Welfare Service and provide urinalysis to them as required for a period of 18 months from today’s date.”

24. For the s. 7 offence, the sentencing judge imposed a concurrent sentence of one year fully suspended.

Submissions on Appeal

Applicant’s Submissions

25. The applicant submits that the sentencing judge erred in principle in holding that the particular facts of the case were sufficiently exceptional so as to justify the imposition of an entirely suspended sentence. The applicant submits that the sentencing judge failed to demonstrate why the circumstances in this case were sufficiently exceptional to deviate from the statutory minimum, which was an error in principle, and also erred because “she did not identify with specificity what were those exceptional and specific circumstances.” The applicant then submits that these errors were:- “compounded because without specificity in terms of the exceptional and specific circumstances that allowed the judge to depart from the presumptive mandatory minimum, she arguably double-counted in ultimately suspending the sentence in its entirety…

5.9 It is submitted that the said sentence failed to adequately reflect the aggravating factors in the case which were as follows:-

- The serious nature of the offences.

- The high value of the drugs in question being €113,610.

- The fact that it was cocaine.

- The fact that the circumstances of the possession indicated that the accused was actively involved in the organised distribution of drugs in light of his role as both storeman and delivery man. The fact that the motivation for the offending was pecuniary gain, in the form of profit of €500 per week…

5.12 Finally, the Applicant submits that the sentencing judge failed to engage with the sentencing objective of deterrence. Having regard to the important policy considerations set forth in the legislation, in particular the need to address the harm caused by drug trafficking, insufficient consideration was given to the sentencing objective of deterrence, both general and specific[,] and that this was a further error in principle.”

26. On these grounds, the applicant submits that the sentence of first instance was unduly lenient.

Respondent’s Submissions

27. The respondent firstly submits that the applicant’s appeal should be dismissed as the burden of demonstrating undue leniency has not been met. Both parties accept that the onus is on the DPP to prove undue leniency.

28. Secondly, the respondent submits that the sentencing judge was justified in identifying a headline sentence that fell below the presumptive mandatory minimum of ten years. In particular, the respondent notes that the sentencing judge had due regard for factors such as “the culpability of the respondent when having regard to his role, place in the organisation’s hierarchy… [and] the circumstances of the respondent’s involvement together with the duress and addicted status at the time.”

29. Thirdly, the respondent submits “that the wholly suspended sentence in this case, though exceptional, was appropriate where the Respondent had a low level of involvement in the overall enterprise.” The respondent submits that this factor, the respondent’s personal circumstances at the time, the respondent’s guilty plea, and the respondent’s full cooperation with the Probation Services “brought the personal mitigation of the Respondent to the strongest possible level.”

30. The respondent finally submits that “the public interest, in terms of sentencing objections of [deterrence][,] are met in the Respondent’s case where, consequent upon the length of the adjournment and the date between the offence and imposition of sentence[,] there was credible evidence that the Respondent was more likely to desist from further crime if made the subject of supervision whilst conditionally at liberty rather than being imprisoned.”

31. The respondent therefore submits that the appeal should be dismissed.

Court’s Analysis & Decision

32. At the hearing of the appeal, the Director’s counsel accepted that the headline sentence of 5 years was not one which fell outside the range of sentences available to the sentencing judge. It was strongly submitted, however, that an entirely suspended sentence was not appropriate given the legislative purpose behind the Misuse of Drugs Act 1977 (as amended), and that on the facts of this case there were significant aggravating factors as listed in her written submissions (and summarised at paragraph 25 of this judgment). An equally forceful argument was made on behalf of the respondent by reference to the judgment of Murray J (as he then was) in People (DPP) v. McGinty [2007] 1 I.R. 633 at paragraphs 28 et seq. Delivering the judgment of the Court of Criminal Appeal, Murray J held; “28. It is clear that the trial judge was conscious of the fact that if one had regard only to the seriousness of the offence in itself a custodial sentence was merited. As this court has frequently stated a judge imposing sentence must have regard to the seriousness of the offence but also the particular circumstances of the offender and, in that light, impose a sentence which best serves the public interest and the interests of justice.”

33. We would agree with the sentencing judge when she emphasised the active part played by the respondent in the supply of drugs, the “significant amount of cocaine” found in the respondent’s possession, and the possession both of a small supply of cannabis and some cash. The sentencing judge, while referring to the respondent’s claim that he had been under duress, does not appear to have been influenced in his favour by this assertion. All of these factors would suggest that, to paraphrase Murray J., the seriousness of the offence merited a custodial sentence.

34. However, as Murray J went on to observe, the respondent in McGinty had shown “proven substantial progress in rehabilitation and strong prospects of full rehabilitation through participation in the Coolmine programme…”. This, the court found, would be put at risk by putting the respondent into a prison environment.

35. The position of the respondent to the current appeal is similar in many ways to that of the respondent in McGinty. Mr. Adeagbo had satisfied the judge in the court below that he was drug-free at the time of sentencing. He had a history of trying to make the best of himself, only dropping out of college and developing a habit of drug use after the COVID 19 pandemic caused his college to cease in person teaching and after he could no longer afford his college fees. After his arrest, he made what he described as strenuous efforts to find employment and had (by March of 2024) found bar/restaurant work. The sentencing judge was also informed that, just prior to the hearing, the respondent had obtained a job in an arts and crafts shop. He had also applied for a Safe Pass course with a view to “getting into construction”.

36. The position of the trial judge in McGinty was therefore similar to the position of the sentencing judge here. As Murray J stated:- “31. The dilemma faced by the trial judge was that the offence in question was undoubtedly grave enough to normally warrant a custodial sentence, as argued in this appeal by the prosecutor, while on the other hand any meaningful custodial sentence, by removing him from the rehabilitation programme in which he was at an advanced aftercare stage, ran the real risk of seriously damaging his prospects of rehabilitation.”

37. Here, the respondent presented himself to the sentencing judge as drug-free, having previously been an abuser of both drugs and alcohol. Undoubtedly, subjecting him to any significant or meaningful period in prison would be likely to reverse this progress. The sentencing judge was certainly entitled to take the view that it could. As she put it (having referred to the series of “very positive” probation reports); “There are young people who are given chances who don’t take the chance before the Court, I am satisfied that you have done your best…to extricate yourself from a very serious and unfortunate situation that you have got yourself into”; page 4 of the DAR transcript.

38. Referring to public policy considerations, Murray J in McGinty pointed out (at para. 31) that “complete rehabilitation of drug addicts is notoriously difficult while at the same time an important part of penal policy since if successful it reduces dramatically the risk of repeating offences and imprisonment of addicts.” He continued:- “32. In carrying out this difficult balancing exercise as to where the public interest best lay the trial judge clearly decided that its interests were best served by permitting the accused to see through his rehabilitation to a probably successful

conclusion. Such rehabilitation was more likely to ensure that the accused would be a law abiding citizen in the future than if his rehabilitation programme was terminated by a prison sentence.”

39. If anything, the position before the sentencing judge in this case was starker. Here, the respondent gave every appearance of having ceased taking drugs. He had “complied entirely with everything that was asked of” him by the Probation Service and had “done [his] level best to get [himself] back on track”. The sentencing judge was quite entitled, in those truly exceptional circumstances, to fully suspend the sentence imposed on Mr. Adeagbo.

40. In summary, we note that the headline sentence of 5 year is not in dispute. The reduction of that sentence by 18 months given (in particular) the signed plea of guilty was in no way inappropriate. The suspending of the balance of the sentence did not form a substantial or gross departure from what was an appropriate sentence in the circumstances; McKechnie J in People (DPP) v. Stronge [2011] IECCA 79.

41. We will therefore dismiss the appeal.