Court of Appeal dismisses appeal against drug possession sentence, upholding mandatory minimum and rejecting partial suspension request.

THE COURT OF APPEAL Record No: 78/2024 Edwards J. Neutral Citation Number [2025] IECA 269 McCarthy J. MacGrath J.

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

RESPONDENT V JOSEPH KELLY APPELLANT

JUDGMENT of the Court delivered (ex tempore) by Mr. Justice Edwards on the 20th of June, 2025.

Introduction

1. This is an appeal brought by Mr. Joseph Kelly (i.e., “the appellant”) against the severity of the sentence imposed on him by the Dublin Circuit Criminal Court on the 11th of March 2024. The appellant was charged with three counts, and on the 27th of January 2024, Mr.

Kelly entered a plea of guilty to one count of unlawful possession of a controlled drug with a market value of €13,000 or more for the purpose of selling or otherwise supplying it to another contrary to ss. 15A and 27 of the Misuse of Drugs Act 1977, as amended (“the Act of 1977”).

2. On the 11th of March 2024, the judge in the Court below passed sentence ordering that the appellant serves 6 and a half years imprisonment on Count No 3 an offence contrary to ss. 15A and 27 of the Act of 1977, with the balance of the counts to be taken into consideration.

Factual Background

3. At the sentencing hearing of the 11th of March 2024, the Court heard evidence from a D/Garda Mark Berrigan in respect of the offences.

4. On the 16th of April 2019, An Garda Síochána stopped a white ford transit van (registration no 132 D 9941) on foot of confidential information, which was to the effect that this van was being used to move cannabis. This van had been observed travelling Southbound on the M1, where it then exited onto the M50 and then onto the N4. Gardaí stopped the vehicle on the N4, and the appellant was the sole occupant/driver.

5. The appellant and the vehicle were detained under s. 23 of the Act of 1977. Gardaí went to the rear of the van where they found 19 white nylon sacks which contained plastic vacuum-packed packages, which contents were later confirmed to have been cannabis herb. It was established that the 19 white nylon sacks contained 93.858 kilogrammes of cannabis herb, with a value of €1,877,160.

6. In addition, white paint was discovered on the appellant’s hands, his jeans and on a pair of gloves which were found in the footwell of the van. There was also white paint on a number of the nylon sacks in question.

7. The evidence established that the appellant had driven the vehicle to Lisburn, Northern Ireland that morning, where he was observed on CCTV attending at a shopping centre in Lisburn, and he had returned to the Republic of Ireland by way of the M1, M50 and the N4 where he was ultimately stopped.

8. During a search of the van, a dual SIM encrypted mobile phone, which operated on the Dutch network KBN, was discovered. Subsequently, a search warrant was obtained for the appellant’s apartment. During this search, the gardaí found the appellant’s personal mobile phone.

9. The appellant was conveyed to Lucan Garda Station where he was detained and interviewed. On several occasions the appellant professed his shock at what was being put to him. He stated that he did not know there were drugs present in the vehicle and indicated a lack of memory when a number of matters were put to him. The appellant confirmed that he was in M&S in Lisburn when a receipt from that location was produced.

Personal Circumstances of the Appellant

10. The appellant was 64 years of age at the time of the offence, and 70 years of age at the time of sentencing. At the time of the offending the appellant was living in sheltered accommodation supported by the ALONE organisation, where he had resided since 2018.

11. The appellant separated from his wife in 2004. He has two children, a son and daughter, and one grandchild.

12. D/Garda Berrigan clarified that the appellant has no previous convictions and agreed during cross-examination that he was unlikely to reoffend.

Psychological Report

13. A psychological report prepared by a Dr. Kevin Lambe dating the 4th of June 2021 was before the sentencing court. Dr. Lambe opined:

“I suggest his financial vulnerability was identified by those who duped him and he has been left the fall-guy. He acknowledges he was naïve in the context of the various instructions he received and the tasks he was to undertake with ‘the van’ in terms of parking it up and the newspaper positioning communicating certain messages. Moreover, he now shows a high level of regret and he points to the potential loss of a nurturing grandfather – grandson relationship. He is showing many features of depression, and his thoughts about himself as a nobody as well as internal conflicts seem to plague him night and day. This a difficult space for a proud man aged 68, heading into his 70’s without a solid base or sense of security.”

14. The appellant outlined to Dr. Lambe that he has a history with gambling. He stated that he tried Gambling Anonymous meetings remotely during the pandemic but that he did not find them useful. Dr. Lambe outlined that it “has been found that including a social connection in treatment can increase successful treatment outcomes for problem gamblers” and further stated that gambling remains a problem for the appellant and recommends that he attends Gamblers Anonymous meetings in person.

Medical Report

15. A medical report prepared by a Dr. Justin Smyth of Ranelagh Medical, dating the 8th of February 2024, was before the sentencing court.

16. Dr. Smyth confirmed that the appellant had been diagnosed with skin cancer around 2017/2018, which required medical treatment. He outlined that the appellant became depressed on foot of this and required antidepressant medication. The appellant did not persist with these medications.

17. Dr. Smyth outlined that the appellant informed him that “he was in debt to the bank of €3,500 and his gambling addiction was completely out of control. His sister Kathleen was also terminally ill at that stage (the time of the offending), and he managed to gamble away the €5,000 she had given him to help with her funeral costs.”

18. Dr. Smyth stated that the appellant was due an assessment for surgery on his right eye;

further assessment in the dermatology outpatient’s department as a follow-up to previous skin cancer; and a further follow-up by urology and cardiology teams.

Sentencing Judge’s Remarks

19. On the 11th of March 2024, the judge in the Court below passed sentence on the appellant. The sentencing judge noted the factual background of the case as described in evidence by D/Garda Berrigan.

20. The sentencing judge then made the following remarks when considering the relevant mitigating factors at play in this case:

“Now, Mr Kelly has no record of conviction at all. It seems this was I think, a oneoff huge misjudgement. It seems that it's very unlikely that he'll re-offend. In deciding what to do about him, I certainly take into account his age. He has medical problems and the Court must have regard to that to some degree. The Court must also take into account that probably he was taken advantage of by third parties but he was a mature man and certainly should have known better. He obviously had his gambling problem and that's probably led to his need for monies.

I'm not sure.”

21. The sentencing judge then outlined that there is a mandatory minimum sentence of 10 years imprisonment for this type of offending. When considering whether to depart or not from this mandatory minimum, the sentencing judge stated: “Now, there's a mandatory minimum sentence of 10 years for this type of misbehaviour. Obviously, the legislation that created this offence, allows the Court to depart and the question is, should I depart? And if I did decide to depart, how far should I depart? Now, this is a serious amount of drugs involved here. It must have been obvious to Mr Kelly that he was transporting a serious amount of drugs.

So, there's a high level of culpability involved here on the part of Mr Kelly. He knew he was transporting a large amount of drugs. Now, with this amount of drugs I would say, would even if I was going to depart, I'd say I wouldn't depart more than a year or so. And I would say if this was a normal type of 15A type defendant, who are usually some place between 20 and 50. I would be giving him … that person with the same type of mitigation, probably nine years imprisonment.

But Mr Kelly is 70. He has medical infirmities and it'll make his stay in prison somewhat more difficult, plus the fact that he's age.”

22. The sentencing judge imposed a sentence of 6 and a half years imprisonment on Count No 3 to date from the day of sentencing and indicated that Count Nos 1 and 2 were to be taken into consideration.

Notice of Appeal

23. By a Notice of Appeal lodged the 11th of March 2024, the appellant now appeals to this Court against the severity of the sentence imposed by the Dublin Circuit Criminal Court.

In support of this application the appellant has advanced six grounds as follows:

1. “That the applicant was given an excessive sentence in all the circumstances.

2. That the learned trial judge fell into error, such error being one of principle, by incorrectly placing on the scale of severity the particular offence, the subject matter of the prosecution.

3. That the learned trial judge fell into error, such error being one of principle, by failing to identify an appropriate headline sentence, applicable to the applicant.

4. That the learned trial judge failed to take properly into account the background of the applicant.

5. That the learned trial judge failed to take properly into account that the applicant had no previous convictions.

6. The learned trial judge failed to consider either adequately or at all the possibility of imposing a non-custodial and/or community-based sanction in this case.” Submissions on Appeal Appellant’s Submissions Ground Nos 2 & 3

24. The substance of these complaints is that the sentencing judge failed to identify an appropriate headline sentence, only referencing the mandatory minimum and placed the severity of the offending at 10 years imprisonment.

25. It was submitted that there is a lesser culpability in the offending insofar as the appellant was playing a “subservient role” in the offending, and that he was a vulnerable individual at the time of this offending, due to his gambling addiction and living situation.

26. The appellant referred this Court to People (DPP) v. Sarsfield [2019] IECA 260 and quoted the following,

“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.”

Whilst counsel for the appellant accepted that an average effective sentence is one of six and three-quarter years, it was submitted that in line with Sarsfield there has on occasion been more leniency afforded to appellants.

Ground 1

27. This ground contended that the sentence imposed by the Court below was excessive in all the circumstances. It was argued that the sentencing judge failed to consider suspending a portion of the sentence imposed to deal with the issue at the root of the offending, that being the appellant’s gambling addiction, and to incentivise rehabilitation. Counsel for the appellant referred the Court to People (DPP) v. Broe [2020] IECA 140 in support of this contention.

28. It was submitted that despite the appellant’s age, he found himself in a compromised and vulnerable situation whereby he suffered with the same “human frailties” as would a younger individual in terms of addiction. It was argued that this is a significant factor where a Court wishes to incentivise a path of reform. Counsel for the appellant referred the Court to People (DPP) v. Quinn [2021] IECA 350 here.

Ground 4

29. The substance of this ground was that the appellant contended that the sentencing judge failed to properly take into account the background of the appellant. It was outlined that the appellant was 70 years of age at the time of sentencing, he has no previous convictions, and the sentencing judge heard of the appellant’s personal difficulties, such as his medical issues and his gambling addiction. It was submitted that due to these factors, the appellant should receive a suspended element of his sentence.

30. Counsel for the appellant referred to People (DPP) v. J.C. [2015] IECA 195 where it was observed:

“16. This Court has had to ask itself whether a very limited reduction of sentence would amount to an impermissible tinkering and failing to afford an appropriate margin of appreciation to the sentencing judge.

17. The court concludes that this is not the situation. It takes the view precisely because of the age and health of the appellant. The court in particular notes the medical report which states:

“This man is in very poor health. He suffers from carcinoma of the prostate. All in all he had very poor health with multi system disease.”

18. The court also notes that the appellant underwent coronary bypass surgery some years ago and also suffers from bronchial asthma.

19. The court takes the view that for someone in poor health in the 80th year, each year is likely to represent a significant portion of time that remains to them.

20. Having regard to the gravity of the offence, the most that can be considered by this Court is a further reduction in the part of the sentence that was suspended.

Because of his age and health, such a reduction may be of significance. Therefore the court will vary the sentence by increasing the element to be suspended from two to three years and leave the place the original sentence of eight years in view of the gravity of the offending behaviour.”

Ground 5

31. The appellant argued here that the sentencing judge erred in failing to properly take into account that the appellant has no previous convictions. It was submitted that this is significant in terms of the mitigation of the appellant and greater consideration should therefore have been given to this confirmation of a distinct lack of any form of mala fides on the part of the appellant for a period reaching almost three quarters of a century, an unblemished record, and the evidence of D/Garda Berrigan who agreed that the appellant is an individual who is unlikely to re-offend.

Respondent’s Submissions

32. In reply to the appellant’s contention that the sentencing judge incorrectly placed the particular offence on the scale of severity and failed to identify an appropriate headline sentence, counsel for the respondent submitted that is not borne out by the sentencing remarks or by the sentence imposed. It was stated that the sentencing judge referred to the appellant’s absence of previous convictions; that the appellant was unlikely to reoffend; his age; his medical problems; the fact that he was probably taken advantage of by third parties, but that he was a mature man and should have known better; his gambling addiction; and his money troubles.

33. Counsel for the respondent outlined that whilst the sentencing judge did not nominate a headline sentence, he did state that if the appellant had been of a more typical age for an offence such as this, and had the same mitigation (other than age) he would have likely received a sentence of 9 years imprisonment. It was submitted that the sentencing judge did explicitly state that the appellant received a discount of 2 and a half years on account of his age and medical issues. Further, it was submitted that the absence of a headline sentence does not necessarily result in the Court determining that there has been an error of principle and outlined that this was addressed in People (DPP) v. Flynn [2015] IECA 290.

34. It was outlined that a sentencing judge is not obliged to suspend any portion of a sentence, instead that this is an issue for judicial discretion. It was submitted that the sentencing judge here exercised his discretion not to suspend a portion of the sentence, explaining his decision in this respect, and this was a fair and ample exercise of his discretion.

35. Counsel for the respondent referred to People (DPP) v. L.H. [2023] IECA 307 and has submitted that a similar consideration could be said to apply to the present case, as a suspension of a portion of the sentence could properly have led to a lesser discount for mitigation.

Court’s Analysis & Decision Ground of Appeal No 3 - Failure to identify a headline sentence

36. Although it was pleaded that there was an error in principle on the part of the sentencing judge in failing to identify a headline sentence, counsel for the appellant conceded in oral exchanges with members of the Court that it is the law, and it has been repeatedly reiterated by this court, that the failure to do so is not per se an error of principle.

37. Further, counsel also conceded that while the sentencing judge at first instance had proceeded on the basis of instinctive synthesis, he had said sufficient to allow some level of reverse engineering in regard to his approach. He had said that but for the appellant’s age and infirmity he would have imposed a post-mitigation sentence of nine years imprisonment. The additional mitigating factors of which account would have been taken in that nine year figure were the plea of guilty, which was not an early plea, the fact that the appellant was a first-time offender, and the appellant’s personal circumstances other than his age and health issues. Counsel agreed that this implied a likely pre-mitigation starting point somewhere in the range between 10 and 12 years.

38. In the circumstances, we do not think that the remarks of the sentencing judge at first instance lacked such transparency as to render it an error of principle to have failed to nominate a specific headline sentence, and we reject Ground of Appeal No 3.

Grounds of Appeal Nos 1 & 2 - The Assessment of Gravity

39. While it is complained in substance in these grounds that the appellant received an excessive sentence because the sentencing judge at first instance incorrectly assessed, and implicitly over-assessed, the gravity of the appellant’s offending conduct, it was ultimately conceded by counsel for the appellant at the appeal hearing that in circumstances where it seems likely that the sentencing judge’s pre-mitigation starting point was somewhere in the range between 10 and 12 years, it was difficult to suggest that this had been an error. We think that this is correct and that there is no indication of any error in the assessment of gravity by the sentencing judge, particularly in light of this court’s guideline judgment in People (DPP) v. Sarsfield. To elaborate, the appellant’s culpability was high. The quantity of drugs involved was very significant. The importation of the drugs in question involved a pre-planned and sophisticated operation, as evidenced by the finding of encrypted telephone equipment utilising foreign network in the appellant’s possession. While his personal role was essentially that of a courier, it is clear from the evidence that he engaged in this activity knowingly and for personal profit.

Accordingly, we are not disposed to uphold Grounds of Appeal Nos 1 & 2.

Grounds of Appeal Nos 4 & 5 – Alleged Insufficient Allowance for Mitigating Circumstances

40. We are not disposed to uphold these grounds of appeal. While the remarks of the sentencing judge do not indicate any specific weightings afforded to these factors, they make clear nonetheless that the sentencing judge took into account these factors. The sentencing judge expressly acknowledged that the appellant “has no record of conviction At all” and that what was done was “a one-off huge misjudgment”. He accepted that it was unlikely that the appellant would reoffend. He took into account his age and medical problems. He accepted the likelihood that the appellant had been taken advantage of by third parties to some extent, albeit that he was a mature man and ought to have known better. He accepted that he had a gambling problem which had probably led to his need for money. The court had before it the psychological report of Dr. Lambe, and the medical report of Dr. Smyth further detailing the appellant’s background. We are in no doubt that the sentencing judge was fully alive to the appellant’s personal circumstances and fully took them into account. In our assessment, there was a generous level of discounting for mitigating circumstances and nothing to indicate an error of principle in the sentencing judge’s approach to the affording of mitigation. It is a matter of some significance that the sentencing judge considered that the justice of the case required him to depart substantially from the presumptive mandatory minimum and that he duly did so.

Ground of Appeal No 6 - Failure to Suspend a Portion of the Sentence

41. The appellant complains that the sentencing judge erred in principle in failing to suspend a portion of the residual 6 ½ year sentence that he had determined upon. While a judge has a wide discretion as to whether or not to suspend a sentence in whole or in part, we have repeatedly said that before this discretion can be properly exercised there must be an evidential foundation for doing so. This will usually be found in some steps taken towards, or track record of achievement in, addressing an underlying problem. The sentencing judge in this case accepted that the appellant had an underlying gambling problem, although we note in passing that there was no actual evidence of this beyond Dr. Lambe’s hearsay reiteration of what he was told by the appellant. It was asserted in Dr. Lambe’s report, based on what he was told by the appellant, that the appellant is now attending Gamblers Anonymous. However, the appellant neither gave evidence himself of that at the sentencing hearing, nor did he provide admissible evidence of that from any other source. Further, no supporting documentary evidence of progress towards rehabilitation in that respect was entered into evidence. We note in passing that at the sentencing hearing counsel for the appellant did not ask the sentencing judge, either before or after he had delivered his sentencing remarks, to consider structuring his sentence to include a partial suspension. In mentioning this we do not seek to criticise counsel in any way, because in the absence of an evidential foundation for a suspended sentence there was simply no basis for asking the sentencing judge to exercise his discretion in that regard. However, the fact that there was no such request suggests that it was appreciated that there was no evidential foundation for a partial suspension. In circumstances where the case is now being made on appeal that the sentencing judge erred in failing to consider a possible part suspension, notwithstanding that that remains the position, we can only conclude that this ground is being put forward more in hope than in expectation. We have no hesitation in concluding that this ground is misconceived, and we therefore reject Ground of Appeal No 6.

Conclusion

42. The appeal must be dismissed.

APPROVED JUDGMENT

NO REDACTION NEEDED