Supreme Court dismisses appeal against drug sentences, upholding Court of Criminal Appeal's reduction from 28 to 20 years.

THE SUPREME COURT

[S.C. No: 154/2004]

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

Macken J.

Between/

The People at the suit of the Director of Public Prosecutions

Respondent

and

John Gilligan (No. 2)

Applicant/Appellant

Judgment delivered the 10th day of July, 2006 by Denham J.

1. Issues

Two issues arise for decision on this appeal. First, it is necessary to determine whether this Court has jurisdiction to hear an appeal

by the applicant against his sentences. Secondly, if the answer to the first question is in the affirmative, whether the Court should

intervene in the sentencing decisions.

2. Special Criminal Court

John Gilligan, the applicant/appellant, hereinafter referred to as the applicant, was convicted by the Special Criminal Court on the

15th March, 2001, of drug offences involving importation into the State and possession for the purpose of sale or supply of cannabis

resin between July, 1994 and October, 1996. In respect of six counts of possession for the purpose of sale or supply he was

sentenced to a term of twenty eight years imprisonment in respect of each count, the sentences to run concurrently. In respect of

the five counts of unlawful importation of a controlled drug he was sentenced to a term of twelve years imprisonment, the terms to

run concurrently.

3. Court of Criminal Appeal

The applicant applied for leave to appeal to the Court of Criminal Appeal against the convictions and sentences. The applicant's

appeal against his convictions was refused by a judgment of the Court of Criminal Appeal delivered on 8th August, 2003. In a

judgment delivered on the 12th November, 2003, the Court of Criminal Appeal reduced the sentences in respect of the convictions of

possession of a controlled drug for the purpose of selling or otherwise supplying to another from twenty eight years imprisonment to

twenty years, and upheld the sentences of twelve years imprisonment in relation to the convictions for unlawful importation.

Thus there were two separate judgments of the Court of Criminal Appeal, the first, on the 8th August, 2003, related to the issue of

convictions. The second, on the 12th November, 2003, dealt with the issue of sentences.

4. Certified Questions

On the 20th February, 2004, (order perfected on the 11th March, 2004) the Court of Criminal Appeal certified, pursuant to s.29 of

The Courts of Justice Act, 1924, that its decision issued on the 8th August, 2003, refusing leave to appeal against a conviction of the

Special Criminal Court given on the 15th March, 2001, on charges of possession of a controlled drug for the purpose of selling or

otherwise supplying it to another and unlawful importation of a controlled drug, involved points of law of exceptional public importance

and that it was desirable in the public interest that an appeal should be taken to the Supreme Court on that decision. The points of

law certified were:

(i) In what circumstances and to what extent is evidence which may have been obtained from witnesses under a State Witness

Protection Programme inadmissible and/or inconsistent with trial in due course of law as guaranteed by Article 38.1 of the

Constitution?

(ii) Is corroboration in the sense described in R. v. Baskerville [1916] 2 K.B 658 required in respect of the testimony of

accomplice witnesses who have participated in a State Witness Protection Programme? If not, what is the appropriate test in

relation to such witnesses?

The certificate referred to the judgment on the issue of the convictions given on the 8th August, 2003. There was no reference to

the judgment of the 12th November, 2003, which dealt with the issue of sentence.

5. The Supreme Court

On the 23rd November, 2005, the Supreme Court delivered judgment dismissing the appeal of the applicant insofar as it related to his

convictions.

In accordance with the jurisprudence of the Court, the appeal under s. 29 of The Courts of Justice Act, 1924 was treated as a full

appeal from the decisions of the Court of Criminal Appeal. In addition to the certificate setting out two certified points of law, a full

set of grounds of appeal were lodged with this Court, comprising the same grounds as were argued before the Court of Criminal

Appeal. These included grounds relating to sentence. The grounds, including the certified points, dealing with the convictions, were

addressed in the judgment of 23rd November, 2005. At issue in this judgment is the appeal against the sentences.

6. Jurisdiction

Article 34.4.3 of the Constitution provides:

“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate

jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as

may be prescribed by law”.

The latter part of the Article is relevant to this case as it includes the appellate jurisdiction of the Supreme Court from the Court of

Criminal Appeal, which is provided for by legislation. This follows upon the statutory scheme for appeals from trial courts to the Court

of Criminal Appeal.

Section 3 of the Courts (Establishment and Constitution) Act, 1961 provided for the establishment of a new Court of Criminal Appeal.

Section 12 of the Courts (Supplemental Provisions) Act, 1961 vested in the Court of Criminal Appeal all jurisdiction which immediately

before the operative date vested in the existing (now previous) Court of Criminal Appeal. This included s.29 of The Courts of Justice

Act, 1924. The degree of finality of the determination of the Court of Criminal Appeal is to be found in s. 29 of The Courts of Justice

Act, 1924. Section 29 states:

"The determination of the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final,

and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify that the

decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal

should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the decision of which

shall be final and conclusive."

Thus the determination of the Court of Criminal Appeal is final unless leave to appeal is granted pursuant to s. 29.

It was on the basis of this legislation that Walsh J. in The Attorney General v. Giles [1974] I.R. 422 was of the view that a decision of

the Court of Criminal Appeal when hearing both an appeal against conviction and an appeal against sentence may be considered as

two appeals. I shall return to this later in the judgment.

The jurisdiction of the Court of Criminal Appeal in relation to appeals was also addressed in s. 3 of the Criminal Procedure Act, 1993.

Section 3 subsection (1) sets out the orders the court may make on an appeal against conviction. Subsection (2) states the orders

the court may make on an appeal against sentence. This confirms the earlier approach by Walsh J. in Giles that there are two

appeals, one against conviction and one against sentence. The Act does not in any other relevant respect address the jurisdiction of

the Court of Criminal Appeal other than to make provision for the precise orders it may make. Section 34 of The Courts of Justice Act,

1924 had described briefly the orders which a Court of Criminal Appeal might make. It gave jurisdiction to affirm or reverse conviction

or vary the sentence. It provided:

"The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to

reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as

may be necessary for the purpose of doing justice in the case before the court."

The Criminal Procedure Act, 1993 was an act to provide judicial review of certain convictions and sentences, for presentations of

petitions for the grant of pardon on the grounds of miscarriage of justice, for payment of compensation by the State to or in respect

of persons convicted as a result of a miscarriage of justice and for connected matters. In this context the jurisdiction of the Court of

Criminal Appeal was considered in a more comprehensive manner. Section 34 of The Courts of Justice Act, 1924 was repealed and s. 3

provides:

" 3.—(1) On the hearing of an appeal against conviction of an offence the Court may—

(a) affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be

decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred), or

(b) quash the conviction and make no further order, or

(c) quash the conviction and order the applicant to be re-tried for the offence, or

(d) quash the conviction and, if it appears to the Court that the appellant could have been found guilty of some other

offence and that the jury must have been satisfied of facts which proved him guilty of the other offence—

(i) substitute for the verdict a verdict of guilty of the other offence, and

(ii) impose such sentence in substitution for the sentence imposed at the trial as may be authorised by law for the other

offence, not being a sentence of greater severity.

(2) On the hearing of an appeal against sentence for an offence the Court may quash the sentence and in place of it impose

such sentence or make such order as it considers appropriate, being a sentence or order which could have been imposed on the

convicted person for the offence at the court of trial."

On the certificate granted in this case the Court has considered already the specific points of law certified and the other grounds of

appeal relating to the applicant’s convictions. This broad approach is grounded on the judgment of Walsh J. in The Attorney General

v. Giles [1974] I.R. 422. The facts in Giles were that the appellant was indicted and convicted of conspiracy to rob and was

sentenced to serve six years imprisonment. The Court of Criminal Appeal refused to grant him leave to appeal to that Court. The

Attorney General issued a certificate, pursuant to s. 29 of The Courts of Justice Act, 1924, certifying that the decision of that Court

involved a point of law of exceptional public importance, viz., whether the sentence was a lawful one, and certifying that it was

desirable in the public interest that an appeal should be taken to the Supreme Court. The certificate enabled the appellant to appeal

to the Supreme Court and in his notice of appeal, apart from the point of law certified, he entered four grounds of appeal designed to

challenge the validity of his conviction. At the hearing the appellant did not rely on those four grounds but sought leave to argue an

additional ground challenging the conviction. The Supreme Court (Fitzgerald C.J., Walsh and Henchy J.J.) disallowed the appeal and

refused the application for leave to present the additional ground. An issue arose as to whether the function of the Supreme Court in

determining an appeal from a decision of the Court of Criminal Appeal is confined to a resolution of the point of law specified in the

certificate issued pursuant to s. 29 of The Courts of Justice Act, 1924. While Fitzgerald C.J. agreed with the judgments of Walsh J.

and Henchy J. on the point of law specified in the certificate of the Attorney General, he expressed reservations about the submission

that the appellant is entitled to argue matters which are outside the terms of that certificate and expressed no opinion on that

question. Walsh J. dealt with the issue arising on the certified question. He then considered whether an appellant who comes to the

Supreme Court on a certificate pursuant to s. 29 is confined to the points of law set out in the certificate. He approached the matter

in an historical manner first, stating at p.429:

"In my experience it has always been accepted as a correct view of the law here that an appeal to this Court was not confined

to the point raised in the certificate. It has also been the view that this Court has the same powers as the Court of Criminal

Appeal in a like case."

Walsh J. analysed s. 29 in the following manner at p. 427:

"It is important to note that the wording of s. 29 of the Act of 1924 refers to 'the determination by the Court of Criminal Appeal'

and 'the decision.' It speaks of 'the determination' by the Court of Criminal Appeal being final and conclusive unless a certificate

is given which states that an appeal should lie. The appeal lies against the decision of the Court of Criminal Appeal and there is

nothing in the statute which confines it to the point of law certified, if any. The decision 'involves' the point of law but,

according to the Act, it is against 'the decision' that the appeal lies. The 'point of law' is not the decision. The decision is the

order make in respect of the conviction and/or sentence, as the case may be."

I would follow this analysis. Section 29 provides that 'the determination' of the Court of Criminal Appeal shall be final. This concept

that the appeal is 'determined' by the Court of Criminal Appeal is reflected also in s. 33 which states that "The appeal . . . shall be

heard and determined by the Court of Criminal Appeal." The section does not permit an appeal unless it is certified that 'the decision'

involves a point of law of exceptional public importance, but it is not so limited.

Walsh J. held:

"For the reasons I have given, I am of opinion that, having regard to the provisions of s. 29 of the Act of 1924, the appeal

taken to this Court was an appeal against the decision of the Court of Criminal Appeal and that, although the granting of the

certificate gives the right of appeal, the certificate does not limit the scope of the appeal."

I would adopt and apply this statement of the law.

Walsh J. considered the situation where there is an appeal against sentence and an appeal against conviction and the situation where

there is an appeal against conviction only. He pointed out that an appeal against sentence is different to an appeal against conviction

and that an appeal against one does not import the other. He went on to say:

"In my view, the decision of the Court of Criminal Appeal which has dealt with both an appeal against conviction and an appeal

against sentence can be considered as one involving two appeals. It does not, however, follow that an appeal in respect of

sentence is ruled out where a certificate has been given in relation to conviction only. I think a review of the history of this

form of appeal to this Court will make this clear."

I would adopt this approach. Where the decision of the Court of Criminal Appeal has dealt with both an appeal against conviction and

an appeal against sentence it is in essence two appeals. In those circumstances, if there is a certificate relating to a point of law

relevant to conviction only, this does not rule out an appeal against sentence. While it does not arise in this case, it appears to me

that the converse is not the case. An appeal against sentence only to the Court of Criminal Appeal does rule out any appeal on

conviction to the Supreme Court.

In describing this jurisprudence Walsh J. referred to the 22 occasions on which a certificate had been granted since 1924 to that

date. He concluded at p.436:

It appears to me that the reasoning in Earls's Case [1969] I.R. 414 is equally applicable to the present case. Once the appellant has a

right of appeal, he is dominus litis in the sense that he controls the scope of the appeal in respect of the decision from which the

appeal is taken. If the decision involves both conviction and sentence, then in his notice of appeal to this Court the appellant can

decide whether he will appeal against both or confine his appeal to one or the other. However, if the appeal taken to the Court of

Criminal Appeal in the first instance related only to conviction or to sentence, but not to both, then the decision of that court is

obviously a decision relating only to the conviction or the sentence, as the case may be, and an appeal taken against that decision

by virtue of the provisions of s. 29 of the Act of 1924 must equally be limited in this Court to the conviction or the sentence, as the

case may be. However, in a case where the decision of the Court of Criminal Appeal involved both an appeal on the question of

sentence and an appeal on the question of conviction, this Court cannot bind itself to deal with only one or the other simply because

the certificate, if it specifies a point of law at all (which, as I have pointed out, it frequently does not), relates only to one or other of

them. To hold otherwise would put it out of the power of the Court to correct, for example, some glaring error. If a certificate giving

leave to appeal to this Court specified a point of law relating to conviction only, and it appeared to this Court that the sentence

imposed was one not permitted by law, this Court clearly must have the power to permit an amendment of the notice of appeal to

enable the Court to deal with that matter and to change the sentence to one which is in accordance with law. A similar point could

arise relating to the conviction itself where the certificate specified a point of law in regard to the sentence only in a case in which

there had been an appeal in the Court of Criminal Appeal against both conviction and sentence. Once an appeal has been brought to

this Court pursuant to provisions of s. 29 of the Act of 1924, this Court has all the powers of the Court of Criminal Appeal as was

demonstrated in The People (Attorney General) v. Quinn [1965] I.R. 366."

Henchy J. stated:

". . . this Court seems to have taken the same view as the House of Lords took under the corresponding statutory provisions in

England of the extent of the jurisdiction on hearing an appeal from the Court of Criminal Appeal, that is to say, that the Court is

not confined to the point of law certified, and may exercise all the powers which the Court of Criminal Appeal could exercise in

such a case. . . .

On the assumption that it would be open to this Court to allow a point of law other than that certified to be raised, the Court

could do so only if the point had been a ground of appeal in the Court of Criminal Appeal or, alternatively, on the basis that it

could have been added to the grounds of appeal if application on that behalf had been duly made in the Court of Criminal

Appeal."

While the words of Walsh J. and Henchy J. in Giles, on the jurisdiction of the Court, were obiter dicta, they have been applied

consistently ever since as being the law.

The terms of s. 29 of The Courts of Justice Act, 1924 were similar to the words of the Court of Appeal Act, 1907 of England and

Wales. In Milne v. Commissioner of Police for City of London [1940] A.C. 1 at p. 21 Lord Atkin said:

“I mention the section in order to support the view that whatever be the point of law upon which the Attorney-General grants

his certificate, once it is granted there is “a further appeal” to this House upon all the grounds open to the Court below. The

appeal is not limited to the point of law of exceptional public importance, which indeed is not specified in the certificate. The

result is that this House is armed with all the powers of the Court of Criminal Appeal in like cases, and amongst other matters

may act upon the proviso to s.4, sub-s.1, if it were to consider that, though the point of law was wrongly decided, no

substantial miscarriage of justice had occurred.”

The law in England and Wales was amended subsequently by legislation and so later cases in that jurisdiction are based on statutory

law which is not similar to our legislation. Consequently later case law does not have any relevance to the position in this State.

It is a question of construing the terms of s. 29 of The Courts of Justice Act, 1924. There are no clear words giving the applicant the

right to appeal on issues outside the certified questions. Nor are there clear words limiting the appeal to such questions. It is a matter

of statutory interpretation in the context of the criminal law, with all that implies. In the circumstances, does the Court have the

jurisdiction to intervene in the sentence when it was not one of the certified questions?

The section was construed by Walsh J. and Henchy J. in Giles, as set out previously in this judgment. This construction has been

acted upon and applied for decades. As a consequence of following this construction the Supreme Court has before it the issues

which were before the Court of Criminal Appeal.

I am satisfied that this approach should be continued. I adopt and apply the judgment of Walsh J. in Giles. The certificate granted by

the Court of Criminal Appeal enables the appeal to the Supreme Court. It opens the gate to the appeal. The appeal to the Supreme

Court is limited by the nature of the appeal to the Court of Criminal Appeal. If an appeal to the Court of Criminal Appeal from a trial

court was limited to sentence then so too is an appeal to the Supreme Court. If an appeal to the Court of Criminal Appeal was on

issues of conviction and sentence then the Supreme Court "cannot bind itself to deal with only one or the other" simply because the

certificate is so limited. The certificate is the condition precedent to the appeal. Once it is granted the Supreme Court is at large on

the appeal to the extent of the appeal to the Court of Criminal Appeal. The rationale for this approach is the administration of justice.

I agree with Walsh J. that where the decision of the Court of Criminal Appeal involved an appeal on conviction and sentence that this

Court cannot bind itself to deal with only one or the other simply because the certificate relates to one only. It is an appeal to the

Supreme Court on all the issues opened in the Court of Criminal Appeal. Otherwise it would mean that the Court could not correct

some glaring error, or injustice. If a certificate giving leave to appeal to the Supreme Court specified a point of law relating to

conviction only and it appeared to the Court that the sentence composed was one not permitted by law, this Court should have the

power to enable the Court to deal with that matter and to change the sentence to one in accordance with the conviction, law and

justice. Also, if a conviction is under appeal and the appeal is partially successful then this may have an impact on the lawful

sentence, it may require to be lower, accordingly, the Supreme Court must be in a position to be able to vary the sentence

appropriately.

Equally, if the conviction is under appeal and further facts are considered relevant then it may be that the appropriate sentence

should be higher than that given by a lower court. Thus, for example, in this case, the Court of Criminal Appeal allowed the appeal of

the applicant as to his status of leader of the gang. The Court of Criminal Appeal referred to several matters and stated:

"For these reasons, this court thinks that it would be unsafe to find that the applicant was the leader of the gang of which

Charles Bowden was part, but nevertheless, this court is satisfied that the applicant was rightly convicted of offences under

Section 15 of the Act in that he was in possession of controlled drugs for the purpose of supplying them to Brian Meehan or

other members of the so called ‘gang’".

The Court of Criminal Appeal, having considered the sentences given to other gang members, then went on to reduce the sentences

of the applicant partially on the basis of its finding of fact as to the applicant not being the leader of the gang, stating:

"The sentence imposed by the Special Criminal Court in this case is certainly considerably greater than that which was imposed

in the case of Brian Meehan or Patrick Holland. If this Court had upheld the finding that the applicant was effectively the ring

leader of the gang which distributed the drugs in Dublin, that disproportionality might well be justified and, of course, that was

the basis upon which the sentence was imposed. However, the fact that this Court felt that such a finding was unsafe is a

matter which must be taken into account."

However, this Court on 23rd November, 2005, reversed the finding of the Court of Criminal Appeal on this aspect. This Court

reinstated the findings of the trial court, that the applicant was a member of the gang, was "the prime mover" in the importation of

the drugs, was the largest beneficiary, and was "the supreme authority". Consequently, this ground, which was a basis for reducing

the sentence in the Court of Criminal Appeal, no longer applies. Also, the specific issue of proportionality, to other members of the

gang, is changed. For example, Patrick Holland was sentenced to twenty years imprisonment by the trial court, which sentence was

reduced to one of twelve years imprisonment by the Court of Criminal Appeal. In reducing the sentence that court pointed out that

while Patrick Holland was a professional criminal and that it was proper that a heavy sentence should be imposed, however he had

only been charged with one offence, the drug concerned was cannabis and not heroin, he was 58 years of age, and was not the gang

leader. Consequently, the fact that the applicant was the gang leader is an important factor, and requires consideration by this Court

as to whether the sentence which was varied down by the Court of Criminal Appeal should be varied back up.

This analysis shows how issues relating to a conviction may have a direct relevance to sentencing. It would be unnecessarily

restrictive, and possibly lead to injustice, for the court to hold a restrictive construction of s.29 so as to create a situation where the

court would not have jurisdiction to administer justice. I am satisfied that where an appeal has been heard by a Court of Criminal

Appeal as to both conviction and sentence, even if the certificate pursuant to s.29 of the Courts of Justice Act, 1924 refers

specifically only to matters relating to the conviction, that the Supreme Court has jurisdiction in relation to the decision of the Court

of Criminal Appeal which includes the issue of sentencing. Thus, while a decision of the Court of Criminal Appeal which has dealt with

both an appeal against conviction and an appeal against sentence may be considered as involving two appeals (and in this case there

were two judgments) it does not follow that an appeal against sentence is ruled out where a certificate relates to conviction only.

It appears to me that the interpretation made by Walsh J. is one which is open to a court on the section. Further, as this is a matter

of construing a statute in the context of the criminal law, any ambiguity should be determined to the advantage of an accused, and if

necessary I do so in this case. This construction of s.29 has been accepted and acted upon for decades and I see no good reason to

depart from the words of Walsh J.. It is open, of course, to the Oireachtas to create new law on the matter.

Consequently I am satisfied that the Court has jurisdiction to receive submissions and consider an appeal by the applicant against his

sentences.

7. Sentence

The answer to the first issue being in the affirmative the second matter then requires to be decided. Should the Court intervene in

the sentencing decision of the Court of Criminal Appeal?

7.1 Submissions

James Lewis, Q.C., counsel on behalf of the applicant, submitted that the Court of Criminal Appeal erred in reducing the applicant’s

sentence to twenty years in respect of the offences of possessing cannabis resin for the purpose of sale or supply for the following

reasons:

(i) That the sentence was manifestly disproportionate;

(ii) That the Court of Criminal Appeal gave insufficient weight to the fact that the convictions were in relation to the sale and

supply of cannabis resin as opposed to other drugs which it was stated were ‘universally considered more harmful’.

(iii) That the Court of Criminal Appeal gave insufficient consideration to parity in sentencing as between the offence of

possession for the purpose of sale or supply and the offence of importation of cannabis resin.

7.2 Sentence for importation

It appears, therefore, that this is not an appeal against the sentences for importation. On that issue the Court of Criminal Appeal

stated:

"In relation to the sentence for importation, taking all the factors urged on the court into account, the court is quite satisfied

and has no doubt that, in the light of the applicant’s central involvement and organisation of the importation, the sentence of

12 years imprisonment was fully justified, and refuses the appeal in relation to those convictions."

Thus that decision is not in issue on this appeal, except as a comparator.

7.3 Sentence for possession for sale or supply

The appeal relates to the offences of possession for the purpose of sale or supply. Of these sentences the Court of Criminal Appeal

stated:

“With regard to the charges in relation to possession for the purpose of sale or supply, which offence carries a maximum

sentence of life imprisonment, this court feels that the offences must be dealt with severity. Even if one has regard to the 180

kilograms involved in the six charges, those drugs would have street value of well over one million pounds. The surrounding

circumstances clearly show that the accused had a serious involvement in organised crime. While it was not the law at the time

these offences were committed, it is now the law that possession for the purpose of sale or supply of as little as £10,000 worth

of cannabis resin warrants a 10 year sentence unless there are exceptional circumstances. This, of course, is not in any way

binding on us, but we think it can be used to give some sense of proportion to the sentence that was actually imposed on the

applicant.

The court is concerned that the Special Criminal Court appeared to have erred in principle in not restricting itself to the

individual charges which were proved, and also that, in the light of the applicant not being held to be the leader of the

distribution gang, that the sentences were disproportionate to those imposed on others involved. Accordingly, this court will

reduce the sentence for possession of cannabis resin for the purpose of sale or supply to one of twenty years imprisonment.”

7.4 Statutory maximum

In analysing the sentence it is appropriate first to determine the maximum sentence provided for by the legislation. At the core of this

aspect of the appeal is the twenty year sentence for possession for the purpose of sale or supply, pursuant to s.15 of the Misuse of

Drugs Act, 1977, as amended. In 1977 the Oireachtas set the maximum penalty at fourteen years in s.15(2) Misuse of Drugs Act,

1977. However, in 1984 the Oireachtas increased the maximum penalty for possession for sale or supply to one of life imprisonment.

Thus there is a clear legislative policy established by the Oireachtas that this is a most serious offence and consequently it has the

potential sentence of life imprisonment.

7.5 Law of England and Wales

Reference was made in the oral and written submissions to the law in England and Wales. However, this is a matter of the application

of Irish law and neither the decisions of the Parliament in Westminster nor the courts of England are very helpful. The policy of the

Oireachtas is clear from the statutes. These are most serious offences with the potential of sentences of life imprisonment.

Proportionate

Sentences should be proportionate to the crime, and should reflect the sentence provided by the Oireachtas. As the crimes in this

case were at the top end of the range, the sentences should also be at the top end of the scale. The sentences should also be

proportionate to the circumstances of the offender.

Circumstances

It is then necessary to consider the particular circumstances of the offences and the particular circumstance of the applicant to

determine the appropriate sentence.

7.6 Leader

An important factor is that the applicant was the leader. This immediately places him in a more serious position for sentencing. It also

distinguishes him from other members of the gang.

The fact that he was the leader was considered a serious factor by the trial court who handed down a sentence of twenty eight

years. This was altered by the Court of Criminal Appeal to twenty years, but a key factor in that decision, as recited previously in this

judgment, was the overturning of findings of the trial court as to the leadership status of the applicant. This Court has reversed the

finding of the Court of Criminal Appeal and reinstated the findings of the trial court of the leadership status of the applicant.

Consequently, this factor now remains as an aggravating factor.

7.7 Mitigating factors

There was no evidence of any mitigating factor. No remorse was indicated at the court of trial, or later. While the applicant is not in

his youth neither is he an old man, and in all the circumstances his age is not a mitigating factor.

7.8 Other criminality

The Court of Criminal Appeal held that a court may only impose a sentence having regard to the circumstances surrounding the

offence(s) for which an accused has been convicted, and that a court may not have regard to evidence of other actions which have

not been the subject of any conviction or where an accused has not consented to the charge in respect of which he has been

convicted being treated as a sample charge. I would endorse and affirm this approach.

7.9 Sentence of Court of Criminal Appeal

The Court of Criminal Appeal reduced the sentence of twenty eight years imprisonment to one of twenty years on two grounds. First,

on the ground that the Court of Criminal Appeal had reversed the trial court finding that he was the leader of the gang. This factor no

longer applies as the Supreme Court reinstated the trial court findings. Secondly, and thus the only ground now extant, the Court of

Criminal Appeal reduced the sentence to twenty years on the grounds that the trial court erred in principle in not restricting itself to

the individual charges which were proved. Counsel submitted that this reduction was insufficient in the circumstances and that this

Court should reduce the sentence further.

7.10 Decision on sentences

Counsel for the applicant indicated that the first submissions filed were still before the court, as well as the second document entitled

aid to submissions. The three principle grounds of appeal were set out previously, in paragraph 7.1 above. I shall address them first.

(i) In view of the determination by this Court on 23rd November, 2003, that the finding of the trial court that the applicant was

the gang leader be reinstated, one of the bases for the sentence of twenty years is altered. This Court, having reinstated the

finding of the trial court, that the applicant was the gang leader, this basis for reducing the sentence from twenty eight years

no longer applies. A consequence of this is also that the concept of proportionality as between the gang members is also

altered. As a leader the applicant is not in the same position as other members of the gang. Consequently, his sentence may be

proportionately in excess of the others.

(ii) The Oireachtas did not place cannabis resin in a less serious category than other drugs rendered illegal under the legislation

and statutory instruments. This was a clear policy decision by the Oireachtas. In all the circumstances of this case, which have

been recited in the judgment of 23rd November, 2005, I do not consider that the Court of Criminal Appeal gave insufficient

weight to the fact that the convictions were in relation to the sale and supply of cannabis resin.

The circumstances in this case which are relevant and which are aggravating factors include as follows: (a) The applicant was

the prime mover. (b) It was a large commercial operation. (c) The applicant made significant profits. (d) It was not a case

where the applicant was himself a drug addict seeking to feed a habit. (e) The applicant had previous convictions. (f) There

were no signs of remorse. Consequently, I am satisfied that the Court of Criminal Appeal had grounds upon which to make the

decision which it did.

(iii) Under the Misuse of Drugs Act, 1977, as amended in 1984, the maximum penalty for the possession of drugs for the purpose

of sale or supply is life imprisonment. The amendment in 1984, to increase the maximum penalty to life imprisonment from the

previous maximum sentence of fourteen years, was a policy decision of the legislature as to offences of this type. In contrast,

the penalty for the offence of importation was set at 14 years under the Act of 1977 and not subsequently amended. The

Oireachtas thus established a distinction between the penalty for these offences. Parity does not exist in law. Nor is a

sentencing court required, in this jurisdiction, to apply parity between the sentencing of the two distinct offences.

While the sentence for possession for sale or supply is significantly higher than that for importation this reflects a sentencing

policy of the legislation which was open to the court. I consider that there was no error in reflecting the difference between the

offences accordingly, given the legislative basis of the offences, the maximum sentences possible thereunder, and all the

circumstances of the case.

(iv) The Special Criminal Court handed down a sentence of twenty eight years. This was reduced by the Court of Criminal

Appeal to twenty years on two grounds, one of which no longer applies. The remaining ground upon which the Court of Criminal

Appeal reduced the sentences was that the Special Criminal Court appeared to have erred in principle in not restricting itself to

the individual charges which were proved. This is a significant ground which I would affirm.

(v) The sentence of twenty years is at the high end of the appropriate sentence. However, it was not so high as to be an error

in principle. These were serious offences, involving a significant amount of illegal drugs, in a pattern, where the applicant was

not in the business of possession for the sale or supply of illegal drugs to feed a habit, but rather for commercial gain, and he

gained significantly. The Oireachtas has provided a legislative framework where the maximum sentence for such a crime would

be life imprisonment. The Court of Criminal Appeal did not give such a sentence although it was open to that Court to take that

approach. The Court of Criminal Appeal applied the appropriate principles in considering all the circumstances, including that

other criminality is not relevant to sentencing. This factor was an appropriate basis on which to reduce the sentence. There is

no evidence that the Court of Criminal Appeal having stated the principle did not apply it. Indeed it appears to have applied it

appropriately in all the circumstances of the case.

(vi) Other grounds were raised by the applicant in written submissions. I have considered the oral and written submissions and

am satisfied that they do not raise any grounds upon which the appeal could succeed.

Conclusion

For the reasons given, I am satisfied that this Court has jurisdiction to hear an appeal by the applicant against his sentences. Having

considered the sentences imposed by the Court of Criminal Appeal, and all the circumstances of the case, I would not intervene in the

sentences of twenty years for the offences of possession for sale or supply.

Consequently I would dismiss the appeal.