Court of Criminal Appeal mitigated mandatory ten-year sentence for drug possession for sale due to lack of prior serious convictions.

COURT OF CRIMINAL APPEAL

Record No.: 170/08

Hardiman J.

Budd J.

Hanna J.

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

RESPONDENT

v.

BRIAN ORMONDE

APPLICANT

Judgment of the Court delivered on the day of July, 2011, by Mr. Justice Declan Budd

Background

The applicant was sentenced to ten years imprisonment for an offence contrary to s.15A of the Misuse of Drugs Act 1977, as

amended, on the 3rd June, 2008, by Her Honour Judge Katherine Delahunt sitting in the Dublin Circuit Criminal Court. The term of

imprisonment was backdated to the 23rd June, 2007, from when the applicant was taken into custody. The applicant was in

possession of approximately 448 grammes of diamorphine valued at €90,000. The applicant made full admissions at the scene and

during interview and admitted that he had the drugs for the purpose of sale, although he attributed a lesser value to them. The

applicant furthermore consistently and duly pleaded guilty to the s. 15A offence. This plea obviated the lack of prosecution evidence

of his sale of heroin other than by his own admissions.

Particulars of conviction and indictment

Count no. 1: Possession of a controlled drug for unlawful sale or supply contrary to s. 15A, as inserted by the Criminal

Justice Act 1999 and amended by the Criminal Justice Act 2006, and s. 27 of the Misuse of Drugs Act 1977, as amended

by s. 6 of the Misuse of Drugs Act 1984 and the Criminal Justice Act 2006.

Count no. 2: Possession of a controlled drug for unlawful sale or supply contrary to s. 15(1) and s. 27 of the Misuse of

Drugs Act 1977, as amended by s. 6 of the Misuse of Drugs Act 1984.

Count no 3: Possession of a controlled drug contrary to s. 3 and s. 27 of the Misuse of Drugs Act 1977, as amended by

s. 6 of the Misuse of Drugs Act 1984.

Evidence at the trial

The gardaí, on the basis of confidential information, obtained a search warrant to search the residence of Brian Ormonde at Flat 1, 9

Synott Place, Dublin 1, on the 23rd June, 2007. The drugs were found secreted in the extractor fan in the kitchen of the applicant’s

residence. A weighing scales, a tub of glucose (commonly used as a mixing agent) and two “tick lists” relating to an amount of drugs

and names were also found along with €830 in cash. When asked by gardaí about the items found, the applicant immediately admitted

and accepted that the packages contained heroin, that he owned them, and he said that there was about half a kilogramme of heroin

in the packages.

The applicant said that he owed approximately €14,000 for the heroin and that he had begun selling heroin after some heroin he had

was stolen. He then fled to England for the safety of his life for some time. After he returned, he began selling heroin to pay off the

debt, which at that time was €20,000. The applicant also said that he was addicted to cocaine. He admitted that the tick list referred

to the amounts of heroin he had supplied to people and that the glucose was to mix with the heroin. The garda gave evidence that

the total value of the drugs seized was approximately €90,000. The garda also gave evidence that the accused had eight minor

previous convictions, a majority of which related to public order offences, one traffic offence and a s. 9(1) possession of firearms and

offensive weapons offence under the Firearms and Offensive Weapons Act 1990.

Under cross-examination, the garda accepted that the applicant was immediately co-operative, from and during the search and since,

and was honest about his role. The garda said that if the applicant had not been as forthcoming, it was likely perhaps that the matter

would have had to go to trial as the gardaí did not have evidence of him selling and supplying the heroin independent of his own

admissions. The garda also accepted that the applicant’s primary motivation in selling the heroin was to pay back the debt which had

been incurred by the applicant due to his being held responsible for the loss due to a purported theft of heroin in his possession.

Mitigation

Counsel for the applicant, in mitigation, relied on a governor’s report, a supportive letter from the accused’s parents, a letter from his

uncle, who is a medical doctor, a letter from Sister O’Donovan in the chaplain’s office in Cloverhill, a letter from a previous employer

and a letter from the accused himself. The letters, taken together, showed a picture of how the applicant had become involved in

misbehaviour in his teenage years. It was submitted that the applicant suffered significant difficulties in his childhood, having to try to

cope with moving from place to place and country to country and having to try to adapt to different schools in Australia due to his

father’s career. When the family returned to Ireland, he struggled in school and started using cocaine and alcohol. The applicant came

from a respectable family who were shocked at this drugs charge but were, nevertheless, supportive of him.

Counsel for the applicant relied on the early plea of guilty, which had been signalled in advance to the gardaí, and also the applicant’s

co-operation, from the outset, as well as on the accused’s progress since going into custody. It was submitted that the applicant had

been in custody for a year, having gone into custody on the 23rd June, 2007, and that he had made progress with regard to tackling

his relationship with drugs. He had matured and had developed insight into the offence before the Court, and had undertaken some

education. It was submitted that the chaplain’s letter and the governor’s report were both positive. Counsel for the applicant further

submitted that any references made in the interview to heroin that the applicant had previously possessed was referring to heroin

which he was holding and that he was not selling this. It was submitted by counsel for the applicant that in looking at matters taken

together, these amounted to exceptional and specific circumstances and subsequently, a sentence of not less than ten years

imprisonment would be unjust and overly severe in all the circumstances.

The sentence

The sentencing judge sentenced the accused as follows, at pp. 12 and 13 of the transcript on the 3rd June, 2008:-

“Now, Mr. Ormonde, you are coming before this Court on a charge of a Section 15A, which as you are aware carries a

sentence of up to life imprisonment with a presumptive sentence of a minimum of 10 years. This arises out of the

seizure at your residence of heroin to the value of €90,000. Found with the heroin was glucose powder and some tick

lists and some €830. On being cautioned you admitted immediately that the heroin was yours and also that you were

selling this heroin. You were arrested and brought to the garda station and further interview detailed your involvement

in the sale of heroin.

You indicated that at Christmas, that you had been selling heroin since approximately the previous Christmas, this

incident having occurred on the 23rd of June ’07 and having read the statement and hearing the evidence of Detective

Garda Niall Cameron I am satisfied that his interpretation is correct. This court accepts that something at that stage

obviously happened and you had some €20,000 worth of heroin taken from you and as a result of which you ran up a

debt. However, this court also has to note that being in possession of €20,000 worth of heroin indicates that you had a

significant role even prior to Christmas in this awful trade.

You present before the Court as a 26-year-old man with eight previous convictions, which are District Court in nature

and would not indicate that you would be a person that would come before this Court with such a serious charge. I note

that you have been in custody since the 23rd of June 2007. I have in mitigation been handed a number of testimonials

and letters. I have read your letter and the letter from your parents and it is clear that you come from a very

respectable family and this has caused grief and undoubtedly shame to them.

Also in mitigation in your defence, your counsel has outlined your co-operation from the start and has indicated that this

should be treated as specific and exceptional circumstances within the meaning of the Act. However, you are a person

who was caught, so to speak, red handed, pursuing your trade at that stage of drug dealing. Accordingly I am satisfied

that the presumptive sentence is applicable in this case and accordingly I impose a sentence of 10 years imprisonment”.

Grounds of Application

Counsel for the applicant contends that the sentencing judge erred in law in imposing a sentence of ten years imprisonment. It is

submitted by counsel for the applicant that the sentencing judge failed to give sufficient weight to the applicant’s lack of previous

convictions for serious offences, his early admissions and guilty plea, along with his personal circumstances, which amount to

exceptional circumstances making a ten year sentence unjust. Counsel for the applicant contends that the sentencing judge erred in

law in imposing sentence in:

Taking into account admissions to other offences which had not been the subject of a charge and giving weight to them when

considering an appropriate sentence.

Failing to accept the guilty plea and the early admissions as exceptional and specific circumstances on the basis that the

applicant had been caught red handed.

Failing to give sufficient weight to the guilty plea and early admissions of the applicant and his lack of previous serious

convictions which coupled together should have, in the circumstances, qualified as exceptional and specific circumstances

allowing the judge to find the minimum mandatory sentence of ten years unjust and depart from it.

Counsel for the respondent submitted that the trial judge was entitled to take into account the following factors:-

(a) The value and nature of the drugs found.

(b) The presence of weighing scales, mixing agents, cash and tick lists.

(c) The fact that the applicant owned the heroin and was selling it. While the motive for selling the drug may be related to the

existence of a drug debt, it is clear that the applicant was selling on his own account and profiting from selling.

(d) The fact that the applicant had previously sold heroin. The clear evidence is that the applicant was not a man of previous

good character and the incident was not a one off incident.

Counsel for the respondent also submitted that the trial judge gave full credit to the applicant for the mitigating factors present in the

case and the trial judge also took into account the co-operation given by the accused but held that in the circumstances of the

case, exceptional and specific circumstances did not apply to render the imposition of the prescriptive minimum sentence unjust.

The Law

Section 15A of the Misuse of Drugs Act 1977, as inserted by s. 4 of the Criminal Justice Act 1999 provides:-

“(1)A person shall be guilty of an offence under this section where –

the person has in his possession, whether lawfully or not, one or more controlled drugs for the purpose of selling or otherwise

supplying the drug or drugs to another in contravention of regulations under section 5 of this Act, and

at any time while the drug or drugs are in the person’s possession the market value of the controlled drug or the aggregate of

the market values of the controlled drugs, as the case may be, amounts to €12, 697.38 [£10,000] or more”.

Section 27 of the Misuse of Drugs Act 1977, as amended by s. 5 of the Criminal Justice Act 1999 provides, inter alia as follows:-

“(3A) Every person guilty of an offence under section 15A shall be liable, on conviction on indictment—

(a) to imprisonment for life or such shorter period as the court may, subject to subsections (3B) and (3C) of this section,

determine, and

(b) at the court's discretion, to a fine of such amount as the court considers appropriate.

(3B) Where a person (other than a child or young person) is convicted of an offence under section 15A, the court shall, in

imposing sentence, specify as the minimum period of imprisonment to be served by that person a period of not less than

10 years imprisonment.

(3C) Subsection (3B) 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 this purpose the court may have regard to any matters

it considers appropriate, including—

whether that person pleaded guilty to the offence and, if so,

(i) the stage at which he indicated the intention to plead guilty, and

(ii) the circumstances in which the indication was given,

and

(b) whether that person materially assisted in the investigation of the offence”.

Decision

Did the sentencing court take into account admissions made by the accused to other offences which were not charged,

thereby erring in law?

Counsel for the applicant contends that on the face of the transcript the sentencing judge took into account the applicant’s

admissions relating to other offences. Counsel further contends that even if it can be argued that the judge was merely looking at

background matters, as permitted, and did not take them into account when considering the sentence, the sentencing judge erred in

law in not making it clear that these admissions did not influence the sentence she was imposing.

Counsel for the respondent argues that the sentencing judge was entitled to take into account the admissions to previous drug

dealing made by the applicant as the admissions concern incidents which constitute necessary and relevant background or context

material so as to enable the judge to impose an appropriate sentence. Counsel for the respondent further contends that:-

“It is noteworthy that the applicant specifically relied upon the fact that he had a drug debt for the purpose of explaining

why he possessed the heroin for the purpose of sale. The applicant therefore, both volunteered the information and

sought to rely on same for the purpose of lessening his culpability in respect of the offence before the Court”.

Both counsel for the applicant and the respondent rely on the case of The People (D.P.P.) v. Patrick Long [2006] IECCA 49

(Unreported, Court of Criminal Appeal, 7th April, 2006) in arguing their point. In that case, the applicant pleaded guilty to possession

of cannabis worth €12m for supply in contravention of section 15A of the Misuse of Drugs Act 1977, as amended, and was sentenced

to 14 years imprisonment. The applicant appealed against this sentence on the grounds that the trial judge had erred in his

consideration of the aggravating factors at the sentencing stage. The Court of Criminal Appeal upheld the applicant’s appeal in

relation to the actions of the trial judge but held that 14 years imprisonment was an appropriate and proper sentence in the

circumstances of this case.

It was argued on behalf of the applicant that the trial judge had wrongly taken into account matters extraneous to the charge in

question when determining the sentence to be imposed. In particular, the applicant objected to the trial judge’s consideration of his

admissions that he had previously been paid to import drugs on other occasions. The Court held that, in circumstances where an

accused has entered a plea of guilty, a trial or sentencing judge is entitled to have regard to all background matters which clarify or

explain the context of the crime in question and which may be of assistance to the sentencing court in reaching a decision as to the

appropriate sentence to be imposed in a given case. This includes being able to look at and consider the entire of the Book of

Evidence, including any admissions which may have been made by an accused. However, the accused must not be sentenced in

respect of offences with which he was not either charged or convicted and which he has not asked to be taken into account. The

Court of Criminal Appeal in that case found as follows, per Macken J.:-

“A trial or sentencing judge is fully entitled in the case where an accused has entered a plea of guilty to have regard to

all background matters arising which goes to clarify or explain the context of the crime in question and which may be of

assistance to the sentencing court in reaching a decision as to the appropriate sentence to be imposed in a given case.

This includes being able to look at and consider the entire Book of Evidence, including any admissions which may have

been made by an accused. It would be fair to say that counsel for the applicant does not seriously dispute this. The real

difficulty, recognised in the jurisprudence, arises when assessing whether, even if a trial or sentencing judge is

so permitted, that judge has in fact overstepped the mark, so to speak, and fallen into the trap of allowing the

context or the factors, especially admissions, to influence or to be taken into account in calculating the actual

sentence being imposed. In the case DPP v. Galligan, supra, the difficulties with which this exercise is fraught, are well

recognised. In the present case, when considering the transcript, the court is not satisfied that the learned

sentencing judge clearly and unambiguously avoided these difficulties in such a way as to make it clear that the

admissions of prior involvement in importation of, inter alia, drugs and of the payment for the same, did not

influence the sentence which he imposed”. (Emphasis added).

The Court was not satisfied in that case that the trial judge clearly and unambiguously did not allow the applicant’s admission to

influence the calculation of the appropriate sentence. The Court accordingly set aside the sentence. In the present case, the

sentencing judge made reference to the background of the applicant’s involvement in the drugs trade by way of context for the

charge pertaining to s. 15A of the Misuse of Drugs Act 1977. In doing this, the learned sentencing judge erred in not clearly and

unambiguously stating that these matters putting the offences into context were not also being considered by her for the purpose of

her sentencing for the s. 15A offence, the subject of the plea of guilty.

This Court is influenced by the analysis of Macken J. in the case of The People (D.P.P.) v. Patrick Long [2006] IECCA 49 (Unreported,

Court of Criminal Appeal, 7th April, 2006). This Court is concerned that the sentencing judge did not clearly and unambiguously hold

that the admissions of the applicant to other offences, which were not charged in this indictment, did not influence the sentence

which she imposed. In this case, the learned sentencing judge should have made clear the matters which were under consideration by

her in sentencing. The learned judge erred by referring to and regarding as relevant in sentencing, matters which were more properly

and fairly to be considered as extraneous to relevant considerations in respect of the specific offences, the subject of the plea of

guilty. The learned judge should have made clear that she was not influenced by the background matters when sentencing by being

specific about what she was sentencing for, and then excluding such matters which were extraneous to the specific counts to which

the accused had pleaded guilty.

Did the sentencing judge fail to give sufficient weight to the applicant’s early admissions and guilty plea as exceptional and

specific circumstances on the basis that the applicant had been caught red handed and were the applicant’s lack of previous

serious convictions adequately considered?

Section 3(C) of s. 27 of the Misuse of Drugs Act 1977, as amended, empowers the court inter alia to have regard to whether the

person pleaded guilty to the offence and, if so, the stage at which he indicated the intention to plead guilty, and the circumstances

in which the indication was given, when considering if there are any “exceptional and specific circumstances relating to the offence”

that would make it unjust to impose a sentence of 10 years or more. In D.P.P. v. Renald (Unreported, Court of Criminal Appeal, 23rd

November, 2001), Murphy J. held as follows in relation to the interpretation of subsection (3C) of s. 27 of the Act of 1977, as

amended:-

“Even where exceptional circumstances exist which would render the statutory minimum term of imprisonment unjust,

there is no question of the minimum sentence being ignored. Perhaps the most important single factor in determining an

appropriate sentence is the ascertainment of the gravity of the offence as determined by the Oireachtas. Frequently an

indication as to the seriousness of the offence may be obtained from the maximum penalty imposed for its commission.

This is particularly true in the case of modern legislation. What is even more instructive is legislation which, as in the

present case, fixes a mandatory minimum sentence. Even though that sentence may not be applicable in a particular

case the very existence of a lengthy mandatory minimum sentence is an important guide to the Courts in determining

the gravity of the offence and the appropriate sentence to impose for its commission. That is not to say that the

minimum sentence is necessarily the starting point for determining the appropriate sentence. To do so would be to

ignore the other material provision, that is to say, the maximum sentence. It would be wrong to assume that the

offence of importing controlled drugs in excess of the prescribed amount or value will attract only the mandatory

minimum sentence, long though it may be. Clearly subsection (3C) requires the sentencing Court to examine

circumstances relating to the offence or the person convicted of the offence which, it is alleged, are exceptional and

specific and which in the opinion of the Court would render a sentence of not less than ten years unjust. To perform

that task the sentencing Court must form some view of what an appropriate sentence would be having taken into

account the matters which the Court considers appropriate including the matters expressly specified in subsection (3C)

aforesaid. If the Court is satisfied that factors exist which would render the mandatory minimum sentence unjust then

the Court is not required to impose it but the existence of such matters or circumstances does not reduce the inherent

seriousness of the offence. It remains the task of the Court to impose a sentence which is appropriate having regard to

the relevant circumstances and also the fundamental gravity of the offence as determined by the Oireachtas and

reflected in the sentences which it has prescribed”.

In the present case, the learned sentencing judge did not find that the applicant’s co-operation, at the outset, as well as his guilty

plea, should be treated as exceptional and specific circumstances, within the meaning of the Act of 1977, as amended. According to

the sentencing judge, the applicant was “… a person who was caught, so to speak, red handed, pursuing your trade at that stage of

drug dealing”. Counsel for the applicant contends that the sentencing judge erred in finding that because he was caught “red

handed”, his guilty plea could not be considered an exceptional and specific circumstance. Counsel for the applicant rely on the case

of The People (D.P.P.) v. Philipus Botha [2004] IECCA 1 (Unreported, Court of Criminal Appeal, 19th January, 2004) where a guilty plea

coupled with the fact that assistance was given to the gardaí was enough to give rise to specific and exceptional circumstances

which would have made a sentence of 10 years unjust and allowed the judge to depart from the mandatory minimum. The court

held:-

“That the plea of guilty and the assistance given to gardaí by making a statement were enumerated exceptional and

specific circumstances capable of rendering the minimum sentence unjust in this case and if unenumerated

circumstances were relied upon as putting the case into a category where it would be unjust to impose the minimum

sentence, such circumstances equally had to be both exceptional and specific”.

There is no doubt that if an accused is caught red handed, the guilty plea is of less value than it might be in other cases. It is

evident, however, that a guilty plea, even if the accused is caught red handed, is an important element of any case and that this

may need to be acknowledged by the sentencing judge as exceptional and specific circumstances, depending on the particular facts

of the case. Certainly, in the present case, there is no doubt but that the guilty plea as well as the co-operation, from the outset, of

the accused was most valuable. For example, under cross-examination at the trial in the Circuit Criminal Court, the garda accepted

that the applicant was immediately co-operative and honest about his role, and said that if the applicant had not been as

forthcoming, the matter may have had to go to trial as the gardaí did not have evidence of him selling and supplying the heroin

independent of his own admissions.

In the case of The People (D.P.P.) v. John McGrane (Unreported, Ex tempore, Court of Criminal Appeal, 8th February, 2010), the

accused was caught “red handed” and the Court, per Finnegan J., held that he was “entitled to credit for his co-operation with the

Gardai and his plea of guilty in the circumstances of this case”. The Court expressly held that the plea of guilty and co-operation with

the gardaí amounted to “exceptional and specific circumstances”. Further, in the case of Davis v. D.P.P. (Unreported, Ex tempore,

Court of Criminal Appeal, 19th February, 2008), Denham J. held that “(t)he issue of ‘material assistance’ may take many forms. The

most basic is to admit the offence”. Tom O’Malley in Sentencing Law and Practice (2nd ed., 2006) at p. 338, comments as follows in

relation to the value of a guilty plea:-

“A guilty plea in itself is rarely treated as an exceptional and specific factor; as has been pointed out, it is anything but

exceptional in s. 15A cases. However, it may justify a downward departure when combined with one or more other

factors such as … the absence of previous convictions for drug or other serious offences”. (Emphasis added).

In this case, the applicant does not have previous convictions for drug or other serious offences; he has eight minor previous

convictions, a majority of which related to public order offences, one traffic offence and a s. 9(1) possession of firearms and

offensive weapons offence. In the case of The People (D.P.P.) v. Martin Galligan (Unreported, Court of Criminal Appeal, 23rd July,

2003), the Court of Criminal Appeal found that the lack of previous convictions could be considered an exceptional and specific

circumstance under subsection 3(C) of the Act of 1977, as amended. In that case, the applicant had a number of road traffic

offences which the court did not consider relevant when considering if he had any previous convictions. The court, per Fennelly J.,

found:-

“There is, however, the important fact that, in practical terms, the applicant should be treated as a first offender. As

already explained, the Court does not consider, on the facts of this case, that his previous conviction for certain road-

traffic offences are relevant. That is an essential feature in many, if not all, sentencing decisions. Whether or not the

court is dealing with a first offence is not one of the two named ‘exceptional and specific circumstances’ mentioned in

sub-section 3C, but it is clearly capable of being one. It is a matter relating to the person rather than the offence”.

This Court, in the present case, is of the opinion that there was an error in principle by the learned sentencing judge. While it must be

stressed that the accused was involved in the serious drugs trade and had all of the paraphernalia for that activity, it must also be

acknowledged that there were particular features which merited consideration such the early admissions, guilty plea and lack of

previous convictions of the applicant. This Court holds that the mandatory minimum of ten years imprisonment should be mitigated on

terms which will encourage the applicant to overcome his habit of using drugs. Treating the application for leave to appeal as the

hearing of the appeal the Court will impose a sentence of seven years with the last two years of the sentence suspended on the

usual and appropriate terms to be discussed with counsel.

While it must be stressed that the accused was involved in the serious drugs trade and had all of the paraphernalia for that activity,

it must also be acknowledged that there were particular features which merited consideration such as the early admissions, guilty plea

and lack of previous convictions of the applicant. This Court holds that the mandatory minimum of ten years imprisonment should be

mitigated on terms which will encourage the applicant to overcome his habit of using drugs. Treating the application for leave to

appeal as the hearing of the appeal the Court will impose a sentence of seven years with the last two years of the sentence

suspended on the usual and appropriate terms to be discussed with counsel.