Appeal against sentence dismissed because the sentence disparity argument was not raised at trial or in the notice of appeal.

THE COURT OF CRIMINAL APPEAL

Record No. 228/09 & 229/09

Fennelly J.

Moriarty J.

Hogan J.

BETWEEN

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

ALAN MORRISON & AIDAN FINNEGAN

APPLICANTS

Judgment of the Court of Criminal Appeal delivered by Mr Justice Fennelly the day of July 2012.

The applicants have applied to this Court to certify, pursuant to s. 29 of the Courts of Justice Act, 1924, as inserted by s. 22 of the

Criminal Justice Act, 2006, that the determination of their applications for leave to appeal to this Court involved a point of law of

exceptional public importance.

On 25th of June 2009, the applicants were convicted by a jury at the Circuit Criminal Court sitting in Cork, after a trial lasting five

days, of the offence of unlawful possession of a controlled drug for the purposes of sale or supply contrary to Section 15A of the

Misuse of Drugs Act 1977 as inserted by Section 4 of the Criminal Justice Act 1999.

The sentence hearing took place before His Honour Judge Moran on 27th July 2009. The applicants were each sentenced to a term of

twelve years imprisonment. They applied to this Court for leave to appeal against their conviction. That application was dismissed in

the judgment of the Court dated 28th July 2011 delivered by Macken J. Their application for leave to appeal against sentence was

heard by a differently constituted court. In its judgment delivered by Finnegan J on 27th January 2012, their application for leave to

appeal against severity of sentence was dismissed.

Each applicant, by an identical notice of motion, asks this Court to grant a certificate granting leave to appeal the decision on

sentence to the Supreme Court. The essence of the point made by the applicants is that another person, who was investigated and

convicted for a similar offence arising from the same garda investigation, received a lesser sentence of ten years imprisonment with

five years suspended, and that the sentence imposed on them breached the principle that sentences must be proportionate.

The points for which a certificate is sought are expressed in the following terms:

Where on appeal, an Applicant contends that a co-accused received an apparently different sentence for the like offence, and

that the learned trial judge has failed to adequately justify that disparity, is there an onus on the Applicant to adduce evidence

to the Court of Criminal Appeal to demonstrate such reasons as may or may not underlie or justify the apparent disparity in

treatment or is it sufficient to demonstrate that such disparity is apparent and inadequately explained by the trial judge in order

to establish a breach of the so-called " parity principle" in sentencing.

Where such an appeal is brought before the Court of Criminal Appeal, is there any onus on the prosecution to adduce the

transcript evidence from the sentencing hearing of the co-accused, upon whom an apparently different sentence for the like

offence has been imposed, in circumstances where such transcript may be in the power or procurement of the Director of Public

Prosecutions.

It will be noted that the first point concerns whether the applicant is under a duty to adduce evidence before the Court of Criminal

Appeal, not the court of trial. The second proposed question asks whether the prosecution is under a corresponding duty to adduce

before the Court of Criminal Appeal the transcript of the evidence which had been given before the court of trial.

The applicants have also made substantive submissions regarding the manner in which the parity principle was applied by this Court.

They refer, in particular, to the decisions of this Court in The People (Attorney General) v. Poyning [1972 I.R.402] and Director of

Pubic Prosecution v. Gardiner [2011] IECCA 70. The former decision was mentioned in the judgment of this Court on sentence.

However, as was pointed out at the hearing of the application, an application pursuant to section 29 cannot be treated as a means of

having a re-hearing of the appeal.

It is necessary to recount the history of the proceedings to date. The applicants, as already stated, were convicted, following a full

trial on 25th June 2009. At the sentence hearing evidence was given only by D/Sergeant Lar O'Brien. In summary, he described the

circumstances of the offence as follows:

“They were under observation as they walked along a pathway and entered the wood where again, under surveillance,

the accused, Aidan Finnegan, was seen going to a stash and recovering a bag. He was seen to take an item from this bag

and hand it to Mr Morrison. Mr Morrison was seen putting his hand into this bag and removing, or appeared to be

examining the contents. They both left the bag in situ and returned to Brooklodge Grove. They were stopped as they

exited the estate, my lord, and they were initially taken to Cobh for search. The bag was recovered and found to contain

215.6 grams of heroin, my lord, which has a street value of €43,120.”

D/Sergeant O'Brien also gave evidence of the quite significant previous convictions of both applicants. It is unnecessary to refer to

these. No submissions have been made to suggest that they were not relevant to the sentences imposed. It was established that a

certain John McCarthy, who was under garda surveillance on the same occasion as the applicants were apprehended, had pleaded

guilty to possession of drugs and had been sentenced by a different judge to ten years imprisonment with five years suspended. It

was established in evidence that Mr McCarthy had been charged with possession, also apparently for the purpose of supply, of a

quantity of drugs on the same day. However, they were not the same drugs; their value was not the same; they were found in the

residence of Mr McCarthy. The evidence of D/Sergeant O'Brien was that there was no connection between the two quantities of

drugs. Furthermore, Mr Carey had pleaded guilty and had co-operated with the gardaí.

Counsel for the applicants did not cross-examine D/Sergeant O'Brien. Nor did counsel seek the production of any evidence by means

of the transcript or otherwise of what had transpired at the trial of Mr McCarthy. He confined himself to making a submission that the

trial judge should have regard to the fact that Mr. Carey obtained a sentence of 10 years, this five years sentence of suspended of

that. He said that the court should “take account of the tariff imposed on Mr Carey in his case; nothing beyond that.”

His Honour Judge Moran, in his sentencing remarks, noted that counsel had asked him to take into account the manner in which Mr

Carey had been dealt with. He said he could “certainly have regard to it” but that he must not “forget that Mr Carey pleaded guilty to

the offence and that Sergeant O'Brien had confirmed that he had cooperated with the gardaí. He noted that the judge who had dealt

with the case had imposed a sentence of 10 years with five years suspended. The cases before him, he considered to be “a very

different situation altogether.”

In view of submissions made on the present application, two points need to be made concerning the Circuit Court hearing. Firstly,

there is no apparent basis for criticizing the decision of counsel to limit his submission to asking the trial judge to have regard to the

sentence imposed on Mr Carey. There were significant differences between his case and the case of the applicants. Further

investigation might not have assisted the applicants to demonstrate any degree of parity between Mr Carey’s case and the instant

case. Secondly, given this apparent considered stance of counsel, it was not necessary to call for the transcript of the other hearing

and, most materially, that was not done.

To the extent that any issue concerning the desirability of having access to that transcript, it was an issue which was or should have

been apparent at or immediately after the Circuit Court hearing. The applicants did not complain in their notices of appeal to this

Court of any defect of procedure in the court of trial. In particular, they did not claim that anyone had been under a duty to seek

evidence of the hearing in Mr Carey’s case. It would, have course, have been difficult to do so, in view of the position adopted by

counsel at the hearing.

Nor does it appear from the judgment of this Court delivered by Finnegan J that any argument had been addressed to this Court to

suggest that the prosecution was under a duty to produce the transcript of the Carey sentencing hearing. Counsel has, however,

forcefully argued on this application that the applicants’ submissions to this Court regarding the proportionality of the sentences

imposed on them particularly by reference to the Carey sentence were not dealt with. Reliance is placed on the remark in the

judgment delivered by Finnegan J that “there is a difficulty in that this court has no knowledge of the personal circumstances or the

previous offending history of Mr Carey.” The court noted that it “knew nothing of his co-operation with the Gardaí.” It added that

these were “circumstances which [might] well justify a difference in the ultimate sentence.” It is important to take note of the fact

that the Court, had at an earlier point in its judgment the Court had taken note of the fact that Mr Carey had been “charged in

respect of different quantities of the drugs which were found in his house” (later it was noted that Mr Carey had a somewhat lesser

quantity of drugs.) and that it was “clear from the transcript that he [had] co-operated with the Gardaí……………and he [had]

pleaded guilty: it was an early plea.” The Court noted merely that it did not know “the extent or nature of the co-operation.”

The Court observed, finally, that “where it is sought to rely on a discrepancy between sentences imposed on a co-accused, it is

important that the court should be furnished with such information as is available which will indicate if there are differences between

the co-accuseds.”

It is in this light that the submission is made that the point for which the certificate is sought arose only in the judgment of the Court.

However, it is perfectly clear that the applicants had never suggested, either in the court of trial or in their notices of appeal that the

transcript of the Carey hearing should have been before the Circuit Court.

The Supreme Court in People (Director of Public Prosecutions v Cronin [2006] 4 I.R. 329 considered the circumstances in which an

applicant should be allowed to raise on appeal a point not raised or argued at trial. Kearns J, having reviewed the case-law said at

page 346:

“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice

has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal.

There must in addition be some sort of explanation tendered to explain why the particular point was not taken.”

It is, therefore, well established in the jurisprudence of this Court that an applicant for leave to appeal may not, in the absence of

good explanation, rely on the hearing of an application for leave to appeal on a point of law or argument which was not advanced at

the court of trial. Even if a new point is to be allowed, it must at least form the subject-matter of a ground advanced, whether

following amendment or otherwise, in the notice of appeal.

In this case, the applicants ask the Court to certify as a ground of appeal to the Supreme Court a point which was not argued at the

court of trial, was not the subject of a ground of appeal to this Court and was not, so far as one can discern from the judgment of

this Court delivered by Finnegan J, the subject of argument at the hearing of the leave application. The applicants’ complaint that this

Court had not been able to consider the argument of parity of sentence with Mr Carey must fail. It is based exclusively on the matter

as it appears in the judgment of this Court and ignores the fact that it had not been raised in the trial court and that this occurred by

reason of a clear and considered position adopted for counsel then acting for the applicants.

Consequently, the matter which the applicants now raise was not involved in the determination of their application for leave to

appeal. Therefore, s. 24 does not apply. The Court refuses the application.