Court of Appeal allows appeal for unduly lenient sentence on firearms charge, ordering new sentencing hearing.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 142

Peart J.

Sheehan J.

Mahon J.

216CJA/14

In the matter Section 2 of the Criminal Justice Act 1993

The People at the Suit of the Director of Public Prosecutions

Applicant

v

Mark Kavanagh

Respondent

Judgment of the Court delivered on the 8th day of June 2015 by Mr. Justice Sheehan

1. This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, for a review of the

sentence imposed on the respondent in the Dublin Circuit Criminal Court on the 15th October, 2014.

2. On the 14th April, 2014, the respondent pleaded guilty to the possession of controlled drugs for the purpose of sale or supply

contrary to s. 15A of the Misuse of Drugs Act 1977, as amended, and to possession of a firearm in suspicious circumstances contrary

to s. 27A of the Firearms Act 1964, as amended.

3. The total value of the drugs was €153,000 comprising cocaine valued at €135,000 and cannabis herb worth €18,000. A very small

quantity of a third drug Fluoroamphetamine was also recovered. The firearm was a revolver and the ammunition was 6.4 10 calibre

shotgun cartridges.

4. The respondent was sentenced to three and a half years imprisonment in respect of the drugs offence and the offences relating to

possession of the firearm and ammunition were taken into account.

5. In order to consider this application it is necessary first to consider the background to these offences.

Background

6. On the 2nd April, 2013, the respondent’s home was searched on foot of a warrant obtained as a result of confidential information

received by the gardaí. The respondent was present during the search and cooperated with the gardaí. Six packages of cocaine and

three packages of herbal cannabis were found in a shed in his back garden. The gun and ammunition were found in a bag along with a

pair of gloves. A notebook which contained dates and names which appeared to be in code words was also found. The respondent

denied that the notebook was his, but admitted that it contained his handwriting. He was cooperative as regards his own offending

and told the gardaí that he had been minding the drugs for “roughly a few weeks” in return for being relieved of a €700 drug debt.

Having initially stated that he had forgotten about the gun, he then asserted he had it because there had been a threat made to his

family, but later stated in interview that this was untrue.

Sentence hearing

7. At the sentence hearing significant mitigating factors were advanced on behalf of the respondent, who at the time of sentence

was a 38 year old married man with an adult daughter and grandchild and a person with no previous convictions. He had had a

particularly difficult childhood and had also suffered from depression during his teenage years and endured a period of self harm.

8. The respondent had cooperated fully with the gardaí.

9. It was submitted on his behalf that in early 2013 around the time of the offending, his wife had been diagnosed as suffering from a

mental illness and his mother had been diagnosed at the same time with pancreatic cancer. During this period of his life, his sister

became involved with a dangerous male. He started to abuse drugs himself and found himself in debt to others and was soon out of

his depth and in serious trouble.

10. There was exceptionally strong testimonial evidence before the sentencing court which demonstrated he had given enormous

support to his own parents when they had to look after three children of his sister’s as a result of her drug addiction and further that

he had been actively involved in football coaching and community work. These testimonials led the trial judge to comment in his

sentencing remarks that the accused seemed to be “a very, very good man” obviously apart from these particular offences.

Submissions

11. Counsel for the Director submitted that the trial judge attached undue weight to the mitigating factors and failed to refer to a key

aggravating factor namely, that the respondent was involved in the organised distribution of the drugs as evidenced by the packaging

and notebook entries. Counsel contended that this failure to remark on these matters amounted to an error in principle. Counsel for

the DPP further submitted that the decision of the sentencing judge not to impose any separate penalty in respect of the firearms

offence was a further error of principle. It was also submitted that no due observance was given to the provisions of s. 27(4A) of the

Firearms Act and the public interest in seeing appropriate sentences imposed for firearms offending.

12. Finally counsel also submitted that if a three and half year sentence was appropriate for the drugs offence in this case, then the

same person also possessing a firearm and ammunition must receive a more substantial sentence.

13. In support of his submissions, counsel for the DPP submitted a number of comparator cases and referred particularly to two recent

decisions of this Court namely, The People (Director of Public Prosecutions) v. Byrne and Another [2015] IECA 5 and The People

(Director of Public Prosecutions) v. John Ryan [2015] IECA 10.

14. Counsel for the DPP in criticising the approach to sentence of the learned sentencing judge referred the court to the judgment of

the Supreme Court in The People at the suit of the Director of Public Prosecutions v. M. [1994] 3 I.R. 306, and relied on the following

passage of the Court of Criminal Appeal in The People at the suit of the Director of Public Prosecutions v. Adam Fitzgibbon

(Unreported, Court of Criminal appeal, 18th March, 2014) at para. 7.3:-

“It does also need to be emphasised that a sentencing judge should set out clearly the factors which have been taken

into account in arriving at an appropriate sentence and specify the approach adopted in coming to a conclusion as to the

appropriate sentence having regard to all of those factors. The Constitution and the law provides both for sentencing by

trial judges and an appeal against sentence available to both prosecution and defence. In the case of serious offences

tried on indictment that appeal is to this Court. In order for this Court to exercise its proper constitutional role in

reviewing sentences which are challenged, this Court does need the maximum possible clarity as to how the sentencing

judge reached a conclusion as to the appropriate sentence to be imposed in all the circumstances of the case. There is

no one way in which this needs necessarily to be done. There is no requirement for a sentencing judge to stick slavishly

to any particular method or formula. It is, however, important that this Court, when asked to review a sentence, is not

left to guess or infer, to any impermissible extent, what the reasoning of the sentencing judge was.”

15. Counsel for the respondent while accepting that the offences in this case are grave submitted that the sentence was reasonably

and rationally determined by the sentencing judge who had carefully considered all the relevant issues in the case including the

seriousness of the offences, the presumptive mandatory minimum penalties, the aggravating and mitigating factors and the particular

circumstances unique to the respondent.

16. In submitting that the sentence was not unduly lenient counsel stated that the Director of Public Prosecutions ought not now to

be allowed by this Court to raise issues relating to an interpretation of the evidence that had not been raised before the sentencing

judge. Equally counsel for the respondent submitted that had counsel for the Director of Public Prosecutions required the sentencing

judge to impose a separate sentence on the firearms charge, the matter ought to have been brought to the sentencing judge’s

attention at the time. Counsel for the respondent submitted that this Court should not entertain submissions on this point in light to

the failure of the Director of Public Prosecutions to (i) previously raise the point, (ii) demonstrate that some real injustice has

occurred or (iii) offer any explanation as to the prosecutions failure to raise the issue at the sentence hearing.

17. In support of this particular submission counsel for the respondent relied by analogy on the principles enumerated in The People

(Director of Public Prosecutions) v. Cronin (No. 2) [2006] 5 I.R. 329, in which the Supreme Court expressed strong views about

whether grounds of appeal should be entertained where those issues were not raised or pursued before the trial judge and referred

the court to the remarks of Kearns J. at para. 45:

“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. Furthermore, as

noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and

not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some

other manner.”

18. Counsel for the respondent also submitted that the sentencing judge should not be open to criticism on an appeal for undue

leniency in a situation where the applicant has not even suggested the appropriate sentence or range of sentences in the first place.

19. While this argument appears at first to be attractive and indeed while there is much to said for requiring counsel for the Director

of Public Prosecutions to give some indication where in her view, on the range of sentencing options a particular case lies this Court

reserves to a future date its position on this particular matter. The court therefore is unable to hold that the applicant should be

prevented from making certain submissions on the basis that he had not done so at the time of the sentence.

20. While the trial judge took what has been described as global approach to sentencing for the offending behaviour in this case, this

Court is of the view that the firearms offence, particularly the one relating to the gun, required a separate sentence. As already

indicated, the court is of the view that in the particular circumstances of this case and where counsel for the Director of Public

Prosecutions sought to have the judgment of the Court of Criminal Appeal in The people at the suit of the Director of Public

Prosecutions v. Ryan [2014] IECCA 11, considered prior to sentence, the learned trial judge fell into error in not imposing a separate

sentence on the firearms charge.

21. This Court has also considered the submissions of both parties in light to the two recent judgments of this Court. In the first

case, this Court ultimately converted a five year suspended sentence into a sentence of three years imprisonment having identified a

sentence of seven years imprisonment as “the appropriate notional sentence prior to a consideration of the mitigating factors”. In the

second case which involved the possession of €1 million worth of drugs as well as the possession of a balaclava and two guns, the

court held that a five year sentence of imprisonment was unduly lenient.

22. While this Court acknowledges the care taken by the sentencing judge to structure an appropriate sentence it is nevertheless

unclear what notional sentence the sentencing judge had in mind at the time. This Court takes the view that it would be impermissible

for it to infer a particular notional sentence.

23. Notwithstanding the exceptional mitigating factors, this Court concludes that the sentence imposed represents a substantial

departure from what it considers to be the appropriate sentence and holds therefore that the sentence was an unduly lenient one.

The Court will now proceed to a further sentence hearing and following that will substitute a new sentence in place of the original

one.