Court of Appeal reduces excessive drug sentence from fifteen to eleven years and orders statutory review.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

124/14

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Patrick Scanlon

Appellant

JUDGMENT of the Court delivered on the 17th day of June 2016 by

Mr. Justice Sheehan

1. This is an appeal against severity of sentence.

2. On the 20th May, 2014, following an eight day trial at Limerick Circuit Court, the appellant was convicted of two offences contrary

to s. 15A and 15B of the Misuse of Drugs Act 1977 as amended and, following a brief sentencing hearing immediately thereafter, was

sentenced to fifteen year imprisonment in respect of each of these offences.

3. The background facts have already been set out in a judgment delivered by this Court on the 13th October 2015 in relation to the

appeal against conviction and do not need to be repeated here, save to note that the value of the cannabis involved in this case was

€79,076.

4. The appellant contends that the sentencing judge was wrong in holding that he was obliged to impose a sentence of not less than

ten years imprisonment. He also contends that the sentencing judge erred in his approach to sentence by failing to locate this

offence on the scale of available penalties, and further that he erred by imposing a sentence that was excessive. Finally, the

appellant submits that whatever sentence is deemed to be appropriate by this Court, that sentence ought to be reviewed when 50%

of the said sentence has been served.

5. In order to consider these grounds of appeal, it is necessary first of all to set out the agreed chronology of relevant events, the

relevant statutory provisions and the sentencing remarks of the trial judge.

Chronology

26th May, 1999: Part II of the Criminal Justice Act 1999 was commenced, which provided for a new offence of

possession of controlled drugs with intent to sell or supply with a value of £10,000 contrary to s. 15A of the Misuse of

Drugs Act 1977.

25th June, 1999: The appellant was found in possession of 130kg of cannabis resin.

12th December, 2000: The appellant was sentenced to seven years in Limerick Circuit Court for an offence contrary to

s. 15A of the Misuse of Drugs Act 1977 arising from the June, 1999 offence.

12th March, 2006: The appellant’s approximate release date in relation to the June, 1999 offence with full 25%

remission.

18th May, 2007: Section 27(3F) of the Misuse of Drugs Act 1977 was commenced which provided for no discretion in

imposing a sentence of ten years where there is a previous conviction for a s. 15A offence.

8th August, 2013: The appellant committed an offences contrary to ss. 3, 15, 15A and 15B of the Misuse of Drugs Act

1977 (as amended) in relation to the possession of 3.95kg of cannabis with a value of €79,076. The appellant has been in

custody since this date.

28th May, 2014: The appellant was convicted following an eight day trial before the learned trial judge and a jury in

Limerick Circuit Criminal Court. He was sentenced on the same day as the verdict to 15 years imprisonment on the ss. 15A

and 15B charges. No penalty was imposed on the related ss. 3 and 15 charges.

30th October, 2015: This Court (Sheehan, Mahon and Edwards JJ.) refused the applicant’s appeal against conviction.

4th November, 2024: The appellant’s approximate release date should he achieve full 25% remission. The appellant will

then be 64 years old.

Statutory provisions

6. Section 27 of the Misuse of Drugs Act 1977, as amended by s. 5 of the Criminal Justice Act 1999, s. 84 of the Criminal Justice Act

2006 and s. 33 of the Criminal Justice Act 2007, provides for sentencing of s. 15A and s. 15B offenders as follows:-

“(3A) Every person guilty of an offence under section 15A or 15B of this Act shall be liable, on conviction on indictment -

(a) to imprisonment for life or such shorter term as the court may determine, subject to subsections (3C) and (3D)

of this section or, where subsection (3F) of this section applies, to that subsection, and

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

(3B) The court, in imposing sentence on a person for an offence under section 15A or 15B of this Act, may, in particular,

have regard to whether the person has a previous conviction for a drug trafficking offence.

(3C) Where a person (other than a person under the age of 18 years) is convicted of an offence under section 15A or 15B

of this Act, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of

imprisonment to be served by the person.

(3D) (a) The purpose of this subsection is to provide that in view of the harm caused to society by drug trafficking, a

court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under section

15A or 15B of this Act, shall specify a term of not less than 10 years as the minimum term of imprisonment to be served

by the person, unless the court determines that by reason of exceptional and specific circumstances relating to the

offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so.

(b) Subsection (3C) 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 that purpose the court

may, subject to this subsection, have regard to any matters it considers appropriate, including -

(i) whether that person pleaded guilty to the offence and, if so -

(I) the stage at which he or she indicated the intention to plead guilty, and

(II) the circumstances in which the indication was given, and

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

(c) The court, in considering for the purposes of paragraph (b) of this subsection whether a sentence of not less

than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to -

(i) whether the person convicted of the offence concerned was previously convicted of a drug

trafficking offence, and

(ii) whether the public interest in preventing drug trafficking would be served by the imposition of a

lesser sentence.

(3E) Subsections (3C) and (3D) of this section apply and have effect only in relation to a person convicted of a first

offence under section 15A or 15B of this Act (other than a person who falls under paragraph (b) of subsection (3F) of this

section), and accordingly references in those first-mentioned subsections to an offence under section 15A or 15B of this

Act are to be construed as references to a first such offence.

(3F) Where a person (other than a person under the age of 18 years) -

(a) is convicted of a second or subsequent offence under section 15A or 15B of this Act, or

(b) is convicted of a first offence under one of those sections and has been convicted under the other of those

sections,

the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be

served by the person.

(3G) The power conferred by section 23 of the Criminal Justice Act 1951 to commute or remit a punishment shall not, in

the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised before the expiry of

the minimum term specified by the court under subsection (3C) or (3F), as may be appropriate, of this section less any

reduction of that term under subsection (3H) of this section.

(3H) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall

apply in the case of a person serving a sentence imposed under subsection (3A) of this section and the minimum term

specified by the court under subsection (3C) of this section shall be reduced by the amount of any remission so earned by

the person.

(3I) Any powers conferred by rules made under section 2 of the Criminal Justice Act 1960 to release temporarily a person

serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed under subsection (3A)

of this section, be exercised during the term for which the commutation or remission of his or her punishment is prohibited

by subsection (3G) of this section unless for a grave reason of a humanitarian nature, and any release so granted shall be

only of such limited duration as is justified by such reason.

(3J) In imposing a sentence on a person convicted of an offence under section 15A or 15B of this Act, a court -

(a) may inquire whether at the time of the commission of the offence the person was addicted to one or more

controlled drugs, and

(b) if satisfied that the person was so addicted at that time and that the addiction was a substantial factor leading

to the commission of the offence, may list the sentence for review after the expiry of not less than one-half of the

term specified by the court under subsection (3C) or (3F), as may be appropriate, of this section.

(3K) On reviewing a sentence listed under subsection (3J)(b) of this section, the court -

(a) may suspend the remainder of the sentence on any conditions it considers fit, and

(b) in deciding whether to exercise its powers under this subsection, may have regard to any matters it considers

appropriate.

(3L) Paragraph (a) of section 13(2) of the Criminal Procedure Act 1967 shall not apply in relation to an offence under

section 15A or 15B of this Act, but each of those offences shall be deemed for the purposes of paragraph (b) of section

13(2) of that Act to be an offence to which section 13 of that Act applies.

(3M) The reference in subsection (3I) of this section to section 2 of the Criminal Justice Act 1960 shall be construed to

include that section as applied by section 4 of the Prisons Act 1970.

(3N) In subsections (3B) and (3D) of this section ‘drug trafficking offence’ has the meaning it has in section 3(1) of the

Criminal Justice Act 1994 and in subsection (3D) of this section ‘drug trafficking’ has the meaning it has in the said section

3(1).”

The ruling of the learned trial judge

7. In passing sentence, the learned trial judge remarked as follows:-

“Well, the jury has convicted Mr Scanlon after I think seven or eight days of trial to a -- on all four counts, but

particularly on counts 1 and 2; count 1 being the possession of a controlled or illegal drug, cannabis, for the purpose of

selling or supplying it to another while the value of the drugs was €13,000 or more; and count 2 is the importation of the

same illegal drugs when the value is €13,000 or more. The maximum penalty for this offence is life imprisonment but there

is a mandatory minimum of 10 years. Now, in these offences, a judge can vary the mandatory minimum of 10 years if

there are particular circumstances which would make it unjust to impose that minimum sentence of 10 years, either

circumstances relating to the offence itself, or circumstances relating to the accused person but the statutes go on

specifically to say that in the case of a second offence, the judge has no discretion to vary or to waive from that

mandatory minimum so there is a mandatory minimum sentence here of 10 years and I've no discretion in the matter to go

below that.

Now, in considering this matter, I have to have regard to the mitigating factors in a case, of the cases, which would

influence a judge towards leniency and also take into account the aggravating factors in the case which would influence

a judge towards adopting a more severe attitude; try and balance the two, the mitigating as against the aggravating

factors, after which a proper decision can be reached. Now, the mitigating factors here are that, in particular I suppose,

that Mr Scanlon, as has been put by his counsel, is a colourful personality and he has, notwithstanding his previous

conviction for the similar offence and other matters, has not accumulated any great wealth, or any wealth at all, a fact

conceded by the prosecution and he is a person, I accept, who cannot keep a hold of any money or property because of

his unfortunate addiction problems of gambling, addiction to alcohol and drugs. Now, I take those matters into account.

But by way of aggravation here we have a position that he has a previous conviction for the same offence, where the

drugs were considerably greater in the value in that case was drugs to the value of £1.3 million. In that case, the modus

operandi, method of commission of the offence, was very similar to that which pertained in this case. In this case, he

organised the delivery of almost four kilograms of cannabis to a value, according to the evidence, of €79,000 to be

delivered to the house of another person under the -- and induced that other person to accept delivery under the guise

that they were bits and pieces, bits and bobs, in connection with the establishment and setting-up of a restaurant and

the evidence against him in this case, in the present case, was coercive in as regards that the evidence of the person

who was being asked to accept the delivery, and of his wife, who identified Mr Scanlon as the person who had

approached them, there was strong supporting, circumstantial evidence in the presence of Mr Scanlon nearby at relevant

times; the use of mobile phones; phone traffic between and the content of them between the landline of the other

parties and Mr Scanlon. And we had multiple lies told by Mr Scanlon which the prosecution contended were corroborative

of the evidence of Mr and Mrs Quinn which were established by other evidence in the case that they had to be deliberate

falsehoods.

Now, Mr Scanlon contested this case, fought it, and was nonetheless convicted by a jury. That's not an aggravating

factor but what is a point is that he can't avail of a mitigating factor of having pleaded guilty and of being of material

assistance to the gardaí and/or the prosecution, which are matters factored into consideration when the judge is being

asked to deviate from the mandatory minimum and that is relevant to consider, although of course because it is a matter

to be taken into account, although I'm not at large to deviate from that mandatory minimum.

Now, a 10-year prison sentence as a mandatory minimum is a very severe sentence and this has been prescribed by

statute, by the Oireachtas, as a message to everybody but in particular to the Bench, to the judiciary, that these

offences of drugs are to be treated most severely and that the judiciary and everybody else is to acknowledge the

serious harm that's done to society by drug dealing; the peddling of drugs. Taking that into account, taking the very

serious aggravating factor that this is a second offence and taking into account all the circumstances of the facts in this

case, I'm going to impose a sentence of 15 years on counts 1 and 2 to run -- he's entitled to have them backdated to

the day he went into custody, on the assumption he wasn't in custody for anything else, Mr Collins.”

Ground No. 1

8. The appellant submits that applying s. 27(3F) to his case would be to in effect retrospectively penalise as the 2007 amendment

was not in effect at the time of the first offence. The appellant goes on to submit that it is not clear from a reading of the 2007

amendment if the intention was to apply this to s. 15A offences committed prior to its commencement. Counsel further submits that,

as the intention is unclear, there is a presumption of prospective effect and, in support of this submission, relies on Doyle v. An

Taoiseach [1986] I.L.R.M. 693. Therefore, the submissions conclude that the sentencing judge was at large as to sentence.

9. Counsel for the respondent disagrees with the appellant and submits, inter alia, that were the Court to hold with the appellant, it

would be adding a specific qualification which the Oireachtas had not seen fit to provide.

10. We have considered s. 27(3F) in light of the submissions and hold that there is no lack of clarity about the section. It is a clear

warning to those with convictions for specific drug offences that if they similarly re-offend, they will face a minimum of ten years

imprisonment without qualification. We agree with the respondent’s submission that were we to otherwise hold, we would effectively

be amending the said legislation. Accordingly, we hold that the sentencing judge was correct in interpreting the section as obliging

him to impose a sentence of not less than ten years imprisonment, and thus this ground of appeal fails.

Ground No. 2

11. In the course of his sentencing remarks, the learned trial judge failed to locate where on the scale of available penalties he

located this particular crime. Secondly, it is not simply a question of balancing the mitigating and aggravating factors. In this regard,

it is relevant to note an earlier ex tempore judgment of this Court delivered by Edwards J. on the 4th December, 2015, in The People

(Director of Public Prosecutions) v. Davin Flynn, wherein he stated the following:-

“14. There is a strong line of authority starting with The People (Director of Public Prosecutions) v. M [1994] 3 I.R. 306 ;

and continuing through The People (Director of Public Prosecutions) v. Renald (unreported, Court of Criminal Appeal, 23rd

November, 2001); The People (Director of Public Prosecutions) v. Kelly [2005] 2 I.R. 321; and The People (Director of

Public Prosecutions) v. Farrell [2010] IECCA 116, amongst other cases, indicating that best practice involves in the first

instance identifying the appropriate headline sentence having regard to the available range, based on an assessment of

the seriousness of the offence taking into account aggravating factors (where seriousness is measured with reference to

the offender’s moral culpability and the harm done), and then in the second instance taking account of mitigating factors

so as to ultimately arrive at the proportionate sentence which is mandated by the Constitution as was emphasised in The

People (Director of Public Prosecutions) v. McCormack [2000] 4 I.R. 356.

15. Two quotations are sufficient to illustrate the point.

16. In The People (Director of Public Prosecutions) v. M. Egan J. in the Supreme Court said at p. 315 of the report:-

‘It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the

maximum sentence available. One should look first at the range of penalties applicable to the offence and then

decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked

at and an appropriate reduction made.’

17. In The People (Director of Public Prosecutions) v. Farrell, Finnegan J. giving judgment for the Court of Criminal Appeal,

reiterated yet again (at p.2 of the judgment) that:

‘A sentencing court must first establish the range of penalties available for the type of offence and then the gravity

of the particular offence, where on the range of penalties it would lie, and thus the level of the punishment to be

imposed in principle. Then, having assessed what is the appropriate notional sentence for the particular offence, it

is the duty of the sentencing court to consider the circumstances particular to the convicted person. It is within

that ambit that the mitigating factors fall to be considered.’

18. Since its establishment, this Court has repeatedly and consistently sought to emphasise that this approach is

regarded by it as best practice, and we have sought to commend to trial judges that they explain the rationale for their

sentences in that structured way, not least because a sentence is much more likely to be upheld if the rationale behind it

is properly explained. Equally, if this Court when asked to review a sentence cannot readily discern the trial judge’s

rationale or how he or she ended up where they did, having regard to accepted principles of sentencing such as

proportionality, the affording of due mitigation, totality and the need to incentivise rehabilitation in an appropriate case, it

may not be possible to uphold the sentence under review even though the trial judge may have had perfectly good, but

unspoken reasons, for imposing the sentence in question.”

12. In this case the sentencing judge did not identify a headline sentence, and we are unable to ascertain from his remarks what

reduction in sentence he actually allowed for the mitigation that he referred to. Accordingly, we hold that this failure constitutes an

error in principle in the trial judge’s approach to sentence.

Ground No. 3

13. In the course of his sentencing remarks, the trial judge recognised that a mandatory minimum ten year sentence was a very

severe sentence.

14. While we of course acknowledge the harm done to society by drug dealing, we are obliged to differentiate between cases and, in

so doing, to have regard to the value of the drugs involved, the nature of those drugs and the personal circumstances of the

offender.

15. In this case the court was told that the appellant was 54 years old at the time of sentence and that he was addicted to drugs,

alcohol and gambling. He was described as a man of no means whose principal previous conviction involved an offence under s. 15A of

the Misuse of Drugs Act 1977, involving cannabis valued at €1.3 million, for which he received a seven year sentence in the year

2000. The court was also told that, in the year prior to this sentence, the appellant had been convicted of possession of cocaine,

possession of cannabis, drunken driving as well as a series of convictions in respect of forgery offences and a larceny offence.

16. On the credit side, the court was also told that, while in prison, the appellant had taken up marathon running and had raised

€44,000 for charity. The prosecuting garda accepted that he was a colourful character and a person of no means. He also accepted

that the appellant was addicted to drugs, alcohol and gambling. These matters were not properly factored into the sentence, and this

resulted in a sentence that was excessive.

17. In view of our findings that the sentencing judge erred in his approach to sentence and imposed a sentence that was excessive,

we were obliged to proceed to a fresh sentence hearing and duly did so.

Conclusion

18. We agree with the learned Circuit Court judge that this was undoubtedly a serious offence meriting a substantial sentence, but in

our view the appropriate ultimate sentence ought to have been one of twelve years imprisonment. In accordance with normal

practice, we received documents updating us on the appellant’s progress since his imprisonment for these offences, and we received

a number of important testimonials as well as certificates and other documentation confirming the appellant’s progress in prison, in

particular his engagement there with rehabilitative programmes. This additional mitigatory material allows us to reduce the sentence

further, and we therefore impose a sentence of eleven years imprisonment in lieu of the original sentence of fifteen years

imprisonment.

19. Finally, we have to consider whether or not the appellant is entitled to have his sentence reviewed when he has served 50% of

that sentence, in accordance with s. 27(3J) of the Act of 1977 as set out above. We have been furnished with two documents by

the appellant in support of his application for review. The first confirms that he spent a month some years ago in a residential

addiction treatment centre in Clare, and the second that he has been attending Merchant’s Quay Ireland a drug treatment facility for

those addicted to controlled drugs since his incarceration in this case commenced. We accept the respondent’s submission that little

weight be given to this latter letter as it seems to be dependant on what the appellant said to the writer in 2015. However, the

sentencing judge accepted that the appellant was addicted to drugs, alcohol and gambling, as did the prosecuting garda. We are

satisfied that the appellant has met the first part of the test. The second part of the test requires the court to be satisfied that the

appellant’s addiction to controlled drugs was a substantial factor in the commission of the crimes under review.

20. Undoubtedly, there were a number of different factors at work in this case. We note the Act says “A substantial factor” and not

“The substantial factor”. We are satisfied that the appellant’s addiction to controlled drugs was a substantial factor in the commission

of the offence, and we direct that he be brought before Limerick Circuit Court for a review of a sentence once he has served the

equivalent of half of his sentence.

21. In order to avoid doubt, we direct that he be brought before Limerick Circuit Court within four weeks of his completing 50% of the

eleven year sentence now imposed by this Court and backdated it to the time that he first went into custody in respect of these

matters, namely, 8th August, 2013.