Court allows appeal against full reactivation of suspended sentence, ordering partial reactivation due to inadequate judicial consideration.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

178/15

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Raymond Cummins

Appellant

JUDGMENT of the Court (ex tempore) delivered on the 18th day of July 2016 by Mr. Justice Sheehan

1. This is an appeal against the full reactivation of a five year suspended sentence.

2. On the 1st July, 2014, the appellant pleaded guilty to the possession of cannabis resin to the value of €21,000 contrary to s. 15A

of the Misuse of Drugs Act 1977, as amended. The offence occurred on the 6th August, 2013. That evening the gardaí searched the

accommodation which the appellant had at the time, shared with another person and he was found there to be cutting up a few

ounces of cannabis at a table. He maintained that this had been given to him for storing two other parcels of cannabis which were in

the premises, one weighing 3kgs which was in the attic and the other parcel being half a kilogram of cannabis. The appellant told the

gardaí where these parcels of cannabis could be located. It is accepted that at the time of sentence that the appellant was addicted

to cannabis and was receiving treatment for his addiction. He was deemed to have given material cooperation to the gardaí and the

sentencing judge held that it was a proper case for him to depart from the mandatory minimum sentence of ten years imprisonment.

The trial judge imposed a sentence of five years imprisonment, and suspended that sentence in full for a period of five years.

3. Five months later the appellant was intoxicated one night when he stole a phone from an individual whom he met and whom he also

assaulted. The following day, he called to the garda station, returned the phone and apologised for what he had done. He was

charged with an offence of theft and an offence of assault and he pleaded guilty to both these offences in the District Court. As a

result of these pleas of guilty he was then brought to the Circuit Court to have the suspended sentence activated. At the hearing

before the Circuit Court judge the full sentence of five years imprisonment was activated. The appellant now asks this Court to

reduce that sentence,

4. It was submitted on his behalf that inadequate attention had been paid by the sentencing judge to the mitigating factors that

existed in his case and also that the sentencing judge had not considered factoring into the appellant’s sentence a rehabilitative

element.

5. Opposing these grounds of appeal advanced by counsel for the appellant, counsel for the Director of Public Prosecutions pointed to

the lack of evidence before the sentencing judge at the reactivation hearing on foot of which the sentencing judge might have been

able to afford some leniency. Counsel for the Director also submitted that the offence which led to the reactivation of the five year

sentence was particularly serious and justified the sentencing judge’s imposition of the five year sentence in full.

6. In the course of a very short hearing, the sentencing judge briefly referred to the possibility of a partial reactivation but

immediately went on to reject that as a possibility.

7. In our view the sentencing judge failed to give adequate consideration to the possibility of a partial activation the five year

sentence of imprisonment and as a result of this failure we will allow the appeal against sentence.

8. The appellant is 25 years old and his partner is expecting their second child.

9. Since his incarceration in respect of this sentence he has successfully completed a number of courses while in Cork Prison. We

note in particular that he is attending classes in the school, morning and afternoons, five days a week and has successfully completed

a number of other courses including a Samaritans listening course, which enables him to be of assistance to fellow prisoners.

10. While this offence was at the low end of s. 15A offending and the appellant was engaged on behalf of others in return for some

cannabis, it was nevertheless a serious offence and that seriousness has been so identified by the Oireachtas in light of the penalties

that are now provided for s. 15A offences.

11. In view of the very serious efforts that this appellant has made while in prison, as well as his personal circumstances, we are of

the view that the justice of the case can be met by imposing a sentence of five years imprisonment while suspending the final two

and a half years of that sentence on the usual terms. This means that the final two and a half years of the five year sentence will be

hanging over him when he is released from prison.