Court of Appeal reviews sentence for undue leniency regarding cannabis cultivation and grants review.

THE COURT OF APPEAL

Peart J.

Birmingham J.

Sheehan J.

146CJA/15

IN THE MATTER OF S. 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V

CHRISTOPHER ZINCK

APPELLANT

JUDGMENT of the Court delivered on the 22nd day of February 2016, by

Mr. Justice Birmingham

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

review of a sentence on grounds of undue leniency. The sentence sought be reviewed is one of nine years imprisonment, suspended

in its entirety, imposed on Mr. Zinck at Kilkenny Circuit Criminal Court on the 20th May, 2015, for an offence contrary to s. 15A of the

Misuse of Drugs Act 1977, as amended.

The background facts

2. At the outset it should be said that this case is linked with the case of Rory Kilkenny, which has also seen the DPP seek to review

a sentence on grounds of undue leniency. The facts are that on foot of a search warrant the gardaí searched two industrial units at

Piltown, Co. Kilkenny. Inside, they found 2,504 cannabis plants and 43.54kgs of cannabis herb. The court was told that the value of

the drugs was €2,874,174. It is accepted that figure is a notional one, in the sense that it is calculated on the basis of what the crop

would be worth when all plants came to maturity and did not represent an actual value on the day of the search. The units had been

converted to facilitate the large scale cultivation of cannabis plants and the production, from initial growth to vacuum packing, of the

finished product. The Court has been shown photographs and is in no doubt about the scale and indeed the sophistication of the

operation. The sentencing court was told that the garda belief was that this was the biggest cannabis growing facility ever located in

the country. Three Asian “gardeners” were arrested at the scene and were brought before the courts. Sentences of seven years

imprisonment, but with the final six years suspended on condition that they each immediately leave the country were imposed. At the

time they came before the court and were directed to leave the country, they had been in custody for something over a year.

3. On the 11th November, 2013, Mr. Zinck was arrested. He cooperated with the gardaí and during interviews admitted his

involvement in the operation, explaining that he was not to share in the profits of the enterprise but was to receive a fee of €5,000

for his involvement. In relation to his role, he told the gardaí “I wasn’t involved in the setting up of it or the start or the land or any of

the . . . I wasn’t in at the starting. I was involved in delivering items to Chinese people who were working in the cannabis grow house

in Piltown. I was just delivering mostly: food, phone credit, a few small electrical things, a vacuum sealer down there. Basically there

was a van full of stuff for me to bring down and bring in. I owed money to people for drugs. I had a bad cocaine habit.” This account

was accepted as an accurate one. The garda evidence at sentencing was that Mr. Zinck was immediately above the gardeners and

that his role was not as elevated as that of another individual, Rory Kilkenny who is also currently the respondent to an application to

review a sentence on grounds of undue leniency.

4. Of note is that on the 15th March, 2013, Mr. Zinck was caught attempting to import €3,000 worth of cannabis which was in his

stomach. This was dealt with at District Court level and resulted in a sentence of six months imprisonment suspended for a period of

two years subject to certain conditions.

The background and personal circumstances of Mr. Zinck

5. So far as Mr. Zinck’s personal circumstances are concerned, he was 31 years of age at the time of the sentence hearing, and he is

a single man, though in a relationship. The court was told that he had no relevant previous convictions. Three minor convictions in all

were recorded, two road traffic matters in 2006 and a minor assault in 2002. It was accepted that at one time he had a bad cocaine

habit. It appears that he had started using drugs aged sixteen years old. The court heard from Dr. William Collins of Wharton House

treatment centre in Waterford. Wharton House was a relatively new centre, but Dr. Collins had previously been a director of Aiserei

for a number of years and, prior to that again, had been Director of Rehabilitation and Treatment Services for the Cork/Kerry area

with the HSE, so he was clearly a person with very considerable experience in this area. The court was told that there had been a

very positive engagement by Mr. Zinck with the Wharton House team, such that they were very optimistic about his future. Having

been out of the family home for a period, he was now back home with his mother and brother, which was a measure of the progress

being made. A psychologist from Wharton House who had been working with Mr. Zinck, a Mr. Whelan, also came to court to offer

support.

6. The sentencing court was also told about Mr. Zinck’s involvement with a plumbing business in New Ross. The principal of that

business, Mr. Ryan, came to court to lend his support. It was explained that in the past Mr. Zinck had been taken on as an apprentice

and had completed two thirds or more of his apprenticeship, but then drifted away from this as he started to associate with

undesirable elements and because of his involvement in drugs.

7. However, the court was told that Mr. Ryan remained supportive of Mr. Zinck, to the extent of taking him back on and providing him

with an opportunity to complete his qualifications. This was a significant factor in the court deciding not to finalise sentencing on the

19th November, 2014, when evidence was first heard. The judge was urged on that occasion to give him an opportunity to complete

his apprenticeship, to defer the inevitable, as it was put, to allow this to happen. The court acceded to this application, and the

matter was put back to the 20th May, 2015. On that occasion, the court heard from Dr. Collins once more. Dr. Collins was of the view

that Mr. Zinck had progressed to an extent where he did not need to go back into a residential programme, notwithstanding that a

probation report which was very positive overall had suggested that that was the optimum treatment plan.

8. At the suggestion of the sentencing judge, Mr. Zinck came forward to be sworn and to address the court. The judge questioned

him as to his intentions and it is clear from the transcript that she was impressed by what he had to say. On this occasion, the court

was also told that he and his girlfriend were expecting their first child at the end of July, 2015.

The judge’s sentencing remarks

9. The judge referred to the scale and sophistication of the operation, describing the amount of drugs involved as massive. She

observed that if that amount of drugs had got out on the streets of Ireland, it would have ruined families, would have ruined young

people and would have ruined communities. She pointed out that the accused was not at the lowest level; he was at a level up from

that, and she described him as being one below the top man. She referred to the fact that, when arrested, he fully cooperated and

made full admissions. She also referred to the fact that he had turned his back on a loving and supportive family because of his drug

addiction, that he had now been accepted back into the fold, and that his family were extremely supportive of him. She referred to

the evidence of Dr. Collins and to the fact that Mr. Zinck had engaged with Wharton House for eighteen months. The judge also made

reference to the fact that his partner of seven years was now expecting their first child in July and that he no longer associated with

a negative peer group.

10. Dealing with the efforts at rehabilitation, she commented that the cynic in one might ask the question whether this was because

he was looking at a ten year prison sentence, and she responded to her own question by saying there had to be an element of that.

She observed that there were often accused coming before the court who would like to avoid incarceration and go down the road of

treatment, but who quickly fall by the wayside. She contrasted this position with that of the accused, who had continued with his

treatment and counselling, and who seemed to be a model patient of Wharton House. The judge then concluded her sentencing

remarks as follows:-

“This is a very difficult sentence to structure. I have to look at firstly the harm that came to society… the severity of the

crime, the harm that would have come to society should the drugs have got out: the place, the part this accused played

in the organisation and I have to take into account it was not at the lower level. Then I have to look at the accused

himself and what he has done and I have laid that out and what are the possibilities of him reoffending. The Probation

Service put it at a moderate risk, but they say that the risk factors are drugs, lifestyle… and negative peer group.”

The judge then continued:-

“He has addressed the drugs issue or is addressing it, I don’t mean to be naïve and say he has addressed it and it is over

and done with, that is not the case. He says he is not mixing with the negative peer group. I accept that. And his

associated lifestyle, he is now working, so he has addressed that also. So, if I look at the offender himself, he seems to

be doing everything to bring himself on to the right road and to lead a good and constructive life. Then I have to look at

the deterrent. Society cannot stand by and say ‘well you have committed this serious crime which could have caused

huge devastation to the citizens of Ireland, to families, to communities’, and [it] can’t just be said ‘well that’s fine off you

go’. There has to be a deterrent.”

11. The judge then turned her attention to the provisions of s. 15A of the Misuse of Drugs Act 1977, commenting:-

“[T]he matters I have to regard to are whether a plea of guilty was entered: at what stage: whether the person assisted

materially in the investigation, whether the public interest in preventing… drug trafficking would be served by imposition of

a lesser sentence. Firstly, I take into account the early plea, and that when arrested he indicated that he would give an

early plea and followed it through, immediately he said he would, and followed through with that: he was cooperative, he

gave assistance to the gardaí, even though the gardaí pretty well knew all that he was telling them; and exceptional and

specific circumstances, it would make it unjust when I look at the strides this young man has taken to try and turn his life

around; his supportive family, which he should be very grateful to, I would imagine that they are not used to standing in

courts and it must be very upsetting for them to be here: the fact that he has turned around his life in relation to and is

doing his best in relation to his drug addiction and is clear of drugs at the moment, I therefore find that I can – the Court

is not required to impose a sentence of ten years. However, a significant sentence has to be imposed in this case, taking

all the mitigating and aggravating matters into account. The proper sentence in this case, given the amount of drugs, has

to be nine years. I am imposing nine years of a custodial sentence to see. I look at the offender again, I [ask] is a society

going to be served by sending this man to jail for nine years? I don’t think it is because I think he is going to change his

life and he is going to become a useful member of society. I looked at his demeanour, I looked at his demeanour

throughout this process, and he seems to me a man who is full of remorse and is hoping that he will be able to look after

his partner and his new baby. He is going to get the opportunity, but that will not happen without certain conditions. I am

imposing a nine year custodial sentence. Pursuant to s. 99, I am suspending that sentence for a nine year period on

condition the accused be of good behaviour, keep the peace, liaise with the Probation and Welfare Service, do all the

things directed by them including education training. In relation to his drug addiction, I am directing that he attend

Wharton House for as long as is required by Dr. Collins and that he is also to attend Mr. Whelan on a weekly basis for as

long as Mr. Whelan says it is necessary, that he remain drug free… and remain off alcohol for a period of at least three

years from [the sentencing] date and that he not associate with the negative peer group [to which reference had been

made.]”

The application to review sentence

12. Both before the sentencing court and before this Court, it was accepted on behalf of the applicant, the DPP, that there were

factors present that justified a departure from the presumptive minimum sentence of ten years. The issue taken was with the fact

that the sentence was suspended in its entirety. Counsel on behalf of the DPP referred to the case of DPP v. Byrne and Phayer

[2015] IECA 5, where Irvine J. commented at paras. 21-23:-

“. . . it has to be said that a wholly suspended sentence constitutes a very radical departure from the presumptive

statutory minimum term of ten years. . . .

While there are decisions of the court approving of the imposition of a wholly suspended sentence in respect of s. 15A

offences, those cases are rare. The principle that emerges from them is that the court can only impose a non-custodial

sentence where it is satisfied that there are ‘wholly exceptional circumstances’. As Murray J. stated in The People

(Director of Public Prosecutions) v. Alexiou [2003] 3 I.R. 513:-

‘Even where there are exceptional and specific circumstances which would make a sentence of not less than ten

years imprisonment unjust, a substantial term of imprisonment, although less than ten years, will generally be the

appropriate sentence. That does not, however, exclude wholly exceptional and specific circumstances where a

suspended sentence may be considered appropriate in order to do justice in the particular place’.

Taking guidance from that decision, it is reasonable to conclude that where the court is satisfied that exceptional and

specific circumstances exist, the person convicted may expect to avoid the mandatory minimum sentence of ten years

imprisonment and to receive a custodial sentence of a lesser period. However, to receive a wholly suspended sentence, it

would appear that the threshold is much higher and the court must be satisfied as to the existence of circumstances

which are wholly exceptional.”

13. Reference was also made in the case of DPP v. Bowen [2015] IECA 95. There Edwards J. had commented, at paras. 45-46:-

“The difficulty for this Court however is that while it can readily appreciate how the sentencing Court could have

justifiably treated this offender with considerable leniency having regard to all of the facts just listed, there is nothing in

his situation that constitutes special reasons of a substantial nature and particularly exceptional circumstances such as

to justify a wholly suspended sentence. The Court therefore considers that excessive weight was attached to mitigating

factors and to that extent the trial judge was in error.

In saying that, the Court recognises that the sentencing judge’s remarks indicated that he was attaching considerable

importance to the legitimate sentencing objective of rehabilitation. As has been stated in numerous previous decisions it is

important to leave some light at the end of the tunnel if that is a viable option. It has been urged on the Court by counsel

for the respondent that special reasons and particularly exceptional circumstances are to be found in the fact that he

engaged so positively with the Probation Service during the year long adjournment, and showed himself to be particularly

amenable to rehabilitation. While the respondent is to be commended for his positive engagement, and progress towards

rehabilitation, we do not consider that this, per se, was sufficiently exceptional. The sentencing judge would certainly

have been justified in promoting the objective of his continued rehabilitation by a partial suspension of the figure of four

years that he had arrived at after making due allowance for mitigating factors, but he was not justified in the

circumstances of this particular case in completely suspending the sentence.”

Comment

14. The respondent allowed himself to become involved in a very significant criminal enterprise, choosing to participate in what was

believed to be the biggest cannabis growing facility ever located in this State. It certainly could not be said that his involvement was

at the lowest possible level. Clearly, he was in an altogether different position to the “gardeners”. His decision to become involved

was prompted by financial considerations, the belief that he would earn a fee of €5,000. Having made such a calculation, he had to

expect a significant custodial sentence if apprehended, particularly bearing in mind the presumptive statutory minimum sentence that

applies in such cases. It is true that there were powerful factors in his favour. Indeed, as already noted, counsel on behalf of the

moving party very properly accepted that there were significant mitigating factors present to which the sentencing judge was entitled

to attach considerable weight. In particular, counsel accepted that there were present exceptional and specific circumstances

relating to the respondent, most notably his efforts at rehabilitation, which entitled the sentencing judge to depart from the

presumptive mandatory minimum sentence and, further, to consider suspending a significant portion of the sentence. However,

counsel submitted that in deciding to suspend the sentence in its entirety, the judge fell into error. This Court agrees with that

submission. This was a very serious criminal enterprise. The respondent had chosen to become involved and had done so for financial

reward. Yes, there were significant factors present in favour of the respondent, but powerful as they were they did not provide a

basis for a non-custodial disposal. To that extent, an error in principle has been established, and the Court must accede to the

application on behalf of the DPP.

15. The Court is therefore required to address the question of sentence and, in accordance with the established jurisprudence of the

Court, to impose the sentence that is appropriate as of today’s date. In doing so, the Court takes note of the fact that it is some

fifteen months since the sentencing judge first decided to, as it were, take a chance on Mr. Zinck by putting the matter back to allow

him progress his apprenticeship, and it is now close on four years since the Piltown offence was committed.

16. The Court is disturbed by the fact that Mr. Zinck became involved in a second offence, and ordinarily becoming involved in an

additional offence would indicate a lack of remorse such as would disentitle an individual to any significant leniency. However, the

Court is influenced by the fact that the very experienced Circuit Court judge who dealt with this matter took the initiative of

questioning his involvement in this matter and then of questioning him about his intentions for the future, and was obviously

impressed by what she heard as well as convinced that his remorse was deep and genuine. In these circumstances, there may well be

substance in the contention made by counsel on behalf of Mr. Zinck that this involvement in the later matter, which was of course of

a very different character, involving the importation of drugs in his own stomach, was borne out of the throes of despair.

17. In accordance with the procedures set out in DPP v. Cunningham [2012] 2 I.R. 712, the Court has been provided with additional

up to date information to which it will now have regard, having formed the view that an error in principle has been established by the

moving party. That material includes a report from Dr. Collins and a letter from Mr. Ryan. Apart from preparing the report and letter,

Mr. Ryan has also attended court, which is the third time that he has done this, having been present at both sentence hearings in the

Circuit Court. Both documents merit quotation. Dr. Collins writes:-

“I have been working in the addiction treatment field for over 30 years now, and it is our experience that only a small

percentage of clients make a radical and wholly exceptional change in their lives by moving from chronic addiction and

involvement in crime to leading a fully productive clean and sober life. It is now apparent that Christopher is one such

person… I am happy to write this positive report and speak on his behalf today. I draw attention to this as I do not

usually attend court in defence of a client. However, Christopher is “exceptional” and warrants a whole hearted defence.

The original report of November, 2014 clearly articulates Christopher’s relevant life history and the origins of his addiction.

He was in a perilous mental and emotional state when he was referred to treatment: in fact he was hopeless and suicidal.

From that very low point he has committed in an exceptional manner to taking the opportunity afforded him and has

slowly emerged as the person he is today – bright, capable, hopeful for the future, hardworking, a good father to his

newborn daughter, a good partner to his girlfriend and a considerate son and brother within his family of origin. This has

been a painful and challenging path for Christopher, but he has really stuck with it.

He has been completely consistent in turning up for appointments and is now drug free since he began treatment eighteen

months ago. He has worked very hard on the emotional difficulties which originally initiated his addiction when, as a

teenage, his father died. He continues to work on this and other areas of difficulty with the aftercare psychologist, Gerard

Whelan. This highlights his ongoing motivation and commitment to drug and crime free living. At this point in time,

Christopher is extremely embarrassed, ashamed and remorseful when reflecting back upon this addiction and crime phase

of his life. He has psychologically and practically moved on from this . . .

Due to these many factors, we consider that he is now a very low risk regarding relapse to addiction or crime. I would be

completely shocked if this was to occur and predict that it is extremely unlikely. He is living a normal, hardworking, family

orientated life and continues receiving the appropriate psychological support to ensure that this remains the case.”

Mr. Ryan for his part, in his letter, comments:-

“Regardless of the current appeal which Christopher now faces we have been so very proud to see his progress during the

past eight months in spite of this very stressful date hanging over him. He has since fully completed his training and is

now a fully qualified plumber by trade and continues to progress by working diligently and seeking out further qualifications

by undertaking further educational courses eg. registered gas installer training etc. when his time and finances allow ...

Christopher is an example to us all of good and decent recovery from the lifestyle which is now firmly in his past. He is and

will continue to inspire other people with his recovery and we hope he gets the opportunity at home safe with his mother,

sister, brother and more importantly his partner and daughter to continue his recovery.”

18. The material before the Court indicates that the extent of the progress and transformation that has occurred can be described as

exceptional, indeed wholly exceptional. It raises the question of whether it would be wise to undermine that progress by now

incarcerating Mr. Zinck. However, having regard to the gravity of the original offence, the Court is not prepared at this stage to

confirm a non-custodial disposition, and indeed even now a non-custodial disposition may not ultimately be possible. The Court,

however, proposes to put the matter back for a period of one year in the hope and expectation that the progress achieved can be

maintained.