Court of Appeal dismisses appeal against suspended sentence for drug trafficking due to excessive quantity and value.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

Appeal No.: 107/2014

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

- and -

Terry O’Donoghue

Appellant

Judgment (ex tempore) of the Court delivered on 16th day of February 2016 by Mr. Justice Mahon

1. The appellant was convicted on 10th December 2013 at Dublin Circuit Criminal Court of one count of unlawful possession of a

controlled drug for the purpose of supply contrary to s. 15A (as inserted by s. 4 of the Criminal Justice Act 1999) and s. 27 (as

amended by s. 5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977 and contrary to the Misuse of Drugs Regulations,

1988 and 1993, as made under s. 5 of the Misuse of Drugs Act 1977.

2. The appellant was sentenced on 7th April 2014 to ten years imprisonment to date from 3rd April 2014, with the final three years of

that term suspended on certain conditions. The appellant has appealed against that sentence.

3. On 27th February 2013, in the course of an intelligence led operation involving previous information and surveillance, a lock up unit

at Cookstown Enterprise Centre, Tallaght, Co. Dublin was placed under surveillance by members of the National Drugs Unit. On that

afternoon, the appellant was observed arriving at the lock up unit in a Renault van and loading up the van with several black sacks,

and then driving away. The Renault van being driven by the appellant, its sole occupant, was followed by members of the National

Drugs Unit and was observed stopping at a slip road off the N7 road. The appellant met another individual when a drop off of the

black sacks took place.

4. The receiver was subsequently stopped and an amount of cannabis of just under 10kgs in weight and a value of €199,584 was

seized.

5. The surveillance operation on the appellant and the lock up premises continued into the following day, 28th February 2013. On that

afternoon, the appellant was observed returning to the lock out and again removing black sacks from it, loading them into his van and

then driving away. He was kept under observation until he stopped at Castlewarden, Staffan, in Co. Kildare where a further drop off

of drugs took place. The receiver of this consignment of drugs was later stopped and an amount of cannabis weighing 30 kgs and with

a value of €601,440 was seized. The appellant was also stopped and arrested.

6. A search of the lock up was undertaken and 64.4 kgs. of cannabis with a value of €1.29m. was discovered and seized. The drugs

were concealed in boxes and stacked on pallets.

7. When interviewed, the appellant made certain admissions, and ultimately pleaded guilty to the s. 15A offence. The total value of

the drugs involved was just over €2m.

8. Essentially, the appeal is focussed on the suspended element of the ten year sentence. While maintaining that it was excessive, no

significant issue is taken by the appellant in relation to the headline ten year term. It is certainly the view of this court that, having

regard to the fact that the total drugs all exceeded €2m. in value a sentence in the region of ten years imprisonment was

appropriate.

9. Because of the presence of certain exceptional mitigating factors, the learned sentencing judge exercised her discretion to depart

from the prescribed mandatory minimum term of ten years. This Court would take no issue with that decision. Having so decided, the

learned sentencing judge proceeded to identify the appropriate headline sentence to be one of ten years, and as already indicated

this Court does not fault that decision.

10. The learned sentencing judge went on to identify in a fairly comprehensive manner the undoubted mitigating factors present in

the case. Paramount amongst these were the appellant’s plea of guilty, his admissions and co-operation, and the fact that he was

not the owner of the drugs. In reality however, his role in the operation was nevertheless crucial in many respects in what the

learned sentencing judge described as a sophisticated operation.

11. The appellant’s personal circumstances quite appropriately weighed heavily with the learned sentencing judge, including, in

particular, his lack of previous convictions and his very difficult family circumstances, including the tragic loss of his wife and daughter

in recent times, and his resulting alcohol abuse. Another important factor is the low risk of re-offending identified in this case.

12. The question is, did the learned trial judge fail to afford sufficient weight to these mitigating factors in arriving at her decision to

suspend just three years of the ten year sentence? Is the overall sentence so wide off the mark as to amount to an error of principle

warranting intervention by the Court?

13. A number of Superior Court decisions were opened to the court by the appellant where sentences for offences involving

significant amounts of drugs attracted sentences which involved a substantial suspended element. While many of the cases have

broadly similar background facts and also involved large hauls of illicit drugs, other aspects of these cases, and those particularly

relevant to the sentencing process, including the offenders’ personal circumstances, are quite varied and different to this case, thus

making comparison problematical.

14. Of particular importance in this appeal is the enormous quantity of drugs in question. A person with previous convictions and less

tragedy in his personal life could reasonably have expected a custodial sentence of ten years, or indeed significantly more than ten

years.

15. The Court is satisfied that the sentence of ten years (with the final three years suspended) was a reasonable and appropriate

sentence for this offence, and it cannot identify any error of principle in the manner in which the learned sentencing judge conducted

the sentencing process and in arriving in what is in reality a seven year custodial term.

16. The appeal is therefore dismissed.