Court of Appeal dismisses appeal against three-year sentence for drug possession due to prior serious conviction.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

Appeal No.: 157/2015

The People at the Suit of the Director of Public Prosecutions

Respondent

- and -

Anthony Daly

Appellant

Judgment (ex tempore) of the Court delivered on the 18th day of January 2016 by Mr. Justice Mahon

1. The appellant was convicted on 11th December 2014 at Dublin Circuit Criminal Court of one count of possession of a controlled

drug, cannabis resin, for the purpose of selling or otherwise supplying to another contrary to s. 15(1) and s. 27 of the Misuse of Drugs

Act 1977 (as amended by s. 6 of the Misuse of Drugs Act 1984 and s. 33 of the Criminal Justice Act 2007), and the Misuse of Drugs

Regulations 1988/1993, made under s. 5 of the Misuse of Drugs Act 1977, and was, on 10th June 2015, sentenced to three years

imprisonment. This is an appeal against that sentence.

2. The value of the drugs in question was in the region of €3,000. They were found by gardaí at an address in Santry, Co. Dublin,

having obtained a search warrant and gained entry with a key found on the appellant following his interview by gardaí after his car

was stopped and searched.

3. The appeal is based on the contention by the appellant that the sentence of three years imprisonment is unduly severe and is in

breach of the principles of sentencing established in case law and statute in that the sentencing judge:-

(1) failed to have any or any adequate regard to:-

(a) the good behaviour of the appellant from the date of the offence being the 6th December 2011,

(b) the relatively low street value of the drugs in question,

(c) the efforts taking by the appellant to deal with his gambling addiction since the said date,

(d) the role of foster father taken on by the appellant and his partner and their care of the child fostered,

(e) the employed status of the appellant at the date of sentence,

(f) the contribution made by the appellant to sporting activities in his area,

(g) the appellant’s social activity with his community as evidenced by his involvement in activities of a well known

football club.

4. On the date of sentencing the learned sentencing judge was also required to deal with the respondent’s application to activate all,

or some, (or none) of the suspended element of a sentence imposed in 2006 in respect of a s. 15(A) drugs offence and which

concerned illicit drugs with a street value of approximately €140,000. That sentence was one of ten years with the final six years

suspended for a defined period. The offence with which this appeal is concerned was committed on 6th December 2011, subsequent

to the appellant’s release from prison but within the period relevant to the suspended element of that sentence.

5. It is evident from the sentence imposed in 2006 that that offence was a very serious one and concerned a very large quantity of

drugs, hence the significant prison sentence. It is also evident that the extent of the suspended element of that sentence, being six

years, or over 50%, of the headline sentence represented the provision by the court of a generous opportunity to the appellant to

serve a relatively short period in prison in return for his commitment to avoid further involvement with illicit drugs over a period of

time. His commission of the drugs offence in December 2011, albeit a much less serious offence than the one previously committed by

him, is a clear indication that that opportunity was not availed of by the appellant.

6. On that basis, when the matter of sentencing arose for determination on 10th June 2015, the appellant faced the prospect of

receiving not only a sentence in respect of that offence but also the activation of, possibly, the full suspended six year term relating

to the earlier offence.

7. The manner in which the learned sentencing judge approached sentencing the appellant is apparent from the following short

extracts from his sentencing judgment:-

“..Mr. Daly has to deal with two matter then, that he breached his bond in relation to a bond he entered into on the

basis of a sentence that Judge McDonagh gave him back some time ago. Obviously that was a 15A and I think the

sentence was ten years with the last six years suspended. So, Judge McDonagh gave him a considerable chance.

Obviously with good reason. Obviously he had good mitigating at the time and also there were other matters in his

favour.

…It seems that he has many, many good points. His plea of guilty was obviously valuable. He seems that he is a good

family man and he is well liked by his family, and it seems that he is a good foster father as well and it seems that he

has a work history and is currently in employment. And at the moment it seems that he is working very hard and it

seems that he has turned his life round. The question is, can I, in conscience equal his past behaviour in deciding what

to do about Mr. Daly. It seems by reason of the old matter where he received a very good chance and a new matter, I

cannot. Mr. Daly must suffer a term of imprisonment by reason of the breach of the bond and the commission of the

new offence, if you want to call it that way. And I am dealing with Mr. Daly globally in this matter and what I will do,

while taking into account obviously I will make no order on the application in relation to the bond but I will impose upon

Mr. Daly a term of imprisonment of three years in relation to the new matter.

..I am imposing that sentence. I am taking into account the activation matter and the new matter… I could have

parsed it differently and activated a small part, or a part of the old sentence, but I decided the best way to deal with

the matter is to deal with it entirely on the new matter, but I certainly have been influenced greatly by the breach of

his bond.”

8. While the so called global approach to matters with which the learned sentencing judge was concerned might be said to be

somewhat unusual no issue is taken by the respondent as to whether or that that approach is or is not correct, and for this reason

the Court does not propose to consider that particular aspect in any detail. What is almost certainly the case is that the appellant is

likely to have benefited from that approach in that there is every likelihood that, had the learned sentencing judge approached his

task on the basis of dealing with the two matters separately, firstly by deciding on the activation application and secondly, imposing a

sentence in respect of this less serious offence, the overall or total sentence may well have considerably exceeded three years.

Indeed, the three year sentence might be said, in these circumstances, to have been lenient.

9. Undoubtedly, if the appellant had been before the court simply in relation to the s. 15 offence involving drugs with a value of

€3,000, he might have expected a sentence of twelve months or less, or indeed, possibly an entirely suspended sentence in

circumstances where he had no relevant previous convictions. His other mitigating factors, including his plea of guilty and his personal

family and employment circumstances probably justified a lenient sentence in the absence of the previous and far more serious

offence and the requirement to consider the activation of the suspended element of the sentence arising therefrom.

10. The Court has not therefore identified any error of principle on the part of the learned sentencing judge in the imposition of a

three year term. It has not been established that the learned sentencing judge failed to take account of, and attach appropriate

weight to, the mitigating factors in the case. Neither can it be said that a three year term was excessive having regard to the very

serious prior drugs conviction and the fact that the offence which is the subject of this appeal was committed during the period of

operation of the earlier lengthy suspended sentence. Furthermore the three year sentence did not breach the principle of totality and

proportionality in the circumstances.

11. The appeal is therefore dismissed.