D.P.P.-v- Rory Lernihan, [2007] IECCA 21 (2007)

Docket Number:147CJA/06
Judge:Denham J.
 
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THE COURT OF CRIMINAL APPEAL[C.C.A. No. 147CJA/06]Denham J. deValera J. McGovern J. In the matter of s. 2 of the Criminal Justice Act, 1993.Between/The People at the Suit of the Director of Public ProsecutionsProsecutor/applicantandRory LernihanRespondent Judgment of the Court delivered on the 18th day of April 2007 by Denham J. 1. The Director of Public Prosecutions applied to this Court for a review of the sentence imposed on Rory Lernihan, the respondent, hereinafter referred to as 'the respondent', on the 23rd June, 2006, by Cork Circuit Criminal Court, on the basis that the sentence was unduly lenient in all the circumstances of the case. The sentence in issue is one of four years imprisonment on each of two counts, to run concurrently, the final two and a half years to be suspended.2. The respondent had been sent forward by the District Court to the Cork Circuit Criminal Court on a signed plea of guilty on two charges. The charges were: Charge 1: Rory Lernihan on the 13th of December, 2004 at Silversprings Lane, Mayfield, Cork had in his possession a controlled drug, namely cocaine for the purpose of selling or otherwise supplying it to another and at the time the drugs were in his possession their market value exceed 13,000 in contravention of the Misuse of Drugs Regulations 1988 and 1993 as made under Section 5 of the Misuse of Drugs Act, 1977 contrary to Section 15A of the Misuse of Drugs Act, 1977 as inserted by Section 4 of the Criminal Justice Act, 1999.Charge 2: Rory Lernihan on the 13th of December 2004 at 14 Ashmount Court, Mayfield Cork had in his possession a controlled drug, namely cannabis resin contrary to Section 3 of the Misuse of Drugs Act, 1977.3. In sentencing the trial judge stated:"In the circumstances of this case there has been [a plea] for the possession of 1 kilo of cocaine and a Section 3 plea in relation to the cannabis. The amount of the cocaine was 1 kilo, which allegedly the street value is 72K, perhaps not the biggest amount of drugs in the context of this court to come before the court. But what has struck me in this case over and above any other case is, if you like, this man was in some comfort working. He was not a drug addict when he knowingly got involved in this trade. I accept what the Sergeant says that now that he is caught he is unlikely ever to get involved again. He did it for money. That is all the downside.The mitigating side: he has pleaded guilty, he pleaded guilty in early course, he has shown remorse, he is unlikely to get involved again.Now weighing everything one with the other, I believe there has to be a custodial sentence. I know it is going to have a very serious effect on him and bring devastation to his family, but I believe in the context of this case where somebody knowingly gets involved in the trade of drugs, that one of the consequences of that trade is you are going to lose your liberty. There is definitely sufficient, in this case, which allows me to depart [the] from the mandatory 10 years sentence, in other words it would be unjust to impose a 10 year sentence.So given that the facts allow me to depart from a 10 years sentence. What sentence do I think appropriate? In all of the circumstances I would regard a sentence ... First of all, in the ordinary course of events, without the mitigating factors, I would say a sentence of four years would be appropriate. There are exceptional mitigating factors in this case because of the early plea, the extent of the co-operation and the fact that he has continued to work and rehabilitate himself, I will take that into account. So what I will do is I will suspend the ... he will serve 18 months and I will suspend the balance of the four years."4. The Director of Public Prosecutions has applied to this Court on the following grounds:-(i) The sentencing court erred in law and in fact in being unduly lenient when having accepted the mitigating factors put forward by the respondent were exceptional and specific circumstances which would make a sentence of not less than ten years imprisonment unjust and having deemed in those circumstances that the appropriate sentence was four years, the sentencing court then relied on the same mitigating factors to suspend the balance of the sentence once the respondent had served eighteen months of the four years. (ii) The sentencing court erred in law and in fact in being unduly lenient by failing to attach sufficient weight to the gravity of the offence for which the maximum penalty is life imprisonment and the existence of a mandatory minimum sentence of ten years imprisonment.(iii) The sentencing court erred in law and in fact in being unduly lenient when having determined that the appropriate sentence was below the statutory minimum it failed to consider whether the sentence should be increased to the minimum sentence.(iv) The sentencing court erred in law and in fact in being unduly lenient when it determined that the early plea of guilty and the circumstances of the respondent were exceptional and specific circumstances to the respondent which would make a sentence of not less than ten years imprisonment unjust in all the circumstances.(v) The sentencing court erred in law and in fact in being unduly lenient in determining that the respondent materially assisted in the investigation of the offence to the extent that it created exceptional and specific circumstances relating to the offence or the respondent which would make a sentence of not less than ten years imprisonment unjust in all the circumstances.(vi) The sentencing court erred in law and in fact in being unduly lenient in the weight it attached to the early plea of the respondent, the extent of his cooperation, the necessity for rehabilitation, the absence of previous conviction and the degree of remorse when determining the appropriate sentence.(vii) The sentencing court erred in law and in fact in being unduly lenient in failing to attach sufficient weight to the fact that the respondent was not addicted to drugs and consequently not in need of rehabilitation, was employed and admitted engaging in the offence for monetary gain.(viii) The sentencing court erred in law and in fact in being unduly lenient in determining that the consequence for the respondent's family was a matter which it should take into consideration in considering whether or not there were exceptional circumstances that rendered a sentence of not less than ten years imprisonment unjust.5. The essential facts are that on the 13th December, 2004 members of the drug squad stopped and searched the respondent in Silversprings Lane, Cork, at approximately 6.30 p.m., pursuant to s. 23 of the Misuse of Drugs Act, 1977, as amended. He was brought to Mayfield Garda Station for the purpose of the search and he was found to have a bag on his person containing a kilo of cocaine. He was arrested and detained. A warrant was obtained and his house was searched and a small amount of cannabis resin was found. The kilo of cocaine would have a market value of approximately 72,000 euro. The cannabis was of a nominal street value and it was accepted that it was for personal use.Detective Sergeant Larry O'Brien gave evidence as follows. The respondent gave limited cooperation to the authorities. At interview he claimed he had received the cocaine a short time earlier and that he was holding it for a certain amount of...

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