Director of Public Prosecutions v Keogh
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 14 November 2023 |
| Neutral Citation | [2023] IECA 322 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 57CJA/23 & 58CJA/23 |
In the Matter of Section 2 of the Criminal Justice Act 1993
[2023] IECA 322
The President.
McCarthy J.
Kennedy J.
Record Number: 57CJA/23 & 58CJA/23
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the 14 th day of November 2023 by Ms. Justice Isobel Kennedy.
. This review on grounds of undue leniency relates to sentences imposed in respect of four bills of indictment. The subject matter of the four bills concerned an offence under the Misuse of Drugs Act, offences under the Firearms Act, and offences of money laundering, which resulted in the imposition of an aggregate effective sentence of 6 years' imprisonment.
. The Director of Public Prosecutions brought 2 applications to review sentence. The details of each Bill and how each one was dealt with are as follows.
. Bill Number 1723/21 concerns the first offence in time; possession of cannabis contrary to s. 15 of the Misuse of Drugs Act, 1977 where a sentence of 2 years' imprisonment was imposed. Count 1 of Bill Number 14/22 is the second offence in time; money laundering contrary to s. 7 of the Criminal Justice (Money Laundering and Terrorist Financing) Act, 2010. A sentence of 3 1/2 years' imprisonment was imposed. Bill Number 352/22, the third offence in time, concerns the possession of a firearm and ammunition in suspicious circumstances contrary to s. 27A of the Firearms Act 1964, as amended. A sentence of 3 1/2 years was imposed. Count 1 of Bill Number 212/22 is a further money laundering offence in respect of which a sentence of 3 1/2 years' imprisonment was imposed.
. The sentences of 3 1/2 years on each money laundering offence were imposed concurrent inter se and consecutive to the sentence imposed on Bill No. 1723/21 (the drugs offence). On Bill No. 352/22 (the firearms offence) the sentence of 3 1/2 years was imposed consecutive to the sentence of 3 1/2 years imposed on the money laundering offences giving rise to a total sentence of 9 years' imprisonment. In consideration of the totality principle, the sentence of 3 1/2 years on the firearms offence was reduced to 1 1/2 years giving rise to a total sentence of 7 years. Considering the efforts towards rehabilitation, the final 12 months was suspended, leading to an effective sentence of 6 months' incarceration.
. On the evening of the 20 th of February 2020, gardaí parked their patrol car behind a Skoda Fabia, the respondent alighted from the rear passenger side of the car and ran with a black refuse bag in his left hand which he then threw under a BMW jeep and continued running down a laneway. On being asked as to the contents of the bag, he replied: “ what bag?”
. Gardaí retrieved the black refuse bag from underneath the jeep and found a large vacuum-packed bag of green material, containing 886 grammes of cannabis with a street value of approximately €17,700.
. In interview, the respondent explained that he had run from gardaí because he had €500 on his person, and he was concerned that gardaí might try and seize that from him. He denied throwing the drugs under the vehicle but entered a guilty plea on the first occasion before the court.
. Gardaí were in receipt of information which led them to suspect that the respondent and his father would be involved in the collection of a considerable sum of cash in the Sligo area using a particular vehicle.
. An operation was mounted and at approximately 7:35am on the 5 th of November 2020, gardaí stopped the vehicle on the M4 motorway in Naas in County Kildare. On searching the vehicle, cash of approximately €123,000, predominately in bundles of €10,000 was found under the front passenger seat occupied by the respondent. The vehicle was driven by his father.
. On approaching the vehicle, the respondent was using a phone. In fact, three mobile phones were found in the vehicle, one being an encrypted device. The software on this device enabled the device to be used without the SIM card being traceable. The device also featured a panic wipe function which allows the user to wipe the device using a PIN code.
. Both the respondent and his father, his co-accused, were said to be cooperative and made full admissions during interview. The respondent explained that he was told that if he collected the money his debt would be cleared. He said he was paying off a debt of €5,000 at this point in time.
. The respondent indicated that he had received cannabis for the purpose of selling it, but consumed some himself and then swapped it for cocaine which he also consumed. He acquired a debt as a consequence.
. Subsequently, a house was searched, and two Rolex watches were found; one genuine and one fake. Both belonging to the respondent according to the gardaí.
. The respondent was charged on the 6 th of November 2020 and released on bail.
. On the 16 th of April 2021, gardaí acting on foot of information regarding the movement of a firearm by the respondent and his father put surveillance in place relating to a farmhouse and cottage in the Newcastle area of County Dublin.
. On the 17 th of April, a black Land Cruiser was observed by gardaí leaving a house in the Clondalkin area. The respondent was in the front passenger seat. The vehicle travelled to the farmhouse in Newcastle that had been identified the previous day, drove to the rear of the premises and drove back out of the yard. The vehicle continued in the direction from which it had come, was stopped by gardaí and searched.
. A compartment was located underneath a carpet in the rear portion of the vehicle and a firearm and ammunition were found there inside a green first aid box. Upon examination, the firearm was found to be a .45 ACP calibre Les Baer custom 1911 semi-automatic pistol. The ammunition comprised two magazines of seven rounds of .45 ACP calibre ammunition, suitable for use in such a weapon.
. The respondent and his co-accused were arrested and detained. In interview, the respondent indicated that he was asked to collect the firearm and ammunition by the persons to whom he was in debt. He expressed concern as to what might happen to him should he not do what he was asked to do. He indicated that he had moved money, (which related to the €123,000) and had been caught and was told that the people to whom he owed money sought its return and that he could be killed, or petrol bombed if he did not do what was asked of him.
. The respondent confirmed that he knew what he had collected and transported was a gun but indicated that he was not sure what type of gun it was as he did not look at it, but as far as he knew it was a handgun.
. On this occasion, gardaí were again in receipt of confidential information which directed them towards the respondent and a silver Passat of a particular registration. The information was received that the vehicle would be travelling from Athlone to Dublin.
. On the 14 th of September 2021, the vehicle was stopped at junction 4 of the N4 in Dublin. The respondent was sitting in the passenger seat. A search of the vehicle uncovered €49,950 cash concealed within the engine area of the vehicle in front of the battery. The respondent's person was also searched and a sum of €1,000 in €50 notes was recovered.
. As gardaí approached the vehicle, they observed the respondent rapidly typing into the keypad of a phone which was in his hands. They were in a position to see the message “ sim card locked” appear on the screen after he had typed in this fashion. It was said that this phone was a modern Apple iPhone. Possession of this device was the subject of another count on this bill number which was taken into consideration: s. 183 of the Criminal Justice Act, 2006, possession of an article in connection with certain offences.
. The respondent was arrested and made full admissions in interview. He explained that he had been forced to conduct this activity because he had been caught with drugs and firearms and had a debt. He indicated that he told the person who was driving the vehicle that he was buying a new car and needed a lift.
. The respondent was 26 years of age at the time of the hearing of evidence by the sentencing court. He has two young sons and a long-term partner who wrote to the sentencing court detailing the impact of his incarceration on her and their young family as well as the attacks suffered by him in prison.
. The respondent has 52 previous convictions: 51 road traffic offences and 1 s. 13 conviction for failing to appear which were all dealt with in the District Court.
. A psychological assessment of the respondent was completed by a Dr O'Leary who stated that while he does not meet the diagnostic criteria for a mental illness, he should be considered a psychologically vulnerable man.
. The sentencing judge took into account as aggravating factors the seriousness of the offending and the fact that offences were committed while the respondent was on bail.
. In terms of mitigation, the judge took into account the respondent's early pleas of guilty, that his previous offending is unrelated to these types of offences, his cooperation with gardaí, save for in the first bill, his long-term partner and young family and the effect of his offending on them, that he was acting under duress, his educational difficulties as a child and the impact of those difficulties on him as an adult, his addiction to cocaine and the efforts made by him to detox, his work record in custody and enhanced prisoner status, the difficulty his partner has suffered due to his offending, his own difficulties in custody, his psychological vulnerabilities and other findings...
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