Director of Public Prosecutions v Kenn

• Jurisdiction: Ireland
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 14 May 2024
• Neutral Citation: [2024] IECA 180
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 292/23

In the Matter of Section 2 of the Criminal Justice Act 1993

Between/

The People at the Suit of the Director of Public Prosecutions

Applicant

and

Pearl Kenna

Respondent

[2024] IECA 180

Edwards J.

Kennedy J.

Burns J.

Record Number: 292/23

THE COURT OF APPEAL

JUDGMENT of the Court delivered ( ex tempore) on the 14 ^th day of May 2024 byMs. Justice Isobel Kennedy.

1 . This is an application brought by the Director of Public Prosecutions pursuant to the provisions of s. 2 of the Criminal Justice Act, 1993, seeking a review on grounds of undue leniency of a sentence imposed on the respondent on the 28 ^th November 2023 in the Circuit Criminal Court.

2 . On the 4 ^th May 2023, the respondent pleaded guilty to count 1 on the indictment, an offence contrary to s. 15A of the Misuse of Drugs Act, 1977, as amended. On the 28 ^th November 2023, the respondent was sentenced to three years' imprisonment which was wholly suspended.

Background

3 . On the 21 ^st April 2021, Gardaí executed a search warrant on the respondent's home and the respondent immediately pointed to a black bag in the sitting room containing 344.3 grams of cocaine, with a value of €24,101, 620.6 grams of creatine which was used as a mixing agent and drugs paraphernalia.

4 . In interview, the respondent admitted that she was being paid to mix, weigh and bag the drugs, explaining that she was being paid approximately €500 and that she had been doing it for six or seven months, every month or every six weeks. She said that she was not under duress and did not have a drug addiction. The respondent answered all questions asked of her with the exception of identifying the person by whom she was paid.

Personal Circumstances of the Respondent

5 . The respondent was 51 years of age at the time of sentence. She has no previous convictions. She had not been in employment in the years preceding this offence however, she had been acting as a carer for her mother. She has four children.

6 . Having initially stated that she did not have a drug addiction, it was accepted during the sentence hearing that this was not actually the case, and that the respondent was a heavier drug user than she had first admitted.

Sentencing Remarks

7 . The sentencing judge noted the value of the drugs at €24,000, that the respondent was cutting up the drugs for a third party for reward and that the third party was going to sell them on to customers and make a profit.

8 . He identified the mitigating factors as the respondent's early plea of guilty, her co-operation, her lack of previous convictions, her work history and familial responsibilities. The judge expressed the view that it was unlikely that the respondent would reengage in serious crime, that her culpability was on the lower end and that she was at the very lowest in relation to the drug dealing operation.

9 . The judge concluded that the respondent's early plea of guilty, her full cooperation and previous good character allowed him to depart from the mandatory minimum.

Grounds of Application

10 . The Director relies on the following grounds in seeking a review of this sentence on grounds of undue leniency:-

“1. On the evidence, the sentencing judge erred in principle by departing from the presumptive mandatory minimum sentence prescribed by law and imposing a fully suspended sentence;

2. The sentencing judge erred in principle by failing to identify the headline sentence;

3. The sentencing judge erred in principle by failing to have proper regard to all of the aggravating factors which included inter alia:

a. The offending was motivated by financial gain and that she was paid €500 per cut and bagging;

b. Admissions that she had been bagging drugs every 4 to 6 weeks for 6 to 7 months;

c. Admissions to the Gardaí and the Probation and Welfare Officer that she did not have a drug habit, was not under duress and did not have a drug debt;

d. The drug was cocaine (3.443 grams valued at €24,101);

e. There was a significant quantity of mixing agent (620.6 grams of creatine); and

f. She was at a moderate risk of reoffending.”

Submissions of the Director

11 . The Director acknowledges the principles applicable in an application of this kind as established in People (DPP) v Byrne[1995] 1 ILRM 279 and People (DPP) v McCormack[2000] 4 IR 356.

12 . Reliance is placed on the guideline judgment of People (DPP) v Sarsfield[2019] IECA 260. The Director identifies several comparator cases: in People (DPP) v Farrell[2020] IECA 163, the accused pleaded guilty to offending involving diamorphine with a value of approx. €2,000, the sentence after appeal was 2 ¹/₂ years' imprisonment with the final six months suspended; in People (DPP) v Thornton[2020] IECA 245, the accused pleaded guilty to offending involving €5,654 worth of cannabis, the sentence after appeal was 2 ¹/₂ years with the final six months suspended. In People (DPP) v Tran[2021] IECA 227, involved an early plea where the accused transported €480,000 worth of cannabis, the sentence after appeal was 5 years and 4 months' imprisonment.

13 . In People (DPP) v Lawlor[2021] IECA 281, the accused pleaded guilty to offending of approx. €23,000 of cannabis and alprazolam tablets, the sentence after appeal remained at 5 years' imprisonment with the final year suspended.

14 . In People (DPP) v Rakovac[2022] IECA 233, the accused pleaded guilty to s. 15A and money laundering charges, the sentence after appeal was 3 years' imprisonment with the final 6 months suspended. The drugs concerned were cannabis and cocaine with a value of approx. €36,000. In People (DPP) v Konar[2023] IECA 145, the sentence after appeal remained at 2 ¹/₂ years' imprisonment involving approx. €17,000 of cannabis.

15 . In People (DPP) v Graham[2023] IECA 168 the accused pleaded guilty to offending related to €34,000 worth of diamorphine, the initial sentence was one of three years' imprisonment, fully suspended and the sentence after appeal was 4 ¹/₂ years' imprisonment with the final 2 ¹/₂ years suspended. In People (DPP) v McInerney[2023] IECA 221, the accused pleaded guilty to offending involving €50,000 of cocaine, the initial sentence was one of 14 years' imprisonment with the final two years' suspended and the sentence after appeal was 10 years' imprisonment.

16 . While it is accepted that the failure to identify a headline sentence is not an error in principle, it is submitted that this failure makes it very difficult to identify where the offending was placed and what credit was given for mitigation.

17 . The Director highlights the following:-

a. The drug was cocaine;

b. The value was well in excess of the statutory requirement for a section 15A charge;

c. The quantity of mixing agent that was found;

d. The fact that the Respondent had been actively mixing, weighing and bagging drugs for a number of months;

e. She was motivated by monetary gain;

f. She was placed at a moderate risk of reoffending;

g. She mislead the Gardaí, probation officer and/or the court as to her drugs status and threat level; and

h. If she did have a drug addiction (which was first instructed on the morning of the sentence hearing), there was no evidence that she had taken any steps to deal with it.

18 . It is submitted that to reduce the three-year sentence to a fully suspended sentence was not justified on the evidence and amounted to an error of principle.

19 . Reliance is also placed on the sentencing principles of punishment and prevention or deterrence.People (DPP) v O'Brien[2018] IECA 2 is cited in this regard.

20 . It is submitted that it appears that the sentencing judge did not think there was any requirement for rehabilitation as he did not follow any of the recommendations of the Probation Service.

21 . The Director emphasises the respondent's “ late declaration of a drug addiction”, that there was no evidence of any steps towards rehabilitation having been taken and that her claim of having been drug-free for two years is unreliable given what transpired at the sentencing hearing.

22 . It is submitted that the sentence imposed is unlikely to be deterrent to others in the respondent's situation who...