Director of Public Prosecutions v Farrelly

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Mahon
• Judgment Date: 09 March 2018
• Neutral Citation: [2018] IECA 73
• Docket Number: Record No. 150CJA/2017
• Date: 09 March 2018

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

- AND -

PATRICK FARRELLY

RESPONDENT

[2018] IECA 73

Mahon J.

Birmingham J.

Mahon J.

Edwards J.

Record No. 150CJA/2017

THE COURT OF APPEAL

Sentencing – Unlawful possession of controlled drugs with a value of €13,000 or more – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Farrelly, pleaded guilty and was convicted at Cork Circuit Criminal Court in February 2017 of one count of the unlawful possession of controlled drugs with a value of €13,000 or more contrary to ss. 15A and 27 of the Misuse of Drugs Act 1977. The value of the drugs amounted to €59,496 in respect of cannabis, and €7,024.50 in respect of amphetamines. The respondent was sentenced on the 17th May 2017 to three and a half years imprisonment (to date from the 25th November 2016) with the final eighteen months suspended on certain conditions for a period of two years post release. The appellant, the DPP, appealed to the Court of Appeal seeking a review of that sentence pursuant to s. 2 of the Criminal Justice Act 1993 on the ground that it was unduly lenient. The appellant submitted that that the sentencing judge failed to have appropriate regard to the following factors when sentencing the respondent: (i) the gravity and circumstances of the offences for which the respondent pleaded guilty; (ii) the value and nature of the drugs; (iii) the fact that the s. 15A offence was committed a few short months after committing s. 15 offences and therefore represented a serious escalation in offending behaviour; (iv) the fact that the respondent had approximately fifty seven previous convictions nine of which were for 1977 Act s. 3 offences; (v) the fact that the Probation and Welfare Service report noted that the respondent was at a high risk of re-offending; (vi) attaching undue weight to the mitigating factors in the case; (vii) imposing a sentence of such leniency which was in all the circumstances of the case in the public interest and the sentence imposed was such as would not act as a deterrent to other persons and the prevention of further crimes.

Held by the Court that, having applied DPP v Stronge [2011] IECCA 79, the sentence was unduly lenient. The Court noted that the sentencing judge exercised his discretion not to impose consecutive sentences and was entitled in the circumstances to so decide; he could have decided differently and in so doing structure the sentences accordingly with due consideration for the principles of totality and proportionality. In the circumstances, the Court held that the setting of an appropriate sentence for the s. 15A offence on the basis that it was to be served concurrently to a s. 15 sentence (a sentence which was not challenged) undoubtedly required a more severe sentence than that imposed by the court below.

The Court held that, having due regard to the mitigating factors present in the case, and also the array of the respondent's certificates and achievements during his time in custody to date, it would replace the s. 15A sentence with one of five years imprisonment with the final eighteen months suspended on similar terms to those directed in the court below; this sentence would also date from the 25th November 2016 and would also be concurrent with the s. 15 sentence which, in any event, had been fully served.

Appeal allowed.

JUDGMENT (ex tempore) of the Court delivered on the 9th day of March 2018 by Mr. Justice Mahon

1 The respondent pleaded guilty and was convicted at Cork Circuit Criminal Court in February 2017of one count of the unlawful possession of controlled drugs with a value of €13,000 or more contrary to s. 15A of the Misuse of Drugs Act 1977 (as inserted by s. 4 of the Criminal Justice Act 1999 and as amended by s. 81 of the Criminal Justice Act 2006) and s. 27 of the Misuse of Drugs Act 1977 (as amended by s. 5 of the Criminal Justice Act 1999 and by s. 33 of the Criminal Justice Act 2007). The value of the drugs amounted to €59,496 in respect of cannabis, and €7,024.50 in respect of amphetamines. The total value was €66,700.00. The respondent was sentenced on the 17th May 2017 to three and a half years imprisonment (to date from the 25th November 2016) with the final eighteen months suspended on certain conditions for a period of two years post release.

2 The appellant seeks a review of that sentence pursuant to s. 2 of the Criminal Justice Act 1993 on the ground that it was unduly lenient.

3 The respondent also pleaded guilty and was convicted at the same court on one count of possession of a controlled drug contrary to s. 3 of the Misuse of Drugs Act 1977 (as amended), one count of possession of a controlled drug with intent to unlawfully supply to another contrary to s. 15 of the Misuse of Drugs Act 1977 (as amended). These offences pre-dated the s. 15A offence (detailed in paragraph 1) by approximately five months. The value of the drugs was €3,692. In respect of these offences, the respondent was sentenced to twelve months imprisonment, to be served concurrently with the net two year prison sentence imposed in respect of the s. 15A offence. The imposition of this twelve months sentence is not the subject of this application, nor has it been appealed on the grounds of severity by the respondent.

4 The instant offence occurred on the 26th November 2016. Gardaí conducted a search at 8, Market Place, Stag Park, Mitchelstown, County Cork being the home of the respondent. The respondent was not in the premises at the time. They located the drugs in question, and the respondent was arrested the following morning in Fermoy whereupon he made full admissions in relation to the sale and supply of the drugs. The respondent told the gardaí he owed a large drugs debt in the region of €120,000, and that he was holding the drugs for another party.

5 The respondent has fifty seven previous convictions for a wide range of offences, including burglary, theft, public order and road traffic matters. He has nine previous drugs convictions including one for an offence committed on the 11th May 2016 in respect of which he received a three month term of imprisonment on the 14th March 2017. All these drugs offences were dealt with at District Court level. The respondent was well known to gardaí in the Fermoy area in relation to drugs issues. He himself was a drug and alcohol addict and was unemployed on the date of these offences. He has a supportive partner and they have one child. He is twenty six years of age.

6 Section 2 of the Criminal Justice Act 1993 provides as follows:

'2(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the 'sentencing court') on conviction of a person on indictment was unduly lenient, he may apply to the Court of Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person within 28 days from the day on which the sentence was imposed.

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