Director of Public Prosecutions v Konar
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 22 May 2023 |
| Neutral Citation | [2023] IECA 145 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 203/2022 |
[2023] IECA 145
Birmingham P.
Edwards J.
Kennedy J.
Record No. 203/2022
THE COURT OF APPEAL
JUDGMENT of the Court delivered ( ex tempore) by Mr. Justice Edwards on the 22nd of May 2023.
Before this Court is an appeal brought by Mr. Marcin Konar (i.e. “the appellant”) against the severity of the sentence imposed on him by Dublin Circuit Criminal Court on the 2nd of November 2022 in respect of a count of unlawful possession of a controlled drug for sale or supply contrary to s. 15 of the Misuse of Drugs Act 1977, as amended (i.e. “the Act of 1977”). A further count of unlawful possession contrary to s. 3 of the Act of 1977 was taken into consideration on imposing sentence. Having entered a guilty plea in respect of the s. 15 count on the 26th of May 2022, the appellant was duly sentenced by the Circuit Court judge on the 2nd of November that same year to a term of imprisonment of 2 years and 6 months, such sentence to run from the date of sentence. No element of this custodial disposal was suspended.
The appellant seeks a review of this sentence in essence on the basis that he was afforded insufficient credit for the mitigation present in his case, and that the sentencing judge's approach to sentencing failed to specify the discount made from the headline for mitigation, and that this in turn rendered any discerning of what mitigation was worth to the appellant a difficultexercise.
At the sentencing hearing of the 2nd of November 2022, a Garda Thomas O'Brien gave evidence in relation to the factual background of the appellant's offending.
On the 27th of August 2020 at approximately 10:00pm, Garda O'Brien and other members of An Garda Síochána attended at an address on Essex Street West, Dublin 2 on foot of a search warrant obtained by gardaí in respect of that property. Upon gardaí's arrival at the premises, it was observed that there were seven people present there, including the appellant. Gardaí noted a very strong smell of cannabis pervading the property, and that this odour was detectable from the living room. It was further observed that an extractor fan in the kitchen was working and that a door to a balcony was open, as if in an effort to “ mask the smell”.
Having searched the property, gardaí happened upon several effects of note. They discovered drug paraphernalia including grinders, rolling papers and weighing scales. More significantly, gardaí found one kilogramme of plant material, which they suspected to be cannabis, inside a kitchen press, which was seized and subsequently sent off for analysis. The forensic science laboratory's analysis indicated the presence of 847.4 grammes of plant material which was confirmed by that laboratory to be cannabis. Gardaí ultimately valued the seized illicit material at €16,948. Gardaí also discovered “ tick lists” inside kitchen presses and in other locations throughout the property, as well as sums of money. In total, gardaí seized €14,115 in cash.
The appellant was arrested at the time of the search and was subsequently interviewed. In the course of this interview, the appellant made full admissions to gardaí. He told interviewing gardaí that he was staying at the property which was his friend's apartment. He conceded that he was in possession of the drugs for the purposes of sale and supply but stressed that he did not own the cannabis. He stated that he was selling the illicit material to acquaintances on behalf of another person, and that he was not drawing down a profit on this activity, instead placing the proceeds of the sales into envelopes to be furnished to the person actually in control of the drug itself.
The appellant's date of birth is the 19th of June 1978, he was aged 44 years at the time of sentencing. He is a single man, divorced since 2018, and is father to two children, then aged 8 and 10 years respectively at the time of sentencing. It was described to the sentencing court that he maintained a good relationship with his ex-wife, that he continued to retain access to his children and that he paid maintenance in respect of them.
The appellant, a Polish national, arrived in the jurisdiction in 2004 for the purposes of sourcing employment, which he did, primarily in the construction sector. It was described to the sentencing court both in cross-examination and in the Probation Report that this employment dried up on account of the vicissitudes of that industry circa 2008, immediately after which the appellant worked for a period in the retail sector. At the time of sentencing, it would appear that the appellant was back working in the construction sector on a full-time basis.
It was outlined both in the course of the sentencing hearing and in the Probation Report that the appellant's life was afflicted by certain addictions, most particularly gambling but also cannabis misuse. The depths of his struggle with his gambling addiction reached what was characterised as a “ pivotal” low in 2018 and precipitated the breakdown of his marriage. Following this, he took significant steps to address this behaviour, which steps comprised regular attendance at a gamblers anonymous group and engagement with supportive counselling provided by a Dublin-based centre for counselling and therapy called “CKU” which caters for Polish expatriates. The Probation Service was furnished with a letter from CKU, dated the 26th of April 2021, which correspondence was noted in the Probation Report, attesting to the appellant's successful completion of a programme of recovery and attendance at gambler anonymous meetings, and recommending further engagement with group and individual therapy.
The appellant's previous convictions were also outlined to the sentencing court. He had appeared before Dublin District Court in January 2021 in relation to two road traffic-related matters which were disposed of summarily by way of the imposition of a fine. More significantly, he had a history of appearance before the Dublin Circuit Criminal Court, having previously pleaded guilty before that court on the 15th of October 2021 in relation to a count of theft from his then employer contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, as amended, that occurred at some point in time between the 1st of September 2017 and the 11th of May 2018. On that occasion before the Circuit Criminal Court, he was not subject to an immediate custodial disposal, the sentencing court instead preferring the imposition of a suspended sentence. The conditions of this suspended sentence were not described, nor was its period of duration specified.
The Probation Report averred that on the occasion the appellant was referred to the Probation Service in relation to the theft offence, he was then assessed as posing a low risk of re-offending, and that protective factors then identified included his engagement with support services, his addiction-free lifestyle, and his full-time employment. The Probation Report before the sentencing court in the present case did not differ in its finding, notwithstanding the appellant's commission of a subsequent offence. It cited the same protective factors and also further identified the appellant's lack of extensive criminal history; his high-level of victim awareness; positive peer support (it noted the appellant's dissociation from cannabis misusing peers); stable accommodation, and; positive pro-social family influences.
Counsel for the defence drew the sentencing court's attention to the personal circumstances of the appellant, in particular his familial circumstances and his “ long history of work”. He submitted that the appellant had been given a suspended sentence on the last occasion he was before the Circuit Criminal Court, and he asked the sentencing court to afford the appellant a “ second chance” on account of the steps that the appellant had taken to overcome the personal difficulties he had previously faced arising from his gambling addiction. He noted that these difficulties had given rise to the divorce, and that the appellant in that context had turned to drugs. Counsel emphasised that the appellant had made full admissions to gardaí, that he accepted responsibility for his actions, and did not seek to deflect blame onto anyone else. In the course of his admissions, the appellant had demonstrated “ insight”, it was said, into his role in the drug supply and the devastation that illicit substance misuse has wrought and continue to wreak upon communities. In this vein, it was further submitted that the appellant was conscious of the impact his actions had had upon his family. Counsel sought to draw the sentencing court's attention to the content of the Probation Report, in particular to the assessment of the appellant as posing a low risk of reoffending, and it was also stressed that the appellant had not come to adverse attention since the index offence of the 27th of August 2020.
In his ruling made at the sentencing hearing of the 2nd of November 2022, exhibited in the below quotation, the sentencing judge set out his reasoning for handing down a custodial sentence of 2 years and 6 months:
“JUDGE: Thank you. Stand up please. On the particular date the...
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