Director of Public Prosecutions v Graham

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 19 May 2023
• Neutral Citation: [2023] IECA 168
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 45CJA/2022

In the Matter of An Application Pursuant to Section 2 of the Criminal Justice Act 1993

Between/

The People (At the Suit of the Director of Public Prosecutions)

Applicant

and

Adam Graham

Respondent

[2023] IECA 168

Edwards J.

McCarthy J.

Kennedy J.

Record No: 45CJA/2022

Sentencing – Drug offence – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Graham, was arraigned before the Circuit Criminal Court on the 28th of October 2021 whereupon he then entered a guilty plea in respect of one count of the three charges preferred against him on the indictment: a count of possession of one or more controlled drugs with aggregate value of €13,000 or more, for the purpose of selling or otherwise supplying to another, contrary to s. 15A of the Misuse of Drugs Act 1977. Following a sentencing hearing on the 8th of February 2022, the respondent was sentenced by the Circuit Criminal Court to 3 years’ imprisonment, which custodial sentence was suspended in its entirety for a period of 7 years on certain probation conditions. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 for review of the sentence on the basis that it was unduly lenient. The applicant advanced the following seven grounds: (i) that the sentencing judge failed to have adequate regard to/correctly apply the provisions of s. 27 of the 1977 Act (Grounds 1 to 3); (ii) that the judge erred in nominating a headline sentence that insufficiently captured the gravity of the offence (Ground 4); (iii) that the judge erred in attaching undue and excessive weight to mitigating factors at play (Ground 5); (iv) that the judge erred in imposing a wholly suspended sentence for an offence contrary to s. 15A of the 1977 Act (Ground 6); and (v) that the sentence imposed was in all of the circumstances unduly lenient and represented a substantial departure from what would be regarded as an appropriate sentence (Ground 7).

Held by the Court that the judge determined that exceptional and specific circumstances existed and that he would not apply the presumptive minimum before he addressed the issues of what might otherwise be the appropriate headline sentence and what he would discount for mitigation; that was an error of principle. Further, the Court held that while he expressed himself satisfied that exceptional and specific circumstances existed such as to render it unjust that the presumptive minimum should be applied, he did not identify with specificity what those exceptional and specific circumstances were; that was an error of principle. Further, the Court held that in determining that exceptional and specific circumstances existed such as would render it unjust to impose the presumptive mandatory minimum sentence there was nothing on the transcript to suggest that: (a) he gave consideration to whether, and if so to what extent, it was relevant that the respondent had a previous conviction for possession of controlled drugs for sale or supply; and (b) that he gave consideration to whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence than the presumptive mandatory minimum term. The Court held that it was an error of principle not to have expressly considered those factors. It did not seem to the Court that he gave sufficient consideration to the sentencing objective of deterrence, both general and specific, in the circumstances; that was an error of principle. The Court held that the sentence imposed was unduly lenient and proceeded to re-sentence the respondent.

The Court nominated a headline sentence of 6 years’ imprisonment. In the Court’s view the appropriate post mitigation sentence was 4 years and 6 months with the final 2 years and 6 months thereof suspended for a term of 2 years following upon his release and subject to the conditions that he submit to the supervision of the probation and welfare service, that he fully engage with them and attend all appointments arranged by them, that he engage with the training and employment officer of the probation service and that he continue to abstain from illegal drugs. The Court held that the justice of the case did not require the imposition of the presumptive mandatory minimum.

Application granted.

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 19th of May 2023.

Introduction

1 The subject of the present appeal is an application brought by the Director of Public Prosecutions (i.e. “the applicant” or “the Director”) pursuant to s. 2 of the Criminal Justice Act 1993 for review of the sentence imposed on Mr. Adam Graham (i.e. “the respondent”) by Portlaoise Circuit Court sitting in Tullamore on the 8th of February 2022 on the basis that the said sentence was, in the Director's view, unduly lenient. The respondent was arraigned before the Circuit Criminal Court on the 28th of October 2021 whereupon he then entered a guilty plea in respect of one count of the three charges preferred against him on the indictment (Bill LSDP0058/2018). This count was a count of possession of one or more controlled drugs with aggregate value of €13,000.00 or more, for the purpose of selling or otherwise supplying to another, contrary to s. 15A of the Misuse of Drugs Act 1977, as amended (i.e. “the Act of 1977”).

2 Following a sentencing hearing on the 8th of February 2022, the respondent was sentenced by the Circuit Criminal Court to 3 years' imprisonment, which custodial sentence was suspended in its entirety for a period of 7 years on certain probation conditions, namely:

“— That the Accused enter a bond in the sum of €500, that he keep the peace and be of good behaviour for a period of 7 years.

— That he submit himself to the supervision of Probation Service for a period of 18 months and that he follow all directions given to him in dealing with his offending behaviours and addictions.

— That he refrain from the use of illicit substances for the duration of this recognisance and that he will provide urinalysis if and when requested by Gardai or the Probation Service to ensure compliance with this condition.

— That he will pay the sum of €10,000 to Merchant's Quay for their charitable efforts, the first installment of €2000 to be paid within 6 months of todays date and thereafter by annual installments of €2000 until the balance is paid in full.

— That he engage with Probation Service to engage in meaningful employment.

And further that he will come up if called on to do so to serve the sentence imposed on him and suspended on him entering into this Recognisance.”

Factual Background

3 At the sentencing hearing of the 8th of February 2022, a Garda Stephen Murphy gave evidence in relation to the factual background of the respondent's offending.

4 On the 19th of September 2016, two off-duty gardaí observed the respondent and another man, a Mr. Fitzpatrick (i.e. “the co-accused”), on Patrick Street in Durrow, County Laois. The suspicions of the two members were aroused when they observed the respondent “ manhandle” the co-accused into the back of a taxi. The two off-duty members then observed the co-accused escape from the other side of this taxi, and he was observed “ fleeing” into the nearby Castle Arms Hotel. The two off-duty members alerted a mobile Garda unit on patrol in the general locality, and this unit comprising Garda Murphy and a Garda Sgt. Kerry made their way in the direction of Durrow.

5 As gardaí approached Durrow from the direction of Abbeyleix, they observed the taxi which had been described to them turning in the direction of Ballinakill. Gardaí, having pulled the taxi over, observed the respondent seated in the rear of the vehicle and indicated to the him that they wanted to search the vehicle under s. 23 of the Act of 1977. Having conducted this search, gardaí did not find any evidence of controlled drugs in the vehicle. However, a passer-by alerted the two gardaí to a black holdall bag that he had witnessed being thrown from the taxi into a nearby ditch, and gardaí, having located and having inspected this bag, discovered that it contained heroin to the value of just over €34,000. The respondent was later arrested that evening, and his fingerprints were taken.

6 The Garda investigation continued, taking down CCTV footage from the Castle Arms Hotel in Durrow and CCTV footage at the junction of the Durrow/Abbeyleix Road and at the junction leading off to Ballinakill. The hotel CCTV footage confirmed to investigating gardaí the account reported by the off-duty members who had witnessed the respondent “manhandle” the co-accused into a taxi. The CCTV footage from the junction leading off to Ballinakill confirmed that the black holdall bag had been thrown from the taxi into the nearby ditch. Gardaí sent the black holdall bag for forensic analysis, which analysis revealed a match between fingerprints found on an exterior part of the bag and the fingerprints of the respondent. It is this discovery that grounded the application to re-arrest the respondent.

7 The respondent was re-arrested on the 16th of December 2016 and was taken into Garda custody and detained pursuant to s. 2 of the Criminal Justice (Drug Trafficking) Act 1996. Throughout the respondent's detention he exercised his right to silence, and he responded “ no comment” to every question put to him in the three interviews which took place. The only exception to his approach was in respect of the hotel CCTV footage, the respondent accepting that he was the individual captured therein.

8 The respondent was returned for trial before the Circuit Criminal Court on the 19th of December 2018, and awaited trial for a period of approximately three years. On the 28th of October 2021, he entered a guilty plea in respect of count no. 1 on the indictment. Garda Murphy noted...