Director of Public Prosecutions v McInerney

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Birmingham P.
• Judgment Date: 16 May 2023
• Neutral Citation: [2023] IECA 221
• Docket Number: [108/21]

Between

The People at the Suit of the Director of Public Prosecutions (DPP)

Respondent

and

Tony McInerney

Appellant

[2023] IECA 221

The President

McCarthy J.

Kennedy J.

[108/21]

THE COURT OF APPEAL

Sentencing – Possession of property being the proceeds of criminal conduct – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr McInerney, appealed to the Court of Appeal against severity of sentence. The sentence under appeal was an aggregate sentence of 14 years imprisonment, with the final two years of the sentence suspended, that was imposed in respect of two offences, one contrary to s. 15A of the Misuse of Drugs Act 1977, as amended, and one in relation to an offence of possession of property being the proceeds of criminal conduct, contrary to s. 7 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. The sentences were imposed on 12th May 2021 at the Circuit Criminal Court in Ennis. The appellant relied on three grounds of appeal: firstly, he said that the headline or pre-mitigation sentence of 14 years in respect of the s. 15A offence was too high; secondly, he said inadequate credit was given for the matters that were present by way of mitigation, instancing the plea of guilty and the expression of remorse; and, thirdly, he said that the decision to make the sentence in respect of the s. 7 offence consecutive instead of concurrent was an error and was wrong in law.

Held by the Court of Appeal that it could not agree that this was a case where consecutive sentences were required, or indeed, appropriate. The Court found that it was clear that the cash found at the drugs crime scene was closely linked to the drug activity; it was there to facilitate the drug activity and it was part of the drug activity that was taking place. The Court held that the cash found was not part of a separate and standalone offence but quite the contrary as it formed a significant and integral part of the drug dealing. The Court saw no merit in the criticism of the judge as having given inadequate weight to the factors that were present by way of mitigation; quite simply, there was very little present by way of mitigation. The Court noted that the plea was offered in circumstances where the accused had been caught red-handed and in circumstances where the trial date had been sought initially. The Court noted that the plea was entered into during the Covid-19 period, when mounting a trial presented particular difficulties. Overall, the Court did not believe that there was any substance to criticism of the trial judge in relation to failing to afford sufficient credit to the mitigating factors that were present. The Court viewed the headline sentence as being somewhat out of line with the sentences that had been imposed in other cases. Applying DPP v Sarsfield [2019] IECA 260, it seemed to the Court that, by reference to the headline sentences that had been imposed in other cases, a headline sentence of 12 years, or, perhaps, 12 and a half years, would have been appropriate. Noting that the only real factor available by way of mitigation was the plea of guilty, the Court held that giving every possible credit for the plea that was entered could not possibly result in a sentence to be served of less than ten years imprisonment. The Court saw no basis for part suspension.

The Court of Appeal quashed the sentence imposed in respect of the s. 15A offence under the 1977 Act in the Circuit Court and substituted therefor a sentence of ten years imprisonment. The Court of Appeal held that the sentence in respect of the s. 7 offence under the 2010 Act would be concurrent and the sentences would date from the same date as the sentences in the Circuit Court.

Appeal allowed.

JUDGMENT of the Court ( ex tempore) delivered on the 16 ^th day of May 2023 by Birmingham P.

Introduction

1 . Before the Court is an appeal against severity of sentence. The sentence under appeal is an aggregate sentence of 14 years imprisonment, with the final two years of the sentence suspended, that was imposed in respect of two offences, one contrary to s. 15A of the Misuse of Drugs Act 1977 (“the 1977 Act”), as amended, and one in relation to an offence of possession of property being the proceeds of criminal conduct, contrary to s. 7 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (“the 2010 Act”). The sentences were imposed on 12 ^th May 2021 at the Circuit Criminal Court in Ennis.

Background

2 . The background to the sentence hearing and now to this appeal is to be found in events that occurred on 23 ^rd September 2020, at Spancilhill, County Clare. On that occasion, Gardaí obtained a search warrant in respect of a premises at Kilfilum, Spancilhill. The property we understand is located on the outskirts of Ennis. It is a residence with a garage attached. When Gardaí in possession of the search warrant entered the garage, it was noted that cocaine was being prepared there. There were three individuals present at the search location. One was the appellant, Mr. McInerney, and it was noted that he was wearing orange gloves and holding a bag of cocaine in his hand. As Gardaí approached, he threw this bag of cocaine into a black bucket containing water. The evidence at the sentence hearing was that for those experienced in and with a knowledge of working with cocaine, to have a water bucket to hand to be utilised if surprised was standard practice.

3 . In the premises that the Gardaí entered was a quantity of cocaine, a mixing agent, Benzocaine, in tubs and in bags, some of this new, some of this old. Also located was a weighing scale, knife and spoon. When Gardaí entered there was a blender in operation. Cash to the value of €2,500 was found. The Gardaí belief was that the €2,500 found represented the amount that had been agreed by the appellant for the use of the premises with the occupants. Also located was what was described as a “burner phone”, and when that phone was examined forensically, what emerged was the presence on the phone of an electronic tick list. The cocaine that was located was valued at €50,028.02, or, in weight, 714.686g. In the course of a follow up search at a premises at Quinn Gardens, also in County Clare, €2,000 in cash was located.

Personal Circumstances of the Appellant

4 . In terms of the appellant's background and personal circumstances, his date of birth is July 1995, he is unmarried, but is in a long-term relationship and is the father of two children. He is originally from Dublin but he moved to Clare a number of years ago. The Court heard that he did not hold down a job, nor was he in receipt of social welfare or any benefits. The Court also heard that he was the target of the operation that was mounted by the Clare Divisional Drugs Unit team.

5 . In terms of previous convictions, these included a conviction at Ennis Circuit Court, contrary to the 1977 Act, on 9 ^th January 2013. The matter was dealt with by way of a suspended sentence: a sentence of two years imprisonment, but suspended for four years, was imposed. Before the Court on that same day was an offence contrary to the Firearms and Offensive Weapons Act 1990, which was taken into consideration. The firearms offence related to a pipe bomb.

The Sentence

6 . So far as the present case...