Director of Public Proseuctions v Ryan

 
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[2015] IECA 10

THE COURT OF APPEAL

The President

Mahon J.

Edwards J.

[249CJA/13]
DPP v Ryan
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
V.
JOHN RYAN
RESPONDENT

249CJA/2013 - Ryan Mahon Edwards - Court of Appeal - 19/1/2015 - 2015 IECA 10

CRIMINAL JUSTICE ACT 1993 S2

MISUSE OF DRUGS ACT 1977 S15A

FIREARMS ACT 1964 S27A(1)

CRIMINAL JUSTICE ACT 2007 S33

CRIMINAL JUSTICE ACT 1993 S2(1)

CRIMINAL JUSTICE ACT 1993 S2(3)

DPP v BYRNE 1995 1 ILRM 279 1995/5/1758

DPP v MCCORMACK 2000 4 IR 356 2000/8/3024

DPP v REDMOND 2001 3 IR 390

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1977 S15B

MISUSE OF DRUGS ACT 1977 S27(3H)

MISUSE OF DRUGS ACT 1977 S27(3A)

CRIMINAL JUSTICE ACT 1999 S5

DPP v BOTHA 2004 2 IR 375 2004/14/3210 2004 IECCA 1

DPP v LONG 2009 3 IR 486 2009/17/4110 2008 IECCA 133

DPP v DUFFY UNREP CCA 21.12.2001 2001/7/1809

DPP v LERNIHAN UNREP CCA 18.4.2007 2007/19/3889 2007 IECCA 21

DPP v HOGARTY UNREP CCA 21.12.2001 2001/7/1848

DPP v MCGINTY 2007 1 IR 633 2006/20/4155 2006 IECCA 37

DPP v JERVIS & DOYLE UNREP CCA 25.3.2014 2014 IECCA 14

DPP v ALEXIOU 2003 3 IR 513 2003/13/2830

Sentencing – Drug trafficking – Undue leniency – Applicant seeking review of sentences– Whether trial judge made an error in principle

1

1. This is an application by the Director of Public Prosecutions under s. 2 of the Criminal Justice Act 1993, for a review of the concurrent sentences of five years imprisonment imposed on the respondent at Limerick Circuit Criminal Court on the 24 th of October, 2013 for one offence under s. 15A of the Misuse of Drugs Act 1977, as amended and three charges under s. 27(A)(1) of the Firearms Act, 1964 as amended.

2

2. On the 14 th of May, 2011, the Gardaí went to an apartment complex in Limerick with a search warrant and they found the respondent in a van outside the premises. On searching the van, they found 1 kg of cannabis and a small quantity of cocaine in a sock. The respondent had the keys of an apartment in the complex in which the Gardaí discovered heroin with a market value of €625,000 and other drugs including cocaine, cannabis resin and MDMA with a total value of €918,000. They found drug dealing paraphernalia including a press, plastic bags to contain the drugs, a mixing area and a cat litter for use in disguising the odours that would be produced in the mixing. The gardaí also found two guns, ammunition, a balaclava and gloves.

3

3. The respondent got involved in dealing with drugs because of a gambling debt that mounted up to €10,000. His connection with drugs involved picking them up from particular points and dropping them off elsewhere. He initially had the stock of drugs at another address, but because of concerns about that location, he was told to find another place. He was given money to set himself up in the apartment and had been there for about eight months. Part of this task involved mixing operations and from time to time he bought bags for storing the drugs.

4

4. He accounted for the presence of the guns by describing to the gardaí how he was asked to pick up a package, but he did not know what was in it until he brought it back to the apartment. On discovering the contents, he phoned his contact and said he wanted nothing to do with it, but he was told that the guns were unable to work and he would get a phone call when someone else would pick them up.

5

5. In the course of his garda interviews, the respondent described his role as follows:-

"I'd say in the scheme of things, they couldn't have worked without me, not just me, a person in the role I'm in. It's probably the most dangerous part of the whole operation. But when it came to the finances, I was definitely the bottom end of the ladder."

6

6. The investigating garda officer confirmed in response to a question from the learned trial judge that she accepted the respondent's explanations as to being a store man, a mule and a courier and that he was at the lowest rung of the ladder.

7

7. The sentence hearing took place on the 9 th October, 2013, and the learned sentencing judge put the matter for consideration until the 24 th October, 2013, when he delivered judgment. The judge summarised the facts of the case. He noted that the respondent was born on the 21 st November 1967 and had two children. Before his arrest, he had had a job which he had lost because of the offences. He had no previous convictions. He had a significant gambling problem and told the gardaí that he owed €10,000 and that at the relevant time, he needed to get his hands immediately on €5,000. The respondent had said that he had been trapped into being involved in a situation from which he could not escape. The judge took note of the other evidence including testimonials in support of the respondent.

8

8. The judge assessed the issues that were relevant to sentence. He noted that the prosecution had a strong case independent of the admissions made by the respondent. He took into account the respondent's gambling addiction. He found mitigating factors in the accused's plea of guilty, that he had been of material assistance, that he was not the owner of the contraband and merely its store man and courier. On that question, the judge noted the use of the word quartennaster by the prosecution, but he accepted that the accused was at the lowest rung on the ladder of the drug dealing business. Far from having the trappings of wealth, he was burdened by significant debt. He felt that the accused was trapped into being involved in the affair and it was a situation from which he could not escape. The respondent had no previous convictions and was remorseful for what he had done.

9

9. As against the mitigating elements, there were aggravating factors which were the amount of drugs involved, which was almost €1 million worth of illegal drugs. There was a variety of different drugs and more than half of them were heroin and there was also a large quantity of cocaine. Then there were the firearms. The judge found that the situation therefore was very serious either in respect of the drugs or the firearms and obviously it was even more serious that both were present. The respondent is not a drug user and his involvement therefore was considered to be more serious in the sense that he was not drive by addiction to a drug.

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10. In the circumstances, the judge proceeded to impose a sentence of five years imprisonment on all counts to run from the 25 th July, 2013. He held that it would be unjust to apply the minimum of ten years because of the plea of guilty, material assistance, absence of other convictions and because he was not the owner of the drugs, but only a store man or courier.

The Director's Application
11

11. The Director contended that the learned sentencing judge erred in principle and the sentences were unduly lenient having regard to the nature, circumstances and gravity thereof and in particular failed to identify an appropriate starting point at a sufficiently high level to reflect the nature of the offences including the accumulation of crimes and the aggravating factors; misdirected himself in law in treating the mandatory sentence of ten years as the maximum sentence or the starting point; failed to reflect the policy of the legislature and the principle of deterrents. In addition, the Director points to specific features of the case which it is contended represent serious aggravating features that were not reflected in the sentences imposed. The Director submits that the respondent's role was that of a very active quartermaster for the organisation and points to the evidence given in the sentencing court that the apartment had been let to the respondent in August 2010. The landlord collected only from the respondent, and from no other person. Although the refusal by the respondent to name persons directing the operations is understandable, there was no suggestion that he was acting under duress from those persons in his initial involvement in the offending.

Submissions of the Respondent
12

12. The respondent submits that the Director has to reach a high standard in order to demonstrate undue leniency and has failed to do so in that the Director has not demonstrated a clear error of principle and a substantial departure from the wide range of appropriate sentence option available. The sentence imposed is in accordance with the relevant mandatory minimum sentence for firearms...

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