Director of Public Prosecutions -v- Jervis & Doyle, [2014] IECCA 14 (2014)

Docket Number:CCA Ref: 251 & 252CJA/11
Party Name:Director of Public Prosecutions, Jervis & Doyle
Judge:Fennelly J.
 
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COURT OF CRIMINAL APPEALRecord Nos: 251 & 252 CJA/11

Fennelly J.

Sheehan J.

White, Michael J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT, 1993

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)APPELLANTAND

KEITH JERVIS AND THERESE DOYLERESPONDENTS

JUDGMENT of the Court of Criminal Appeal delivered by Mr. Justice Fennelly on the 25th day of March 2014.

  1. This is an application by the Director of Public Prosecutions (hereinafter “the Director”) for review of sentences imposed on the respondents by His Honour Judge Nolan in the Dublin Circuit Criminal Court on each of the respondents. Section 2 of the Criminal Justice Act, 1993 permits the Director to make such an application to this Court on the ground that a sentence imposed on a person convicted on indictment was “unduly lenient.”

  2. Both respondents (who will be referred to as Mr Jervis and Ms Doyle respectively) were charged on indictment with the offence of possession, for the purpose of selling or otherwise supplying it to another, of a controlled drug, to wit, cannabis, having a market value of €13,000 or more. The offence was committed on 19th March 2010 at the residence of the respondents at 74 Rosewood Grove, Lucan, County Dublin.

  3. The charge was laid as being contrary to s 15A of the Misuse of Drugs Act, 1977 and s. 27 of the Misuse of Drugs Act, 1977, as amended as well as the applicable Misuse of Drugs Regulations.

  4. Both respondents pleaded guilty to the relevant charge on the indictment on 31st March 2011. On that date a probation report was requested. On 17th October 2011, evidence was given regarding the circumstances of the offence by Detective Garda Liam Aherne. Following pleas from counsel for each respondent, Judge Nolan sentenced each of them to seven years imprisonment but suspended the entire of the sentence on condition of the respondents’ being of good behaviour in their own bond in the sum of €50, but no other condition.

    The facts

  5. The Gardaí had received confidential information to the effect that there was a controlled drug to be found at 74 Rosewood Grove, Lucan, Dublin, the family home of the respondents. They conducted a search of the house, on foot of a judicial warrant, at approximately 5:50 in the evening of 19th day of March 2010. Both respondents were present. A garda asked if there was anything in the house that should not be there. Ms Doyle immediately said to Mr Jervis: “it’s upstairs, Keith. Just show them where it is.” Mr Jervis led the gardaí upstairs to where a quantity of cannabis was hidden. It was in what was described as “the crawl space” in an attic area off the bedroom at the top of the house. Mr Jervis had put it there. The man who delivered the drugs had brought them up there and handed the bags in to Mr Jervis. He knew it was cannabis and that it was illegal to possess it.

  6. It consisted of 15 large silver bags containing approx 2 kilos each and 13 smaller bags of approximately one kilo each. There were two small cannabis plants and a lamp to facilitate their growth, unconnected with the cannabis bags. They had been grown by Mr Jervis for his own use. In total, approximately 45 kilos of cannabis was recovered. The market value of the cannabis was first given as being €549,404, but it was accepted by Garda Aherne under cross-examination that the value was probably between €320,000 and €550,000.

  7. Ms Doyle said that she had been contacted by an unknown person and had been asked to store the drugs. As it happens, Mr Jervis also said that he had been approached to store some drugs, but it appeared to be accepted that, in truth, it was Ms Doyle who had been the point of contact. The cannabis had been in the house for about one week. No payment had been agreed but it appears that the respondents expected to receive some €200 to €300.

  8. Ms Doyle said that she had been asked to hold a couple of packets and had been shocked (as was Mr Jervis) at the amount which arrived when the man turned up at the house. She described it as a “van load.” The respondents said that the people involved with the drugs were dangerous and that they had no option but to accept the drugs once they were delivered. There was a pipe bomb attack subsequently on the house, which belongs to Ms Doyle. The gardaí accepted that this was part of the intimidation.

  9. Ms Doyle knew it was cannabis herb from the smell. She had handled approximately ten bags of the cannabis when it was delivered. The man had also delivered a mixing bowl and weighing scales. She had no phone number for the man. She only had a first name for him. She was told the drugs would be taken away after a week and that she would be paid. On at least one occasion the man had come to the house and had gone upstairs. She assumed that he was dividing up and repackaging the drugs. She had tried to contact him to know when the drugs would be collected or when she would be paid. When asked why she thought she had been approached, she answered: “Because I’m thick, I’m gullible and I’m vulnerable.” She greatly regretted what she had done.

  10. Next, it is appropriate to deal with the personal circumstances of the respondents. They live at number 74 Rosewood Grove, Lucan. They have been partners for a number of years. They have two children, both boys, aged respectively seven and fourteen. The gardaí accepted that the children were well cared for. The house was maintained in a clean condition, although the respondents were in very poor financial circumstances.

  11. While he was unemployed at the time of the hearing, Mr Jervis had had a good work history in the past. He had maintained a job in a firm making wooden railings or banisters from March 1998 but was made redundant in 2008. He was described as being “an excellent worker, always punctual, trustworthy, reliable and polite.” He was well motivated and had developed considerable expertise in banister installation. Mr Jervis was a heroin addict for many years. At the time of the Circuit Court hearing, he was under treatment. He had provided clean urine samples for some 16 months. He was taking Methadone and prescribed benzodiazepines. Mr Jervis had twelve previous convictions. All but one was for road traffic offences. The remaining case was for possession of drugs for supply for which he had received a sentence of six months imprisonment. Garda Aherne assessed Mr Jervis as being at a medium to low risk of reoffending. The Probation Officer thought the risk was “moderate.” Mr Jervis is the sole carer for his mother who is very ill with cancer. He was described in a medical report as her “lynchpin.” While still maintaining his relationship with Ms Doyle, he seems, from the probation report, to reside much of the time at his mother’s house.

  12. The probation report in respect of Mr Jervis outlined much of the history already recounted here. He displayed a comprehensive understanding of the seriousness of his situation and his criminal behaviour in storing the drugs. He had gone along with events which were out of his control. He attributed his behaviour to his stupidity and being involved in the periphery of the drug culture. He had never been involved in such serious criminality before. He deeply regretted his behaviour. He confirmed that he had possession of two cannabis plants for his own use. Mr Jervis had been brought by a single parent. He had seen his father on only two occasions. He had completed his junior certificate, enrolled in a FAS course and had a number of jobs before finding secure employment in a firm making handrails or banisters, from which he had been made redundant in 2008.

  13. The probation officer assessed Mr Jervis as being in the moderate risk category for re-offending, the main areas of concern being his history of drug misuse, his unemployed status and the influence of criminal, drug-using associates. He admitted to using cannabis and (un-prescribed) benzodiazepines, although his medical reports indicated significant progress. A medical report indicated that he had been placed on a regime of Methadone and carefully prescribed benzodiazepines, to which he had adhered. The probation officer expressed the view that, in the event of a non-custodial sentence being imposed, probation supervision would enable Mr Jervis to work on how he had become involved in such serious offending and how he could take control of his life and ensure he did not offend again. He proposed that a probation supervision order be imposed by the court in the event that a community-based sanction was being considered. Conditions would be imposed relating to attending appointments with his Probation officer and attendance at an appropriate drug treatment centre and a Probation Service training/employment officer.

  14. Ms Doyle was 33 years of age at the time of the hearing. She was also a recovering heroin addict. She had been stable on Methadone for several years. She continued to undergo drug treatment. She had pursued a course on accountancy and book-keeping. There was no suggestion that Ms Doyle had been anything other than a good mother in regard to the rearing of the two boys. There had never been any question of any social-worker involvement in their upbringing. Arrangements had been made for a sister to care for them in the event of a custodial sentence being imposed.

  15. From the report in respect of Ms Doyle, it is clear that it is she that was approached by an individual who was known to her as being involved in criminality to hold what she expected to be a small quantity of drugs in her home. She was taken aback by the quantity of drugs which are arrived. It was far in excess of what she had expected. She was acutely aware that having the drugs in her home was a serious matter. She believed that her weakened and emotional state made her an easy target for the person who asked her to store the drugs.

  16. She was cooperative with the probation service, attending all her appointments punctually. She was...

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