DPP v He

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 30 November 2017
• Neutral Citation: [2017] IECA 313
• Docket Number: 271 /16
• Court: Court of Appeal (Ireland)
• Date: 30 November 2017

[2017] IECA 313

THE COURT OF APPEAL

Hedigan J.

Mahon J.

Edwards J.

Hedigan J.

271 /16

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Peng Fei He

Appellant

Sentencing – Drug offence – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr He, on the 4th July, 2016, entered a guilty plea to an offence contrary to s. 15A of the Misuse of Drugs Act 1977. There were a number of other counts on the indictment which were taken into consideration. Facts were heard on the 4th October, 2016, and on the 5th October, a sentence of eight years with the final two suspended for two years was imposed. This was on condition that he enter a bond of €200 to keep the peace and be of good behaviour. The sentence was backdated to the 13th November, 2015, when the appellant was taken into custody. The appellant appealed to the Court of Appeal against severity of sentence submitting that the 12 years headline before mitigation was incorrect and that the mitigating factors warranted a greater discount.

Held by the Court that, having considered People (DPP) v Devlin [2016] IECA 125, the headline sentence identified was too severe and thus the Court identified an error of principle. The Court therefore quashed the sentence and proceeded to resentence.

The Court held that the headline sentence should be one of 9 years. Applying the same mitigating factors together with favourable reports, the Court considered that the appropriate sentence should be one of 6 years. The Court also considered that the same exceptional circumstances existed as specified by the sentencing judge which would make the mandatory minimum sentence of 10 years unjust. Further, as the sentencing judge found, the Court was impressed by the manner in which the appellant conducted himself in prison. To incentivise the continuance of his positive attitude, the Court would suspend the last 18 months of the sentence subject to the same conditions as before.

Appeal allowed.

JUDGMENT of the Court delivered on the 30th day of November 2017 by Mr. Justice Hedigan

Introduction

1 This is an appeal against severity of sentence. On the 4th July, 2016, the appellant entered a guilty plea to an offence contrary to s. 15A of the Misuse of Drugs Act 1977 as amended. There were a number of other counts on the indictment which were taken into consideration. Facts were heard on the 4th October, 2016, and on the 5th October, a sentence of eight years with the final two suspended for two years was imposed. This was on condition that he enter a bond of €200 to keep the peace and be of good behaviour. The sentence was backdated to the 13th November, 2015, when the appellant was taken into custody.

The circumstances of the offence

2 The offence resulted from the controlled delivery of two packages. On the 11th November, 2015, a Dublin Airport customs officer intercepted the packages being transported by DHL. They were both from Spain but sent to different addresses, one in Dublin 15 and the other on Blackhorse Avenue. They had different phone numbers. They were found to contain cannabis.

3 Delivery on both was attempted unsuccessfully on the 13th, November, 2015. A phone message was left for the Dublin 15 package. When there was no answer at the Blackhorse Avenue address the appellant was contacted via phone and the first package was delivered by arrangement outside that address where the appellant received it and placed it in the boot of his car. The appellant was arrested shortly after having been stopped and searched. The appellant was interviewed under caution at the scene. He stated he was instructed to collect the package which contained pornography for €200. He was arrested, detained and interviewed several times.

4 The second package was not delivered as it was overtaken by events. The appellant was found in possession of both phones.

5 The appellant was interviewed six times with a solicitor and interpreter present. During the first four interviews he was untruthful but when faced with the weight of the evidence he made admissions. He accepted responsibility for both packages. He admitted selecting the locations for delivery having made sure the premises were empty. He admitted ordering the packages from Spain.

6 Somewhat inconsistently the appellant referred to having a gambling debt of €4,000 to €5,000 and alternatively to receiving €200 or €300 per kg. In evidence, it was stated that money was being sent to China from an account in the appellant's name. There was no evidence of the amount. The appellant stated it belonged to someone else. The line of inquiry was not pursued and no evidence was adduced.

7 The first package contained 3.53 kg of cannabis with a market value of €70,620 and the second package contained 3.565 kg of cannabis valued at €71,300. This was based on a valuation of €20 per gram.

8 There was an early plea entered and no disclosure was sought.

The appellant's personal circumstances

9 The appellant was born in 1983. He is married and has two children. His wife was pregnant when he was taken into custody. He has been in custody for the entirety of this child's life. He has three previous convictions in the District Court for road traffic matters. He has been living in Ireland for 12 years but with a modest income and not in a prosperous lifestyle. He has worked in several jobs and his P60s were handed in. There were positive letters handed into court from a business who had dealings with him and an employer. He has attained musical training certificates while in custody. There is also a favourable governor's report and an educational report. He has received an A1 in foundation level mathematics. He volunteered to work as a cleaner. There was one fight for which he was disciplined but otherwise he has used his time in custody well.

Sentencing

10 The sentencing judge noted that in light of the value of the drugs involved she viewed the offence as coming within the mid-range of this type of offending. If the matter had gone to trial and there was no mitigation the appropriate sentence would have been 12 years.

11 The aggravating factors were the value of the drugs being significantly over the s. 15A threshold, he was in possession of mobile phones connected with the packages, the different phones and selection of locations indicated a high degree of planning and premeditation and was significant of the appellant's involvement and there was a degree of organisation. The appellant's previous convictions were considered to be too minor to be of relevance to sentencing. It was noted that there was a lack of clarity regarding the appellant's precise role. The appellant was given the benefit of the doubt and it was accepted that he was not the main beneficiary of the proceeds but received small recompense. It was held that he acted mainly for financial motives. The financial benefit was relatively small and there was some element of fear in that he refused to name other persons involved.

12 The mitigating factors were the appellant's acceptance of responsibility for the second package, his admissions in relation to this were of material assistance as he had not physically handled the package, his admissions regarding the first package were of limited mitigation, his admission that he knew what was in the package was of some assistance but not material assistance and his guilty plea indicated at an early stage was also to be considered. It was held that these factors significantly mitigated the offence. Further, he had no previous drug convictions and there was a lack of clarity on any real or substantial benefit to the accused. Weight was given to the Garda's acceptance that the appellant was living in squalid conditions. He was entitled to mitigation regarding his lack of material gain. There was limited mitigation for fear as he did not give evidence of specific threats or identify persons allegedly threatening him. As a foreign national imprisonment may be more difficult for the appellant, however, this did not seem to be case based on the report from Cloverhill. Some weight was nonetheless given to this aspect as visits from extended family and friends would be more difficult. The Court considered his personal circumstances and the effect on his wife and young children who depend on him. The Court considered the testimonials which showed him to be a worker and relatively well educated. His behaviour in prison was commendable and he was amenable to rehabilitation. He expressed remorse through counsel.

13 The Court found that there were exceptional and specific circumstances which made the mandatory minimum sentence of 10 years unjust. The sentencing judge found that the appellant was entitled to a reduction of four years in his sentence in view of his early admissions and his acceptance of responsibility for the package and in view of his guilty plea and his lack of previous convictions for drugs offences. Then considering all the other mitigating factors and matters outlined the sentencing judge imposed a sentence of eight years with the final two suspended for two years. It was noted that this was intended as a deterrent to further offending. The sentence was backdated to the 13th November, 2015.

Appellant's submissions

14 It is submitted that the appellant provided material assistance. He admitted possession at the scene. The package was in the boot and not in his immediate possession. He made ‘very useful’ admissions in relation to the second package. The appellant refers the Court to the mitigating factors. His guilty plea was indicated at an early stage when no trial date had been fixed. There were only minor previous convictions and otherwise he had a good character. He did not have a lifestyle which demonstrated profit from drug...