DPP v Alexiou

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeMurray, J.
Judgment Date31 Jul 2003
Neutral Citation2003 WJSC-CCA 2830
Docket Number[C.C.A. No. 12 CJA of 2002],No. 12 CJA/02

2003 WJSC-CCA 2830

THE COURT OF CRIMINAL APPEAL

Murray, J.

Kelly, J.

Finlay Geoghegan, J.

No. 12 CJA/02
DPP v. ALEXIOU

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT

and

GRANT ALEXIOU
RESPONDENT

Citations:

CRIMINAL JUSTICE ACT 1993 S2

MISUSE OF DRUGS ACT 1977 S15(A)

MISUSE OF DRUGS ACT 1977 S27

CRIMINAL JUSTICE ACT 1999 S4

CRIMINAL JUSTICE ACT 1999 S5

IMMIGRATION ACT 1999 S3(2)

DPP V BENJAMIN (ORSE EWEE) UNREP DENHAM 14.1.2002

MISUSE OF DRUGS ACT 1977 S27(3)(B)

MISUSE OF DRUGS ACT 1977 S27(3)(C)

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

IMMIGRATION ACT 1999 S3

O'MALLEY SENTENCING LAW AND PRACTICE 2000ED

Synopsis:

CRIMINAL LAW

Sentence

Appeal by DPP - Suspension of sentence on condition that respondent leave the State - Whether sentence unduly lenient - Whether order equivalent to deportation order - Criminal Justice Act, 1993 section 2 (12CJA/2002 - Court of Criminal Appeal - 31/7/2003)

People (DPP) v Alexiou - [2003] 3 IR 513

The trial judge ordered that the accused be imprisoned for four years suspended if the respondent left the state immediately. This was an application by the DPP pursuant to s. 2 of the Criminal Justice Act 1993 for a review of the sentence imposed on the respondent grounds of undue leniency. The DPP also argued that the order of the trial judge was equivalent to an order for the respondent’s deportation and thus intruded on the executive power of the Minister.

Held by the Court of Criminal Appeal in dismissing the DPP’s application that the trial judge had approached the question of sentencing with meticulous care. The trial judge acted entirely and properly within his discretion. The order was not equivalent to a deportation order as the respondent’s forcible removal from the State would not have been a consequence of his failure to comply with the order.

Murray, J.
1

This is an application by the Director of Public Prosecutions pursuant to Section 2 of the Criminal Justice Act,1993for a review of the sentence imposed on the Respondent by the Circuit Criminal Court on the 9th July, 2002, on the grounds of undue leniency.

2

On the 23rd day of April, 2002 the Respondent pleaded guilty before the Circuit Criminal Court to the offence of unlawful possession of a controlled drug for the purpose of selling or otherwise supplying the drug to another contrary to Section 15A and Section 27 of the Misuse of Drugs Act, 1977as amended by sections 4 and 5 of the Criminal Justice Act1999.

3

The sentence imposed by the trial court on the 9th July, 2002 ordered that the Accused be imprisoned for a period of four years"suspended when the accused in open court entered a €100 (euro) bond and agreed to keep the peace and be of good behaviour towards all the people of Ireland for a period of four years on this date and further that he leave this country immediately and not return with the exception of returning for the purpose of any appeal on foot of this Order …"

4

In the application for review of the sentence, the D.P.P. referred to section 27 of the Misuse of Drugs Act,1977as amended by section 5 of the Criminal Justice Act,1999, which provides for a minimum term of imprisonment of ten years for the relevant offence where the value of the drugs involved is £10,000 (€12,697.38) unless the trial judge is satisfied that there are exceptional circumstances. In this case the value of the drug, cannabis, was found to be €77,000, a multiple of the minimum requirement for the application of Section 15A.

5

In this application it is also contended that a sentence of four years imprisonment conditional on the Respondent leaving the State does not accord with the seriousness of the crime. Even though the Respondent was of low intelligence he was aware to a large extent of the nature of the offence which he was committing. The application also contends that the imposition of a condition on the Respondent that he leave the State was wrong in principle. There was no real sentence since there were no circumstances in which the suspended sentence could be activated once he was outside the jurisdiction and a suspended sentence with an undertaking to leave the State was no deterrent to other persons resident outside the State from importing drugs into the State.

6

At the hearing of the application the submissions of Counsel for the D.P.P. focused largely on the question as to whether the learned trial judge could properly make it a condition of a sentence imposed on a foreign national that he or she leave this State immediately. It was submitted that the learned trial judge was in error in imposing a sentence on the basis that he could require or mandate an accused to leave the country. It is the Minister for Justice who is empowered by the provisions of the Immigration Act,1999to make deportation orders, in appropriate circumstances, in respect of foreign nationals within the state. The power to order the deportation of a foreign national is conferred exclusively on the Minister and the Courts have no function in the making of deportation orders. It was submitted that on the facts of this case this is in effect what the learned trial judge did. Section 3, subsection 2 of the Act of 1999 makes provision for the Minister to make an order of deportation in respect of any non-national "whose deportation has been recommended by a court in the State." The role of the courts in relation to the deportation of a foreign national who has been convicted of an offence is limited in this context to simply the making of a recommendation for deportation. It is then a matter for the State, in particular the Minister for Justice, in the exercise of his statutory functions, whether or not to give effect to such a recommendation. It was submitted that the function of the trial judge was confined to imposing the appropriate sentence for the offence for which the Accused has been convicted with a recommendation for deportation, but no more, should the trial judge consider it appropriate to make such recommendations. If the learned trial judge had imposed a four year suspended sentence with a recommendation for deportation and no more then his order in that respect could not be faulted in this respect. In this case the learned trial judge went further and the departure of the Accused from the State was an integral part of his order and he was wrong in that respect.

7

Counsel for the Respondent first of all submitted that the application of the D.P.P. was moot and should be struck out accordingly. It was submitted that even if the D.P.P. succeeded in his application for a review of the sentence imposed by the learned Circuit Court Judge which resulted in the imposition of a more severe penalty, the Respondent, being outside the jurisdiction could not be made amenable to the consequences of any such increased sentence. Accordingly, the application should be treated as moot.

8

Background Facts:

9

The Respondent was arrested on the 13th December, 2001 by a customs officer at Dublin Airport after he had arrived there at the end of an air journey from his home country, South Africa, which he had taken via Paris. He was found to have in his possession a quantity of cannabis, the “street value” of which was €77,340. The Respondent was arrested after having asked directions for the exit from the customs officer standing at the red channel and in circumstances which the learned trial judge found disclosed a degree of naivety on his part. There was no record of him having any prior convictions in South Africa. He was 27 years of age at the time of the offence. Evidence before the Court of trial disclosed that he was found to have speech and learning difficulties from an early age. At the age of 6 ½ his name was placed on a waiting list for a primary remedial school which he entered three years later. He also required speech therapy at that age. Subsequently, he went to a remedial High Trade school. His schooling appears to have been entirely in remedial schools. It would appear that after leaving school he had limited employment potential but did work for periods in a motor repair garage and repairing lawnmowers. In 1991 he was exempted from military service on account of his limited intellectual ability. When examined by a senior clinical psychologist at Cloverhill Prison, prior to sentencing, he was found to have a reading age of 10.5 years. Concern was expressed about his ability to cope on his own. It was recommended that his current level of intellectual functioning be assessed. This however, does not appear to have been done. He was described as being the middle of three children. His parents separated when he was approximately twelve years and he had a very dependant relationship with his mother which continues into adulthood. After his arrest he co-operated fully with the gardaí and told them everything he knew concerning the circumstances in which he came to be a carrier of cannabis to Ireland. He explained how he had been approached in his home town in Johannesburg by a man he had not known previously who asked him to take a parcel to Dublin. This was at a time when he was heavily in debt. This man had asked him if he would take a parcel to Dublin for some extra money

10

It was also suggested at the trial that his simple approach to life in particular his limited intellectual ability led to him being in part seduced to carry the"parcel" to Ireland by the prospect of travelling in an aeroplane. Other relevant facts can be found in the facts stated by the trial judge when he gave his reasons for the sentence imposed.

11

Section 2 of the Criminal Justice Act,1993provides that the D.P.P. may apply to this court to review a sentence if it appears to him that the sentence imposed was unduly lenient. If the Court does not refuse the application it may quash the sentence and in place of it impose on the convicted...

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