DPP v Andrew Gaffney

• Jurisdiction: Ireland
• Judge: Macken J.
• Judgment Date: 18 October 2010
• Neutral Citation: [2010] IECCA 104
• Court: Court of Criminal Appeal
• Date: 18 October 2010

[2010] IECCA 104

COURT OF CRIMINAL APPEAL

Macken, J.

de Valera, J.

Gilligan, J.

[160/10]

DPP v Gaffney

[2010] IECCA 104

BETWEEN:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V

ANDREW GAFFNEY

APPLICANT

MISUSE OF DRUGS ACT 1977 S15

DPP v BARRETT UNREP CCA 19.5.2003 2003/13/2924

CRIMINAL LAW

Sentence

Drugs - Error in principle - Taking other offences into account -Immediate custodial sentence - Special circumstances - Good character - First offence - Partly suspended sentence - Low end of scale - Whether error in failing to suspend entire sentence - Whether matters erroneously taken into account - Whether alternatives such as community care programme should have been provided - State (DPP) v Barrett (Unrep, CCA, 19/5/2003) followed - Misuse of Drugs Act 1977 (No 12), s 15 - Sentence varied (160/2010 - CCA - 18/10/2010) [2010] IECCA 104

People (DPP) v Gaffney

Facts Applicant convicted of drug offence and sentenced to three years imprisonment with the last 18 months suspended. Applicant was under the age of 30 and had a very supportive family, had straightened himself out, had a partner, child and a job. His case was similar to DPP v Barrett (19th May 2003) which dealt with certain exceptional circumstances why an immediate custodial sentence would not be imposed. The applicant's drug offence were at the lower end of the scale. There were three other counts which the DPP had entered a nolle prosequi but the trial judge took into consideration the circumstances surrounding these other offices. The appeal was that the trial judged erred in principle.

Held by the Court of Criminal Appeal (Macken J; de Valera and Gilligan JJ) in finding there was an error in principle in taking into consideration the other matters. In all the circumstances of the case the court took the view that there were exceptional circumstances or special circumstances which would merit altering a continuation of an immediate custodial sentence. They kept the three years but suspended it with immediate effect. DPP v Barrett (19th May 2003) followed.

Reporter: BD

1 Judgment of the Court ( ex tempore) delivered on the 18th day of October, 2010by Macken J.

2 The Court is in a position to give judgment in relation to this matter on an ex tempore basis, and will do so immediately.

3 This is an application for leave to appeal brought on behalf of Mr. Gaffney, who at the time of conviction was under 30 years of age. It is in relation to a sentence imposed by the sentencing judge of 3 years on one of the charges, that is on count 3, to date from the 9 ^th June, 2010, with the last 18 months of that suspended. What the application is based on is an alleged error in principle on the part of the sentencing judge in failing to suspend the entire of the sentence, or indeed in not providing for alternatives such as community care programme, or such options.

4 It is important to bear in mind in relation to offences of this nature, and this is a s.15 offence under the Misuse of Drugs Act, 1977, as subsequently amended, that the legislature has provided extremely serious penalties in relation to these, with the...