DPP v Anthony Fennell
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 17 January 2022 |
| Neutral Citation | [2022] IECA 14 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 92/2021 |
[2022] IECA 14
The President
Kennedy J.
Donnelly J.
Record Number: 92/2021
THE COURT OF APPEAL
Sentencing – Cultivation of cannabis plants without licence – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Fennell, pleaded guilty before Galway Circuit Criminal Court to the offence of cultivation of cannabis plants without licence contrary to s. 17 of the Misuse of Drugs Act 1977 as substituted by s. 11 of the Misuse of Drugs Act 1984 as amended by s. 8 of the Irish Medicines Board (Miscellaneous Provisions) Act 2006. On the 23rd April 2021, the appellant was sentenced to three years’ imprisonment with the final year suspended on terms. The appellant appealed to the Court of Appeal against severity of sentence on three grounds, namely: (1) the sentence imposed was excessive in all the circumstances; (2) the trial judge erred in ruling that the appellant was “dealing drugs for profit” when there was no such evidence given by the prosecuting Garda and where the plea entered was to the offence of cultivation only; (3) the trial judge erred in not giving an appropriate allowance for the mitigating factors which included the testimonials provided, the guilty plea and that the appellant’s previous convictions dated to the 1980s, none of which was for drugs offences.
Held by the Court that whilst it was argued that the judge presumed that the appellant was dealing in drugs, it could not agree with the submission that he was in effect sentenced for an offence to which he did not plead guilty. The Court held that the judge could not have ignored the surrounding relevant facts in the case, it was necessary to put the offending in context and he was entitled to take account of the extensive nature of the operation and the appellant’s significant involvement in it. The Court held that this was clearly a commercial operation and the judge was entitled to take account of that factor in determining the pre-mitigation sentence. The Court found no error in that respect. Whilst the appellant had strong mitigation, the Court was satisfied that the judge properly applied those factors and properly reduced accordingly. The Court held that the ultimate sentence imposed of 3 years with the final year suspended was within the margin of appreciation afforded to a judge and it did not find an error in principle.
The Court dismissed the appeal.
Appeal dismissed.
JUDGMENT of the Court delivered (ex tempore) on the 17th day of January 2022 by Ms. Justice Kennedy.
This is an appeal against severity of sentence. The appellant pleaded guilty before Galway Circuit Criminal Court to the offence of cultivation of cannabis plants without licence contrary to s. 17 of the Misuse of Drugs Act 1977 as substituted by s.11 of the Misuse of Drugs Act 1984 as amended by s.8 of the Irish Medicines Board (Miscellaneous Provisions) Act 2006 On the 23rd April 2021 the appellant was sentenced to three years' imprisonment with the final year suspended on terms.
On the 10th September 2019, Gardaí attended at an address in Ballinasloe, Co. Galway on foot of a search warrant. On arrival at the premises, one of the Gardaí noted a strong smell of cannabis emanating from the property, and found that the entire upstairs had been converted into a cannabis grow house. Numerous walls had been knocked through to create one large room which was sealed off by plastic sheeting. There were hydration and air filtration systems in place to assist the plants' growth. There was no one present at the property when the Garda arrived. It was confirmed that the appellant resided there.
cannabis plants in total with an estimated monetary value of €39,200 were discovered by the Garda during the search. The plants were in the mid-mature stage of growth.
Ultimately, the appellant was interviewed and accepted responsibility for the plants on his property. He entered a plea of guilty at an early stage in proceedings.
The appellant was born in 1969 and was 52 years of age at the time of sentencing. He has a number of previous convictions which were deemed to be of antiquity, none of which related to the Misuse of Drugs Act. The court below heard of his difficult upbringing. At ten weeks old he was sent to an industrial school, where he remained until he was collected by his mother at age twelve. When his mother proved unable to keep him, the appellant went to live in a care home in Wales. After an apprenticeship to become a plasterer, the appellant became a master plasterer and travelled to Europe with his work. He then worked on a US Air Force base in Germany and in Marks and Spencer's in Dublin after which he became involved in the pub industry.
The appellant sold a pub in 2016 and came to Galway in 2017 to assist a support group called the Tuam Home Survivors Network. Letters regarding his support and assistance to that group were furnished to the court below. It was accepted by the prosecuting Garda that he had savings when he returned to Ireland, which dissipated after a time, however he continued providing assistance to the support group. He then borrowed money from third parties on the condition that he permitted his rented property to be used as a cannabis grow house.
The judge placed the offending at the mid-range and identified a headline sentence of four and a half years' imprisonment. In assessing the gravity of the offence, he pointed to the sophisticated nature of the operation, the volume of plants and the value just shy of €40,000.00. He considered that considerable internal modifications to the property were required for the purpose of this enterprise.
In terms of mitigation, the judge took into account the appellant's acceptance of responsibility for the drugs, his plea of guilty at an early stage and his complex social background. The judge also noted the fact that the appellant was otherwise a law-abiding citizen, his involvement in the Tuam support group and the connected testimonials and character references.
Despite deciding that the above factors did not mitigate to any significant degree the gravity of the offence, the judge reduced this sentence to a sentence of three years' imprisonment and suspended the final year of that sentence
The appellant appeals the severity of the sentence on three grounds, namely:
1. The sentence imposed was excessive in all the circumstances.
2. The trial judge erred in ruling that the appellant was “dealing drugs for profit” when there was no such evidence given by the prosecuting Garda and where the plea entered was to...
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