DPP v Bale
| Jurisdiction | Ireland |
| Judge | Mr. Justice Sheehan |
| Judgment Date | 05 July 2016 |
| Neutral Citation | [2016] IECA 209 |
| Date | 05 July 2016 |
| Court | Court of Appeal (Ireland) |
| Docket Number | 136CJA/15 |
Sheehan J.
Edwards J.
Butler J.
and
[2016] IECA 209
Sheehan J.
136CJA/15
135CJA/15
THE COURT OF APPEAL
Sentencing – Drug offences – Undue leniency – Applicant seeking a review of sentences – Whether sentences were unduly lenient
Facts: The respondents, Mr Bale and Mr Fowler, were observed by one Garda Sweeney cutting cannabis branches from a number of cannabis plants on the 21st June, 2014 at Meekstown Close, St. Margaret?s Road, Finglas, Dublin 11. At the time of his arrest, Mr Bale told the Gardaí he was there to cut down the plants and that he was to receive 3 oz. of cannabis in return. He was doing this for another person, whom he did not name. Mr Fowler made a number of admissions to the Gardaí when arrested, but he said that he did not know who the owner of the cannabis was. He expected to receive between ?200 and ?300 for his work. The respondents pleaded guilty to committing an offence contrary to s. 15A of the Misuse of Drugs Act 1977 and at the Dublin Circuit Criminal Court on the 7th May, 2015, they were each sentenced to five years imprisonment, which was wholly suspended on the usual terms, namely, that they keep the peace and be of good behaviour for a period of five years. The applicant, the DPP, applied to the Court of Appeal for a review, on grounds of undue leniency, of the sentences imposed. The applicant based her application in respect of each respondent on eight separate grounds of appeal, seven of which were common to each case. The seven grounds were as follows: 1) The sentencing judge did not have sufficient regard to the fact that this was a significant professional operation run for purely commercial benefit; 2) The sentencing judge erred in law by overstating the significance between cannabis and other drugs and by attaching too much weight to the fact that the drug in question was cannabis; 3) The sentencing judge erred in law and in fact by failing to attach any weight to the aggravating factors in the case; 4) The sentencing judge erred in law and in fact in attaching undue weight to the mitigating factors in the case; 5) The sentencing judge erred in principle in the imposition of a lenient sentence and as such it was not in the public interest in all the circumstances; 6) The sentence imposed would not act as a deterrent to other persons or assist in the prevention of other crimes; 7) The trial judge erred in law and fact in failing to have appropriate regard to the presumptive mandatory minimum sentencing regimes applying to the offence. The additional ground of appeal in respect of Mr Fowler was that the sentencing judge erred in law by failing to give sufficient weight to his 103 previous convictions. Regarding Mr Bale, the additional ground of appeal stated that the sentencing judge erred in law and in fact by failing to differentiate between the co-accused when determining the appropriate sentence.
Held by Sheehan J that, having applied The People (DPP) v Byrne?[1995] 1 ILRM 279, the combination of mitigating factors relating to Mr Bale provided special reasons of a substantial nature and particularly exceptional circumstances sufficient to have justified a wholly suspended sentence. The Court was satisfied that the sentencing judge correctly observed that the exceptional factors in Mr Fowler?s case were such as to allow him to impose a wholly suspended sentence; it was a finely balanced judgment and one which disclosed no error in principle, and in particular no disregard for the views of the Oireachtas as expressed in the relevant statutory provisions. The Court was satisfied that there were special reasons of a substantial nature and particularly exceptional circumstances justifying a wholly suspended sentence.
Sheehan J held that he would refuse the application.
Application refused.
This is an application by the Director of Public Prosecutions for a review, on grounds of undue leniency, of the sentences imposed on Kaide Fowler and Warren Bale at the Dublin Circuit Criminal Court on the 7th May, 2015.
Each of the respondents had pleaded guilty on an earlier date to committing an offence contrary to s. 15A of the Misuse of Drugs Act 1977 on the 21st June, 2014, and they were each sentenced to five years imprisonment, which was wholly suspended on the usual terms, namely, that they keep the peace and be of good behaviour for a period of five years.
The applicant based her application in respect of each respondent on eight separate grounds of appeal, seven of which were common to each case. The seven grounds are as follows:-
1. The learned sentencing judge did not have sufficient regard to the fact that this was a significant professional operation run for purely commercial benefit.
2. The learned sentencing judge erred in law by overstating the significance between cannabis and other drugs and by attaching too much weight to the fact that the drug in question was cannabis.
3. The learned sentencing judge erred in law and in fact by failing to attach any weight to the aggravating factors in the case.
4. The learned sentencing judge erred in law and in fact in attaching undue weight to the mitigating factors in the case.
5. The learned sentencing judge erred in principle in the imposition of a lenient sentence and as such it was not in the public interest in all the circumstances.
6. The sentence imposed will not act as a deterrent to other persons or assist in the prevention of other crimes.
7. The learned trial judge erred in law and fact in failing to have appropriate regard to the presumptive mandatory minimum sentencing regimes applying to the offence
The additional ground of appeal in respect of Kaide Fowler was that the learned sentencing judge erred in law by failing to give sufficient weight to his 103 previous convictions.
Regarding Warren Bale, the additional ground of appeal stated that the learned sentencing judge erred in law and in fact by failing to differentiate between the co-accused when determining the appropriate sentence.
In order to consider these grounds, it is necessary to set out the background to the case, the personal circumstances of each respondent and the sentencing judge's remarks.
On the 21st June, 2014, Garda Christopher Sweeney, the investigating officer who was accompanied by other members of An Garda Síochána, searched premises at Meekstown Close, St. Margaret's Road, Finglas, Dublin 11. This premises was located in a residential estate set aside for members of the travelling community. The doors and windows of the property were boarded up with the only access to the property being by way of the rear door, which was padlocked. When Garda Sweeney entered the property, he observed four males in the process of cutting cannabis branches from a number of cannabis plants. Two of these men were the respondents: Warren Bale, who had a key to the premises, and Kaide Fowler, his nephew. Garda Sweeney told the court that three rooms in this property were being used to cultivate cannabis plants. He said that there were approximately 179 mature cannabis plants as well as 65 cannabis plants in the early stages of growth. Items associated with the production of cannabis, such as high intensity lighting, electric fans, water hoses, compost and soil, were also found during the search. Garda Sweeney told the court that the value of the mature plants was ?143,200.
The other plants had a potential value of over ?50,000 when fully matured.
At the time of his arrest, Warren Bale told the gardaí he was there to cut down the plants and that he was to receive 3 ozs. of cannabis in return. He was doing this for another person, whom he did not name. Kaide Fowler made a number of admissions to the gardaí when arrested, but he said that he did not know who the owner of the cannabis was. He expected to receive between ?200 and ?300 for his work.
Warren Bale was 43 years old at the time of sentence and originally from London. His family had moved to Dublin when he was 17, and he worked at attic conversions with his father. He is a married man with three children and has no previous convictions. In 2003 he was involved in a serious road accident, which resulted in a lot of back pain. He tried various treatments to relieve this pain, but these were unsuccessful, and he started to use cannabis as a painkiller, to which he subsequently became addicted. There was evidence before the court that, since his arrest, he had made significant efforts to overcome his addiction. There was also evidence that he was an active member of his community, had helped to train one of the youth football teams and was also involved in other community work. The court also received a number of testimonials from former employers which confirmed his excellent work record and his trustworthiness as an employee.
Kaide Fowler was 26 years of age at the time of sentence, and the court was told that he had 103 previous convictions. The last time he had committed an offence was the 22nd April, 2008, and he had not come to the attention of the gardaí since that time. In the meantime, he had married and was now living with his wife and three children in Finglas. At the time of the offence, he had a serious drug addiction problem. Between that time and the time of sentence, he had undertaken and committed to a drug treatment rehabilitation programme with Coolmine Therapeutic Community. There was evidence before the court that he had successfully completed phase 1 of that programme and further evidence...
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