DPP v Beatty
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Sheehan |
| Judgment Date | 11 June 2012 |
| Court | Central Criminal Court (Ireland) |
| Date | 11 June 2012 |
[2012] IECCC 2
THE HIGH COURT CENTRAL CRIMINAL COURT
Between:
CRIMINAL LAW ACT 1997 S7(2)
CRIMINAL LAW ACT 1997 S7(4)
MISUSE OF DRUGS ACT 1977 S15
MISUSE OF DRUGS ACT 1977 S3
FIREARMS & OFFENSIVE WEAPONS ACT 1990 S11
FIREARMS & OFFENSIVE WEAPONS ACT 1990 S9(1)
DPP v MCCORMACK 2000 4 IR 356 2000/8/3024
DPP v KAVANAGH UNREP CCA 24.7.2008 2008/19/4062 2008 IECCA 100
DPP v WHITE UNREP CCA 9.11.2009 2009/19/4704 2009 IECCA 126
MISUSE OF DRUGS ACT 1977 S5
MISUSE OF DRUGS ACT 1977 S27
MISUSE OF DRUGS ACT 1977 S27(3)
MISUSE OF DRUGS ACT 1977 S28
DPP v M 1994 3 IR 306 1994 2 ILRM 541 1994/9/2641
DPP v DUFFY UNREP CCA 21.12.2001 2001/7/1809
DPP v DUCQUE UNREP CCA 15.7.2005 2005/19/3955 2005 IECCA 92
DPP v SPRATT UNREP CCA 10.12.2007 2008/21/4599 2007 IECCA 123
DPP v LONG 2009 3 IR 486 2009/17/4110 2008 IECCA 133
DPP v GILLIGAN (NO 2) 2004 3 IR 87 2003/16/3559
DPP v PIERCE UNREP CCA 4.2.2008 2008/21/4517 2008 IECCA 10
DPP v MCMANUS UNREP CCA 21.3.2003 2003/18/4168
CRIMINAL LAW
Sentence
Misuse of drugs - Possession controlled substance for purpose of sale or supply - Impeding apprehension or prosecution of third party - Mitigating factors - Guilty plea -Whether non-custodial sentence appropriate - Factors to be considered - People (DPP) v M [1994] 3 IR 306; People (DPP) v McCormack [2000] 4 IR 356; People (DPP) v Pierce [2008] IECCA 10 (Unrep, CCA, 4/2/2008) considered - Misuse of Drugs Act 1977 (No 12), s 15 - Criminal Law Act 1997 (No 14), s 7 - Sentence imposed (CC33/2011 - Sheehan J - 11/6/2012) [2012] IECCC 2
People (DPP) v Beatty
Facts The defendant pleaded guilty to one count of impeding the apprehension or prosecution of a named individual in respect of the unlawful killing of another and one count of possession of cannabis resin and cocaine, with a total value of €9,070 for sale or supply. The defendant was 18 years of age at the time of commission of the offences and was 21 years old at the date of sentencing. The defendant had five previous convictions including a conviction for possession of drugs for sale or supply. On behalf of the defendant it was submitted that he was in the wrong place at the wrong time and he co-operated with the Gardai. The individual found guilty of the unlawful killing was sentenced to seven years imprisonment. It was submitted on behalf of the prosecutor that the physical destruction of evidence in relation to the investigation of an unlawful killing was an offence which fell into the middle to upper level. However, it was accepted that the age of the defendant, the lack of premeditation and his co-operation with the Gardai were mitigating factors.
Held by Sheehan J.: That it was appropriate to have regard to the penalties set out by the legislature and to the circumstances of the offences and the defendant's own circumstances. In addition to the three mitigating factors highlighted by the prosecutor, the defendant's guilty plea and genuine remorse were also mitigating factors. The court did not have regard to the defendant's minor or historic previous convictions for non-drug offences. This was not an appropriate case for a non-custodial sentence. In respect of the first count a sentence of six years was appropriate. However, the cumulative effect of all of the mitigating factors deemed it appropriate to suspend the final three years of that sentence. The appropriate sentence in respect of the second count as committed by this defendant was five years imprisonment. However the mitigating factors justified the suspension of two years of that sentence. The sentences were to run concurrently.
2 [1.1] On the 12 th March 2012, the accused pleaded guilty to two counts on the indictment. The first count was that on the 7 th December 2008, he impeded the apprehension or prosecution of Conor Duffy in respect of the unlawful killing of Aidan O'Kane contrary to s.7 (2) and (4) of the Criminal Law Act 1997. The second count was that, between the 7 th December 2008 and the 11 th December 2008, the accused had possession of cannabis resin and cocaine for the purpose of selling or otherwise supplying to another contrary to s. 15 of the Misuse of Drugs Act 1977 as amended.
2 [2.1] On the 7 th December 2008, Aidan O'Kane was shot dead in a laneway in East Wall, Dublin 3. The prime suspect for that killing was Conor Duffy who was ultimately tried and convicted of the manslaughter of Aidan O'Kane. In the course of the investigation into the death of Aidan O'Kane, the gardaí discovered that Conor Duffy had been supplied with a change of clothing and runners and that the clothing he had been wearing at the time of the killing had been burned at a disused factory premises. Gardai found the burnt remains of the clothing and also a bag containing a white Tupperware box in the cavity of the wall. The Tupperware box contained an amount of cannabis and cocaine. An analysis of the materials determined that the cannabis weighed 758 grams and had a value of approximately €5,311. The cocaine weighed 53 grams and had a value of approximately €3,759 giving a total approximate value of €9,070. A further bag containing a revolver was also found within the wall cavity which was subsequently confirmed to be the weapon that had been used in the killing of Aidan O'Kane.
2 [3.1] The accused is twenty-one years of age. He became involved in drugs when he left school at the age of fifteen. He was eighteen years of age at the time of the commission of the offences. The accused has five previous convictions which are as follows: - a conviction for an offence pursuant to s.15 of the Misuse of Drugs Act 1977, as amended, for which the accused received a suspended sentence and an offence pursuant to s.3 of the Misuse of Drugs Act 1977, as amended, was also taken into consideration on that date, a conviction for failing to appear on a remand date and offences pursuant to s.11 and s.9 (1) of the Firearms and Offensive Weapons Act. None of these offences resulted in the accused serving a sentence of imprisonment.
3 [3.2] The Detective Garda in charge of the prosecution agreed with the suggestion that the accused was unfortunate to have found himself in the wrong place at the wrong time and confirmed that the accused, when asked by gardai about his involvement, had said that he was helping " a friend in need" and explained that he and Conor Duffy had been in school together fifteen years ago. The Detective Garda also informed the Court that the accused had co-operated with the gardai.
4 [3.3] The Court was told about the personal circumstances of the accused. He is unemployed at the present time. On leaving school he worked with a tree surgeon in Co. Dublin and thereafter with a landscape gardener in Co. Cork. When this work ceased he became involved in a FAS course and qualified as a volleyball instructor and subsequently as a swimming instructor. Counsel told the Court that the accused now has a girlfriend which has had a positive influence on his life. Counsel for the accused also informed the Court that the accused accepts that his involvement with drugs must cease and emphasised the accused's genuine remorse for these offences. The Court was referred to the sentence which was structured by this Court in respect of Conor Duffy in that the appropriate sentence for that crime was twelve years which was mitigated to one of seven years in the circumstances.
5 [3.4] Counsel for the prosecution set out the view of the Director of Public Prosecutions concerning where this particular offending behaviour lies. The view of the Director of Public Prosecutions is that in relation to the first count, the physical destruction of evidence in relation to the investigation of an unlawful killing of another individual, this offending falls at the middle to upper level. Counsel for the prosecution informed the Court...
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