DPP v Botha

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 19 January 2004
• Neutral Citation: [2004] IECCA 1
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 50 of
• Date: 19 January 2004

[2004] IECCA 1

THE COURT OF CRIMINAL APPEAL

Hardiman J.

O'Sullivan J.

Herbert J.

50/03

DPP v. BOTHA

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

PHILLIPUS BOTHA

Applicant

Citations:

MISUSE OF DRUGS ACT 1997 S15(A)

DPP V DUFFY UNREP 21.12.2001 2000/7/1809

MISUSE OF DRUGS ACT 1977 S27(3)

CRIMINAL JUSTICE ACT 1999 S4

CRIMINAL JUSTICE ACT 1999 S5

DPP V TIERNAN 1998 IR 250

CRIMINAL LAW (AMDT) ACT 1997 (SOUTH AFRICA)

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

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

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

DPP V RENALD UNREP 23.11.2001 200/ 8/2140

DPP V ROSSI & HELLEWELL UNREP 18.11.2002

DPP V HENRY UNREP 15.5.2002

DPP V VARDACARDIS UNREP 20.1.2003

Synopsis:

CRIMINAL LAW

Sentence

Appeal - Possession of controlled substance - Exceptional and Specific circumstances - Misuse of Drugs Act 1977 - Criminal Justice Act, 1999 (50/2003 - Court of Criminal Appeal - 19/1/2004)

People (DPP) v Botha - [2004] 2 IR 375

Facts: The applicant was sentence on 20 March 2003 to five years imprisonment, having pleaded guilty to a charge under section 15(A) of the Misuse of Drugs Act, 1997 as amended. That related to an offence committed on 31 July, 2002 when the applicant, a South African arrived at Dublin Airport in possession of four large slabs of cannabis weighing a little over 20 kilograms and valued by the Gardai at just over €52,000. Subsequently the applicant lodged a notice of appeal against his sentence, in which he complained that according to previous sentences given to South Africans, his was a heavy sentence. Counsel on behalf of the applicant placed emphasis on the applicant's age, his poor financial circumstances, his good behaviour in prison and the fact that he made a full statement to the Gardai on the day of his arrest. Counsel further submitted that the applicant's previous convictions should be ignored because they dated back to 1985 and 1986. The fact that the drug in question was cannabis was also emphasised by counsel for the applicant. The learned trial judge had asked counsel on both sides to state what had been done in other similar cases of South Africans. Counsel on behalf of the DPP indicated that he knew of tow cases where a suspended sentence had been passed on condition that the courier immediately left the jurisdiction. Those cases had however, been appealed by the DPP and judgment was awaited from the Court of Criminal Appeal in respect of one of the cases. Accordingly, the trial judge adjourned the matter to March, 2003 in the hope that he would attain some guidance from the judgment in the unnamed case. However judgment had not been delivered by the time of the adjourned date. The learned trial judge himself drew attention to the case of DPP v Duffy (Court of Criminal Appeal unreported December, 2001). It was also submitted by counsel for the applicant that the reference to exceptional and specific circumstances in Section 27 of the 1977 Act, as amended was not limited to the circumstances specifically mentioned. It was further submitted that the circumstances other than those specifically mentioned could be considered in mitigation of the statutory minimum sentence if they were either exceptional or specific, and that they did not be both.

Held by Court of Criminal Appeal (Hardiman, O'Sullivan, Herbert JJ) in dismissing the appeal: 1. That the trial judge was perfectly entitled to inquire of both sides what had occurred in similar cases in the past. In cases such as the present, which was the subject of special statutory provisions, it was useful to consider the decisions of the court as to the application of those provisions.

2. That the accuses was entitled to have his plea of guilty and assistance to the Gardai considered in determining the appropriate sentence.

DPP v James Chipi Renald (unreported Court of Criminal Appeal 23 November, 2001) followed.

3. That the effect of section 27 of the Misuse of Drugs Act, 1977 as amended by section 5 of the Criminal Procedure Act, 1999 was to significantly encroach on the otherwise untrammelled discretion of the sentencing court. If there were no specific and exceptional circumstances rendering it unjust to impose the minimum sentence then that sentence must be imposed, if indeed a greater sentence was not considered more appropriate. Even if there were such circumstances, both the maximum and minimum sentence continued to exist as clear and definite guidance to the court.

4. That it was clear from the wording used in the statutory provision that the unennumerated circumstances relied upon as placing the case into a category where it would be unjust to impose the minimum sentence must be both exceptional and specific. It was a conjunctive provision.

5. That the trial judge was correct in his conclusion that section 27 of the 1977 Act did not place cannabis in a different category to other drugs. The section in fact provided for the minimum sentence on the basis of the value, rather than the nature of the substance. In any event, the applicant gave evidence that he was unaware of the nature of the substance he was carrying, although he did know that it was an unlawful drug.

Reporter: L.O'S.

1 JUDGMENT of the Court delivered on the 19th day of January, 2004 , by Hardiman J.

2 On the 20 ^th March, 2003 the applicant was sentenced to five years imprisonment, having previously pleaded guilty to a charge under s.15(A) of the Misuse of Drugs Act, 1997 as amended. This related to an offence committed on the 31 ^st July, 2002 when the applicant, a South African, arrived at Dublin Airport on a flight from Paris carrying with him four large slabs of cannabis weighing a little over 20 kilograms and valued by the Gardaí at just over €52,000.

3 On arrest, the applicant made a statement in which he said that he agreed to bring drugs to Dublin for a fee of 7,000 Rand. He said he did not know what sort of drugs were in a bag he was given to carry but he knew they would be illegal. He was to bring the bag to Dublin, check into a hotel, make a phone call to South Africa, and wait to be contacted. He was to get his money when he went back to South Africa.

4 The applicant is 58 years old, having been born on the 15 ^thSeptember, 1945. He explains his offence by pleading poor financial circumstances. He said he worked first in the Navy and then in the fire department for many years. He resigned from this and invested a lump sum he received in a business his son was establishing with a partner. He worked in this business, as did one of his daughters. The partner pulled out, precipitating the collapse of the business. His marriage then collapsed and, after a divorce he said he found himself living on the streets. He did very menial work such as car watching. He was then approached by two persons, who are brothers, and given a pre-packed suit case which contained the cannabis. He has two previous convictions in 1985 and 1986 for fraud and theft respectively. He made a full statement on the day of his arrest which was accepted by the guards as appearing to be correct, on the basis of their contact with the South African authorities.

Submissions in the Circuit Court.

5 The applicant pleaded guilty at the end of January 2003 and the substantive hearing took place on the 17 ^th February. Senior Counsel for the applicant invited the judge to bear in mind a case mentioned only vaguely in the transcript, where a South African woman had received a sentence of 6 ½ years imprisonment for offences under the same Section. Counsel said he had "brought (it) to the Court of Criminal Appeal for clarification". He said "She served, I think, about eighteen months of it and when the Court of Criminal Appeal... well less than eighteen months... but when the Court of Criminal Appeal clarified that the recommendation to deport was not to operate at the end of the 6 ½ years, that it is a recommendation just in a blanket way made. The State then is at liberty, only the prison authorities, are at liberty to decide when or how much of that sentence is to be served and they then... assuming that clarification... they promptly deported her a week or two later".

6 Apart from that, Counsel submitted that the applicant was entitled to the benefit of his plea of guilty and a statement which he made. The latter, though vague, possibly contained all the information that the applicant had. Counsel also submitted that the previous convictions should be disregarded having regard to the remoteness in time, and the judge agreed to do this. He then relied on his age, his very unfortunate background, his good behaviour in prison. He said "...I think the merits of the situation requires some element of suspension or acknowledgment of the factors I have mentioned. His age, how far away he is, his background, and all the rest".

7 The learned trial judge asked counsel to state what had been done in other similar cases of South Africans. From the defence, at the substantive hearing, he received only the somewhat anecdotal assistance summarised above. He asked Counsel for the DPP for assistance in similar terms. Prosecuting counsel first demurred to the question saying that "ordinarily the DPP would not enter into the arena of sentencing so I can't make submissions". The judge pressed him saying "I am entitled to ask the question I asked namely: what has been the position relative to similar cases in the past".

8 The response to this question was wholly anecdotal. Counsel said he knew of two cases where a suspended sentence had been passed on condition that the courier immediately left the jurisdiction. These, however, were appealed by the DPP. One of these matters, he said, had been heard by the Court of Criminal Appeal but judgment was awaited.

9 The learned trial judge put the matter back to the 20 ^thMarch, 2003 in the hope that he would get guidance from the...