DPP v Bowen

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 01 May 2015
• Neutral Citation: [2015] IECA 95
• Court: Court of Appeal (Ireland)
• Date: 01 May 2015

[2015] IECA 95

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

Record No: 82 CJA/2014

DPP v Bowen

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

The People at the Suit of the Director of Public Prosecutions

Appellant

v

Warren Bowen

Respondent

Sentencing – Drug possession – Undue leniency – Applicant seeking to appeal against sentence on grounds of undue leniency – Whether too much weight was attached to the mitigating factors

Facts: The respondent, Mr Bowen, was initially charged on indictment with three drug possession offences contrary to s.15A, s.15 and s.3 of the Misuse of Drugs Act 1977. He was co-accused with Ms Flanagan and Mr Flanagan. The joint trial of all three was due to commence in December, 2012. On that date the respondent offered a plea to the s.15A count, and this was accepted by the appellant, the DPP. On the same date Mr Flanagan offered a plea to the s.15 count, and this was also accepted by the appellant. Following arraignment, the cases of the respondent and Mr Flanagan were then adjourned to February, 2013 for sentencing. Mr Bowen asked to be re-arraigned and pleaded guilty to the s.15A count, and the appellant indicated that this was acceptable to her. Mr Bowen”s case was also adjourned to February, 2013 for sentencing. The sentencing judge decided to adjourn all three cases for a year. In February, 2014, the sentencing judge imposed on the respondent a sentence of four years imprisonment suspended for five years on a bond in the sum of €100.00 to keep the peace for that period while Ms Flanagan and Mr Flanagan were sentenced to five years and three years imprisonment suspended on a bond respectively. The appellant sought to appeal the sentence imposed upon the respondent on the grounds that it was unduly lenient before the Court of Appeal. The appellant contended that while it was accepted that the trial judge was entitled to find that it would be unjust to apply the presumptive mandatory minimum sentence of 10 years, he erred in principle in not having due regard to the inherent seriousness and fundamental gravity of the offending conduct, as he was required to do in accordance with The People (DPP) v Renald (unreported, Court of Criminal Appeal, Murray J., 23rd November, 2001). It was submitted that the overwhelming tenor of the case law in relation to sentencing in s.15A cases indicated that custodial sentences are unavoidable in cases involving the proven facts and circumstances in these cases. Secondly, it was complained that the trial judge attached too much weight to the mitigating factors in the case. In that context it was submitted that relatively little weight could attach to the early plea in circumstances where the respondent was effectively caught red handed.

Held by Edwards J that, having considered that a headline sentence figure of seven years before mitigation was appropriate and within the permissible range for the offence as committed by the offender, there was no error of principle up to that point in the process. Edwards J held that there were substantial mitigating factors in the case that would have justified a generous allowance in terms of a reducing of the headline sentence in mitigation, namely the respondent”s guilty plea, his previous good character, his genuine remorse, her co-operation with the investigation, the very positive probation report emphasising his positive engagement with rehabilitation, his low risk of offending, his work ethic and work record, his involvement in theatre and other worthwhile activities, and his drug free status, the fact that he had not come to adverse attention throughout the period of the twelve month adjournment, or indeed at all since his arrest. While the Court could readily appreciate how the sentencing court could have justifiably treated the offender with considerable leniency, Edwards J held that there was nothing in his situation that constituted special reasons of a substantial nature and particularly exceptional circumstances such as to justify a wholly suspended sentence. The Court therefore considered that excessive weight was attached to mitigating factors and to that extent the trial judge was in error.

Edwards J held that the Court would allow the appeal. It followed that the sentence of four years suspended for four years would be set aside and replaced by an appropriate sentence.

Appeal allowed.

1 Judgment of the Court delivered on the 1st day of May, 2015 by Mr. Justice Edwards

Introduction

2 1. This is a case in which the respondent was initially charged on indictment with three drug possession offences, namely offences contrary to s. 15 A, s. 15 and s.3, respectively, of the Misuse of Drugs Act 1977. He was co-accused with two other persons, namely Sharon Flanagan and Kevin Flanagan. The joint trial of all three was due to commence on the 4 ^th December, 2012. On that date Sharon Flanagan offered a plea to the S.15A count, and this was accepted by the appellant. On the same date Kevin Flanagan offered a plea to the s. 15 count, and this was also accepted by the appellant. Following arraignment, the cases of Sharon Flanagan and Kevin Flanagan were then adjourned to the 27 ^th February, 2013 for sentencing, with a direction that a probation report be prepared in respect of Sharon Flanagan. The respondent had pleaded not guilty on arraignment, and his case was adjourned to the 7 ^th December, 2012 for trial.

3 2. On the 7 ^th December, 2012 the respondent asked to be re-arraigned and on this occasion he pleaded guilty to the s.15A count, and counsel for the appellant indicated that this was acceptable to her. Following this development the respondent's case was also adjourned to the 27 ^th February, 2013 for sentencing, with a direction that a probation report be prepared in respect of him.

4 3. Following a sentence hearing on the 27 ^th February, 2013, when the probation reports that had been directed were before the Court and had been duly considered by the sentencing judge, the sentencing judge decided to adjourn all three cases for a year and directed that up to date probation reports should be made available in respect of the respondent and Sharon Flanagan on the adjourned date.

5 4. On the 27 ^th February, 2014, having received the up to date probation reports that had been directed, the sentencing judge imposed the following sentences:

6 · The respondent was sentenced to four years imprisonment suspended for four years on a bond in the sum of €100.00 to keep the peace for that period. He was also disqualified from holding a driving licence for a period of two years;

7 · Sharon Flanagan was sentenced to five years imprisonment suspended for five years on a bond in the sum of €100.00 to keep the peace for that period;

8 · Kevin Flanagan was sentenced to three years imprisonment suspended for three years on a bond in the sum of €100.00 to keep the peace for that period.

9 5. The appellant now seeks to appeal the sentence imposed upon the respondent on the grounds that it was unduly lenient.

10 6. The appellant has also sought to appeal the sentence imposed upon Sharon Flanagan on the grounds that it was unduly lenient, and the appeal in her case will be the subject of a separate judgment.

The evidence at the sentencing hearing on the 27 ^th February, 2013

11 7. The sentencing court heard evidence from Garda Paul McWalter concerning the circumstances of the crime. He told the Court that on the 19 ^th October, 2011, at 11.30am, Gardaí were conducting a surveillance operation on the home of Sharon Flanagan at Cappacasheen, Kinvara, Co Galway. The surveillance operation had been mounted on the basis of confidential information received by the Gardaí. An English registered van was observed arriving at this location, which was being driven by the respondent. Both Sharon Flanagan and the respondent were observed removing one eight foot length of 4 x 4 timber each from the van. These were initially placed on the ground at the side of the adjacent house.

12 8. After a short while the respondent left the area and then after another short period of time Sharon Flanagan brought one length of timber to the rear of the house where she sawed it in half and then using a chisel and a hatchet she split open the timber pieces. This action revealed that the length of timber had concealed within it a substance quantity of cannabis resin. Sharon Flanagan then left the sawed piece of timber at the rear of the house and she drove off in her car.

13 9. Kevin Flanagan is the father of Sharon Flanagan. He had been at the residence and was present when the timber was delivered by the respondent. Kevin Flanagan then went to the rear of the house. He picked up the pieces of timber that had been sawed and chiselled and he hid them behind two large barrels and placed a few items over them. Kevin Flanagan then returned to the side of the house and picked up the second piece of timber, which was still intact, and placed this in a shed down in the garden.

14 10. At 2.20 pm, on the 19 ^th October, 2011, Garda Dermot Gibson and Colin O'Leary executed a search warrant issued under section 26 of the Misuse of Drugs Act on the residence of Sharon Flanagan at Cappacasheen, Kinvara. A search was carried out on these premises and a quantity of cannabis resin comprising seven kilograms in weight, was discovered. This cannabis had a value of €42,596. Gardai continued to search this residence over the subsequent two days and during the course of this search discovered three quantities of cash. €9,800 was found hidden in a couch in the living room, €8040 was found hidden under chipping stone at the front of the house and €10,050, which had been wrapped up in plastic, was found hidden under gravel at the front of the house....