DPP v Brian Wall

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd
• Judgment Date: 29 July 2011
• Neutral Citation: [2011] IECCA 45
• Court: Court of Criminal Appeal
• Date: 29 July 2011

[2011] IECCA 45

THE COURT OF CRIMINAL APPEAL

CCA 0195/2008

DPP v Wall

BETWEEN

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

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPLICANT

v.

BRIAN WALL

RESPONDENT

CRIMINAL JUSTICE ACT 1993 S2

MISUSE OF DRUGS ACT 1977 S15(A)

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1984 S6

MISUSE OF DRUGS ACT 1977 S5

MISUSE OF DRUGS ACT 1977 S15

CRIMINAL JUSTICE ACT 1999 S4

EURO CHANGEOVER (AMOUNTS) ACT 2001 S1

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

CRIMINAL JUSTICE ACT 2006 S2

MISUSE OF DRUGS ACT 19771977 S 27(3A)

MISUSE OF DRUGS ACT 19771977 S 27(3B)

CRIMINAL JUSTICE ACT 1999 S5

DPP v BYRNE 1995 1 ILRM 279

DPP v LERNIHAN UNREP MURPHY 18.4.2007 2007/19/3889 2007 IECCA 21

DPP v MCGINTY 2007 1 IR 633

DPP v RENALD UNREP CCA 23.11.2001 2001/8/2040

DPP v BOTHA 2004 2 IR 375

DPP v ALEXIOU 2003 3 IR 513

DPP v MCCORMACK 2000 4 IR 356

DPP, PEOPLE v MCLURE 1945 IR 275

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 PAR 22.09

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 PAR 6.68

DPP v GALLIGAN UNREP CCA 23.07.2003 2003/16/3495

CRIMINAL JUSTICE ACT 1999 S27(3C)

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 338

DPP v PATRICK LONG UNREP CCA 7.4.2006 2006/19/3939 2006 IECCA 49

DPP v HENRY UNREP CCA 15.5.2002 2003/16/3616

DPP v REDMOND 2001 3 IR 390

R v BRATZER 2001 NSCA 166

R v CORMIER 1975 9 NSR ED 687

R v SHROPSHIRE 1995 4 SCR 227

R v CAM 1996 1 SCR 500

CRIMINAL LAW

Sentence

Undue leniency - Drugs - Possession with intent to supply - Six year suspended sentence imposed - Plea of guilty - No previous convictions - Co-operated fully with Gardaí - Remorse - Low risk of re-offending - Whether appropriate to suspend sentence - Whether judge entitled to consider background factors - Exceptional and specific circumstances - Whether financial motivation a mitigating or aggravating factor - DPP v Byrne [1995] ILRM 279, DPP v Lernihan [2007] IECCA 21 (Unrep, CCA, 18/4/2007) and DPP v McGinty [2007] 1 IR 633 applied; People (DPP) v Long [2006] IECCA 49 (Unrep, CCA, 7/4/2006) approved - Misuse of Drugs Act 1977 (No 12) s 15A - DPP's application refused (195/2008 - CCA - 29/07/2011) [2011] IECCA 45

People (DPP) v Wall

Facts The applicant had found in possession of a quantity of heroin and was subsequently charged with drugs offences under S.15A of the Misuse of Drugs Act, 1977. The applicant pleaded guilty to the offences and received a sentence of six years imprisonment. The entirety of the sentence was suspended on the basis that the applicant be of good behavior and keep the peace for a period of three years. An application was brought by the DPP contending that the sentence in question was unduly lenient. It was contended that the sentencing judge had given excessive weight to the applicant's early admissions, his remorse and his guilty plea. In addition the court had failed to attach sufficient weight to the gravity of the offence.

Held by the Court of Criminal Appeal in refusing the application. Each case must be decided on its own particular facts and the personal circumstances of the accused. A number of mitigating factors were present which included; the accused's early plea, his remorse, the fact that the accused had no previous convictions, his co-operation with the Gardaí and his probation report which deemed him to be in the lowest category of risk of re-offending. These factors constituted exceptional and specific circumstances which justified a departure from the mandatory minimum ten year term. The sentence imposed might be considered as lenient and in the hope of good future rehabilitation, however, the sentence in all the circumstances was not unduly lenient. The Court was satisfied that there was no error in principle disclosed in the sentencing judgment.

Reporter: R.F

1 Judgment of the Court delivered on the 29th day of July, 2011, by Mr. Justice Declan Budd

Background

2 This is an appeal pursuant to the provisions of s. 2 of the Criminal Justice Act 1993 (hereafter "the Act of 1993") on the grounds that the sentence which was imposed on the respondent on the 17 ^th June, 2008, by Cork Circuit Criminal Court was unduly lenient. All of the charges related to offences under the Misuse of Drugs Act 1977 (hereafter "the Act of 1977"), as amended, and the two counts of offences were contrary to s. 15A of the Act of 1977, as amended. On arraignment on the 13 ^thFebruary, 2008, the respondent pleaded guilty and the matter was adjourned for sentencing on the 17 ^th June, 2008. The learned trial judge, His Honour Judge Patrick Moran subsequently imposed a sentence of six years imprisonment, the entirety of which was suspended on the basis that the respondent keep the peace and be of good behaviour for a period of three years.

3 The respondent at the date of sentence was twenty six years of age. He was in employment with a food distribution company, and he was in a long term relationship with his girlfriend and was the father of a young child aged one and a half. He had suffered a sports injury as a result of which he was unable to attend his place of employment to work. Despite this he remained in receipt of his 'flat rate' of pay of €580 per week. At the time, as his partner was also in employment, the net household income was €1,000. Whilst out of work he was, however, at a loss of earnings in respect of overtime and other additional payments, which he would normally have received on top of his 'flat rate' of pay. It was allegedly during this period of time when he was out of work that he began engaging in distributing drugs. The respondent had purchased a house in a new development and had moved into this house in the weeks prior to his arrest. He was paying a mortgage of around €800 per month for this property. It appears that he was out of work for a period of thirty to thirty one days before he commenced engaging in distributing drugs.

4 The respondent stood charged with possession of a quantity of drugs to include 726.996 grammes of Diamorphine (heroin) with a street value of €145,600. The charges related to an incident which occurred on the 27 ^th September, 2007, wherein the respondent was observed by the drug squad personnel, alighting from a car in the Shanakiel area of Cork city and placing an item at the base of an ESB pole. He got back into his car and was stopped approximately 100 yards away by the gardaí who conducted a search of the vehicle and found a number of bags containing heroin. The gardaí then went back to the ESB pole and upon searching the area found an ounce of heroin. The respondent was arrested and a search of his home was conducted under warrant. A further ounce of heroin was found concealed in a video cassette player in a spare bedroom.

5 The respondent was interviewed a number of times after the incident and admitted to acting in the capacity of store man and to distributing the heroin to various locations in Cork city. He also stated that he had received a kilo of heroin in the week prior to his arrest and that he had made three separate drops distributing a total of 9 ounces of heroin before his arrest. He claimed that he was to be paid €2,000 for his activities on the 27 ^th September. The respondent co-operated with the gardaí but did not disclose whom he was working for or who owned the drugs in question.

6 The respondent had no previous convictions at the date of his arrest and was not, himself a drug addict. He claimed to have engaged in the activity for the purpose of financial gain.

Particulars of Conviction and Indictment

7 The applicant was charged with nine counts on the indictment as follows:-

8 Count No. 1: Possession of a controlled drug contrary to s. 3 and s. 27 (as amended by s.6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

9 Count No. 2: Possession of a controlled drug for the purposes of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Misuse of Drugs Act 1977 and contrary to s. 15 and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

10 Count No. 3: Possession of a controlled drug for the purposes of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Misuse of Drugs Act 1977 at the time of possession, the market value of the controlled drugs amounting to €13,000.00 or more contrary to s. 15A of the Misuse of Drugs Act 1977, as inserted by s. 4 of the Criminal Justice Act 1999 and s. 27 (as amended by s. 5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977, as amended by s. 1 of the Euro Changeover (Amounts) Act 2001.

11 Count No. 4: Possession of a controlled drug contrary to s. 3 and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

12 Count No. 5: Possession of a controlled drug for the purposes of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Misuse of Drugs Act 1977 and contrary to s. 15 and s. 27 (as amended by s.6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

13 Count No. 6: Possession of a controlled drug contrary to s. 3 and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

14 Count No. 7: Possession of a controlled drug for the purposes of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Misuse of Drugs Act 1977 and contrary to s. 15 and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

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