DPP v Broszczack

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 19 April 2016
• Neutral Citation: [2016] IECA 121
• Docket Number: Record No. CCA250/14
• Court: Court of Appeal (Ireland)
• Date: 19 April 2016

Birmingham J.

Sheehan J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Jerzy Broszczack

Appellant

[2016] IECA 121

Record No. CCA250/14

THE COURT OF APPEAL

Sentencing ? Drug offences ? Severity of sentence ? Appellant seeking to appeal against sentence ? Whether sentence was unduly severe

Facts: The appellant, Mr Broszczack, is a foreign national. On the 5th February, 2014, he was an occupant of a car along with a Mr Majewski at Field?s car park, Carrigfadda in Skibbereen. In the course of a Gardaí surveillance operation, the occupants were observed engaging in a transaction with a known drug dealer. They were stopped by Gardaí and all were searched. The drug dealer had received a package from the occupants containing ?6,000 worth of cannabis, and approximately ?2,855 was found in the car. Both the appellant and Mr Majewski were arrested on suspicion of having been in possession of drugs for sale or supply. Both men were interviewed while in detention and both volunteered information that there was a large quantity of cannabis at Mr Majewski?s home at Crookstown, Pullerick, Co Cork. A quantity of cannabis was in fact found at that location, worth approximately ?18,000. On the 29th October, 2014, the appellant pleaded guilty before Cork Circuit Criminal Court to one count of being in possession of a controlled drug amounting to ?13,000 or more, to wit, cannabis, for the purpose of selling or otherwise supplying the said drug to another, contrary to s. 15A of the Misuse of Drugs Act 1977. The appellant was sentenced to seven years imprisonment to date from the 6th February, 2014, with the final three years of the said sentence suspended on conditions. The appellant appealed to the Court of Appeal against the severity of his sentence on the grounds that the sentencing judge: (i) erred in all the circumstances in making it a condition of the suspension of a portion of the sentence that the appellant enter into a bond to depart from the country and remain outside for a period of seven years from the date of release; (ii) did not give sufficient weight and balance to the evidence adduced in mitigation of sentence; (iii) did not give sufficient weight to the appellant?s plea of guilty; (iv) did not give sufficient weight to the material assistance given by the appellant; (v) failed to give sufficient weight to the fact that the appellant had no previous convictions; (vi) failed to distinguish properly between the appellant and his co?defendant in imposing sentence. The respondent, the DPP, submitted that an offence under s. 15A represents criminal conduct that seriously offends against strongly stated public policy and, in circumstances where the appellant had only the most tenuous links to the State, that the sentencing judge was justified in attaching the condition in question to his proposed part suspension of the sentence imposed on the appellant, applying The People (DPP) v Alexiou?[2003] 3 IR 513. It was further submitted that the appellant received an appropriate discount in mitigation in circumstances where he had not just avoided the presumptive mandatory minimum sentence of ten years by a margin of some three years, but had been afforded the opportunity of not having to serve the final three years of the remaining seven years identified by the sentencing judge as being the appropriate headline sentence. The respondent submitted that the differentiation between the appellant and Mr Majewski in passing sentence was justified on the basis that the appellant and his co?accused had pleaded guilty to different offences. Moreover, there was evidence that Mr Majewski had played a much lesser role than the appellant in the overall scheme giving rise to the charges against both men.

Held by Edwards J that the Circuit Court judge had all the necessary information to enable him to make a proportionate judgment concerning whether or not to impose a condition in deciding to suspend part of the appellant?s sentence. The Court was satisfied that the imposition of such a condition was reasonable and proportionate in the circumstances. The Court did not consider that the imposition of the condition was so onerous as to fundamentally impact upon, and undermine, the exercise that the sentencing judge had been engaged in,?namely seeking to adequately reflect the mitigating circumstances in the case by the suspension of the final three years of the headline sentence. The Court was satisfied that an effective three year discount was sufficient. The Court held that the differentiation was justified.

Edwards J held that the appellant had not demonstrated that the sentencing judge committed any error of principle. The Court dismissed the appeal on all grounds.

Appeal dismissed.

Judgment of the Court delivered on the 19th day of April, 2016, by Mr. Justice Edwards

Introduction

1 This is a case in which, on the 29th of October, 2014, the appellant pleaded guilty before Cork Circuit Criminal Court to one count of being in possession, on the 5th of February, 2014, of a controlled drug amounting to ?13,000 or more, to wit, Cannabis, for the purpose of selling or otherwise supplying the said drug to another, contrary to section 15A of the Misuse of Drugs Act 1977 (the Act of 1977) as amended.

2 The appellant was sentenced to seven years imprisonment to date from the 6th of February, 2014, with the final three years of the said sentence suspended on conditions.

3 The appellant now appeals against the severity of his sentence.

The Facts of the Case

4 According to evidence led from Detective Garda Andrew Manning, members of An Garda Síochána had received a report of suspicious activity on the 29th of January, 2014, at Field's car park, Carrigfadda in Skibbereen, where the occupants of a Renault Mégane were observed to be engaged in some form of transaction with a man from Skibbereen, who was a known drug dealer. A surveillance operation was put in place. The following week, the same car arrived at the same location, and the same drug dealer from Skibbereen was observed to approach the car. He was observed receiving a package from the occupants of the car, following which he attempted to depart the scene. He was stopped by Gardaí, as were the occupants of the car, and all were searched. The package that had been handed over contained ?6,000 worth of cannabis, and approximately ?2,855 was found in the car.

5 The occupant's of the car were identified as two foreign nationals, the appellant Mr. Jerzy Broszcack and a Mr. David Majewski. They were both arrested on suspicion of having been in possession of drugs for sale or supply, and taken to Bandon Garda Station. They were detained there for the proper investigation of the offence for which they had each been arrested.

6 Both men were interviewed while in detention. Both, in the course of being interviewed, volunteered information that there was a large quantity of cannabis at Mr. Majewski's home at Crookstown, Pullerick, Co Cork. Mr. Majewski claimed that such cannabis was not his, and the Gardaí subsequently became satisfied that this assertion was correct. Following receipt of the information concerning a possible large quantity of cannabis at Mr. Majewski's home, Gardaí proceeded to that location and conducted a search of it. A quantity of cannabis was in fact found at that location, worth approximately ?18,000.

7 Both men were charged with various drugs offences arising out of these events. The s. 15A offence to which the appellant pleaded guilty, which plea was acceptable to the respondent who later entered a nolle prosequi in relation to all other charges against the appellant, related to the finding of drugs at Mr. Majewski's home at Crookstown, Pullerick, Co Cork.

8 Mr. Majewski separately pleaded guilty to a charge of possession of drugs for the purpose of sale or supply contrary to s. 15 of the Act of 1977. This related to the incident in Field's car park. Again this plea was acceptable to the respondent, who later entered a nolle prosequi in relation to all other charges against Mr. Majewski. It was accepted at Mr. Majewski's sentencing that he had played a minor part in the enterprise. It was accepted that his role had been limited to allowing the appellant to keep his (the appellant's) drugs in his house and that he had driven the appellant to Skibbereen to sell cannabis. The evidence was that he was due to receive very little for his participation, and had been a pawn in the enterprise.

9 On the 4th day of November, 2014, Mr. David Majewski had been sentenced to a period of eighteen months imprisonment fully suspended on condition that he enter into a bond to be of good behaviour and keep the peace for a period of eighteen months.

10 In the present case, the sentencing court heard that the appellant was a 25 year old Polish national who had been in the jurisdiction for eight months prior to his arrest. The court was told that he had not worked in this country, was presently unemployed and was not in receipt of social welfare. He had no previous convictions. He was said to have a seven year old daughter in Poland. Both his parents had died when he was a young. The court was told he had only recently lost his 19 year old brother, who had died some weeks previously in a violent incident in Poland.

The Judge's Sentencing Remarks

11 In sentencing the appellant, the sentencing judge stated:-

?Mr. Broszcak has pleaded guilty to an offence of section 15A, the value of the drugs being approximately ?18,000. Ms Farrelly is correct in that the value of the drugs is a relevant matter and it is not hugely over the threshold for a section 15A but it is a section 15A case. More importantly from my point of view, this man was selling drugs as a business venture, and he was doing that after eight months in this country. It's an achievement...