DPP v Burke

JurisdictionIreland
JudgeDenham J.
Judgment Date10 February 2011
Neutral Citation[2011] IECCA 1
CourtCourt of Criminal Appeal
Date10 February 2011

[2011] IECCA 1

THE COURT OF CRIMINAL APPEAL

Denham J.

Budd J.

McMahon J.

[C.C.A. No: 190 CJA/09]
DPP v Burke
15.02.11
Between/
The People (at the suit of the Director of Public Prosecutions)
Applicant

And

Peter Burke
Respondent

CRIMINAL JUSTICE ACT 1993 S2

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1984 S6

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS REGS 1988 SI 328/1988

MISUSE OF DRUGS (AMDT) REGS 1993 SI 342/1993

MISUSE OF DRUGS ACT 1977 S5

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S15A

DPP v BYRNE 1995 1 ILRM 279 1995/5/1758

DPP v MCGINTY 2007 1 IR 633 2006 IECCA 37

Abstract:

Criminal law - Review of sentence - Unduly lenient - Misuse of drugs - Criminal Justice Act, 1993 - Whether the sentence imposed on the respondent in this case which was suspended in order to allow the respondent attend a residential programme in Coolmine was unduly lenient.

Facts The applicant applied pursuant to s. 2 of the Criminal Justice Act, 1993 for a review of the sentence imposed on the respondent by the Circuit Court. The respondent had signed pleas of guilty in respect of two offences, namely possession of Cocaine and possession of Cocaine for sale or supply. On 25 June 2009 the Circuit Court imposed a sentence of three and a half years imprisonment in respect of the section 15 offence and that sentence was backdated to the date the respondent went into custody in respect of the matter. The balance of the sentence was suspended from 29 June 2009 so as to enable the respondent commence a course at Coolmine on 30 June 2009 and the respondent was obliged to undertake to complete that 18 month residential Coolmine course. The learned sentencing Judge identified the offence as at the middle range downwards and he noted the respondent had a chronic drug problem but had taken substantial steps in respect of rehabilitation. The learned judge also identified aggravating factors. It was submitted on behalf of the applicant that the sentence imposed was unduly lenient having regard to all the circumstances of the case. It was also submitted that the sentence did not adequately reflect the grave nature of the charge, the amount of drugs seized, the type of drugs and the seriousness of the respondent's previous convictions, including a conviction for an offence contrary to s. 15A of the Misuse of Drugs Act, 1977, as amended. It was further submitted that the learned sentencing judge erred in finding as a fact that the respondent was a very small player in respect of drugs, evidence which was not adduced by or on behalf of the prosecution or at all in this case and also that the length of the sentence, and in particular the suspension of all but the period of four months previously served failed to reflect adequately the seriousness of the offence. The transcript relating to the sentencing of the respondent was available to the court.

Held by C.C.A.; Denham J. (Budd, McMahon JJ) (ex tempore) in dismissing the application: That it was well established from previous case law that nothing but a substantial departure from what would be regarded as the appropriate sentence would justify an intervention by this Court. The learned trial judge considered the facts carefully and balanced the relevant factors herein. The learned trial judge was entitled to have compassion and to enable the respondent to take up the place in Coolmine, given the facts of the case. Although the respondent received a lenient sentence it was conditional on his meeting the terms of the suspension as set out by the sentencing judge. In the circumstances of this case the learned trial judge kept a just balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the respondent. There was no error in principle.

Reporter: L.O'S.

1

Judgment (ex tempore) of the Court delivered on the 10th day of February, 2011, by Denham J.

2

1. This is an application by the Director of Public Prosecutions pursuant to s.2 of the Criminal Justice Act, 1993, for review of the sentence imposed on Peter Burke, the respondent, on the 25 th day of June, 2009, by the Circuit Criminal Court sitting at Naas.

3

2. The respondent was charged with the following two offences:-

4

Count No.1

5

STATEMENT OF OFFENCE

6

Possession of a controlled drug for the purpose of sale or supply contrary to Section 15 (as amended by Section 6 of the Misuse of Drugs Act, 1984) and Section 27 (as amended by Section 6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977

7

PARTICULARS OF OFFENCE

8

Peter Burke on the 4th day of November 2008 at Great Southern, Newbridge in the County of Kildare had in his possession a controlled drug namely Cocaine for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations, 1988 and 1993 made under Section 5 of the Misuse of Drugs Act, 1977.

9

Count No.2

10

STATEMENT OF OFFENCE Unlawful possession of a controlled drug contrary to Section 3 and Section 27 (as amended by Section 6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977

11

PARTICULARS OF OFFENCE

12

Peter Burke on the 4th day of November 2008 at Great Southern, Newbridge in the County of Kildare had in his unlawful possession a controlled drug namely Cocaine.

13

3. The respondent went forward to the Circuit Criminal Court on signed pleas of guilty from the District Court, which guilty pleas were affirmed on the 10 th June, 2009.

14

4. On the 25 th June, 2009, the Circuit Criminal Court made an order imposing a sentence of three and a half years imprisonment in respect of the s.15 matter. That sentence was backdated to the 25 th February, 2009, when the respondent went into custody in relation to the matter. The balance of the sentence was suspended from the 29 th June, 2009, to enable the respondent commence a course at Coolmine on the 30 th June, 2009. The respondent was placed on his own bond of €200 to keep the peace and be of good behaviour for four years from the 26 th June, 2009. In addition the respondent was obliged to undertake to complete the 18 month residential Coolmine course commencing on the 30 th June, 2009.

15

The guilty plea in relation to the s.3 offence was taken into consideration.

16

5. In sentencing the respondent Judge O'Shea stated:-

"Garda Leona Cost has outlined these circumstances in relation to the drug offence that occurred on the 4th of September 2008 at Great Southern, Newbridge, County Kildare, when Mr Burke was observed carrying a bag. He was walking along in the area and he was followed by the guards and he was stopped and the bag was searched and cocaine was found in the bag. When he gave evidence himself, he said that he was doing this for the payment of a debt and that was the reason. He had been recently released from prison and the purpose of doing this was for paying a debt and they said this section [section 15 charge]… the maximum custodial prison sentence for section 15 on this count is life imprisonment and I must decide whether this count lies in respect of the maximum sentence, I'm satisfied would be in the middle range downwards. Then I must have regard to his personal circumstances. He is now aged 40 years, he left school at 13 years, he was a carpenter and he was a jockey and he spent 15 years working with horses and has a very good work ethic. He comes from difficult family circumstances and he developed a chronic drug problem. He has three children and he has grandchildren. While in - it appears that he has been in custody in respect of this matter since the 25 th February 2009 and it appears that he has made substantial progress in respect of his drug addiction."

17

Initially it was cannabis and then he got addicted to heroin, but he's made substantial steps in respect of dealing with his drug problem, which I will deal with later on in more detail again. In. mitigation, there was an early plea of guilty, there was co-operation with the guards, he has - whereas - my apologies, no, he has co-operated with the guards and has made substantial steps, taken substantial steps in respect of his drug problem and in respect of rehabilitation. He has also been assessed as suitable for a course in Coolmine, residential treatment, an 18-month course and the reason that I say that is that he has been assessed as suitable by reason of the fact that he has taken, or made substantial steps himself, but of course, further rehabilitation is required and that is the purpose of Coolmine, to deal with drug addicts such as Mr Burke. The aggravating factors in the case are that this is a serious offence. Whereas he was a very small player in respect of the drugs, nevertheless he was an important link in the sale and supply of drugs because without the smaller players, without the people who are willing to take the risks at the street level, or the ground level, it means the middle-area people, or the middle-drug people, can't thrive, which in turn means that the drug barons can't thrive, in this appalling matter...

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