DPP v Caldwell

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 14 June 2018
• Neutral Citation: [2018] IECA 183
• Docket Number: Record No: 204/2017
• Court: Court of Appeal (Ireland)
• Date: 14 June 2018

[2018] IECA 183

THE COURT OF APPEAL

Edwards J.

Mahon J.

Edwards J.

Hedigan J.

Record No: 204/2017

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

-V-

CONOR CALDWELL

APPELLANT

Crime & sentencing – Drugs – Cannabis – Possession of – Whether sentence severe – Challenge to sentence

Facts: The appellant had been convicted of unlawful possession of a substantial quantity of cannabis and sentenced to a term of imprisonment. The conviction followed a search of a premises used for a commercial growing operation. He now appealed against sentence.

Held by the Court that the appeal would be dismissed. The Court was satisfied the sentencing judge’s calculation of the headline sentence was within the range available to him, and had given due account of mitigating factors. DPP v. Peng Fei He [2017] IECA 313 distinguished.

JUDGMENT ( ex tempore) of the Court delivered on the 14th day of June, 2018 by Mr. Justice Edwards .

Introduction

1 On the 25th of May 2017, the appellant in this appeal pleaded guilty in Cork Circuit Criminal Court to one count of unlawful possession of a controlled drug, namely cannabis plants, worth in excess of €13,000 contrary, to s. 15A of the Misuse of Drugs Act, 1977, as amended by s. 4 of the Criminal Justice Act 1999.

2 On the 28th of July 2017, the appellant was sentenced to a period of seven years' imprisonment with the last three years suspended on the condition that the appellant remain under the direction of the Probation and Welfare Service for a period of 3 years and obey their lawful directions.

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

Background facts

4 At the sentence hearing, Detective Garda Manning gave evidence that, on the 18th of January 2016, the Cork West Divisional Drugs Unit searched a residence at The Rock, Dunmanway, Co. Cork. In the house there were two grow rooms on either side of the house and a large quantity of cannabis inside. There was approximately 7.2 kilos of cannabis inside the house and there was 33 fully mature cannabis plants in one of the grow rooms. The total value of the cannabis and cannabis plants was approximately €170,000.

5 Detective Garda Manning's evidence was that there were three people in the house at the time of the search, all of whom were arrested. The appellant was subsequently arrested at his residence and later in interview he admitted that he had rented the house; that he had invested €5,000 in equipment to set up the grow house and that he planned to make €50,000 to €60,000 profit from it. The evidence before the sentencing court was that the operation ‘didn't get to the stage where there was money involved’.

6 Under-cross examination, Detective Garda Manning accepted that the appellant had over-emphasised his role in the operation in that, during questioning with Gardaí, he indicated that he was essentially the boss of the operation with the other three working for him, whereas the position in fact seemed to be that the appellant and one of the other men arrested were jointly in charge and the other two were working for them. The Probation Report, dated 20th of July 2017, indicates that the appellant's ‘version of this charge is at complete odds to his statements in the book of evidence’. He described his role to the probation officer as merely ‘to collect money from other team members and pay the rent of the premises which was being used to grow cannabis’.

7 The evidence before the sentencing court was that the other three involved in the operation had fled the jurisdiction whilst awaiting trial and that European Arrest Warrants were being applied for in respect of them. The evidence was that two of the others involve were men in their thirtie's, one of whom ‘was seriously, seriously involved’, while the third person was a woman, a little younger than the appellant.

Appellant's personal circumstances

8 The appellant was 24 years old at the time of sentencing. He was raised in Kilmichael, Co. Cork. The sentencing court heard that he had had a difficult upbringing, precipitated by the loss of his father when he was six years old. His father was thirty seven years old when he died and alcohol abuse contributed to his death. His parents had separated prior to his father's death. The appellant lives in Kilmichael with his mother, brother and sister, with whom he reports to have a good relationship with.

9 The probation report before the sentencing court, dated 20th of July 2017, indicates that the appellant is dyslexic and did not enjoy mainstream education as a result. He completed the Leaving Certificate Applied course. There was a GP's letter before the sentencing court which indicated that he (the GP) had been seeing the appellant for treatment of anxiety which had gradually escalated into depression.

10 The evidence before the court was that the appellant was someone who had never been in prison before and would find such an experience very difficult. Under-cross examination, Detective Garda Manning accepted that there was a certain level of naivety on the part of the appellant in terms of describing his role in the operation.

11 Detective Garda Manning accepted that the appellant was co-operative and easy to deal with, despite requiring a bit of patience initially. It was also accepted that the appellant was not a person of violent disposition.

12 The appellant has no previous convictions.

13 The sentencing court heard that the appellant was abusing cannabis at the time of the offence, but that he...