DPP v Christopher Smith
| Jurisdiction | Ireland |
| Judge | Denham C.J. |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] IECCA 44 |
| Docket Number | CCA No: 324/10 |
| Court | Court of Criminal Appeal |
| Date | 31 July 2013 |
and
[2013] IECCA 44
Court of Criminal Appeal
Criminal law – Misuse of drugs - Intent to supply - Appeal against sentence - Consecutive - Concurrent - Offence committed whilst on bail - Legislative interpretation - Misuse of Drugs Act 1977 - Criminal Justice Act 1984
Facts: On the 8th November 2010, the appellant pleaded guilty to an offence contrary to s. 15 of the Misuse of Drugs Act 1977 (the ‘1977 Act’). At that time, the appellant was serving a three year imprisonment sentence for theft, and a ten year imprisonment sentence for an offence contrary to s. 15A of the 1977 Act with the last seven years suspended. Both sentences were being served consecutively. The appellant was sentenced to three years imprisonment for the offence under s. 15 of the 1977 Act. Because that offence was committed whilst the appellant was on bail awaiting trial, it was ordered that it was mandatory that the three year imprisonment sentence should be served consecutively with the sentences he was then currently serving.
The appellant launched an appeal on the basis that the order that the sentence for the conviction under s. 15 of the 1977 Act would be served consecutively should only have applied to the theft conviction. It was argued that unlike the theft offence, the s. 15A offence occurred subsequently to the s. 15 offence; therefore, it should have been ordered that those two offences were to be served concurrently pursuant to s. 11(1) of the Criminal Justice Act 1984 (the ‘1984 Act’). The respondent argued that the dates of the commission of the offences were irrelevant as the s. 15 offence occurred when the appellant was on bail. It was said that it was mandatory that the s. 15 offence be served consecutively with the existing two sentences for that reason otherwise the appellant would serve no additional time imprisoned.
Held by Denham C.J. that the key issue to be determined was whether the wording in s. 11 of the 1984 Act that an offence committed whilst the offender was on bail should be served consecutively to a sentence in respect of a previous offence, referred to an offence that occurred previous to the sentencing hearing or whether it referred to an offence which occurred previously to the offence which was committed on bail. There was no doubt that the s. 15 offence had occurred prior to the s. 15A offence.
On consideration of s. 11 of the 1984 Act, it was determined that the latter interpretation was correct as the words ‘previous offence’ had been used instead of ‘previous sentence’. The judgment of The People (D.P.P.) v. Robinson (ex tempore, Court of Criminal Appeal, Hardiman J., 20th December, 2002) was therefore approved and applied to the appellant”s case. The appeal was allowed and the sentence was modified so that it would be served consecutively with the sentence for the theft offence only.
Appeal allowed.
CRIMINAL JUSTICE ACT 1984 S11(1)
MISUSE OF DRUGS ACT 1977 S15(A)
DPP v DENNIGAN (EX TEMPORE) UNREP CCA 27.11.1989 [TRANSCRIPT NOT AVAILABLE]
DPP v YUSUF 2008 4 IR 204
DPP v ROBINSON UNREP CCA 20.12.2002 2002/10/2300
DPP v COLE UNREP CCA 31.7.2003 2003/14/3112
This is an appeal by Christopher Smith, the appellant, referred to as "the appellant", from the sentence imposed by the Dublin Circuit Criminal Court.
When this appeal was commenced before the Court, counsel for the appellant said that he was advancing a new point under s. 11(1) of the Criminal Justice Act,1984. He argued that while it was mandatory to impose a consecutive sentence, the learned trial judge should have applied the consecutive ruling only in relation to the theft offence, as the other offence referred to was a subsequent, and not a previous, offence. This submission requires consideration of the facts of the case and the law.
The appellant pleaded guilty on the 8th November, 2010 to Count No. 6 on indictment Bill No. DU 962/07, which was a s. 15 offence contrary to the Misuse of Drugs Act, 1977, as amended. He was sentenced by the Dublin Circuit Criminal Court (Judge McCartan) on the 13th December, 2010, to three years imprisonment, consecutive to the sentence then being served.
The sentence the appellant was then serving was a sentence imposed by Judge O'Donnell on the 15th December, 2009, being three years imprisonment for an offence of theft, while a consecutive sentence of ten years for a s. 15A offence was imposed also, with the final seven years of the later sentence suspended on specific terms.
The offence in issue on this appeal was committed while the appellant was on bail and therefore a consecutive sentence is mandatory in the circumstances.
It was accepted that the appellant must get a consecutive sentence.
However, the dates of the two offences dealt with by Judge O'Donnell on the 15th December, 2009, were submitted to be relevant. The theft offence pre dates the date of the offence the subject matter of this appeal. The s. 15A offence post dates the date of the offence the subject matter of this appeal.
It was submitted,inter alia, that the sentence should not have been consecutive to the sentence imposed for the s. 15A offence as it post dated the date of the offence the subject of this appeal.
"Right, thank you. Well, the accused man comes before me for sentence today in respect of a very serious offence, that is the possession of €13,000 worth of cocaine. That evidence wasn't given in court today, but I know that from the evidence given by Garda Scanlon on the last day when I dealt with his co-accused Mr. Duffy. And that was a significant amount. The advice I was given by Detective or Garda Scanlon and he confirms it today, that the quantity of drug was being delivered by Mr. Duffy, his co-accused, to Mr. Smith, who was then going to dispose of it by selling it on. It was a significant amount and in itself is a serious matter."
In dealing with the co-accused, Mr. Dunphy, who in some respects is similar to this man here, I had come to the conclusion that he was manipulating, sometimes I use the expression playing the lists, so as to avoid the rigour of the law. That co-accused had a case put back before Judge Murphy to next July on the basis he was given a chance and he was doing well and studying and the like. But I wasn't impressed with the way the case had been dealt with, the fact that she hadn't been told fully of what his position was, and I sentenced him to seven years' imprisonment and I suspended a significant proportion of that sentence. I mention that because the tariff has already been laid down; the likely position is already there. It's a serious matter; it must attract a serious sentence.
However, the law does require me to measure any consecutive sentence which must be imposed and which will be imposed in this case, for the reasons I will explain, that it is measured, having regard to the position of the accused overall. And he is at the moment serving a significant sentence but has been given very considerable leniency by my colleague, Judge O'Donnell. In the case Judge O'Donnell dealt with he was found with close on €200,000 worth of heroin, and a sentence was imposed on him, which measured and reflected the - firstly seriousness of that particular case and also the legislation requiring a minimum sentence of 10 years, unless there are excusing, extraordinary factors. And that is most significant. I can't second guess the mind of a colleague, but I have absolutely no doubt that Mr Smith would not have been extended the degree of leniency he was if my colleague, in considering the provisions of section 15A, was doing so in the context that the accused had in the months and year after committed or before committed a similar offence to the case he was dealing with. It would have had to have had a significant impact.
It would appear that the accused had elected, in respect of this particular case before me today, to plead not guilty and held that plea up until the day of his trial in circumstances where he had effectively no way to go. He was caught in the motorcar with the drugs there. His house - the car was parked in his house, his premises, his own bedroom being searched was found to have a safe and in the safe a plethora of other drugs. So the evidence against the accused, Mr Smith, was overwhelming, but nonetheless he held his hand and made no answer other than he was not guilty until the day of his trial, until, I'm satisfied, he had the other, more serious matter out of the way. It is, and would have been far better, in my mind, for Mr Smith to have put all of his cards or all of his position before his sentencing judge, Judge O'Donnell, when he was dealt with in December 2009. So I have to have regard to all of that.
He has pleaded guilty but, as I say, he had little option and didn't do so until a very late stage in the proceedings, the day of his trial. And sought, to my mind, to avoid this matter coming to the attention of the sentencing courts until he had the more serious matter dealt with and disposed of.
The documentation before me, as to how he's doing in prison is conflicting. On the one hand, he is clearly a model prisoner who has been transferred to the remand prison as a trustee, I think is how they describe them, because he's useful and reliable. And at the same time, he is studying. But he has failed or refused, the report says, to provide two samples for the purposes of assessing that he's drug free. Mr Smith says that if blood was taken from him, that would be...
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