DPP v Cooke

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 19 January 2015
• Neutral Citation: [2015] IECA 5,[2015] IECCA 5
• Docket Number: Appeal Number: 77 & 78CJA/13
• Court: Court of Criminal Appeal
• Date: 19 January 2015

In the matter of s. 2 of the Criminal Justice Act 1993

THE PEOPLE (at the suit of the DIRECTOR OF PUBLIC PROSECUTIONS)

Applicant

AND

BRIAN BYRNE AND EOGHAN PHAYER

Respondent(s)

[2015] IECA 5

Appeal Number: 77 & 78CJA/13

THE COURT OF APPEAL

1 1. On 8 ^th December 2014 the court dealt with two applications brought by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of the sentences that had been imposed upon the respondents at Ennis Circuit Court on 25 ^th February, 2013, on the grounds of undue leniency. Having heard the submissions of the parties on that date, the court delivered an ex tempore judgement in which it set out the basis for its conclusions that the sentences should be set aside on such grounds. Further submissions were then heard and additional materials received relevant to the sentence that the Court should now impose upon the respondents. At that point the Court then adjourned the proceedings to allow it provide a fuller statement of the reasons underlying its decision. What follows is the Court's consideration of such matters.

2 2. The respondents were initially charged with three offences under the Misuse of Drugs Act, 1977, as amended. Both men entered guilty pleas to count number 1, namely possession for sale and supply of a controlled drug having an aggregate value in excess of €13,000 contrary to s. 15A thereof. A nolle prosequi was entered in respect of the other counts.

3 3. As to the sentence imposed, both respondents were sentenced to a term of five years imprisonment. The sentencing judge then proceeded to suspend the entirety of that sentence for a period of five years from 25 ^th February, 2013, on condition that they each enter into a bond of €500 to keep the peace and be of good behaviour.

The Offence

4 4. The circumstances of the offence were that, further to a search warrant, members of An Garda Sioacute;ochána carried out a search of certain premises at Aharinaghmore in Co. Clare. Both respondents were present on the premises at the time of the search. In the attic the Gardai located what was described later as a sophisticated grow house with three hundred or so cannabis plants in various stages of growth. Regardless of the size or maturation of the plants, each was valued by Garda Walsh at €400, thus giving a total value of €120,000 to the drugs present.

5 5. As to Mr. Phayer's involvement, he initially denied all knowledge of the operation in the attic and even denied the presence of an attic in the house. In the course of his first five interviews he maintained he was merely working as an electrician at the premises, but on his sixth interview he admitted his involvement in setting up the grow house. Mr. Phayer also admitted to having sourced some of the materials necessary for the operation in Limerick and to having been involved in its maintenance. In addition, he advised Garda Kelly that the cannabis crop was expected to produce some forty to fifty thousand euro, in terms of turnover, every six weeks.

6 6. As to Mr. Phayer's personal circumstances, he had no previous convictions, was thirty four years of age and was single at the time. He was under financial pressure and had significant testimonials to support his good character.

7 7. As to Mr. Byrne, who is also an electrician, he immediately admitted his involvement in the enterprise during the search of the premises. He admitted having been involved in the setting up and maintenance of the grow house. Mr. Byrne stated that he was under financial pressure and wanted to make some money from the enterprise. He fully co-operated with the Gardai, subject to not naming the main operator of the grow house, whom Garda Kelly accepted was a dangerous individual.

8 8. As to his personal circumstances, Mr. Byrne was thirty two years of age at the time and the father of two children. He was in financial difficulty and had no previous convictions. Mr. Byrne, according to a range of testimonials from past employers, family members and neighbour, was a man of apparent good character.

Submissions

9 9. Counsel of behalf of the Director of Public Prosecutions, in addition to the matters raised in her written submissions, made a number of specific points to the Court.

10 10. Firstly, she claimed that the sentences imposed on these respondents were unduly lenient and that there were no exceptional and specific circumstances such as would have justified the sentencing judge departing from the presumptive minimum imprisonment sentence of ten years for this type of offence and substituting it with a wholly suspended sentence.

11 11. Secondly, she submitted that the sentencing judge had not paid sufficient regard to the gravity and seriousness of the offence which was, she maintained, a sophisticated ongoing operation. He had, she maintained, afforded too much credit to the respondents in respect of the mitigating factors.

12 12. Finally, counsel submitted that the sentencing judge had fallen into error in treating the fact that the lead player in the operation was not before the court as a mitigating factor. Overall, the sentence imposed was, she maintained, unduly lenient and amounted to a substantial departure from what might be considered appropriate having regard to the circumstances of the offence as committed by these respondents,

13 13. Counsel for Mr. Byrne, in addition to his written submissions, maintained that there were wholly exceptional circumstances such as justified the imposition of a wholly suspended sentence. He placed significant emphasis on the early and significant nature of the admissions made by his client which established the mens rea of the offence. Counsel also maintained that the plea of guilty was wholly exceptional in that his client had foregone the opportunity to contest the charges in circumstances where proof of the offence could have been extremely difficult for a number of reasons. In particular, he submitted that proof of the value of the drugs would have been problematic for the DPP, given that the plants, in many instances, were only partly grown. He maintained that, having regard to all of the mitigating factors that this case fell into that exceptional category of case where the trial judge was entitled to take a lenient view and impose a wholly suspended sentence.

14 14. Counsel on Mr. Phayer's behalf, in addition to his written submissions, maintained that no error in principle had been identified by the Director such as would justify this Court interfering with the sentence imposed. He submitted that the circumstances of the offence and the personal circumstances of his client were so exceptional that the trial judge was entitled to depart from the presumptive mandatory minimum custodial sentence. Counsel emphasised his guilty plea, and the other very significant mitigating factors such as his immediate admissions, his cooperation with in the investigation of the offence, his remorse and his fall from grace within the community. He also reminded the Court that his client did not get away scot free, so to speak, having committed a serious offence. A sentence of five year imprisonment had been imposed and although fully suspended it would hang over him for a period of five years.

Decision

15 15. The principles to be applied by this Court on an application such as this are set out in a number of decisions, including that of the Court of Criminal Appeal in DPP v Byrne [1995] 1 ILRM 279,where at page 287 O'Flaherty J summarised the same in the following manner:

(1) Since the Director of Public Prosecutions brings the appeal, the onus of proof clearly rests on him to show that the sentence called in question was unduly lenient.

(2) The Court should always afford great weight to the trial judge's reasons for imposing the sentence that is called in question. He is the one who receives the evidence at first hand. He may detect nuances in the evidence that may not be as readily discernible to an Appellate Court, In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person sentenced his decision should not be disturbed.

(3) It is unlikely to be of help to ask if there had been imposed a more severe sentence, would it have been upheld on appeal by an Appellant as being right in principle. And that is because the test to be applied under the section is not the converse of the inquiry the Court makes when there is an appeal by an Appellant. The inquiry the Court makes in this form of appeal is to determine whether the sentence was unduly lenient.

(4) It is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court."

16 16. Accordingly, this Court cannot set aside a sentence as being unduly lenient purely on the basis that it would have imposed a greater sentence had it been charged with the imposition of sentence. Nothing less than a substantial departure from what would be regarded as the appropriate sentence can justify the intervention of the Court with respect to the original sentence.

17 17. Thus, the starting point for this application must be an analysis of what might reasonably be considered to be an appropriate sentence for this type of offence as committed by these respondents. That analysis must take place against the backdrop of the relevant statutory provisions, given that the offence under consideration is one in respect of which the legislature has specified the manner in which the court must approach the imposition of sentence.

18 18. Section 27 of...