DPP v Daly

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: McKechnie J.
• Judgment Date: 20 October 2011
• Neutral Citation: [2011] IECCA 104
• Date: 20 October 2011
• Docket Number: [C.C.A. No.

DPP v Daly

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

JOSEPH DALY

APPELLANT

[2011] IECCA 104

McKECHNIE J.

BUDD J.

O'KEEFFE J.

C.C.A. No. 219 of 2008

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Sentence

Severity - Parity - Minimum sentence - Approach to sentencing - Relevance of type of drug - Principle of deterrence - Application of rule of parity - Effect of plea on sentence - Whether trial judge erred in consideration of factors offered as mitigation - Whether trial judge erred in handing down sentence disparate to sentences handed down to co-accused - People (DPP) v M [1994] 3 IR 306 applied; People (DPP) v O'Sullivan (Unrep, CCA, 22/3/2002) approved; People (DPP) v Renald (Unrep, CCCA, 23/11/2001) distinguished; People (DPP) v O'Toole (Unrep, CCA, 25/3/2003); People (DPP) v Gilligan [No 2] [2004] 3 IR 87, People (DPP) v Long [2006] IECCA 49, (Unrep, CCA, 7/4/2006), People (DPP) v Preston (Unrep, CCA, 23/10/1984), People (Attorney General) v Poyning [1972] IR 402, R v Tisalandis [1982] 2 NSWLR 430 and R v Glasby [2000] NSWCCA 83, People (DPP) v Duffy [2003] 2 IR 192, People (DPP) v Mackey [2004] IECCA 45, [2005] 1 ILRM 481 and Lowe v The Queen (1984) 54 ALR 193 approved - Misuse of Drugs Act 1977 (No 12), ss 3, 5, 15, 15A and 27 - Leave to appeal sentence refused (219/2008 - CCA - 20/10/2011) [2011] IECCA 104

People (DPP) v Daly

MISUSE OF DRUGS ACT 1977 S15A

MISUSE OF DRUGS ACT 1977 S5

CRIMINAL JUSTICE ACT 1999 S4

MISUSE OF DRUGS ACT 1977 S27

CRIMINAL JUSTICE ACT 1999 S5

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S15

CRIMINAL JUSTICE ACT 2006 S84

CRIMINAL JUSTICE ACT 2007 S33

DPP v RENALD UNREP CCA 23.11.2001 2001/8/2140

MISUSE OF DRUGS ACT 1977 S27(3D)(B)

DPP v O'TOOLE UNREP CCA 25.3.2003 2003/19/4412

DPP v GILLIGAN (NO 2) 2004 3 IR 87 2003/16/3559

R v KIDD & ORS 1998 1 WLR 604 1998 1 AER 42

DPP v LONG UNREP CCA 7.4.2006 2006/19/3939 2006 IECCA 49

DPP v M 1994 3 IR 306 1994 2 ILRM 541 1994/9/2641

DPP v O'SULLIVAN UNREP CCA 22.3.2002 2003/19/4380

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 141

DPP v HOGARTY UNREP CCA 21.12.2001 2001/7/1848

DPP v CHILLIS UNREP CCA 25.7.2002 2003/14/3092

DPP v CLARKE UNREP CCA 17.11.1997 1998/4/815

DPP v PRESTON UNREP CCA 23.10.1984 (EX TEMPORE)

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 37

AG, PEOPLE v POYNING 1972 IR 402

DPP v DUFFY & O'TOOLE 2003 2 IR 192 2003/15/3296

DPP v MACKEY 2005 1 ILRM 481 2004/16/3598 2004 IECCA 45

LOWE v R 154 CLR 606 1984 HCA 46

R v TISALANDIS 1982 2 NSWLR 430

CRIMINAL JUSTICE ACT 1993 S2

POSTIGLIONE v R 189 CLR 295 145 ALR 408 1997 HCA 26

R v MACGOWAN 1986 42 SASR 580

R v DJUKIC UNREP 13.12.2001 2001 VSCA 226

R v KAIROUZ UNREP 2005 NSWCCA 247

R v ROBSON & EAST 1970 CRIM LR 354

R v GLASBY UNREP 22.6.2000 2000 NSWCCA 83

DPP v MALONEY 3 FREWEN 267

DPP v GILLANE UNREP CCA 21.12.1998 1999/7/1744

DPP v SHEKALE UNREP 25.2.2008 2008/21/4579 2008 IECCA 28

R v GRAY 1977 VR 225

SIGANTO v R 194 CLR 656 159 ALR 94 1998 HCA 74

R v BENJAMIN (ORSE ERWEE) UNREP CCA 14.1.2002 2003/14/2948

1 20th day of October, 2011, by McKechnie J.

2 1. The appellant in this case, after a 42 day hearing, was convicted by unanimous jury verdict in Cork Circuit Criminal Court on the 22nd July, 2008, of the three offences alleged against him. Two co-accused, Perry Wharrie and Martin Wanden, who faced similar charges, were likewise convicted on the same occasion. The fourth person named on the indictment, Gerard Hagan, who before trial had pleaded guilty, was subsequently dealt with in the manner later described.

3 2. Count No. 1 on the indictment, which shall be referred to as the Section 15A offence, reads as follows:-

4 Statement of Offence

5 Possession of a Controlled Drug, to wit, Cocaine, in contravention of the Misuse of Drugs Regulations 1998 and 1993 made under section 5 of the Misuse of Drugs Act 1977, contrary to Section 15A (as inserted by Section 4 of the Criminal Justice Act 1999) and Section 27 (as amended by Section 5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977.

6 Particulars of Offence

7 Joseph Daly had, on the 2nd July, 2007, at Dunlough Bay, Mizen Head, Bantry, Co. Cork, unlawfully in his possession, a Controlled Drug, to wit, Cocaine, for the purpose of the selling or supplying it to another and at the time while the drug was in his possession the market value of the Controlled Drug amounted to €13,000 or more.

8 3. Count No. 2 was a charge of simple possession with Count No. 3 alleging possession for the purposes of sale or supply, both contrary to ss. 3 and 15 respectively and s. 27 of the Misuse of Drugs Act 1977 as amended ("the 1977 Act", unless otherwise indicated). The particulars relating to each of these charges were identical to those supporting count number one.

9 4. On the 23rd July, 2008, Mr. Daly was sentenced by His Honour, Judge O'Donnabhain, to a term of imprisonment of 25 years on the s. 15A conviction, with the other two convictions being taken into account.

10 5. The appellant now seeks leave to appeal against sentence; originally leave was also against conviction but that is not now being pursued. The appellant appears to have confined himself to two main grounds in support of his application. He contends that the learned trial judge erred in principle:

11 (i) in imposing a sentence of 25 years, which, in all the circumstances, is excessive, and secondly;

12 (ii) in failing to distinguish properly, as he is required to do, between the appellant and his co-accused.

13 In this regard, it should be noted that sentences of 30 years were imposed on both Martin Wanden and Perry Wharrie and a sentence often years on Gerard Hagan. It is in particular by reference to this last mentioned sentence that the "parity" submission is made.

14 6. The correct order in which these submissions should be addressed is as follows. The first question to ask is whether the sentence is so heavy as to attract of itself appellate intervention and secondly, if so, whether it should be corrected by eliminating or diminishing any disparity with another sentence(s) which it could be expected to be equivalent to or comparable with.

15 7. The events giving rise to this prosecution involve one of the largest drugs seizures ever to have taken place in the history of the State. The evidence of Superintendent Healy, related at the sentencing hearing, was that at approximately 7am on the morning of the 2nd July, 2007, an alarm was raised by one of the appellant's co-accused, Gerard Hagan, at the home of a local farmer in Dunlough Bay, West Cork. Mr. Hagan told the farmer, Michael O'Donovan, that as a result of an incident which had occurred whilst fishing at sea there was someone in the water whose life might be in danger. Otherwise Mr. Hagan was evasive and was most anxious that formal help would not be summoned. Some conflict now exists about the accuracy of what the Superintendent said, it being suggested that the evidence of Mr. O'Donovan did not quite bear out this summary of Hagan's cry for help (see para. 92 infra).

16 8. At around 8am, however, the emergency services were called and went to the scene. They observed another of the co-accused, Martin Wanden, in the sea some 100 - 200 metres from landfall. Mr. Wanden's presence in the water was in close proximity to a semi-submerged RIB and he was surrounded by a large number of white bales. This RIB had left Glengarriff pier at about 9pm the previous evening and at approximately midnight it rendezvoused with a catamaran some 30 nautical miles south west of the Irish coast. At that point the drugs were transferred with the intention of making landfall somewhere in the region of Sheep's head at about 3am. Difficulties were encountered during this passage and hence the incident.

17 9. On further investigation it transpired that there were a total of 62 such bales containing 25 kilogrammes of Cocaine each; amounting to a total weight of 1,554kgs. The purity level was about 75%. A valuation of the drugs, described as conservative, was put as €108 million; this was calculated by reference to a street value of €70 per gram. Given that the average purity level of the street value gram is about 7-8% (Forensic Science Laboratory), it is credible to suggest that the total street value of the haul may have reached €440 million.

18 10. The Superintendent went on to say that, according to Gardai intelligence, the Cocaine originated in the Medina region of Columbia and was intended for the UK and European markets. The smuggling operation was devised by an organised criminal group based in the UK and Spain and was executed over a period of several months. It involved the purchase of a catamaran named "The Lucky Day", three jeeps with trailers, RIBs with engines, mobile phones, satellite phones and GPS systems. In addition, vehicles were hired, accommodation was rented and much international travel was undertaken. The outlay (not including the cost of the Cocaine) was estimated to be in excess of a third of a million euro.

19 11. The evidence at the hearing further disclosed that on the morning of the 2nd July, 2008, the appellant and Mr. Wharrie were seen by two coast guard officers close to the coastline where the boat was. They belied a certain knowledge of what was going on out at sea and indicated that someone needed rescue, before heading off in an easterly direction through the fields. They were described as having been in a dishevelled state. The appellant and Mr. Wharrie then spent two days hiding in the countryside before their ultimate arrest on the 4th July, 2007.

20 12. A number of items of evidence linked the appellant to the drugs haul. A fingerprint of his was found in a green jeep that...