DPP v Danielius Kurklinskas
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 24 January 2022 |
| Neutral Citation | [2022] IECA 17 |
| Docket Number | Record Number: 87/21 |
| Year | 2022 |
| Court | Court of Appeal (Ireland) |
[2022] IECA 17
The President
Kennedy J.
Ní Raifeartaigh J.
Record Number: 87/21
THE COURT OF APPEAL
JUDGMENT of the Court delivered (ex tempore) on the 24th day of January 2022 by Ms. Justice Kennedy.
This is an appeal against severity of sentence. The appellant pleaded guilty to two counts on the Bill of Indictment, Count 2, possession of a controlled drug for the purpose of sale or supply contrary to s. 15 of the Misuse of Drugs Act, 1977 and Count 3, the cultivation of cannabis plants contrary to s. 17 of the Misuse of Drugs Act, 1977.
On the 19th April 2021 the appellant was sentenced to four and a half years' imprisonment in respect of each count, to run concurrently and backdated to the 18th August 2020.
On the 12th August 2020 Gardaí obtained a search warrant from Dundalk District Court pursuant to s. 26 of the Misuse of Drugs Act 1977 for an address in Dundalk, County Dublin in the context of believed cultivation. On the 18th August 2020, a search was conducted by Gardaí by way of execution of that search warrant of the premises at that address in Dundalk, County Dublin.
On arrival at the address, Gardaí forced entry into the property and identified themselves as members of the Garda Síóchána and that they had a search warrant. Gardaí noted that all of the windows were closed, despite it being a warm morning. They explored all three floors of the property and subsequently discovered roughly 8kg of cannabis herb hanging from the ceiling, seventy mature cannabis plants and one hundred and four cannabis plant saplings. The appellant was found, in bed, on the top floor of the property and a small amount of loose green-like plant substance was scattered around his bed. He identified himself by producing his Lithuanian passport. There was a bathroom adjacent to his bedroom with two more mature cannabis plants. Items associated with cannabis cultivation were found on the top floor and in the kitchen, as well as, a large vacuum packed bag of cannabis herb. The total value of the drugs seized amounted to €219,784. Gardaí declared it a sophisticated grow house with an irrigation system and the electricity meter having been interfered with to support the plant's growth.
At approximately 8:35am on the 18th August 2020, the accused was arrested on suspicion of an offence contrary to s.15 of the 1977 Act and brought to Dundalk Garda Station. In interview, the appellant exercised his right to silence in respect of some questions and disavowed all knowledge of cultivation or of any cannabis of any substance being present on the premises in respect of others. The appellant was said to have been respectful to the Gardaí but not cooperative. He entered a guilty plea at an early stage.
The appellant was twenty-three years of age at the time of sentencing and has no previous convictions. He was said to have come from a good background in Lithuania. He left school at 18 and worked various jobs, forklift driving and working as a general operative in a small factory, before becoming a window fitter with which job he travelled to Reykjavik, Iceland. Due to the outbreak of Covid-19, the appellant was caused to return to Lithuania where he had no employment. He was offered an opportunity to come to Ireland to make some money before returning to Lithuania.
The court identified a headline sentence of seven and a half years imprisonment in respect of Count 2, possession of a controlled drug for the purpose of sale or supply, contrary to s. 15 of the 1977 Act and a headline sentence of eight years imprisonment in respect of Count 3, cultivation of cannabis plants contrary to s. 17 of the 1977 Act. In assessing the gravity of the offence, the court noted that the appellant was not a man with issues or difficulties and that the offending was for financial gain.
In terms of mitigation, the court took into account the appellant's early plea of guilty, his being a Lithuanian national with limited English which would compound his difficulties whilst serving a sentence and limited access to his family. The court also considered his good work history and good behaviour while in custody that is supported by way of a Governor's Report.
Having considered the mitigating factors, the judge reduced the headline sentences. The sentence for Count 2 was reduced to one of four and a half years' imprisonment and the sentence for Count 3 was reduced to one of four and a half years' imprisonment also. Both sentences to run concurrently and backdated to the 18th August 2020.
It is submitted on behalf of the appellant that the sentences imposed were excessive in all of the circumstances.
Counsel for the appellant submits that the judge failed to take properly into account the background of the appellant and the prevailing mitigating circumstances, pointing to the appellant's age and no previous convictions, his good work history, his...
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