DPP v Danius Gastilavicius

JurisdictionIreland
JudgeMs. Justice Kennedy
Judgment Date11 February 2022
Neutral Citation[2022] IECA 43
CourtCourt of Appeal (Ireland)
Docket NumberRecord Number: 235/20
Between/
The People at the Suit of the Director of Public Prosecutions
Respondent
and
Danius Gastilavicius
Appellant

[2022] IECA 43

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 235/20

THE COURT OF APPEAL

Sentencing – Cultivation of cannabis plants – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Gastilavicius, pleaded guilty to the cultivation of cannabis plants contrary to s. 17(1) of the Misuse of Drugs Act 1977. On the 20th November 2020, the appellant was sentenced to five years’ imprisonment with one year suspended for two years on terms. Counts contrary to ss. 3 and 15 of the 1977 Act were taken into consideration. The appellant appealed to the Court of Appeal against severity of sentence on the following grounds: (1) the judge erred in principle in ruling that the appellant’s term of imprisonment be three times that of the co-accused, notwithstanding that superior mitigation merited a lesser sentence for the co-accused; (2) the judge placed too much emphasis on retribution due to the appellant not being a habitual resident of Ireland; (3) the judge placed too much emphasis on how the sentence would potentially deter other foreign nationals from committing such an offence; (4) the judge relied on certain inferences which could have led to unfairness; (5) the judge erred in outlining that organisation in relation to drug offences is more significant than the amount of drugs found in relation to drug offences; and (6) the judge erred in drawing inferences from the appellant’s “non-cooperation”.

Held by the Court that it was not persuaded that the judge erred in distinguishing between the two accused as he did; he properly nominated the headline sentence in each case, carefully assessing the culpability of each offender and applying a considerable reduction for mitigation in each instance. Having decided that the culpability of each was properly determined by the judge, that, in the Court’s view, was substantially determinative of the issue, given that he then applied the mitigating factors and reduced appropriately in each case. The Court held that such allowance was within the margin of appreciation afforded to a trial judge. The Court held that, absent the appellant giving evidence of his role, having pleaded guilty, the judge was fully entitled to rely on the evidence and draw the inferences which he did as to the appellant’s culpability; this he did with care and attention to the detail of the evidence adduced. The Court did not find that the judge drew an inference which was unfair to the appellant. Regarding the contention that the judge placed too much weight on the need for general deterrence in crime of this nature by persons not ordinarily resident in Ireland’s jurisdiction, the Court noted that the judge acknowledged that not all persons would be aware of the sentencing regime in Ireland’s jurisdiction and set out the requirement for a proportionate sentence, taking into account rehabilitation and an individual’s personal circumstances. The Court found no error in that respect.

The Court was not persuaded that the judge erred in the sentence imposed. The Court dismissed the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered (ex tempore) on the 11th day of February 2022 by Ms. Justice Kennedy.

1

This is an appeal against severity of sentence. The appellant pleaded guilty to the cultivation of cannabis plants contrary to s. 17(1) Misuse of Drugs Act 1977. On the 20th November 2020 the appellant was sentenced to five years' imprisonment with one year suspended for two years on terms. Counts contrary to ss.3 and 15 of the 1977 Act were taken into consideration.

Background
2

On the 26th March 2020 Gardaí executed a search warrant at an address in Ballymote, Sligo. On entering the premises, Gardaí found the appellant and another person upstairs. Gardaí then discovered what they describe as a sophisticated cannabis growing operation in the four bedrooms of the property. Fans, thermostats and lighting had been installed into each room for the purposes of growing these plants. 19 plants in total were growing on the property and a further 60 pots were found there, filled with compost but with nothing growing in them. The total value of the plants found, at €800 per plant, was €15,200.

3

Gardaí arrested the appellant and upon searching him found €1,500 cash in his pocket and a key for the house. Two phones were also seized, a request was made for the code to a phone, which the appellant refused to provide. He was brought to Ballymote Garda Station for interview but nothing of evidential value arose.

4

The appellant's co-accused made admissions in interview and stated that he had only been in Ireland for two weeks prior to his arrest. He was 18 years old and from Lithuania and had built up a debt of €10,000, he was brought to this jurisdiction by the person to whom he owed the debt. He was being paid €1,500 per month to be the sole occupant of the house and to tend to the cannabis plants. He had no previous convictions. His culpability was placed on a lower level to that of this appellant.

Personal circumstances of the appellant
5

The appellant was 44 years of age at the time of sentencing. He is a father of one child and divorced but has since reconciled with his wife and they are living together as a family unit for the upbringing of their child.

6

The appellant is originally from Lithuania, where upon leaving school, he joined the guilds to study and train to be a painter and decorator, with which qualification he travelled extensively through Europe engaging in constructive work.

7

The appellant has no previous convictions in this jurisdiction, but has previous convictions from the neighbouring jurisdiction. On the 26th January 2016, he was convicted of burglary at Exeter Crown Court and sentenced to seven years' imprisonment and on the 24th March 2017 he was also convicted of burglary at Ipswich Crown Court and sentenced to three years' imprisonment.

8

Prior to the incidents contained herein, the appellant had been to Ireland on two occasions, once for a period of roughly a year and on the second occasion, for roughly two to three years during which time he was employed as a baker and a kitchen porter. He had obtained an Irish PPS Number and was working legitimately and paying his taxes. It was on his third visit to Ireland that it is said the appellant's convictions from the UK caught up with him and he was approached by criminal elements on Facebook.

9

The appellant wishes to return to Lithuania to his family upon his release.

The sentence imposed
10

The judge identified a headline sentence of seven years' imprisonment, taking into account the aggravating factors.

11

The judge considered that there was very little in terms of mitigation other than the appellant's early guilty plea and his aspiration to return to Lithuania and lead a non-criminal life. Taking this into account, the judge reduced the headline sentence to one of five years' imprisonment with the final year suspended for two years from the date of the appellant's release.

Grounds of appeal
12

The sentence is appealed on six grounds, namely:

  • 1. The judge erred in principle in ruling that the appellant's term of imprisonment be three times that of the co-accused, notwithstanding that superior mitigation merited a lesser sentence for the co-accused.

  • 2. The judge placed too much emphasis on retribution due to the appellant not being a habitual resident of Ireland.

  • 3. The judge placed too much emphasis on how the sentence would potentially deter other foreign nationals from committing such an offence.

  • 4. The judge relied on certain inferences which could have led to unfairness.

  • 5. The judge erred in outlining that organisation in relation to drug offences is more significant than the amount of drugs found in relation to drug offences.

  • 6. The judge erred in drawing inferences from the appellant's “non-cooperation.”

Submissions of the appellant
13

In terms of the first ground of appeal, the appellant submits that as both himself and his co-accused were “caught red handed” it should not have made any material difference to sentencing whether or not either man gave an account at interview. The appellant points out that his co-accused received a 16 month sentence whereas his sentence amounted to 48 months. It is submitted that a 300% disparity is excessive for the same offence.

14

In support of the second ground of appeal, that the judge placed too much emphasis on retribution due to the appellant not being a habitual resident in Ireland, the appellant submits that whether a person comes to a country and does harm to it or is present in the country for an extended period and...

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