DPP -v- David O'Neill, [2012] IECCA 37 (2012)

Docket Number:Date of Delivery:
Party Name:DPP, David O'Neill
Judge:Finnegan J.
 
FREE EXCERPT

THE COURT OF CRIMINAL APPEAL

FINNEGAN J.

MORIARTY J.

HOGAN J.

[2010 No. 315 CCA]

BETWEEN/

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

DAVID O’NEILLAPPLICANTJUDGMENT of the Court delivered by Mr. Justice Joseph Finnegan on 15

th

February, 2012

The existence of a prior good character is one of the surest grounds for mitigation which can be advanced before the sentencing judge. Where, however, the existence of such prior good character is disputed or is otherwise in doubt, then the sentencing judge may be presented with a fresh difficulty, not least where, as the facts of this appeal illustrate, the relevant Garda or other prosecution witnesses either deny or are ambivalent regarding the existence of such a general good character at the sentencing hearing. These problems are then further compounded where the prosecution witnesses go further in their evidence and convey the impression that the accused is, in fact, guilty of offences other than the one with which he has been charged. The extent to which the sentencing judge can receive such evidence is, in essence, the issue which arises for consideration in the present appeal against sentence.

On the 13th March, 2008, the Gardaí obtained a search warrant and searched the applicant’s family home in Clondalkin, Co. Dublin. 135 grams of cocaine were found in the course of the search and it has a value of approximately €10,000. It is only fair to say that the applicant made prompt admissions as to ownership of the contraband in question.

The applicant pleaded guilty to the offence in the Dublin Circuit (Criminal) Court in July, 2010 and following a sentencing hearing in December, 2010 - the background to which we shall presently describe - His Honour Judge McCartan imposed a sentence of five years imprisonment with immediate effect, with the final year suspended on a bond to keep the peace for one year. To put all of this in context, it should be noted that the applicant’s prior conduct was not entirely unblemished. He had thirteen previous convictions and while the vast majority of these related to road traffic offences, he had a relatively recent conviction for possession of a flick knife, contrary to s. 9(4) of the Firearms and Offensive Weapons Act 1990.

The cocaine had been found in separated weighed out bags which had been secreted in a storage press under the stairs of the premises in question. The Gardaí also found a digital weighing scales and a mobile telephone SIM card in the cupboard. While the applicant was generally prepared to co-operate with the Gardaí, this did not go so far as permitting them to activate his mobile telephone, since he declined to disclose the number for his pin code.

At the sentencing hearing the principal issue was whether these drugs were largely for Mr. O’Neill’s personal consumption or whether he was engaged in the distribution and sale of drugs, albeit, perhaps, on a relatively small scale. It must be here recalled that possession of even this quantity of drugs is an inherently serious matter, not least given that the Oireachtas has prescribed a maximum penalty of life imprisonment for an offence under s. 15 of the Misuse of Drugs Act 1977 (as amended): see, e.g., the comments of Murphy J. for this Court in The People v. Gethins, Court of Criminal Appeal, 23 November 2011. It is true that possession of quantities of illicit drugs in excess of a figure of €13,000 (approximately) would expose the accused to a presumptive minimum sentence of ten years in the light of the provisions of s. 15A of the 1977 Act. Nevertheless, in both cases the maximum penalty remains that of life imprisonment.

It is also true that the applicant’s own personal circumstances were such as would excite sympathy and would represent generally mitigating factors. He was an early school leaver who began to abuse drugs and other substances at an early age. His family life appears to have been unhappy and he was required to provide financial support for his parents, one of whom is sadly blind and incapacitated. The sentencing judge was fully aware of these factors which, while not expressly mentioned by him during the course of the sentencing hearing, are necessarily reflected in the otherwise relatively moderate sentence which...

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