DPP v Delacey

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Kennedy
Judgment Date18 Oct 2019
Neutral Citation[2019] IECA 262
Docket NumberRecord Number: 145CJA/18

[2019] IECA 262

THE COURT OF APPEAL

Birmingham P.

Kennedy J.

Donnelly J.

Record Number: 145CJA/18

BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT/
- AND -
DARREN DELACEY
RESPONDENT

Sentencing – Unlawful possession of controlled drugs – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient

Facts: The appellant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency of a sentence imposed on the respondent, Mr Delacey, on the 24th April 2018. The respondent pleaded guilty to a count of unlawful possession of controlled drugs with an aggregate market value of €108,087 contrary to s. 15A of the Misuse of Drugs Act 1977, and two counts of possession of cannabis and cannabis resin contrary to s. 3 of the 1977 Act. A sentence of four years’ imprisonment was imposed in respect of the offence contrary to s. 15A. The remaining counts were taken into consideration.

Held by the Court that the sentence imposed was a lenient sentence. On an assessment of the aggravating factors, the Court was satisfied that the judge erred in identifying a pre-mitigation sentence of seven years. The Court held that, in identifying a headline figure of seven years, the judge fell into error, particularly where this offence was committed within a year of the previous conviction. The Court held that the fact that this offence was committed while the respondent was on bail further aggravated the offence. The Court concluded that the ultimate sentence imposed was a substantial departure from the appropriate sentence in the particular circumstances. Therefore, the Court quashed the sentence and in accordance with sentencing principles re-sentenced the respondent.

The Court held that the appropriate pre-mitigation sentence was one of ten years imprisonment. In giving the appropriate weight to the mitigating factors, the Court reduced the notional sentence to one of seven years imprisonment. The Court was cognisant of the disappointment factor for the respondent in receiving a greater sentence and to take that into consideration, it reduced the sentence to one of six years. The Court was satisfied in the circumstances that it would be unjust to impose the presumptive minimum. In the knowledge that the sentence must be consecutive to the Mullingar sentence, being an actual sentence of four years imprisonment, the Court had regard to the totality principle and in the circumstances considered the sentence of six years consecutive to the four year sentence to be the appropriate sentence.

Appeal allowed.

JUDGMENT of the Court delivered on the 18th day of October 2019 by Ms. Justice Kennedy .
1

This is an application brought by the Director of Public Prosecutions pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency of a sentence imposed on the respondent on the 24th April 2018. The respondent pleaded guilty to a count of unlawful possession of controlled drugs with an aggregate market value of €108,087 contrary to s. 15A of the Misuse of Drugs Act 1977, as amended and two counts of possession of cannabis and cannabis resin contrary to s. 3 of the Misuse of Drugs Act 1977, as amended (“the 1977 Act”). A sentence of four years' imprisonment was imposed in respect of the offence contrary to s. 15A. The remaining counts were taken into consideration.

Background
2

On the 22nd May 2017, an Garda Síochána received confidential information in relation to the movement of controlled substances. On the basis of this information, members of an Garda Síochána drove towards Inchicore where they followed a car in which the respondent was a passenger. The car was then stopped, and a plastic bag was removed from between the respondent's feet. This bag was found to contain 744 grams of heroin and 55 grams of cocaine with a combined street value of €108,087. Following this, a search warrant was executed in respect of the respondent's home and a small amount of cannabis herb and cannabis resin was found on the premises.

3

The respondent was then arrested and interviewed. During the course of his interviews, the respondent accepted that he was carrying drugs, but he initially maintained that he did not know the particular type of drugs he was carrying. The respondent maintained that he was to receive the sum of €500.00 for the drop-off and that he needed the money to discharge a drug debt.

The Sentence
4

At the sentence hearing, and prior to evidence, counsel for the prosecution addressed the Court. It transpired that the respondent had, on the 27th October 2017, been convicted of two offences contrary to s. 15A. These offences occurred on the same date; 11th May 2016. The offence which is the subject of this appeal was committed on the 22nd May 2017. The sentencing judge was informed that, although this was the respondent's third s. 15A conviction, albeit committed on the same date, the respondent had not been convicted of the first two offences at the time of the commission of the present offence and therefore the sentencing judge was not bound by the mandatory minimum sentence under s. 27(3F) of the 1977 Act and retained a discretion to depart from the presumptive minimum 10 year sentence in terms of s. 27(3D) of the 1977 Act.

5

The sentencing judge acknowledged in terms, that as the offence in question was committed on bail, the sentence was required to be consecutive and therefore the Court would have regard to the totality principle in imposing sentence.

6

The judge in imposing sentence said as follows:-

“Now, obviously in dealing with this man Mr DeLacey, I must take into account what he did. I must also take into account that he has a conviction – or two convictions, but essentially really one conviction for section 15A. It seems he was sentenced to seven years with the last three suspended. Now, obviously if the – let's say if matters had, let's say, occurred in a different juxtaposition, my hands would have been tied. I would have had to impose a 10-year custodial sentence consecutive to the sentence he's currently serving; obviously I could have put in a review date in relation to Mr de Lacy and obviously that date couldn't be below five years. I'm going to take it, I suppose, a little bit, I'm going to do it a simpler way, in my own eyes at least, I am going to try to sentence him globally for his misbehaviour in relation to all of the counts that I have knowledge of.

Now, he has a history of offending, he has had his difficulty in his background. It seems that he's an intelligent enough man, he's capable of work. He has his personal responsibilities. It seems that he's an agreeable man and it seems that he can reform himself, but the question will he, I'm not sure. Nobody knows that, but obviously he must be given some hope. Now, I can depart from the mandatory minimum of 10-years for the co-operation and his plea, the question is how far should I depart? Obviously, in departing I have to take into account the nature of his crime, the facts of his crime, but I'm also to take into account that he's serving a reasonably substantial sentence at this current time”

7

The judge concluded by imposing a sentence of four years' imprisonment to run consecutively to the sentence of seven years with three years suspended currently being served by the respondent, giving an effective sentence of eight years' imprisonment. When asked about the headline sentence, the sentencing judge stated, “I would say the headline sentence would have been probably seven.”

Personal Circumstances
8

The respondent was 35 years old at the time of sentencing. He has a long-term partner and a 13-year-old son. The Court heard that the respondent has tragic personal circumstances and addiction issues which had a bearing on the commission of the offence in question as he owed a significant debt due in part to his addiction.

9

The respondent has 65 previous convictions including 50 convictions for road traffic offences, ten convictions for public order offences, one conviction for a theft offence and one conviction for the unauthorised taking of a motor vehicle. The respondent's most recent conviction at the time of sentencing related to the aforementioned s. 15A convictions before Mullingar Circuit Court.

Grounds of Appeal
10

The appellant puts forward the following grounds of appeal:-

1. The learned Sentencing Judge erred in principle in departing from his obligation under Section 27(3C) of the Misuse of Drugs Act 1977 to specify a term of not less than 10 years as the minimum term of imprisonment to be served by the Respondent in the circumstances.

2. The learned Sentencing Judge erred in principle in imposing a sentence which was lesser in terms of its severity than the sentence imposed on the 27th October 2017 by Mullingar Circuit Court in respect of the Respondent's first two convictions under Section 15A.

3. The learned Sentencing Judge erred in law and in fact in failing to attach sufficient weight to the 64 previous convictions of the Respondent, which included convictions for offences contrary to Section 15A.

4. The learned Sentencing Judge erred in law and in fact in failing to attach sufficient weight to the fact that this was the Respondent's second conviction under Section 15A and that his first two Section 15A offences had been committed only a year prior to the offence before the court.

5. The learned Sentencing Judge erred in law and in fact in failing to attach sufficient weight to the fact that the offence before it had been committed by the Respondent whilst he was on bail and/or in failing to treat the commission of the offence whilst on bail as an aggravating factor.

6. The learned Sentencing Judge erred in law and in fact in failing to have appropriate regard to the...

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1 cases
  • DPP v Aylmer
    • Ireland
    • Court of Appeal (Ireland)
    • 10 March 2020
    ...leniency applications include DPP v. D.O.F. [2019] IECA 307 (Edwards J.), DPP v. O'Mahony [2019] IECA 311 (Kennedy J.), DPP v. Delacey [2019] IECA 262 (Kennedy J.), and DPP v. Parkes [2019] IECA 199 (Irvine J.). However, the basic principles as articulated in Byrne and Stronge have not been......

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