DPP v O'Driscoll

• Jurisdiction: Ireland
• Judge: Mr. Justice Frank Clarke
• Judgment Date: 03 December 2019
• Neutral Citation: [2019] IECA 315
• Docket Number: [Appeal No: 87/2019]
• Court: Court of Appeal (Ireland)
• Date: 03 December 2019

BETWEEN/

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

DAVID O'DRISCOLL

APPELLANT

[2019] IECA 315

Clarke C.J.

Edwards J.

Donnelly J.

[Appeal No: 87/2019]

THE COURT OF APPEAL

Sentencing – Possession of cocaine for sale or supply – Parity principle – Appellant seeking to appeal against sentence – Whether the parity principle was breached

Facts: The appellant, Mr O’Driscoll, on 4 February 2019, pleaded guilty on arraignment to charges relating to the possession of cocaine for sale or supply contrary to s. 15 of the Misuse of Drugs Act 1977, obstruction of a peace officer and also dangerous driving contrary to s. 53 of the Road Traffic Act 1961. A co-defendant, Mr Moynihan, had pleaded guilty to a similar offence of possession of cocaine for sale or supply on a so-called full facts basis. The offences occurred on 26 April 2018. Both accused appeared for sentencing on 13 May 2019. The sentencing judge took the view that it was appropriate to consider a term of six years imprisonment in Mr O'Driscoll’s case as a proper headline sentence but reduced this term by one year to reflect his guilty plea and certain steps which he had taken while incarcerated to undergo education courses. On the driving charge a concurrent sentence of six months was imposed with a ten year disqualification. Mr Moynihan was sentenced to five years imprisonment but with 18 months suspended on condition that he remain under the care of the probation and welfare service. The appellant appealed to the Court of Appeal against sentence. The principal grounds of appeal put forward on behalf of Mr O'Driscoll centred on what was said to be an impermissible differentiation in the sentences imposed on, respectively, himself and Mr Moynihan. Coupled with this was a suggestion that, in purporting to distinguish between both co-accused, the sentencing judge placed excessive emphasis on what was seen as a negative probation report.

Held by the Court that, so far as the central point concerning an alleged breach of the parity principle was concerned, the trial judge was entitled to regard Mr O’Driscoll’s previous record as being the more serious and to have therefore justified some difference in the approach between the two co-accused. The Court held that it was clear that the sentencing judge was entitled to and did take the view that the significantly more positive probation report on Mr Moynihan justified mitigating Mr Moynihan’s sentence in a manner not available to Mr O’Driscoll. In the Court’s view those factors were such that the sentencing judge was entitled to regard them as sufficient to justify the distinction in sentence in the form of the partial suspension which was applied in Mr Moynihan’s case but not in that of Mr O’Driscoll.

The Court held that no error of principle had been shown to exist in relation to the sentence in this case and that the appeal must, therefore, be dismissed.

Appeal dismissed.

Judgment (ex tempore) of the Court delivered by Mr. Justice Frank Clarke , Chief Justice on 3rd December, 2019.

1 On 4 February of this year the accused, Mr. O'Driscoll, pleaded guilty on arraignment to charges relating to the possession of cocaine for sale or supply contrary to s.15 of the Misuse of Drugs Act, 1977, obstruction of a peace officer and also dangerous driving contrary to s.53 of the Road Traffic Act, 1961. A co-defendant, Wayne Moynihan, had pleaded guilty to a similar offence of possession of cocaine for sale or supply on a so-called full facts basis. Both accused appeared for sentencing on 13 May this year. The offences occurred on 26 April of last year.

2 A car driven by Mr. O'Driscoll and in which Mr. Moynihan was a passenger was intercepted by members of An Garda Síochána and the Garda Armed Response Unit on an exit junction off the main Dublin – Cork motorway near Cork City. The car attempted to escape by reversing back down the ramp but ultimately crashed into a tree. Mr. Moynihan was seen attempting to throw white powder from the side passenger window. Mr. Moynihan attempted to escape but was apprehended. Mr. O'Driscoll tried again to drive the car away but was also apprehended.

3 Cocaine residue to the value of €2,716 was found inside the...