DPP v Ducque

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 15 July 2005
• Neutral Citation: [2005] IECCA 92
• Judgment citation (vLex): [2005] 7 JIC 1501
• Court: Court of Criminal Appeal
• Date: 15 July 2005

[2005] IECCA 92

THE COURT OF CRIMINAL APPEAL

Geoghegan J.

Budd J.

O'Neill J.

No. 186/04

DPP v DUCQUE

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

v.

JONATHAN DUCQUE

Applicant

CRIMINAL JUSTICE ACT 1999 S4

CRIMINAL JUSTICE ACT 1999 S5

MISUSE OF DRUGS ACT 1977 S15(A)

MISUSE OF DRUGS ACT 1977 S27(3A)

MISUSE OF DRUGS ACT 1977 S27(3B)

MISUSE OF DRUGS ACT 1977 S27(3C)

DPP v BOTHA 2004 2 IR 375

DPP v RENALD UNREP CCA 23.11.2001 2001/8/2140

DPP v DUFFY UNREP CCA 21.12.2001 2001/7/1809

CRIMINAL LAW

Sentence Drugs offences - Mandatory minimum sentence - Exceptional and specific circumstances - Whether guilty plea could constitute exceptional and specific circumstances - People (DPP) v Botha [2004] IECCA 1; (Unrep, CCA, 19/1/ 2004; [2004] IECCA1), People (DPP) v Renald (Unrep, CCA, 11/11/2001) and People (DPP) v Duffy (Unrep, CCA, 21/12/ 2001) followed - Misuse of Drugs Act 1977 (No 12), ss 15A and 27 - Appeal refused - (186/2004 - Court of Criminal Appeal - 15/7/2005) [2005] IECCA 92 People (DPP) v Ducque

Facts: This was an application for leave to appeal against a twelve year sentence of imprisonment arising out of a plea of guilty for possession of drugs for sale or supply in excess of Eur13,000.

Held by the Court of Criminal Appeal (Geoghegan J; Budd and O’Neill JJ) in refusing leave to appeal that the Court considered that a sentence less than twelve years would have been inappropriate.

Reporter: R.W.

JUDGMENT of the Court delivered by

Mr. Justice Geoghegan on 15th day of July 2005

1 This is an application for leave to appeal against a twelve year sentence of imprisonment from the 16 ^th June, 2003 which was imposed on 29 ^th July, 2004 arising out of a plea of guilty in the Dublin Circuit Court in a prosecution for possession of drugs on 16 ^th June, 2003 for sale or supply in excess of €13,000 contrary to section 15A (as inserted by section 4 of the Criminal Justice Act, 1999) and section 27 (as amended by section 5 of the Criminal Justice Act, 1999) of the Misuse of Drugs Act, 1977. The correct approach to sentencing for this offence has given rise to considerable difficulty because of quite complex statutory provisions requiring prima facie a minimum sentence of ten years but also providing for exemption from that mandatory requirement in certain circumstances. The maximum sentence for the offence is life imprisonment. It is important to summarise the facts of this particular case before returning to the legal problems relating to sentencing.

2 The applicant in consideration of €1,000 was asked to pick up a car at a certain city centre point and drive it to a particular place. At all material times the applicant knew that a consignment of prohibited drugs was in the car, though he claimed that he had no idea that it was anything like the quantity which it was in fact. The Garda Síochána, as a consequence of some prior information which they had obtained, stopped the car within minutes of the applicant driving it with the consignment and, therefore, for all practical purposes he was caught red-handed. It then emerged that ecstasy tablets to a value somewhere in the range of €2.09 million to €2.69 million were in various containers in the car. By any standard this was a huge haul. The applicant was questioned by the gardaí in thirteen interviews intermittently over a period of about thirty seven hours though in a perfectly lawful manner and from a relatively early stage he indicated that he would plead guilty. However, he was not prepared to give the gardaí any information relating to the relevant contacts in respect of the contraband. He indicated that this was because he was frightened. It is not necessary to go into the factual background in any more detail except to comment that in different interviews with the gardaí the applicant changed his story somewhat and admitted that he had lied at the previous interview.

3 There was a certain amount of character evidence given in his favour. He was said to have come from a very tragic background in that both his father and mother died when he was young and both were drug addicts. He spent his early years in state care and in foster care. He lived with a foster family from the age of five to eleven years which he found difficult. From the age of eleven to fourteen he lived in a children's home in Clontarf. He was ten years of age when his father died and fourteen years of age when his mother died. After the mother's death he went to live with his grandmother in Finglas but to the chagrin of his grandmother he got involved in anti-social behaviour and crime. The grandmother was not really able to cope as she was bringing up his brother and three cousins. According to a report which was before the Circuit Court the applicant started drinking and taking drugs (hash and ecstasy) at the age of fifteen to sixteen years and became involved in crime. When he came to be sentenced in the Dublin Circuit Court by Judge O'Donnell he had some forty previous convictions, admittedly, most of them for road traffic offences though they included one for burglary and one for receiving stolen property. On the occasion of his sentencing for this offence, Judge O'Donnell first sentenced him in respect of a count of aggravated burglary which had taken place at about 7 a.m. on 26 ^th August, 2002 and was on a separate indictment. It was obviously a particularly brutal burglary involving a terrifying invasion of a house occupied by a Romanian family. The judge sentenced the applicant to seven years imprisonment in relation to that offence and then went on to sentence him to twelve years imprisonment in respect of the offence the subject matter of this appeal.

4 The relevant statutory provisions with which the sentencing judge had to comply are contained in subsections (3A), (3B) and (3C) of section 27 of the Misuse of Drugs Act, 1977 as inserted by section 5 of the Criminal Justice Act, 1999. These three subsections read as follows:

5 a "(3A) Every person guilty of an offence under section 15A shall be liable, on conviction on indictment -

6 (a) to imprisonment for life or such shorter period as the court may, subject to subsections (3B) and (3C) of this section, determine, and

7 (b) at the court's discretion, to a fine of such amount as the court considers appropriate.

8 b (3B) Where a person (other than a child or young person) is convicted of an offence under section 15A, the court shall, in imposing sentence, specify as the minimum period of imprisonment to be served by that person a period of not less than 10 years imprisonment.

9 c (3C) Subsection (3B) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances and for this purpose the court may have regard to any matters it considers appropriate, including -

10 (a) whether that person pleaded guilty to the offence and, if so,

11 (i) the stage at which he indicated the intention to plead guilty and

(ii) the circumstances in which the indication was given, and

12 (b) whether that person materially assisted in the investigation of the offence."

13 In this connection, the judge quoted passages from the unreported judgment of this court delivered by Hardiman J. in The People (D.P.P.) v. Botha 19 ^th January 2004 to which further reference will be made in the course of this judgment. In referring to the Botha case the judge referred to a passage indicating that people who were in very reduced financial circumstances and who were additionally foolish, old or very young and impressionable and, therefore, particularly sought to act as couriers for a pathetically small amount might be distinguished from those who are more calculatedly involved in the supply of drugs. The judge observed that there was every scope to do this given that the maximum sentence was life imprisonment and that he had done so. He also referred to the insistence in the Botha judgment that "unenumerated circumstances" relied upon must be both exceptional and specific. He could not see that any of the circumstances in this case were exceptional and specific. The judge observed that this was one of the largest amount of drugs involved in a case that he had ever been asked to deal with and that the applicant had been "motivated entirely by the opportunity to make a fast buck".

14 The court has been referred to three reserved judgments of this court. It would seem desirable to deal with each chronologically and extract the principles which appear to emerge from them. Having done that exercise it is then proposed to analyse and discuss a particular submission made to the court by Mr. O'Hanlon, S.C., counsel for the applicant.

15 The first case of importance is The People (DPP) v. Renald unreported judgment of the court delivered by Murphy J. on the 23 ^rd November, 2001. As Hardiman J. pointed out in the later case of Botha already cited, Renald has been regularly cited with approval by the court ever since. Two important principles are to be extracted from Renald but the one which...