DPP v Dung Tran
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 01 February 2021 |
| Neutral Citation | [2021] IECA 227 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 101/20 |
[2021] IECA 227
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 101/20
THE COURT OF APPEAL
Sentencing – Unlawful possession of a controlled drug with a market value in excess of €13,000 for the purpose of sale or supply – Severity of sentence – Applicant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Tran, pleaded guilty to a count of unlawful possession of a controlled drug with a market value in excess of €13,000 for the purpose of sale or supply contrary to s. 15A of the Misuse of Drugs Act 1977, as amended. On the 11th July 2019 a sentence of twelve years’ imprisonment was imposed with the final two years suspended on terms. The appellant appealed to the Court of Appeal against sentence on the following grounds: (1) the sentencing judge erred in law and in principle by failing to depart from the presumptive minimum mandatory sentence where there were exceptional and specific circumstances relating to the offence, namely the appellant’s plea of guilty, cooperation with the investigation and lack of previous convictions which justified such a departure; (2) the sentencing judge erred in law and in principle by failing to give adequate weight to the lack of previous convictions of the appellant; (3) the sentencing judge erred in law and in principle by failing to give adequate weight to the nature of the drug; (4) the sentencing judge erred in law and in principle by creating a headline sentence of sixteen years which was excessive and disproportionate in all the circumstances of the case; and (5) the sentence of twelve years with the final two years suspended imposed on the appellant was excessive in all the circumstances.
Held by the Court that in the circumstances of the case, and on an assessment of the appellant’s culpability, it was persuaded that the nomination of a notional sentence of sixteen years’ imprisonment was excessive. The Court held that while the value of the drug was considerable, that was not determinative of the sentence to be imposed. The Court noted that his role was that of courier for which he was to receive the sum of €1000.00, he was aware of what he was doing, but he was placed by the Garda at the lower end of the scale in operating as he did in transporting the drugs and did not warrant a headline sentence of the calibre nominated. The Court held that such a sentence is appropriate in cases of greater commercial dealing. The Court considered it appropriate therefore to quash the sentence and re-sentence the appellant.
The Court held that in the circumstances, the appropriate headline sentence was that of eight years’ imprisonment. The Court held that the mitigating factors justified a downward reduction of the sentence by one third and accordingly it reduced the sentence to one of five years and four months. The Court had regard to the appellant’s co-operation from the outset, followed by a plea at the earliest opportunity. The Court noted that the plea was entered on the 16th May 2019, approximately three months after the commission of the offence. In those circumstances, whilst a plea of guilty may not be considered as exceptional in and of itself, where it follows admissions, and where the Garda was of the view from the outset that the matter was not going to proceed to trial, the Court was satisfied that there existed circumstances which would render the imposition of ten years unjust. The Court held that the sentence would be one of five years and four months, backdated to the 7th February 2019 being the date the appellant was first lodged in custody.
Appeal allowed.
JUDGMENT of the Court delivered (ex tempore) on the 1st day of February 2021 by Ms. Justice Kennedy.
This is an appeal against sentence. The appellant pleaded guilty to a count of unlawful possession of a controlled drug with a market value in excess of €13,000 for the purpose of sale or supply contrary to section 15A of the Misuse of Drugs Act 1977, as amended. On the 11th July 2019 a sentence of twelve years' imprisonment was imposed with the final two years suspended on terms.
On the 6th February 2019, members of An Garda Síochána were travelling through Kilkenny on the M9 motorway in an unmarked garda car when they observed a vehicle overtake them travelling at an estimated speed of 160 kmph. The gardaí signalled for the vehicle to pull over, which it did. Garda Conroy alighted from his vehicle to speak with the driver, Mr Tran, and noticed a strong smell of cannabis emanating from the vehicle. Garda Conroy informed the appellant that he and his vehicle were going to be searched under the provision of the Misuse of Drugs Act. Whilst searching the appellant Garda Conroy found a bag containing six deals of cannabis. The vehicle was searched and five refuse sacks were discovered in the boot. Upon inspection, it was noticed that each sack contained a number of tinfoil type packages which had been vacuum packed. When one of these packages was opened it was found to contain a green plant material suspected to be cannabis herb. The estimated value of the drugs seized was €480,000.
The appellant was arrested and conveyed to Kilkenny garda station where he was detained and interviewed. During interview the appellant cooperated with gardaí and explained his role in transporting drugs from one location to another. The appellant outlined that he received his instructions from a Chinese man and was instructed to drive to a particular location where his car would be loaded with the material and then he would be given his destination. The appellant was to receive €1000.
At the time of sentencing the appellant was 39 years old. He is from Vietnam and he moved to Ireland when he was 18 years old and has since become an Irish citizen. The appellant has a wife and three children and he has no previous convictions.
In sentencing the judge identified the primary aggravating factor to be the quantity of cannabis involved, amounting to almost €500,000 worth of cannabis.
In terms of mitigation the following factors were identified: the absence of previous convictions, the plea of guilty, the cooperation with the gardaí at an early stage and the effect on the appellant's family, particularly his wife and children.
Given the gravity of the offence the judge identified a headline sentence of sixteen years. The judge noted that if the case had involved a drug other than cannabis, the headline sentence would be higher. Allowing for the significant mitigation, the judge reduced the sentence to twelve years. Taking into account that it was the appellant's first offence and the need for rehabilitation to be included in the sentence the judge suspended the final two years of the sentence for a period of five years.
The judge concluded that this was not a case in which the circumstances would have justified departing from the presumptive minimum mandatory sentence.
The appellant puts forward the following grounds of appeal:-
-
(1) The learned sentencing judge erred in law and in principle by failing to depart from the presumptive minimum mandatory sentence where there were exceptional and specific circumstances relating to the offence; namely the appellant's plea of guilty, cooperation with the investigation and lack of previous convictions which justified such a departure;
-
(2) The learned sentencing judge erred in law and in principle by failing to give adequate weight to the lack of previous convictions of the appellant;
-
(3) The learned sentencing judge erred in law and in principle by failing to give adequate weight to the nature of the drug;
-
(4) The learned sentencing judge erred in law and in principle by creating a headline sentence of sixteen years which was excessive and disproportionate in all the circumstances of the case;
-
(5) The sentence of twelve years with the final two years suspended imposed on the appellant was excessive in all the circumstances;
In oral submission, Mr Clarke SC for the appellant focused on the headline or pre- mitigation sentence and contended that the judge erred in failing to depart from the presumptive mandatory minimum sentence. It is said that the judgment of the Court in The People (DPP) v. Ryan & Rooney [2015] IECA 2 is instructive in relation to the relevant statutory provisions and the circumstances in which a sentencing judge may disapply the presumptive minimum mandatory sentence. In Ryan & Rooney the DPP sought to review the sentences imposed in respect of the accused who each received sentences of ten years' imprisonment suspended in their entirety for seven years. The case involved the transfer of a consignment of heroin and cocaine with an aggregate market value of over €1.3 million. On appeal, the Court allowed the application and the offenders were resentenced to five years which was then reduced to three years.
The appellant notes that in Ryan & Rooney, the Court, while allowing the Director's application, nonetheless found that the sentencing judge was entitled to depart from the mandatory minimum sentence. The appellant argues that there were several mitigating factors, also present in this case, which led the...
To continue reading
Request your trial