DPP v Dunne

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan.
• Judgment Date: 17 October 2003
• Neutral Citation: 2003 WJSC-CCA 3322
• Docket Number: No. 100/01,[C.C.A. No. 100 of 2001]
• Court: Court of Criminal Appeal
• Date: 17 October 2003

THE COURT OF CRIMINAL APPEAL

HARDIMAN J.

O'SULLIVAN J.

FINLAY GEOGHEGAN J.

No. 100/01

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

RACHEL DUNNE

APPLICANT

Abstract:

Criminal law - Sentence — Appeal — Drugs offences — Whether sentence unduly severe — Whether power to impose review as part of sentence — Misuse of Drugs Act 1977 s.2 7(3G) — Criminal Justice Act 1999 s. 5

The applicant sought leave to appeal against the severity of a sentence of seven years imposed on her by the Circuit Court following a plea of guilty to drugs offences in respect of drugs the market value of which amounted to £10,000 or more. The applicant contended that the trial judge had undue regard to the minimum period of ten years and wrongly interpreted the legislation as not entitling her to list the seven year sentence for review having regard to the fact that the applicant was a drug addict.

Held by the Court of Criminal Appeal in dismissing the application that there was no error of principle in the Circuit Court judge's sentence. The judge correctly decided when sentencing the applicant that she did not have any power to impose a review as part of the sentence.

1 JUDGMENT of the Court delivered the 17th day of October 2002 by Ms. Justice Finlay Geoghegan.

2 The applicant seeks leave to appeal against the severity of a sentence of seven years imposed on her by. the Circuit Court (Her Honour Judge Dunne) on 8th May, 2001 following a plea of guilty to possession of a controlled drug with intent to supply having a market value

3 in excess of £l0,000, contrary to s. 15A of the Misuse of Drugs Act 1977 as inserted by s. 4 of the Criminal Justice Act, 1999 ("the 1999 Act") and contrary to s. 27 of the Act of 1977 as inserted by s. 5of the 1999 Act.

4 The circumstances of the offence were that the applicant who had been a chronic drug addict for a number of years was arrested as she left Dublin Airport on 22nd June, 2000 having admitted, when approached by a garda, that she had a large amount of heroin in her suitcase. She was found to be carrying a quantity of approximately two kilos of diamorphine with an estimated market value of £570,000. Following her arrest she co-operated fully with the garda and pleaded guilty to this offence and to a further count of possession of a controlled drug. On this latter offence she was sentenced to three years and six months to run

5 concurrently with the sentence of seven years. The applicant has not sought leave to appeal against the sentence of three years and six months.

6 Counsel for the applicant seeks to argue that the sentence of seven years is unduly severe and that the Circuit Court Judge erred in principle in two respects in her approach to the sentence imposed. Firstly it is contended that the Circuit Court Judge had undue regard to the minimum period often years specified in subs. 3B of s. 27 of the Misuse of Drugs Act, 1977 as inserted by s. 5 of the Criminal Justice Act, 1999, as demonstrated by the reference by the learned Circuit Court Judge to the said ten year sentence as being a "benchmark".

7 Secondly it was submitted that the Circuit Court Judge wrongly interpreted the provisions of subs. 3G of s. 27 of the Misuse of Drugs Act, 1977 as inserted by s. 5 of the Criminal Justice Act, 1999 as not entitling her to list the seven year sentence for review having regard to the fact that the applicant was at the time of commission of the offence a drug addict.

8 Section 5of the Criminal Justice Act, 1999 inserted inter alia the following subsections after subs. 3 of s. 27 of the Misuse of Drugs Act, 1977:

9 "(3 A) Every person guilty of an offence under section 15A shall be liable, on

10 conviction on indictment

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

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

11 (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.

12 (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

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

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

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

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

13 In her careful sentencing remarks the learned Circuit Court Judge stated of subs. 3B:

14 "I said before in relation to similar offences that the way I approach these type of cases is to look at what the legislator has laid down as the benchmark sentence for these type of offences. In subs. 3B the benchmark is laid down as a 10 year sentence. I believe that there are matters which I have already referred to which bring this case into the provision of subs. 3C and that I can look at the matter again to take into consideration those matters and to take the matter out of subs. 3B. Taking into consideration those matters, having regard to all of the circumstances it-is my view that having regard to the quantity of drugs in this particular case that the appropriate sentence to impose is a sentence of 7 years imprisonment."

15 These remarks were made by the learned Circuit Court Judge prior to the judgment of this Court in The People (Director of Public Prosecutions,) v. Hogarty (Unreported, Court of

16 Criminal Appeal, 21st December, 2001). Considering a similar statement of the same Circuit Court Judge in that appeal, Keane C.J., delivering the judgment of the Court, stated at p. 4 of the judgment:

17 "That passage might suggest that the effect of the provisions is that a person convicted of the offence to which the provisions apply should be sentenced to 10 years' imprisonment, unless a plea of guilty has been entered and there has been co-operation with the investigation, in which case a lower sentence than 10 years can be imposed.

18 The Court is satisfied that this is an erroneous construction of the provisions, since it is clear that the legislature envisaged that a sentence in excess of 10 years, including a sentence of imprisonment for life, may be imposed in respect of such offences. Since that approach, however, was, if anything, in ease of the application in the present case, the Court is satisfied that, although it was erroneous in point of law, it does not itself provide a ground on which this Court should interfere with the sentence actually imposed."

19 The same considerations apply in this appeal. It is clearly permissible for a judge when sentencing for an offence committed contrary to s. 15A of the Act of 1977 to take into account the minimum period often years indicated by the legislature in subsection 3B. Insofar as the Circuit Court Judge in this instance gave such period more weight than a minimum sentence it was in ease of the applicant and therefore does not provide a ground upon which this Court should interfere with the sentence actually imposed on the second ground advanced.

20 The Court is of the view that the Circuit Court Judge correctly decided when sentencing the applicant that (having decided in the light of all the circumstances of the particular case that it was permissible for her under subs. 3C of s. 27 of the Act of 1977 as

21 inserted by s. 5of the 1999 Act to. impose a sentence of less than ten years) it was impermissible for her under subs. 3G (b) to list the sentence for review. Subsection 3G provides:

22 "(3G) In imposing a sentence on a person convicted of an offence under section 15A of this Act, a court

• (a) may inquire whether at the time of commission of the offence the person was addicted to one or more controlled drugs, and

• (b) if satisfied that the person was so addicted at that time and that the addiction was a substantial factor leading to the commission of the offence, may list the sentence for review after the expiry of not less than one-half of the period specified by the Court under subsection (3B) of this section."

23 The express words of subs. 3G (b) of s. 27 which enable the Court to list the sentence -for review appear confined to circumstances in which the Court has imposed a minimum sentence as provided for in subs. 3B, i.e. ten years or more. It does not in its express terms permit a Court, in circumstances where the Court determines pursuant to subs. 3C that subs. 3B should not apply, to list a sentence for review.

24 The Court has taken into consideration the fact that the Criminal Justice Act, 1999 was passed prior to the judgment of the Supreme Court in the The People (Director of Public Prosecutions) v. Finn [2001] 2 I.R. 25. That judgment was delivered on 24th November, 2000. The Supreme Court held that the practice of imposing reviews as part of a sentence should be discontinued. Undoubtedly at the time of the passing of the Criminal Justice Act, 1999 there was a practice in being amongst many judges whereby reviews were imposed as part of a sentence. It may be that the legislature in enacting subs. 3 G did so for the purpose of clarifying that notwithstanding the minimum term specified in subs. 3B the Court should be entitled to list such a sentence for review after the expiry of one half of the minimum period

25 as specified where the accused was at...