DPP v O'Dwyer

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 10 December 2020
• Neutral Citation: [2020] IECA 353
• Docket Number: [C.A. No.167 of 2018]
• Court: Court of Appeal (Ireland)
• Date: 10 December 2020

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

- AND -

MARK O'DWYER

RESPONDENT

[2020] IECA 353

Edwards J.

McCarthy J.

Ní Raifeartaigh J.

[C.A. No.167 of 2018]

THE COURT OF APPEAL

Sentencing – Possession of drugs for sale or supply – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr O’Dwyer, pleaded guilty to an offence contrary to s. 15A of the Misuse of Drugs Act 1977 as amended, that is to say, possession of drugs for sale or supply in circumstances where the drugs exceeded the value of €13,000. The value of the drugs in question was €4.17 million. The sentencing judge imposed a sentence of 5 years. The appellant, the Director of Public Prosecutions, appealed to the Court of Appeal seeking to have the sentence of the respondent increased on the basis that it was unduly lenient.

Held by the Court that, taking into account the quantity and value of the drugs and the fact that the appellant made a free and conscious decision to involve himself with the enterprise purely for easy financial gain and without any pressure or duress operating upon him, the sentence arrived at was unduly lenient notwithstanding the mitigating factors. By reason of the fact that the sentencing judge did not set out his thoughts explicitly, the Court found that it was not possible to say whether the error came in at the stage of fixing the headline sentence or in applying an excessive discount for mitigating factors, or some combination thereof. The Court proceeded to re-sentence the respondent.

The Court designated 14 or 15 years as the appropriate headline sentence in respect of the respondent. The Court held that, in ordinary circumstances, the mitigating factors would reduce the headline sentence of, say, 14 years, to 12 years. The Court reduced the sentence further to 9 years by reason of what it considered an exceptional circumstance; the fact that two and a half years had elapsed since the imposition of sentence and the respondent had been released from prison under the temporary release scheme.

Appeal allowed.

JUDGMENT of the Court delivered on the 10 ^th day of December 2020 by Ms. Justice Ní Raifeartaigh

1 This is an application by the Director of Public Prosecutions who seeks to have the sentence of the respondent increased on the basis that it was unduly lenient. The respondent pleaded guilty to an offence contrary to s.15A of the Misuse of Drugs Act 1977 as amended, that is to say, possession of drugs for sale or supply in circumstances where the drugs exceeded the value of €13,000. The value of the drugs in question was €4.17 million. The sentencing judge imposed a sentence of 5 years.

2 The sentence imposed in respect of another man involved in the same incident relating to possession for supply of the drugs, Mr. Stephen Sarsfield, was the subject of an undue leniency application by the DPP and the Court delivered judgment in that case on the 15 October 2019 (judgment delivered by Birmingham P.), increasing his sentence from 7 years (imposed by the same trial judge) to 10 years imprisonment on appeal.

The Sentence Hearing in respect of the Respondent

3 The sentence hearing in respect of the respondent took place before Judge Martin Nolan of the Dublin Circuit Criminal Court on the 8 May 2018. The evidence given was as follows. On foot of confidential information, a number of Detective Gardaí carried out a surveillance operation at Ballyfermot Drive. A large heavy goods vehicle was parked across the road from No. 10 Ballyfermot Drive. There was a large garage attached to No. 10 Ballyfermot Drive and a large white Mercedes van was parked in the driveway. At 1:50 pm, Stephen Sarsfield was observed moving the truck into position on the footpath immediately opposite the entrance to No. 10 and entering the garage on foot. There were various movements of vehicles and people until, at 2:08 pm, the respondent Mark O'Dwyer arrived on the scene in his own car, a blue Ford Focus. The Gardaí observed three men, two of whom were Mr. Sarsfield, and the respondent, entering and exiting the garage and they were observed removing green and white flat pack boxes from the rear of the truck and bringing them into the garage.

4 At 4:05 pm Gardaí entered the garage on foot of a search warrant. Mr. Sarsfield was standing at the side of the truck and the respondent was standing at the rear of the truck, both having been observed exiting the garage a few seconds prior to that. A large amount of controlled drugs were scattered throughout the garage in plain sight. There were packages of cannabis herb stacked against the left-hand wall and more on the floor and others were placed inside some of the flat packed storage boxes that had now been made up. A total of 378 packages of cannabis herb were seized by the Gardaí. In a smaller room they found a weighing scales and there were three packages with approximately 1kg of diamorphine on the table in open view. There was also a money counter on the table. In another small room there were three stun guns and they were also in open view. There were other items such as plastic bags and mobile phones.

5 The respondent was arrested and brought to Ballyfermot Garda Station where he was detained. At one point he was asked how it felt seeing what was at the scene and he answered: “ I just wanted to get out of it”. He also made a comment at one point that he “ felt like shit about all of that” and he added that he had no knowledge of guns or drugs.

6 The total weight of the plant material was estimated to be 188 kilogrammes and upon analysis from twelve of the packages was found to be cannabis. The valuation of the cannabis seized was €3.76m. The blocks of white powder were found to contain 2.9 kilogrammes of diamorphine and the value of that was put at €410,312. The combined total value of the drugs was put by the Gardai at €4.17m.

7 A detective from the ballistics section gave evidence that the stun guns were in poor condition and did not work.

8 It was established in cross-examination of the Garda Officer that Mr. O'Dwyer did not make any attempt to flee and did not resist arrest, and that the extent of his involvement in the operation was that he was brought in to assist with the packaging of the drugs. He was one of the last to arrive on the scene and he had driven his own car, the Ford Focus which was a 2003 registration. His house was searched and nothing of evidential value was found nor were there any signs of wealth. The garda accepted that he was in poor health and was HIV positive.

9 Mr. O'Dwyer was 44 years of age and had 41 previous convictions, most of which were for road traffic matters. There were four previous convictions for s.3 of the Misuse of Drugs Act, one for obstruction under the Misuse of Drugs Act, and two for robbery under the old Larceny Act. All of them were District Court matters. The last conviction date was the 19 January 2010, therefore leaving a gap of seven years between that offence and the present offence. The offences under the Larceny Act dated back to the 1990s.

10 In mitigation, counsel on behalf of the respondent submitted that he had been a chronic drug addict from a young age who was successfully maintained for almost twenty years on maintenance programmes and had not been involved in offending of any kind in 7 years. Furthermore, he had been released from a prison sentence in 1999 and between that time and 2017 the only offences of which he was convicted were matters under the Road Traffic Act. He contracted HIV in 2003 from sharing a needle. Originally, he came from the Liberties in Dublin, being born in 1973. His mother had a very serious drug problem herself and she died when she was 25 years old. He was raised by his grandmother and completed a Junior Certificate. He worked as a labourer occasionally and worked with horses for years, but unfortunately developed a major drug problem in his early teens. He had been a good athlete, playing hurling and football, but opted out during his teens when he succumbed to addiction.

11 Placed before the court were the following reports and letters:

(1) A letter of Dr. Dominick Rowley, Consultant Physician of St. James's Hospital dealing with his HIV status and medication;

(2) A letter dated 3 ^rd May 2018 from Dr. Caulfield of the Addiction Services in Dr. Stevens’ Hospital who confirms that Mr. O'Dwyer was attending the Drug Treatment Service there almost continuously from May 2000 until July 2017 and gave the history of his drug addiction and maintenance medications and said that he was also polite and cooperative with the staff in the clinic;

(3) A letter dated 26 ^th March 2018 from Ms. Moira O'Neill of the Rialto Community Drug Team, who refers to his addiction issues which he wished to address and refers to the possibility of residential treatment as part of or at the end of his sentence;

(4) A letter from Mr. Anthony Kiely, addiction support worker, who refers to the fact that the accused has been dealing not only with addiction but a number of personal issues within his family, and the loss of some key people in his life, as well as his relationship with his partner and child;

(5) A number of person letters testifying as to his personal character;

(6) A letter indicating that the respondent had work with a funeral service (in his capacity as dealing with horses, presumably in connection with horse-drawn hearses).

12 A forensic psychologist report was also put before the Court. This indicated that the respondent falls within an extremely low range of cognitive functioning, and that this would affect his ability to think logically and make judgments and decisions in his own best interests. He has a limited ability to read and write, to understand language or control his impulses. His psychologist described him as very vulnerable and recommended that he...