DPP v Fanning

• Jurisdiction: Ireland
• Judgment Date: 19 January 2015
• Neutral Citation: [2015] IECA 11
• Date: 19 January 2015
• Court: Court of Appeal (Ireland)

[2015] IECA 11

THE COURT OF APPEAL

The President

Mahon J.

Edwards J.

[CW 20/2011]

DPP v Fanning

D.P.P.

APPLICANT

V.

CONOR FANNING

RESPONDENT

CRIMINAL JUSTICE ACT 1993 S2

DPP v BYRNE 1995 1 ILRM 279

DPP v MCCORMACK 2000 4 IR 356

DPP v REDMOND 2001 3 IR 390

CRIMINAL JUSTICE ACT 2007 S33

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1977 S15(A)

MISUSE OF DRUGS ACT 1977 S15(B)

MISUSE OF DRUGS ACT 1977 S27(3)(H)

MISUSE OF DRUGS ACT 1977 S27(3)(A)

CRIMINAL JUSTICE ACT 1999 S5

DPP v BOTHA 2004 2 IR 375

DPP v RENALD UNREP CCA MURPHY 23.11.2001 2001/8/2140

DPP v LONG 2009 3 IR 486

DPP v DUFFY UNREP KEANE 21.12.2001 2001/7/1809

DPP v LERNIHAN UNREP CCA 18.4.2007 2007/19/3889 2007 IECCA 21

DPP v HOGARTY UNREP KEANE 21.12.2001 2001/7/1848

DPP v MCGINTY 2007 1 IR 633

DPP v JERVIS & DOYLE UNREP CCA 25.3.2014 2014 IECCA 14

DPP v ALEXIOU 2003 3 IR 513

Sentencing – Possession of drugs – Undue leniency – Applicant seeking to review sentence – Whether sentence imposed was unduly lenient

Facts: The respondent, Mr Fanning, in 2011, was stopped by Gardaí on the M9 motorway. They found 20 packages of cannabis herb in the boot and two mobile phones. Mr Fanning admitted possession of the drugs and cooperated to the extent of admitting his own involvement in drug dealing but did not provide further information. He was classed as being mid-table in regard to his involvement in the group dealing in the drugs. He was charged with possession, was arraigned and pleaded guilty. At the sentence hearing in 2012, the trial judge put his decision back for one year and said that how much of the sentence was to be suspended would depend on the respondent”s subsequent conduct. In 2013, Carlow Circuit Criminal Court imposed a wholly suspended sentence, referring to the mandatory minimum sentence stipulated for this offence. The sentencing judge noted the value of the drugs and took that as an aggravating factor. He regarded the case is being in the middle range of such offences. Then he turned to the mitigating factors, noting the early plea of guilty and the admissions that the respondent made to the Gardaí, which made the investigation of the case and prosecution easier. The judge referred to a disagreement between the investigating Garda officer and the respondent as to the reason for lack of more extensive cooperation and was sympathetic of the position of the accused in being fearful of the consequences of giving information about the hierarchy of the organisation in which he was involved. The respondent had no previous convictions and had indicated a high level of remorse. The probation report indicated that the respondent had moved further away from its previous criminal ways and into a more stable environment. The judge imposed a sentence of 10 years but he suspended it for a period of five years on condition that the respondent keep the peace and be of good behaviour for that period. The DPP applied under s. 2 of the Criminal Justice Act 1993 to the Court of Appeal for an order reviewing the sentence imposed, contending that it was unduly lenient and did not reflect the grave nature of the charge and the trial judge erred in principle in failing to attach sufficient weight to the aggravating features while giving undue weight to the mitigating factors. The respondent submitted that departure from the presumptive mandatory sentence and the imposition of a wholly suspended sentence was not unduly lenient in exceptional and specific circumstances, citing DPP v Robert Eustace (Court of Criminal Appeal, 16th December, 2013).

Held by the President that, having considered whether the mitigating features of the case or some other aspect of it constituted something that was completely out of the ordinary and exceptional in the manner envisaged by People v McGinty [2007] 1 IR 633, the Court was satisfied in all the circumstances that the trial judge did fall into error of principle in his approach to the case; having decided that the case warranted a 10-year sentence, the learned judge allowed the mitigating factors that he identified to exert a quite excessive influence. The President held that there was a failure to give effect to the legislative policy on sentences for s. 15A offences. While it may have been legitimate for the trial judge to have departed from the mandatory 10 year sentence, the President held that there was an absence of the rare, special and wholly exceptional specific circumstances that are required in order to justify a non-custodial sentence. The Court held that the trial judge took into account a totality of factors of mitigation in a case in which there was an absence of any specific sufficiently extraordinary feature to justify the wholly exceptional approach of a non-custodial sentence.

The President held that the Court would therefore set aside the sentence and proceed to impose the appropriate sentence. In accordance with the established jurisprudence of the Court of Criminal Appeal, the Court afforded the parties an opportunity of presenting up to date material in regard to sentence.

Appeal allowed.

1 1. This is an application by the Director of Public Prosecutions under s. 2 of the Criminal Justice Act 1993 for an order reviewing the sentence imposed on the respondent on the 11 ^th of February, 2013 at Carlow Circuit Criminal Court. The respondent was charged with possession of approximately 19.6 kg of cannabis with an estimated street value of €235,000. In December 2011 he was arraigned and pleaded guilty and the sentence hearing took place on the 16th of March, 2012 when the matter was adjourned for a period of one year during which the respondent was on bail and required to co-operate with the probation service.

2 2. The evidence established that on the 29 ^th of March 2011, Gardai stopped the respondent's car on the M9 motorway and found 20 packages of cannabis herb weighing 9.6 kg in the boot and they also found two mobile phones. The value of the drugs was €235,000.

3 3. Mr. Fanning admitted possession of the drugs, "knowledge of what he had done to a certain extent" according to the investigating officer, Detective Sergeant Egan. He said that he was short of money and he hoped to get between €5,000 and €10,000 for this run. He cooperated to the extent of admitting his own involvement but did not provide further information.

4 4. Detective Sgt. Egan classed Mr Fanning as being mid-table in regard to his involvement in the group dealing in the drugs. "He, throughout his interviews, outlined that he wasn't in fear of these persons and I would believe that to be true. He would know them and I believe that's why he didn't fear them. I would also say on his behalf the drugs that were brought in on the day, I don't believe Mr. Fanning was going to - while he says he owns them, it's not my belief he did own them, it is my belief he couriered them in for these other persons. I don't believe he would have sold them. I believe he was used as a courier, with full co-operation on his behalf and under no threat, but just primarily for financial gain." Mr. Fanning would have been well rewarded for his work but would not have shared in the profits from the sale of the drugs. The Sergeant did not believe that Mr. Fanning was always truthful during the interviews; he knew that some of the accounts that he gave were untrue.

5 5. Mr. Fanning had no previous convictions-apart from a road traffic matter. He has a child who lives in Spain with a former partner. He has worked most of his life but was unemployed at the time. He was working as a barman in a well-established bar in Dublin at the date of trial. He gave as a reason for committing the crime that he wanted to go to Spain to see his daughter and to pay arrears of maintenance. He is a cannabis user. In general, the Sergeant said that Mr Fanning "just barely gave answers to what he knew we knew." He accepted defence counsel's suggestion that Mr Fanning had said on one occasion: "I'm in fear for others around me". The Sergeant also agreed that Mr Fanning believed he was collecting a significantly lesser amount of drugs than was actually the case because the original intention was for half of that quantity to be collected but the plan changed on the morning. He agreed that it was a gamble he took that didn't pay off.

6 6. Mr. Fanning gave evidence to the sentencing court. He was working as a barman in Dublin and had in his career worked in bars and in construction. He was aged 31 at the time of the sentence hearing on 16 March 2012. He has a daughter aged eight years. She lives in Spain with her mother. He said that his involvement in this offence was related to a desire to provide for his daughter;

"It was. I cannot condone what I've done, my part that I've played in this, but it was a means to try and get some money for the arrears of my maintenance that I owe her and to go and see her."

7 7. He said that he could not have spoken about the people above him in the business or give names because of fear of repercussions. If you disclose any information in the interviews or in court his life would be at risk.

8 8. The court had a probation report and counsel submitted a number of testimonials. Defence counsel cited the probation report as indicating that the respondent had acquired insight into the offences, had remorse and an understanding of the effect of drugs on the community, had referred himself for counselling in respect of addiction difficulties, that he was at low to moderate risk of reoffending and could be subjected to the standard supervision by the probation services. He also referred to the significant family support available to him and the testimonials including the reference and testimonial from Mr Farnning's employer.

9 9. At the sentence hearing on...