DPP v Farrell

• Jurisdiction: Ireland
• Judge: Mr. Justice Finnegan
• Judgment Date: 21 December 2010
• Neutral Citation: [2010] IECCA 116
• Court: Court of Criminal Appeal
• Date: 21 December 2010

DPP v Farrell

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

EDWARD ANTHONY FARRELL

RESPONDENT

[2010] IECCA 116

Finnegan J.

Budd J.

Herbert J.

[C.C.A. No. 244 C.J.A./07]

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Sentence

Undue leniency - Suspension of sentence - Extraordinary and specific circumstances - Respondent at large and having resumed life -DPP v M [1994] ILRM 541; DPP v Renald (Unrep, CCA, 23/11/2001); DPP v Galligan (Unrep, CCA, 23/7/2002); DPP v Benjamin (Unrep, CCA, 14/1/2001); DPP v Houlihan (Unrep, CCA, 14/11/2005);DPP v Henry (Unrep, CCA, 15/5/2002); DPP v Long [2006] IECCA 49 (Unrep, CCA,7/4/2006); DPP v Hogarty (Unrep, CCA, 21/12/2001); DPP v McGinty [2006] IECCA 37, [2007] 1 IR 633 and DPP v Ducque [2005] IECCA 92, (Unrep, CCA,15/7/2005) considered. Re Hunt [1987] AC 352 applied. Criminal Justice Act 1993 (No. 6), s 2 - Misuse of Drugs Act 1977 (No. 12), ss 15A, 21 and 27 - Application to vary sentence refused (244CJA/2007 - CCA - 21/12/2010) [2010] IECCA 116

People (DPP) v Farrell

Facts: The Director of Public Prosecutions sought an order setting aside the sentence of a trial judge on the grounds that it was unduly lenient. A sentence of eight years with six years suspended had been imposed by the sentencing judge for drugs offences. In a previous judgment on the matter, the Court had concluded that while the transcript of the sentencing hearing was fragmentary and often garbled, it enabled the Court to consider the actions of the sentencing judge. The respondent had been found transporting heroin with a market value of Eur 1.6 million. The trial judge noted that the respondent had twenty previous offences and had considered the personal circumstances of the respondent in mitigation, including his heroin abuse, his remorse, his cooperation with the Gardai, his guilty plea and that he had not become involved in the transportation of drugs for personal profit. The issue arose as to the application of s. 27(3B) of the Misuse of Drugs Act 1977, as amended and the mandatory ten-year minimum sentence and "exceptional and specific" circumstances affecting the operation of the mandatory provisions.

Held by the Court of Criminal Appeal per Finnegan J. that it was the opinion of the Court that it would be an unacceptable disregard for the humanity of the respondent if the Court were now to direct that he had to serve the remainder of the sentence of eight years imposed by the sentencing judge. This was despite the conclusion of the Court that the suspension of any part of the eight years was in error. In the extraordinary, specific and unusual circumstances of the case, the Court would permit the sentence imposed to stand. While the sentence of eight years was very lenient it was not unduly lenient. However, the suspension of the final six years was unduly lenient.

Reporter: E.F.

CRIMINAL JUSTICE ACT 1993 S2

DPP v M 1994 3 IR 306 1994 2 ILRM 541

DPP v RENALD UNREP CCA 23.11.2001 2001/8/2140

HUNT, IN RE 1987 AC 352

MISUSE OF DRUGS ACT 1977 S21

MISUSE OF DRUGS ACT 1977 S15(A)

DPP v GALLIGAN UNREP CCA 23.7.2003 2003/16/3495

MISUSE OF DRUGS ACT 1977 S27(3C)(B)

CRIMINAL JUSTICE ACT 1999 S5

DPP v BENJAMIN (ORSE EWEE) UNREP DENHAM 14.1.2002 2003/14/2948

DPP v HOULIHAN UNREP CCA 14.11.2005

DPP v HENRY UNREP CCA 15.5.2002 2003/16/3616

DPP v LONG UNREP CCA 7.4.2006 2006/19/3939 2006 IECCA 49

MISUSE OF DRUGS ACT 1977 S15(A)

MISUSE OF DRUGS ACT 1977 S27(3)

MISUSE OF DRUGS ACT 1977 S27(3C)

DPP v HOGARTY UNREP KEANE 21.12.2001 2001/7/1848

DPP v MCGINTY 2007 1 IR 633 2006 IECCA 37

MISUSE OF DRUGS ACT 1977 S15(A)

MISUSE OF DRUGS ACT 1977 S27(3B)

DPP v DUCQUE UNREP CCA 15.7.2005 2005/19/3955 2005 IECCA 92

1 JUDGMENT of the Court delivered by Mr. Justice Finnegan on the 21st day of December 2010.

2 In this Appeal the Director of Public Prosecutions seeks an Order of this Court, pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, setting aside the sentence imposed on the respondent by the learned sentencing judge on the ground that it was unduly lenient.

3 In a previous judgment in this matter, delivered on the 27 ^th July, 2009, this Court concluded, that while the transcript of the sentencing hearing on 6 ^th November, 2007, was fragmentary, incomplete and in places garbled, the Report furnished to this Court by the learned sentencing judge was sufficient to inform this Court of what took place at the sentencing hearing. This Report of the learned sentencing judge enabled this Court to be confident as to what took place at the sentencing hearing and, it enabled this Court to be satisfied as to the considerations taken into account by the learned sentencing judge, particularly the mitigating factors identified by him, in the course of the deciding on a sentence of eight years imprisonment, with the final six years suspended, which was the sentence he imposed on the respondent.

4 It is the opinion of this Court that the learned sentencing judge erred in principle in failing properly to apply the ruling of the Supreme Court in The People (Director of Public Prosecutions) v. M. [1994] 2 I.L.R.M. 541, and of this Court in the People (Director of Public Prosecutions) v. Renald (C.C.A. - 23 ^rd November, 2001 - Unreported). A sentencing court must first establish the range of penalties available for the type of offence and then the gravity of the particular offence, where on the range of penalties it would lie, and thus the level of the punishment to be imposed in principle. Then, having assessed what is the appropriate notional sentence for the particular offence, it is the duty of the sentencing court to consider the circumstances particular to the convicted person. It is within that ambit that the mitigating factors fall to be considered. On the one hand, a grave crime should generally be reflected in a long sentence and in this respect, this Court is satisfied to endorse the opinion of Lord Griffiths in Re: Hunt [1987] A.C. 352 at 378, that, "offences involving the misuse of hard drugs are among the most serious in the criminal calendar". On the other hand attention must be paid to factors relevant to the individual offender such as a plea of guilty, the time at which it was indicated, the personal circumstances of the offender, an absence of propensity to reoffend a genuine expression of remorse, a real prospect of rehabilitation, all of which may serve to mitigate the sentence.

5 The facts of this case as identified by the learned sentencing judge are, that the respondent was driving a Nissan Van when it was stopped by Customs Officers at Rosslare Ferry-Port on the 14 ^th June, 2007. After a careful search of the vehicle, two hidden compartments were found which contained 8.0175 kgs of Diamorphine (heroin). A witness from An Garda Síochána gave evidence that this quantity of Diamorphine had a market value in excess of €1.6m. In the first three out of a total six interviews of the respondent conducted in Wexford Garda Station, he denied any knowledge of these drugs. When a key element in his account was shown to be untrue, the respondent relented and then admitted that he had driven to Antwerp where a meeting had been arranged at a particular location. He accepted that he knew drugs were involved but he claimed that he did not know either the type or the quantity of those drugs. This is absolutely irrelevant to either the fact of or, the seriousness of the offence, though the learned sentencing judge appears to have erroneously considered that it somehow lessened the moral turpitude and therefore the gravity of the offending. The respondent admitted that he had made two test runs over the route about one month earlier.

6 The learned sentencing judge noted that the respondent had twenty previous convictions: sixteen of these were for road traffic offences and the others were an offence under the Theft Act, an offence under the Public Order Act and an offence under s. 21 of the Misuse of Drugs Act 1977. The learned sentencing judge described these previous offences as not ranking high in the criminal calendar.

7 In passing sentence, the learned sentencing judge stated that he could not disregard the very significant quantity of heroin involved and, the fact that it was a drug which had been the cause of enormous societal problems, a great deal of which ultimately came before the courts. He noted that offences pursuant to the provisions of s. 15(A) of the Misuse of Drugs Act 1977, (as amended) carried a maximum sentence of life imprisonment. The learned sentencing judge further noted that the emphasis of the Act of 1977 (as amended) was on the value of the drugs involved. Having correctly identified all of these aspects of this particular offence, the learned sentencing judge unfortunately then failed to assess what would be an appropriate "notional" sentence in principle for such an offence. He failed to have regard to and to identify in his judgment where on the range of penalties this particular type of offending would lie, before he considered what reduction (if any) would be appropriate based on any identifiable mitigating factors. Taking account of the facts as proved or admitted, this Court is satisfied that it should be located in the upper mid range and that the appropriate notional sentence, having regard to the gravity of the offence, would be a term of imprisonment of twelve years.

8 The respondent's personal circumstances, as identified by the learned sentencing judge, appear to be that he was 31 years of age at the date of this offence. He has a long term partner, from whom he had been separated for a considerable period but with whom he has become reconciled. He has five sons by this partner aged from twelve years to four years. His three...