DPP v Farrell

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Kennedy
Judgment Date12 Jun 2020
Neutral Citation[2020] IECA 163
Docket NumberRecord Number: 280/18

[2020] IECA 163

THE COURT OF APPEAL

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 280/18

BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
- AND -
RICHARD FARRELL
APPELLANT

Sentencing – Possession of controlled drugs for sale or supply – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: On the 18th October 2018, a sentence of four and a half years’ imprisonment with the final eighteen months suspended was imposed on the appellant, Mr Farrell, who had entered pleas of guilty in respect of counts on two Bills of Indictment. The offences in question were all counts of possession of controlled drugs for sale or supply contrary to s. 15 of the Misuse of Drugs Act 1977, as amended. The appellant appealed to the Court of Appeal against sentence. It was submitted that the trial judge: (i) erred in principle by setting an unduly harsh headline sentence of seven years which was disproportionate in the circumstances; (ii) failed to adequately discount in sentence for the appellant’s entry of a guilty plea; (iii) failed to sufficiently cater for rehabilitation in the sentence imposed; (iv) failed to adequately discount in sentence given that the appellant was under the dominion of more nefarious people; (v) failed to sufficiently consider the appellant’s drug and alcohol addiction present and operative through all offences before the Court; and (vi) failed to impose a fair and proportionate sentence in light of all the mitigating factors.

Held by the Court that, having addressed firstly the appeal against sentence on Bill number 29/2017, the judge fell into error in nominating a headline sentence of seven years on those counts. Moreover, the Court considered that the judge ought to have differentiated in the sentence imposed on that Bill and on Bill number 14/2017; this was because the latter offence was second in time and while the value was not determinative of the sentence to be imposed, it was a factor to consider. The Court was of the view that the appropriate pre-mitigation sentence in the instance of Bill number 29/17 was one of 18 months on each count. The Court was not at all persuaded that the judge failed to take proper account of the mitigating factors, indeed she gave a substantial reduction for those factors and it could be said that the reduction was too generous; however, as the judge erred in nominating the pre-mitigation sentence, this impacted on the ultimate sentence. As the Court was satisfied that the judge erred, it held that it would quash the sentence on Bill number 29/2017 and would substitute a sentence of 12 months’ imprisonment on each count.

The Court held that, having moved to the second Bill number, the judge erred in the nomination of the pre-mitigation sentence of seven years. The court held that, when looking to the circumstances of the offending, the appellant’s moral culpability or blameworthiness and also to the value of the drugs, it was satisfied that the judge erred in nominating seven years’ imprisonment and so it held that it would also quash that sentence. In the circumstances it was of the view that the appropriate pre-mitigation sentence for that offence was one of four years’ imprisonment. The Court held that the appropriate downward reduction for mitigation resulted in a sentence of two and a half years. In order to incentivise rehabilitation, the Court held that it would suspend the final six months of that sentence, the appellant to enter into a bond in the sum of €100 before the Prison Governor in the usual terms for a period of two years and also on the condition that he remain under the supervision of the Probation Service and comply with all directions from that service. The Court held that the sentences would be imposed concurrently.

Appeal allowed.

JUDGMENT of the Court (ex tempore) delivered on the 12th day of June 2020 by Ms. Justice Kennedy .
1

This is an appeal against sentence. On the 18th October 2018, a sentence of four and a half years’ imprisonment with the final eighteen months suspended was imposed on the appellant who had entered pleas of guilty in respect of counts on two Bills of Indictment. The offences in question were all counts of possession of controlled drugs for sale or supply contrary to section 15 of the Misuse of Drugs Act 1977, as amended.

Background
2

The first Bill of Indictment was Bill no. 29/2017 and the appellant entered a plea of guilty in relation to four counts of possession of controlled drugs for unlawful sale or supply contrary to section 15 of the Misuse of Drugs Act 1977. A nolle prosequi was entered on the remaining counts. On four separate occasions between the 20th April 2016 and the 24th May 2016, the appellant sold quantities of diamorphine to undercover gardaí, ranging from values of €20.00 to €40.00. A search warrant was then obtained for the appellant's address and during the search a mobile phone, a tick list and a small quantity of diamorphine was recovered. On the 29th November 2016 the appellant was arrested and he made full admissions to selling drugs on the dates in question.

3

In respect of Bill no. 14/2017 this relates to investigations carried out in July 2016. On the 25th July 2016, a search warrant was obtained for the appellant's address. Diamorphine with a value of €2,000 was recovered. The appellant was arrested and he made full admissions to selling diamorphine to his friends. The appellant pleaded guilty to a count of possession of controlled drugs for unlawful sale or supply contrary to section 15 of the Misuse of Drugs Act 1977. A nolle prosequi was entered on the remaining counts.

Personal circumstances of the appellant
4

The appellant was 34 years of age at the time of sentencing. The appellant has 25 previous convictions for summary offences including four relating to section four theft offences and 19 relating to public order offences. The appellant has no previous drug-related convictions. The Court heard that the appellant is a chronic heroin addict who was dealing drugs to feed his own habit. The appellant has little family support and he had a difficult upbringing, including suffering the loss of two brothers when he was young. The appellant was one of the main drug dealers in Carlow but he did not earn a profit from his dealing but rather he did it to feed his own addiction. The Court heard evidence from Garda Cleary that Mr Farrell was effectively a runner for persons who were higher up the chain of criminality in Carlow.

5

In terms of rehabilitation the Court heard that the appellant has made various attempts to treat his addiction issues. At the time of sentencing the appellant was on a methadone programme and had reduced his heroin use from six bags a day to one bag a day.

The sentence
6

On the 18th October 2018, the appellant received a sentence of four and a half years’ imprisonment with the final eighteen months suspended on terms.

7

In terms of mitigation, the sentencing judge noted that the appellant cooperated at interview and gave full admissions as well as an early plea of guilty. The sentencing judge further noted that the appellant has unfortunate personal circumstances including a history of chronic addiction which led him to be employed by others who he lived with who saw economic gain by engaging with him and he was under their dominion.

8

In respect of Bill 14/17 the sentencing judge identified a headline sentence of seven years’ imprisonment, taking into account the guilty plea this was reduced to five and a half years and taking into account the other mitigation present, the sentence was reduced to four and a half years. The Court then said that having looked at the offender, the offence and the prospect of rehabilitation, the final 18 months of the sentence would be suspended on terms.

9

In respect of Bill 29/17, the same sentence was to run concurrently on each count

Grounds of appeal
10

The appellant puts forward the following grounds of appeal :-

I. It is submitted the trial judge erred in principle by setting an unduly harsh headline sentence of seven years which was disproportionate in the circumstances.

II. It is submitted the trial judge failed to adequately discount in sentence for the appellant's entry of a guilty plea.

III. It is submitted the trial judge failed to sufficiently cater for rehabilitation in the sentence imposed.

IV. It is submitted the trial judge failed to adequately discount in sentence given that the appellant was under the dominion of more nefarious people.

V. It is submitted the trial judge failed to sufficiently consider the appellant's drug and alcohol addiction present and operative through all offences before the Court.

VI. It is submitted the trial judge failed to impose a fair and proportionate sentence in light of all the mitigating factors.

Submissions
Ground one- Headline sentence
11

The appellant submits that the sentencing judge erred in identifying a headline sentence of seven years. The appellant argues that the Court overestimated the culpability of the appellant and the appellant refers to The People (DPP) v. Derek Long [2009] 3 IR 486 where the Court stated that the quantity and value of the drugs seized is a critical factor in assessing...

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