DPP v Ferguson

JurisdictionIreland
JudgeMr. Justice John Edwards
Judgment Date22 June 2015
Neutral Citation[2015] IECA 166
Docket NumberAppeal No. 23/14
CourtCourt of Appeal (Ireland)
Date22 June 2015

[2015] IECA 166

THE COURT OF APPEAL

Mr. Justice Sheehan

Mr. Justice Mahon

Mr. Justice Edwards

Appeal No. 23/14

The People at the Suit of the Director of Public Prosecutions
Respondent
and
Shane Ferguson
Appellant

Drug Offences - Misuse of Drugs Act 1977 – Sentence Appeal – Sentence Severity – Aggravating Factors – Judicial Error – Assessment of Evidence

Facts: In this case the appellant, who had been convicted of a number of drug offences, namely the possession of controlled drugs for the purposes of selling or otherwise supplying them to another contrary to the Misuse of Drugs Act 1977, and subsequently sentences to seven years imprisonment, appealed against the severity of his sentence. It was contended that his sentence ought to be set aside on the grounds that it was excessive and specifically that (1) the sentencing judge had erred in differentiating to the extent that he did between the appellant and his co-accused in circumstances where the appellant contended that the difference in degree of involvement between the two was marginal; and (2) the sentencing judge erred in treating the appellant”s failure to mention his drug addiction when interviewed as an aggravating factor.

Held by Justice Edwards in light of the examined character and antecedents and the respective culpabilities of the individual offenders in this case that he was not satisfied that there was, in fact, a rational basis for differentiating between them, at least to the extent that the sentencing judge had. However, despite that finding, the Court was entirely satisfied that the sentence of seven years imprisonment imposed on the appellant was, in fact, appropriate and in accordance with recent jurisprudence of the court. In acknowledging that consistency in sentencing and predictability were important values in the law of sentencing, the Court found that the sentencing judge erred in principle in differentiating between the two accused to the extent that he did and upheld the appeal on the first ground. The court was not disposed to uphold the second ground of appeal. Thus, having found an error of principle, the Court quashed the sentence of seven years imposed on the appellant and decided to sentence him afresh. In recognition of the possibility that a sense of grievance was harboured and in recognition of the need to maintain public confidence in the administration of justice and to promote consistency and predictability in sentencing, the court, as a matter of discretion, decided to reduce the sentence imposed by the learned trial judge by one year and imposed a sentence of six years in substitution for the sentence of seven years imposed by the sentencing judge.

Judgment of the Court (ex tempore) delivered on the 22nd day of June 2015 by Mr. Justice John Edwards
1

This is a case in which the appellant pleaded guilty on 19th April 2013 to three drug offences before Limerick Circuit Criminal Court, comprising one count of possession of a controlled drug, the market value of which amounted to €13,000 or more for the purposes of selling or otherwise supplying it to another contrary to s.15A of the Misuse of Drugs Act 1977 as amended, one count of possession of a controlled drug for the purposes of selling or otherwise supplying it to others contrary to s.15 of the Misuse of Drugs Act 1977 and one count of possession of a controlled drug contrary to s.3 of the Misuse of Drugs Act 1977.

2

The appellant was sentenced on 17th January 2014 to seven years' imprisonment on count number 1, this being the s.15A count, and the sentence was to run from 25th May 2012. No order was made on the other two counts they being effectively taken into consideration. The appellant now appeals against the severity of his sentence.

Relevant background
3

On 25th May 2011 the gardaí observed a navy Ford Transit van delivering boxes to a cottage situated in the Lisnagry area of rural Co. Limerick about five miles from the centre of Limerick city. It was established that this Ford Transit van had been hired by the appellant from Hire A Van on the Ballysimon Road in Limerick on the morning of 25th May 2012. Prior to hiring the van the appellant had obtained insurance for his intended use of this van from an insurance broker in Limerick city. Both of these transactions were captured on CCTV. The appellant had to procure insurance for the use of this van as his existing insurance was not sufficient.

4

The appellant then drove the van to Poyntzpass, Newry, Co. Down where he collected a significant quantity of cannabis, that is the cannabis that is the subject matter of this prosecutions. A number of stickers were torn from the exterior of the van and were found in a bin at the address from where the cannabis was collected in Poyntzpass in Newry. The appellant drove the van from Newry south to Co. Limerick. The progress of the van was tracked on the motorway system. The appellant was also captured on CCTV paying at a toll station in the course of his journey. At about 7 p.m. the van was observed close to Ahane school in Co. Limerick.

5

The appellant met an accomplice, Ciaran Nevin, who was driving a Mazda 626 motor car. The two individuals swapped vehicles, Mr. Nevin drove away in the van towards a cottage in Murroe, Co. Limerick. Mr. Ferguson drove away in the Mazda 626. CCTV footage taken from Finnegans, which is a well known licensed premises, connected the appellant to Mr. Nevin's Mazda. Mr. Nevin moved five large cardboard boxes from the van into the aforementioned cottage. When Mr. Nevin drove away from the cottage his vehicle was stopped and searched by members of an garda siochaná. Later armed with a search warrant the gardaí entered the cottage using a key that Mr. Nevin had in his possession.

6

It was ascertained that the boxes, which contained the cannabis and which were located in the cottage, had stickers placed on them from UPS which is a well known delivery company. It was possible having regard to the labelling on the boxes to reconstruct the movements of the consignment. It was noted that the boxes had travelled by air from Eindhoven in the Netherlands having left at 9.20 a.m. on 24th May 2011. The consignment passed through Cologne and Germany and arrived at Castle Donnington airport in England on 25th May 2011 at 04.38 a.m. The consignment then arrived at Newtownabbey airport on 25th May 2011 at 07.44 a.m. and it was possible then to establish that the boxes had been delivered to an address at Poyntzpass at 10.05 a.m. — all on 25th May 2011.

7

It was established in evidence that a consignment of cannabis, the subject matter of this prosecution, was delivered as part of a sophisticated operation involving the supply and distribution of cannabis. The quantity involved was very large. It amounted to in excess of 52.2 kilos with an established street value of €1,450,138.

The sentencing hearing
8

The court heard evidence of the relevant facts from Det. Gda. Crawley, who is based at Roxboro Garda Station in Limerick. In response to a query from the sentencing judge the Det. Gda. Crawley opined that the appellant's culpability was higher than that of his associate, Mr. Nevin.

9

The court was told that the appellant was born on 6th July 1967 and was forty four at the time of the offence. He was a married man, but separated, and was an un-employed carpenter. He had eleven previous convictions, the majority of which were for road traffic offences. However, he had two convictions for assault causing harm contrary to s.3 of the Non Fatal Offences against the Person Act 1990 and one conviction for producing an article capable of inflicting serious injury in the course of a dispute contrary to s.11 of the Firearms and Offensive Weapons Act 1990. All three of these charges arose out of the same incident. He received suspended sentences of four months on each of the assault charges and the s.11 charge was taken into consideration.

10

The court heard evidence from a Mr. Duggan, a building contractor, who had previously employed the appellant for a number of years before the downturn in the building trade had forced him to let the appellant go. Mr. Duggan spoke highly of his skills as a carpenter, expressed shock at the appellant's involvement in these drug offences and stated that when the appellant became free again he would be in a position to offer him work.

11

The court was also furnished with a number of documents consisting of certificates of participation and achievement on a programme of drug counselling and a report concerning the appellant's involvement with the Bedford Row project.

12

However, in response to a question to Det. Gda. Crawley from prosecuting counsel concerning whether the appellant in the course of being interviewed following his arrest had offered drug addiction as an excuse or explanation for being involved in these offences the Det. Gda. replied “no”.

13

The following matters were highlighted on behalf of the appellant:—

(a) The appellant had entered an early plea of guilty.

(b) The appellant had made admissions in respect of the...

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1 cases
  • DPP v Power
    • Ireland
    • Court of Appeal (Ireland)
    • 22 Julio 2019
    ...of justice resulting from a significant disparity in the sentences which seems incapable of being justified…’ 15 In DPP v. Ferguson [2015] IECA 166, the appellant and his co-accused had pleaded guilty to possession of approximately €1,450,138 worth of cannabis with intent to supply contrary......

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