DPP v Flanagan

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 01 May 2015
• Neutral Citation: [2015] IECA 94
• Court: Court of Appeal (Ireland)
• Date: 01 May 2015

DPP v Flanagan

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

The People at the Suit of the Director of Public Prosecutions

Applicant

v

Sharon Flanagan

Respondent

[2015] IECA 94

Birmingham J.

Sheehan J.

Edwards J.

Record No: 83 CJA/2014

THE COURT OF APPEAL

Sentencing – Drug possession – Undue leniency – Applicant seeking to appeal against sentence on grounds of undue leniency – Whether too much weight was attached to the mitigating factors

Facts: The respondent, Ms Flanagan, was initially charged on indictment with three drug possession offences contrary to s.15A, s.15 and s.3 of the Misuse of Drugs Act 1977. She was co-accused with Mr Bowen and Mr Flanagan. The joint trial of all three was due to commence in December, 2012. On that date the respondent offered a plea to the s.15A count, and this was accepted by the appellant, the DPP. On the same date Mr Flanagan offered a plea to the s.15 count, and this was also accepted by the appellant. Following arraignment, the cases of the respondent and Mr Flanagan were then adjourned to February, 2013 for sentencing. Mr Bowen asked to be re-arraigned and pleaded guilty to the s.15A count, and the appellant indicated that this was acceptable to her. Mr Bowen”s case was also adjourned to February, 2013 for sentencing. The sentencing judge decided to adjourn all three cases for a year. In February, 2014, the sentencing judge imposed on the respondent a sentence of five years imprisonment suspended for five years on a bond in the sum of €100.00 to keep the peace for that period while Mr Bowen and Mr Flanagan were sentenced to four years and three years imprisonment suspended on a bond respectively. The appellant sought to appeal the sentence imposed upon the respondent on the grounds that it was unduly lenient before the Court of Appeal. The appellant contended that while it was accepted that the trial judge was entitled to find that it would be unjust to apply the presumptive mandatory minimum sentence of 10 years, he erred in principle in not having due regard to the inherent seriousness and fundamental gravity of the offending conduct, as he was required to do in accordance with The People (DPP) v Renald (unreported, Court of Criminal Appeal, Murray J., 23rd November, 2001). It was submitted that the overwhelming tenor of the case law in relation to sentencing in s.15A cases indicated that custodial sentences are unavoidable in cases involving the proven facts and circumstances in these cases. Secondly, it was complained that the trial judge attached too much weight to the mitigating factors in the case. In that context it was submitted that relatively little weight could attach to the early plea in circumstances where the respondent was effectively caught red handed.

Held by Edwards J that, having considered that a headline sentence figure of seven years before mitigation was appropriate and within the permissible range for the offence as committed by the offender, there was no error of principle up to that point in the process. Edwards J held that there were substantial mitigating factors in the case that would have justified a generous allowance in terms of a reducing of the headline sentence in mitigation, namely the respondent”s guilty plea, her genuine remorse, her co-operation with the investigation, the very positive probation report emphasising her positive engagement with rehabilitation, her successful completion of a residential drugs rehabilitation program and the fact that she is now drug free, the fact that she had made and was continuing to make changes that would reduce her risk of re-offending, her attendance at counselling, her work ethic and record in establishing her own business, and her good relationship with and parenting of her own children, her extraordinarily difficult background and life history, and the fact that she had not come to adverse attention throughout the period of the twelve month adjournment, or indeed at all since her arrest.

Edwards J held that the Court could readily appreciate how the sentencing court could have justifiably treated the offender with exceptional leniency having regard to all of the facts. The Court therefore considered that excessive weight was not attached to mitigating factors and that the trial judge did not fall into error.

Appeal dismissed.

1 Judgment of the Court delivered on the 1st day of May, 2015 by Mr. Justice Edwards

Introduction

2 1. This is a case in which the respondent was initially charged on indictment with three drug possession offences, namely offences contrary to s. 15A, s. 15 and s.3, respectively, of the Misuse of Drugs Act 1977. She was co-accused with two other persons, namely Warren Bowen and Kevin Flanagan. The joint trial of all three was due to commence on the 4 ^th December, 2012. On that date the respondent offered a plea to the s.15A count, and this was accepted by the appellant. On the same date Kevin Flanagan offered a plea to the s.15 count, and this was also accepted by the appellant. Following arraignment, the cases of the respondent and Kevin Flanagan were then adjourned to the 27 ^th February, 2013 for sentencing, with a direction that a probation report be prepared in respect of the respondent. Warren Bowen had pleaded not guilty on arraignment, and his case was adjourned to the 7 ^th December, 2012 for trial.

3 2. On the 7 ^th December, 2012 Warren Bowen asked to be re-arraigned and on this occasion he pleaded guilty to the S.15A count, and counsel for the appellant indicated that this was acceptable to her. Following this development, Warren Bowen's case was also adjourned to the 27 ^th February, 2013 for sentencing, with a direction that a probation report be prepared in respect of him.

4 3. Following a sentence hearing on the 27 ^th February, 2013, when the probation reports that had been directed were before the Court and had been duly considered by the sentencing judge, the sentencing judge decided to adjourn all three cases for a year, and directed that up to date probation reports should be made available in respect of the respondent and Warren Bowen on the adjourned date.

5 4. On the 27 February, 2014, having received the up to date probation reports that had been directed, the sentencing judge imposed the following sentences:

6 · The respondent was sentenced to five years imprisonment suspended for five years on a bond in the sum of €100.00 to keep the peace for that period;

7 · Warren Bowen was sentenced to four years imprisonment suspended for four years on a bond in the sum of €100.00 to keep the peace for that period. He was also disqualified from holding a driving licence for a period of two years;

8 · Kevin Flanagan was sentenced to three years imprisonment suspended for three years on a bond in the sum of €100.00 to keep the peace for that period.

9 5. The appellant now seeks to appeal the sentence imposed upon the respondent on the grounds that it was unduly lenient.

10 6. The appellant has also sought to appeal the sentence imposed upon Warren Bowen on the grounds that it was unduly lenient, and the appeal in his case will be the subject of a separate judgment.

The evidence at the sentencing hearing on the 27 ^th of February 2013.

11 7. The sentencing court heard evidence from Garda Paul McWalter concerning the circumstances of the crime. He told the Court that on the 19 ^th October, 2011, at 11.30am, Gardaí were conducting a surveillance operation on the home of the respondent at Cappacasheen, Kinvara, Co. Galway. The surveillance operation had been mounted on the basis of confidential information received by the Gardaí. An English registered van was observed arriving at this location, which was being driven by Warren Bowen. Both the respondent and Warren Bowen were observed removing one eight foot length of 4 × 4 timber each from the van. These were initially placed on the ground at the side of the adjacent house.

12 8. After a short while Warren Bowen left the area and then after another short period of time the respondent brought one length of timber to the rear of the house where she sawed it in half and then using a chisel and a hatchet she split open the timber pieces. This action revealed that the length of timber had concealed within it a substance quantity of cannabis resin. The respondent then left the sawed piece of timber at the rear of the house and she drove off in her car.

13 9. Kevin Flanagan is the father of the respondent. He had been at the residence and was present when the timber was delivered by Warren Bowen. Kevin Flanagan then went to the rear of the house. He picked up the pieces of timber that had been sawed and chiselled and he hid them behind two large barrels and placed a few items over them, Kevin Flanagan then returned to the side of the house and picked up the second piece of timber, which was still intact, and placed this in a shed down in the garden.

14 10. At 2.20 pm, on the 19 ^th October, 2011, Garda Dermot Gibson and Colin O'Leary executed a search warrant issued under section 26 of the Misuse of Drugs Act on the residence of the respondent at Cappacasheen, Kinvara. A search was carried out on these premises and a quantity of cannabis resin comprising seven kilograms in weight was discovered. This cannabis had a value of €42,596. Gardaí continued to search this residence over the subsequent two days and during the course of this search discovered three quantities of cash. €9,800 was found hidden in a couch in the living room, €8040 was found hidden under chipping stone at the front of the house and €10,050, which had been wrapped up in plastic, was found hidden under gravel at the front of the house. The total cash discovered amounted to €27,890.

15 11. The respondent was arrested by Garda...