DPP v Gantley

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Mahon
Judgment Date04 Jul 2017
Neutral Citation[2017] IECA 203
Docket NumberAppeal No. 286CJA/2016

[2017] IECA 203

THE COURT OF APPEAL

Mahon J.

Mahon J.

Edwards J.

Hedigan J.

Appeal No. 286CJA/2016

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

BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT
- AND -
MARCUS GANTLEY
RESPONDENT

Sentencing – Possession of a controlled drug with intent to unlawfully supply to another – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Gantley, at Dublin Circuit Criminal Court on the 3rd October 2016, was sentenced in respect of four offences to prison terms ranging from three months to two years, and with the two year sentence directed to be served consecutively to a twelve month sentence. The offences were: 1) resisting or wilfully obstructing or impeding a peace officer acting in the execution of the peace officer’s duty contrary to s. 19(3)(c) and (4) of the Criminal Justice (Public Order) Act 1994; 2) two counts of possession of a controlled drug with intent to unlawfully supply to another contrary to s. 15(1) and s. 27 of the Misuse of Drugs Act 1977; and 3) assault contrary to s. 2 of the Non Fatal Offences against the Person Act 1977. The total net custodial term imposed was eighteen months. The period of suspension was also eighteen months and the operative period of that suspended sentence was again eighteen months. The appellant, the DPP, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of the sentences imposed on the respondent on the grounds that they were unduly lenient. The appellant maintained that the sentencing judge erred in principle in relation to the following: (i) failing to have any or any adequate regard to the gravity of the offences and in particular to the fact that all offences were committed while on bail; (ii) concluding that possession of a quarter kilo of cocaine for sale and supply contrary to s. 15 of the Misuse of Drugs Act 1977 and valued at €17,248 was at the lower end of the sentencing range; (iii) failing to give due and adequate weight to the report of the probation officer who assessed the respondent as being at a high risk of reoffending over the following twelve months; (iv) placing excessive weight on the content of the probation report whereby the respondent said he was under a threat, despite this not being advanced in mitigation at the sentence hearing; (v) sentencing the respondent in the absence of a governor’s report and a urinalysis report which the sentencing court previously ordered for the sentence hearing; (vi) placing excessive weight upon the personal circumstances and mitigating factors raised on behalf of the respondent and inadequate weight to the aggravating factors; (vii) imposing sentences of imprisonment on the respondent which reflected the seriousness of the offences, and the circumstances in which the offences were committed; (viii) imposing sentences of imprisonment on three separate bill numbers which were all committed on bail to each other to a total of three years imprisonment, while suspending the final eighteen months imprisonment and backdating the said sentences to the 28th July 2016.

Held by the Court that the sentences imposed on the respondent fell short of being unduly lenient. The Court recognised the sentencing judge’s efforts to construct a final sentence that did not offend against the principle of totality and proportionality, albeit going to the limit in so doing. The Court noted that her reasoning was clearly heavily influenced by a desire to afford the respondent every opportunity to rehabilitate, hence the imposition of onerous conditions relating to the suspended element of the sentence.

The Court held that it would dismiss the application and confirm that the sentences in the court below were to date from the 28th July 2016.

Appeal dismissed.

JUDGMENT (ex tempore) of the Court delivered on the 4th day of July 2017 by Mr. Justice Mahon
1

This is an application by the appellant pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of sentences imposed on the respondent at Dublin Circuit Criminal Court on the 3rd October 2016 on the grounds that they were unduly lenient pursuant to the provisions of s. 2 of the Criminal Justice Act 1993.

2

On that date the respondent was sentenced in respect of four offences to prison terms ranging from three months to two years, and with the two year sentence directed to be served consecutively to a twelve month sentence. The details of each of the offences are as follows:

(i) Resisting or wilfully obstructing or impeding a peace officer acting in the execution of the peace officer's duty contrary to s. 19(3)(c) and (4) of the Criminal Justice (Public Order) Act 1994, as amended by s. 185 of the Criminal Justice Act 2006 (Bill Number 937/2014). The respondent pleaded guilty to this offence and was sentenced to a term of three months imprisonment to date from the 3rd October 2016.

(ii) Possession of a controlled drug with intent to unlawfully supply to another contrary to s. 15(1) and s. 27 of the Misuse of Drugs Act 1977 (as amended by s. 6 of the Misuse of Drugs Act 1984) (Bill Number 22/2015). The respondent pleaded guilty to this offence and was sentenced to twelve months imprisonment, to date from the 3rd October 2016.

(iii) Assault contrary to s. 2 of the Non Fatal Offences against the Person Act 1977 (Bill Number 22/2015). The respondent pleaded guilty to this offence and was sentenced to three months imprisonment to date from the 3rd October 2016.

(iv) Possession of a controlled drug with intent to unlawfully supply to another contrary to s. 15 and s. 27 of the Misuse of Drugs Act 1977 (as amended by s. 6 of the Misuse of Drugs Act 1984) (Bill Number 283/2016). The respondent pleaded guilty to this offence and was sentenced to a term of imprisonment of two years. It was further directed that the final eighteen months of the said two year sentence be suspended for a period of eighteen months post release on certain conditions. It was directed that that sentence commence on the legal expiration of the twelve months sentence imposed in respect of Bill Number 22/2015, (2) above.

3

The total net custodial term imposed was therefore eighteen months and the period of suspension also eighteen months, and the operative period of that suspended sentence again eighteen months.

4

In relation to the first offence, Bill number 937/14, it occurred on the 8th May, 2014. On that date Garda Cahill was on duty with a colleague and while driving at Brown...

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