DPP v Geraghty

 
FREE EXCERPT

[2014] IECA 2

THE COURT OF APPEAL

Finlay Geoghegan J.

Sheehan J.

Hogan J.

[Appeal No. 4/2012]
DPP v Geraghty
THE PEOPLE (at the suit of the DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT

AND

STEPHEN GERAGHTY
APPELLANT

4/2012 - Finlay Geoghegan Sheehan Hogan - Court of Appeal - 10/12/2014 - 2014 15 4110 2014 IECA 2

MISUSE OF DRUGS ACT 1977 S15A

MISUSE OF DRUGS ACT 1977 S27(3F)

CRIMINAL JUSTICE ACT 2007 S33

MISUSE OF DRUGS ACT 1977 S27

CRIMINAL JUSTICE ACT 1999 S5

CRIMINAL JUSTICE ACT 2007 (COMMENCEMENT) ORDER 2007 SI 236/2007 ART 3

MISUSE OF DRUGS ACT 1977 S27(3A)

MISUSE OF DRUGS ACT 1977 S27(3B)

MISUSE OF DRUGS ACT 1977 S27(3C)

MISUSE OF DRUGS ACT 1977 S27(3D)

MISUSE OF DRUGS ACT 1977 S27(3E)

CONSTITUTION ART 15.5.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7(1)

INTERPRETATION ACT 2005 S27(1)(E)

INTERPRETATION ACT 2005 S27(2)

HAMILTON v HAMILTON & DUNNE 1982 IR 466 1982 ILRM 290 1982/4/800

ENRIGHT v IRELAND & AG 2003 2 IR 321 2004 1 ILRM 103 2003/21/4720

MISUSE OF DRUGS ACT 1977 S27(3)

CRIMINAL PROCEDURE ACT 1993 S3

CONSTITUTION ART 38.1

KING v AG & DPP 1981 IR 233

DOKIE v DPP (GARDA MORLEY) 2011 1 IR 805 2011/14/3372 2011 IEHC 110

DOUGLAS v DPP & ORS 2013 2 ILRM 324 2013/14/3916 2013 IEHC 343

MCINERNEY v DPP & ORS UNREP HOGAN 9.4.2014 2014 IEHC 181

DPP (SUPERINTENDENT BRODERICK) v FLANAGAN 1979 IR 265 1980 114 ILTR 34

DPP v CAGNEY & MCGRATH 2008 2 IR 111 2008 2 ILRM 293 2007/8/1515 2007 IESC 46

GAMING & LOTTERIES ACT 1970

GAMING & LOTTERIES ACT 1956

AG (SUPERINTENDENT MCCONVILLE) v BRANNIGAN 1962 IR 370

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

MISUSE OF DRUGS ACT 1977 S15B

COURTS OF JUSTICE ACT 1928 S5(1)(A)

CRIMINAL PROCEDURE ACT 1993 S3(1)(A)

CRIMINAL PROCEDURE ACT 1993 S3(2)

CONSTITUTION ART 34.4.1

Sentencing – Drug offences – Suspension – Appellant seeking to have sentence quashed – Whether the incorrect sentencing regime was applied

Facts: The appellant, Mr Geraghty, was charged with two offences under s. 15A of the Misuse of Drugs Act 1977. The first offence dates from November 2003 and the second from May 2004. The appellant absconded while on bail and was re-arrested in 2009. He pleaded guilty to the two s. 15A offences before the Circuit Court in 2010. He was sentenced in respect of the two charges in 2011. He received a two year sentence in respect of the first charge and a 10 year sentence in respect of the second to run consecutively. He was on bail when he committed the second offence. As the appellant had already been convicted of a s. 15A offence in respect of the first charge, the mandatory sentencing provisions of s. 27(3F) of the 1977 Act (as inserted by s. 33 of the Criminal Justice Act 2007) thereby governed the sentencing on the second s. 15A charge. It followed, therefore, that the trial judge was obliged to impose the mandatory minimum sentence of at least ten years in respect of the second charge. This distinction between first and second offences did not exist at the time of the commission of the second offence in 2004 and it was introduced for the first time only following the commencement of s. 33 of the 2007 Act. The appellant appealed only in respect of the 10 year sentence. When this matter first came before the Court of Appeal the principal issues were, first, whether these mandatory sentencing provisions applied (inasmuch as the appellant had not previously been convicted of any s. 15A offence prior to the commission of the second offence) and, second, even if these provisions did apply, whether the possibility of the suspension of any part of the sentence was expressly or impliedly precluded by the language of the sub-section. The appellant filed further submissions in which it was contended that the new sentencing provisions contained in the 2007 did not apply to sentences for offences committed prior to that date. The Court of Appeal allowed the appellant”s appeal against sentence. The appellant was remanded in custody to await a new sentence hearing before the Court of Appeal. The Court of Appeal indicated that it would give its reasons in writing at a later date.

Held by Finlay Geoghegan J that, giving the reasons for the Court of Appeal”s conclusion, there is nothing whatever in the general language of the amendments to the penalty provisions of the 1977 Act effected by the 2007 Act to express clearly an intention of the Oireachtas to apply these increased penalty provisions with retrospective effect, referring to Attorney General (McConville) v Brannigan [1962] IR 370; the sentencing for the 2004 offence was not governed by the new enhanced penalty provisions contained in s. 33. The Court of Appeal considered that the Director of Public Prosecutions is correct in her view that even if the provisions of the 2007 Act had governed the sentencing of these offences, the mandatory sentencing provisions of s. 27(3F) did not apply to the appellant, since he had not been actually convicted of a prior s. 15A (or s. 15B) offence at the time he committed the second such offence. Finlay Geoghegan J held that even if the Court of Appeal enjoys a jurisdiction to affirm a sentence, notwithstanding the existence of an error of principle on the part of the sentencing judge, this would not be an appropriate case to do so given the nature of the errors of law identified in the judgment.

Finlay Geoghegan J held that the Court of Appeal allowed the appellant”s appeal against sentence on the ground that the incorrect sentencing regime was applied and it accordingly quashed the 10 year sentence which was imposed in respect of the s. 15A offence committed in 2004. The Court of Appeal fixed 15th December 2014 for a hearing as to the appropriate sentence to be imposed for the 2004 offence. The Court invited submissions as to how, in now imposing sentence, it should treat the sentence imposed for the 2003 offence which was not under appeal to the Court.

Appeal allowed.

1

JUDGMENT of the Court delivered by Ms. Justice Finlay Geoghegan on the 10th December 2014

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1. The appellant, Stephen Geraghty, was charged with two offences under s. 15A of the Misuse of Drugs Act 1977 ("the 1977 Act") (as amended). The first offence dates from 27 th November 2003 and the second offence dates from 13 th May 2004. It appears that Mr. Geraghty absconded while on bail and that he was re-arrested at some point in 2009. He pleaded guilty to the two s. 15A offences before Her Honour Judge Delahunt in the Circuit Court on 15 th February 2010. He was sentenced in respect of the two charges by His Honour Judge Nolan on 13 th December 2011. He received a two year sentence in respect of the first charge and he received a 10 year sentence in respect of the second charge to run consecutively. He was on bail when he committed the second offence.

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2. The appellant appeals only in respect of the 10 year sentence. There is no appeal before the Court in respect of the two year sentence.

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3. It is not in dispute but that Judge Nolan proceeded on the basis that, as submitted to him by counsel for both the Director of Public Prosecutions and the accused, as the appellant had already been convicted of a s. 15A offence in respect of the first charge, the mandatory sentencing provisions of s. 27(3F) of the 1977 Act (as inserted by s. 33 of the Criminal Justice Act 2007) thereby governed the sentencing on the second s. 15A charge. It followed, therefore, assuming that this understanding was correct, that the trial judge was obliged to impose the mandatory minimum sentence of at least ten years in respect of the second charge.

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4. When this matter first came before this Court the principal issues were, first, whether these mandatory sentencing provisions applied (inasmuch as the appellant had not previously been convicted of any s. 15A offence prior to the commission of the second offence) and, second, even if these provisions did apply, whether the possibility of the suspension of any part of the sentence was expressly or impliedly precluded by the language ("the court shall....specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person…") of the sub-section. The Court reserved judgment on these questions. For reasons which we will now set out, it has not proved necessary to consider the second of these questions.

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5. Following further consideration of the matter, however, it appeared to the Court that one essential issue had been overlooked by the parties. At the time of the commission of the two offences in question in 2003 and 2004, the applicable penalty for a s. 15A offence was to be found in s. 27 of the 1977 Act as inserted by s.5 of the Criminal Justice Act 1999 ("the 1999 Act"). Those penalty provisions did not, in terms, distinguish between first and second offences.

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6. The distinction now drawn between the first and second or subsequent s. 15A offences is contained in s. 27(3F) of the 1977 Act, as inserted by s. 33 of the Criminal Justice Act 2007 ("the 2007 Act"). This distinction did not exist at the time of the commission of the second offence in 2004 and it was introduced for the first time only following the commencement of s. 33 of the 2007 Act on 18 th May 2007: see Article 3 of the Criminal Justice Act 2007 (Commencement) Order 2007 ( S.I. No. 236 of 2007).

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7. As thus inserted by s. 33 of the 2007 Act, s....

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