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

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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. 27(3A) to s. 27(3F) now provides:

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2 "(3A) Every person guilty of an offence under section 15A or 15B of this Act shall be liable, on conviction on indictment -

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(a) to imprisonment for life or such shorter term as the court may determine, subject to subsections (3C) and (3D) of this section or, where subsection (3F) of this section applies, to that subsection, and

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(b) at the court's discretion, to a fine of such amount as the court considers appropriate.

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3 (3B) The court, in imposing sentence on a person for an offence under section 15A or 15B of this Act, may, in particular, have regard to whether the person has a previous conviction for a drug trafficking offence.

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4 (3C) Where a person (other than a person under the age of 18 years) is convicted of an offence under section 15A or 15B of this Act, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person.

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5 (3D)(a) The purpose of this subsection is to provide that in view of the harm caused to society by drug trafficking, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under section 15A or 15B of this Act, shall specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so.

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(b) Subsection (3C) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances and for that purpose the court may, subject to this subsection, have regard to any matters it considers appropriate, including -

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(i) whether that person pleaded guilty to the offence and, if so -

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(I) the stage at which he or she indicated the intention to plead guilty, and

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(II) the circumstances in which the indication was given, and

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