DPP v Gilligan (No 2)

• Jurisdiction: Ireland
• Judgment Date: 12 November 2003
• Date: 12 November 2003
• Docket Number: [C.C.A. No. 71 of 2001]
• Court: Court of Criminal Appeal

The People (Director of Public Prosecutions) v. Gilligan (No.2)

The People (at the suit of the Director of Public Prosecutions)

Respondent

and

John Gilligan, Applicant (No. 2)

[C.C.A. No. 71 of 2001]

Court of Criminal Appeal

Criminal law - Sentence - Severity - Importation and possession of drugs - Whether sentencing court entitled to take into consideration facts and circumstances surrounding conviction - Whether sentencing court entitled to take into account nature of drug - Whether sentence disproportionate.

The applicant was convicted before the Special Criminal Court of eleven drug related offences involving the importation and possession for the purpose of sale and supply of cannabis resin between certain dates and sentenced in respect thereof to concurrent terms of twelve and 28 years imprisonment respectively. He appealed against the severity of the sentences.

Counsel for the applicant contended that, as the particulars of offence in each of the counts relating to specific periods charged that the alleged offence was "on a date unknown", each of those counts could relate only to one specific date within the given period. Whilst there might have been evidence of other occasions of importation or possession, there had been no conviction in relation to them, and therefore a sentence could not legitimately take them into account. It was further contended that the court should have regard to the nature of the drug and should also ensure that the sentences were proportionate to those imposed on individuals connected to him and tried on similar charges.

Counsel for the respondent argued that, in determining the gravity of the individual charges in respect of which the applicant had been convicted, the sentencing court was entitled to have regard to the overall evidence of his activities. As regards the nature of the drug, he referred to Irish legislation which, unlike the system of categorisation obtaining in the United Kingdom, did not distinguish between different types of illegal drugs. He submitted that there were no mitigating factors on which the applicant could rely.

Held by the Court of Criminal Appeal (McCracken, Quirke and Peart JJ.), in reducing the sentences in respect of the convictions for possession to 20 years imprisonment and upholding the sentence of 12 years imprisonment in respect of the convictions for importation, 1, that a court may only impose a sentence having regard to the circumstances surrounding the offence for which an accused has been convicted. A court may not have regard to evidence of other criminal activity which has not been the subject of any conviction or where an accused has not consented to the charge in respect of which he has been convicted being treated as a sample change.

• Reg. v. Kidd [1998] 1 W.L.R. 604 approved.

2. That the nature of the drug imported might be taken into account.

3. That a sentence of 28 years imprisonment was less than the maximum sentence of life which could be imposed for offences in respect of which the applicant had been convicted and could not be held to constitute a double life sentence.

4. That the sentence of 12 years imprisonment in respect of the convictions for importation was justified.

5. That the sentence of 28 years imprisonment in respect of the convictions for possession of drugs for the purpose of sale or supply should be reduced to one of 20 years imprisonment on the grounds that the sentencing court appeared to have erred in principle in not restricting itself to the individual charges which were proved and that, in the light of the applicant not being held to have been the leader of the gang which distributed the drugs, the sentences were disproportionate to those imposed on others involved.

Cases mentioned in this report:-

Reg. v. Anderson (Keith) [1978] A.C. 964; [1978] 2 W.L.R. 994; [1978] 2 All E.R. 512; (1978) 67 Cr. App R. 185.

The People (Director of Public Prosecutions) v. Holland (Unreported, Court of Criminal Appeal, 15th June, 1998).

Reg. v. Huchison [1972] 1 W.L.R. 398; [1972] 1 All E.R. 936; (1972) 56 Cr. App. R. 307.

Reg. v. Kidd [1998] 1 W.L.R. 604; [1998] 1 All E.R. 42; (1998) 1 Cr. App. R. 79.

Application for leave to appeal

The facts have been summarised in the headnote and are more fully set out in the judgment of the Court of Criminal Appeal delivered by McCracken J., infra.

Having been convicted before the Special Criminal Court of offences involving the importation and possession for the purpose of sale and supply of cannabis resin, the applicant was sentenced to concurrent terms of 12 and 28 years imprisonment respectively. He applied to the Court of Criminal Appeal for leave to appeal against the severity of the sentences. The...