DPP v Hutton
| Jurisdiction | Ireland |
| Judge | Mr. Justice Sheehan |
| Judgment Date | 16 December 2016 |
| Neutral Citation | [2016] IECA 407 |
| Docket Number | 267/13 |
| Court | Court of Appeal (Ireland) |
| Date | 16 December 2016 |
[2016] IECA 407
THE COURT OF APPEAL
Sheehan J.
Birmingham J.
Sheehan J.
Edwards J.
267/13
Sentencing – Drug offences – Principle of totality – Appellant seeking to appeal against sentence – Whether sentencing judge had sufficient regard to the principle of totality
Facts: The appellant, Mr Hutton, on the 2nd December, 2013, was sentenced to ten years imprisonment following a plea of guilty to the sale, supply and importation of drugs in September 2012. These drugs had an overall value of €894,110. On the same date eight years of a ten year suspended sentence was reactivated. This suspended sentence had been imposed on the appellant on the 15th June, 2009, following a plea of guilty to possession of cocaine valued at €8,380 and cannabis valued at €61,329 for the purpose of sale or supply contrary to s. 15A of the Misuse of Drugs Act 1977. The sentencing judge directed that the sentence of ten years imprisonment commence at the expiration of the eight year sentence. The appellant appealed to the Court of Appeal against sentence. The ground of appeal advanced on his behalf was that the sentencing judge did not have sufficient regard to the principle of totality when imposing the two sentences.
Held that the Court had no power to interfere with the ten year sentence imposed in Waterford Circuit Court; that sentence was mandatory by virtue of the provisions of s. 27(3)(f) of the 1977 Act and because the Waterford offence was a second or subsequent offence under s. 15A or B of the Act. The Court held that the sentencing judge was also obliged to make that sentence consecutive to the reactivated sentence as the Waterford crimes had been committed while the appellant was subject to a ten year suspended sentence. The Court was satisfied that the sentencing judge in endeavouring to apply the principle of totality failed to give sufficient credit to the appellant for the mitigation that was undoubtedly in the case and to this limited extent the Court found an error of principle. Given the circumstances that led to the appellant’s offending in Carlow and bearing in mind his personal circumstances as well as the progress that he has made in prison, the Court was of the view that while he could not expect to avoid a substantial sentence, an overall sentence of fourteen years imprisonment would in all the circumstances of this case be a proportionate sentence. Therefore the Court set aside the reactivated eight year sentence and substituted in its place a sentence of four years imprisonment leaving an overall sentence of fourteen years imprisonment.
The Court held that four years of the ten year prison sentence be activated and be deemed to commence on the 2nd day of December, 2013. The Court directed the ten year sentence be consecutive to that sentence. Given that the sentencing judge found that the appellant was addicted to drugs at the time that he committed each of the offences, in accordance with the relevant provisions of the legislation the Court directed that Mr Hutton be brought before Waterford Circuit Court for a review of his ten year sentence when he has served half of that sentence which he will commence when he has served the four year sentence for the Carlow offences which were substituted in respect of the eight year sentence.
Appeal allowed.
This is an appeal against sentence.
On the 2nd December, 2013, a sentence of ten years imprisonment was imposed on the appellant following a plea of guilty to the sale and supply and importation of drugs in September 2012. These drugs had an overall value of €894,110.
On the same date eight years of a ten year suspended sentence was reactivated. This suspended sentence had been imposed on the appellant on the 15th June, 2009, following a plea of guilty to possession of cocaine valued at €8,380 and cannabis valued at €61,329 for the purpose of sale or supply contrary to s. 15A of the Misuse of Drugs Act 1977, as amended.
The learned sentencing judge directed, as he was obliged to do, that the sentence of ten years imprisonment commence at the expiration of the eight year sentence.
The appellant therefore is serving a sentence of eighteen years imprisonment and the ground of appeal advanced on his behalf is that the sentencing judge did not have sufficient regard to the principle of totality when imposing the two sentences.
The principle of totality was most recently approved and restated by the Supreme Court (in the context of consecutive sentencing for offences committed in prison) in Gilligan v. Ireland and Others [2013] 2 I.R. 745. MacMenamin J. for the Court stated:
‘The totality concept is a form of check to ensure that, where proportionate sentences are chosen for each offence, the court may, when appropriate, adjust that overall sentence, or the last sentence imposed, in order to achieve proportionality and overall fairness. An authority from the Court of Criminal Appeal demonstrates how this balancing test applies in practice. In The People (D.P.P.) v. Healy [1990] 1 I.R. 388, the court observed that, in a proper case, a sentencing court might, even in the case of a grave offence, adjust the sentence downwards where not to do so would impose a manifestly unjust punishment on the accused.’
That principle was also applied by this Court in its judgment in DPP v. Martin McBride [2016] IECA 223, delivered on the 25th July, 2016, by Mahon J. In that case the Court held inter alia, that an overall sentence of seventeen years imprisonment offended the totality principle and the Court reduced the overall sentence to one of fourteen years imprisonment. In McBride the appellant had pleaded guilty to two s. 15A offences involving the possession of...
To continue reading
Request your trial