DPP v Ingram McGinty
 IECCA 37
THE COURT OF CRIMINAL APPEAL
182CJA/2004 - Judgment of the Court delivered by Murray [O'Sullivan O'Leary] - CCA - 3/4/2006 - 2007 1 IR 633 2006 IECCA 37
In this matter the accused was convicted of one offence, to which he had pleaded guilty, of unlawful possession of controlled drugs with an aggregate market value of €13,000.00 or more for the purpose of sale or supply in contravention of the Misuse of Drugs Regulations, 1988 and 1993 and contrary to s. 15A of the Misuse of Drugs Act,1977 as amended. The offence related to a quantity of cannabis resin and cocaine which the accused was found to have in his possession on 23rd April, 2003. On 29th July, 2004 he was sentenced to five years imprisonment suspended on entering into a bond to keep the peace and be of good behaviour for a period of five years and to complete the rehabilitation course which he was then pursuing.
The D.P.P. has appealed the sentence in this case on the grounds of its undue leniency.
As will be explained below it is agreed that this is not a case for a 'mandatory' sentence.
Section 27 of the Misuse of Drugs Act,1977, as amended by s. 5 of the Criminal Justice Act, 1999 provides for the sentencing of persons convicted of an offence under s. 15A in the following manner:
a "(3A) Every person guilty of an offence under s. 15A shall be liable, on conviction on indictment-
(a) to imprisonment for life or such shorter period as the court may, subject to subsections (3B) and (3C) of this section, determine, and
(b) at the court's discretion, to a fine of such amount as the court considers appropriate.
b (3B) Where a person (other than a child or young person) is convicted of an offence under s. 15A, the court shall, in imposing sentence, specify as the minimum period of imprisonment to be served by that person a period of not less than 10 years imprisonment.
c (3C) Subsection (3B) 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 this purpose the court may have regard to any matters it considers appropriate, including-
(a) whether that person pleaded guilty to the offence and, if so,
(i) the stage at which he indicated the intention to plead guilty, and
(ii) the circumstances in which the indication was given, and
(b) whether that person materially assisted in the investigation of the offence."
The appeal by the D.P.P. arises in the context of the provisions of s. 15A of the Act of 1997, as amended, and in particular subsections (3A), (3B) and (3C) of s. 27 of that Act.
Subsection (3B) provides that the court shall specify as the minimum period of imprisonment for a person convicted of an offence under s. 15A a period of not less than 10 years.
This section has sometimes been misleadingly referred to in public debate as if the Oireachtas intended that in all cases of a conviction under s. 15A a minimum of 10 years imprisonment should be imposed.
As the D.P.P., through his counsel, has properly acknowledged this is far from the case.
In subsection (3C) it is expressly provided that subsection (3B)"shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, which would make a sentence of not less than 10 years imprisonment unjust in all the circumstances and for this purpose the court may have regard to any matters it considers appropriate …"
Among the matters expressly provided for, to which the court may have regard, but it is not confined exclusively to those matters, is whether the accused pleaded guilty and if so at what stage and whether he personally and materially assisted the Gardaí in their investigation.
It is not in issue that at the time of sentencing both of those elements were present in this case as indeed were the other elements referred to by the trial judge in the course of sentencing the accused.
It is accepted by the D.P.P., and again properly so, that the learned trial judge acted correctly in deciding pursuant to s. 27 (3C) that this was not a case in which the provision for a minimum term of 10 years imprisonment in subsection (3B) applied. In other words the D.P.P. accepted that there are, in this case, exceptional and specific circumstances relating to the offence which would have made a sentence of not less than 10 years unjust in all the circumstances.
The court concurs with that view and accordingly, it is not in issue in this appeal the subsection (3B), does not apply to this case.
But of course what the D.P.P. does argue in this appeal is that the imposition of a suspended sentence rather than a custodial sentence was unduly lenient. It was submitted that the sentence imposed did not reflect the seriousness of the offence, having regard to its nature, and the quantity and value of the drugs involved. It was submitted that the sentence imposed was significantly below the range of sentences that are usually imposed for this type of offence. It was also submitted that sentence failed to have any or sufficient regard to, or relationship with, the minimum penalty as envisaged by the legislation and that the sentencing judge gave insufficient weight to the intentions of the legislature.
There is no doubt that the possession of illegal drugs for the purpose of sale or supply, particularly in any significant quantity, is a very serious offence which of itself would normally warrant a custodial sentence. Insofar as the submission of the D.P.P. contends that a judge sentencing a person for such an offence should also have regard to the gravity attached to this by the Oireachtas in providing for a maximum sentence of life imprisonment and a minimum of 10 years imprisonment the Court agrees. Both the inherently serious nature of the offence and the seriousness with which the offence has been viewed by the Oireachtas as expressed in the relevant statutory provisions, are matters for a trial judge to take into account when deciding on sentence. Thus even in cases where a trial judge properly concludes that subsection (3B) as regards the minimum term of imprisonment does not apply to the particular case before him or her, the appropriate sentence should normally involve a term of imprisonment, including, depending on the circumstances, a very substantial term of imprisonment.
However, insofar as the submission of the D.P.P. contended that a suspended sentence must always, and in every circumstance, be considered wrong in principle, the Court does not accept that this is a correct principle to be applied. First of all there is nothing in the legislation to suggest that the Oireachtas intended to compromise to that extent the judicial function to impose the appropriate sentence in the circumstances of the case. On the contrary, the Oireachtas expressly provided for a trial judge to exercise his or her judicial discretion according to the justice and circumstances of the case when it provided for the non-application of subsection (3B) in certain circumstances. Generally speaking legislation is incapable of dealing specifically with the vast range of circumstances and factual elements that differentiate one case from another even though they involve and offence under the same section and this the Oireachtas has recognised in the provisions just referred to. It cannot be said that there could never be circumstances in which, having regard to the interests of society as a whole, the facts of the particular case and the circumstances of the accused, where a suspended sentence would be appropriate. Undoubtedly a trial judge sentencing a convicted person for an offence such as that in question here is constrained by the considerations already referred to above to consider that a term of imprisonment is normally what should be imposed. However, where there are special reasons of a substantial nature and wholly exceptional circumstances, it may be that the imposition of a suspended sentence is correct and appropriate in the interest of justice....
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