DPP v Kavanagh

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Sheehan
Judgment Date08 Jun 2015
Neutral Citation[2015] IECA 142
Docket Number216CJA/14

[2015] IECA 142

THE COURT OF APPEAL

Peart J.

Sheehan J.

Mahon J.

216CJA/14

In the matter Section 2 of the Criminal Justice Act 1993

The People at the Suit of the Director of Public Prosecutions
Applicant
and
Mark Kavanagh
Respondent

Sentencing – Possession of a firearm in suspicious circumstances – Undue leniency – Applicant seeking review of sentence imposed on the respondent – Whether firearms offence required a separate sentence

Facts: The respondent, Mr Kavanagh, in April 2014, pleaded guilty to the possession of controlled drugs for the purpose of sale or supply contrary to s. 15A of the Misuse of Drugs Act 1977, and to possession of a firearm in suspicious circumstances contrary to s. 27A of the Firearms Act 1964. The total value of the drugs was €153,000 comprising cocaine valued at €135,000 and cannabis herb worth €18,000. A very small quantity of a third drug Fluoroamphetamine was also recovered. The firearm was a revolver and the ammunition was 6.4 10 calibre shotgun cartridges. The respondent was sentenced in the Dublin Circuit Criminal Court in October 2014 to three and a half years imprisonment in respect of the drugs offence and the offences relating to possession of the firearm and ammunition were taken into account. The applicant, the DPP, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 for a review of the sentence imposed on the respondent. The DPP submitted that the trial judge attached undue weight to the mitigating factors and failed to refer to a key aggravating factor namely, that the respondent was involved in the organised distribution of the drugs. The DPP further submitted that the decision of the sentencing judge not to impose any separate penalty in respect of the firearms offence was a further error of principle. It was also submitted that no due observance was given to the provisions of s. 27(4A) of the 1964 Act and the public interest in seeing appropriate sentences imposed for firearms offending, citing The People (DPP) v Byrne and Another [2015] IECA 5. The respondent submitted that the sentence was reasonably and rationally determined by the sentencing judge who had carefully considered all the relevant issues in the case including the seriousness of the offences, the presumptive mandatory minimum penalties, the aggravating and mitigating factors and the particular circumstances unique to the respondent. The respondent stated that the DPP ought not to be allowed by the Court to raise issues relating to an interpretation of the evidence that had not been raised before the sentencing judge, relying upon The People (DPP) v Cronin (No. 2) [2006] 5 IR 329. The respondent also submitted that the sentencing judge should not be open to criticism on an appeal for undue leniency in a situation where the applicant had not even suggested the appropriate sentence or range of sentences in the first place.

Held by Sheehan J that he was unable to hold that the applicant should be prevented from making certain submissions on the basis that he had not done so at the time of the sentence. The Court was of the view that the firearms offence required a separate sentence. While the Court acknowledged the care taken by the sentencing judge to structure an appropriate sentence, Sheehan J held that it was nevertheless unclear what notional sentence the sentencing judge had in mind at the time. The Court took the view that it would be impermissible for it to infer a particular notional sentence.

Sheehan J held that the sentence imposed represented a substantial departure from what it considered to be the appropriate sentence and held therefore that the sentence was an unduly lenient one. The Court proceeded to a further sentence hearing and substituted a new sentence in place of the original one. Peart J held that the appropriate sentence for the s.15A offence is a sentence of five years with one year of that sentence suspended. The same period of time, a sentence of five years with one year suspended, was held to be the appropriate sentence for the firearms offences. Peart J held that those two sentences would run concurrently and would be backdated to 15th October 2015, which was the date on which Mr Kavanagh first went into custody in respect of these offences.

Appeal allowed.

Judgment of the Court delivered on the 8th day of June 2015 by Mr. Justice Sheehan
1

This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, for a review of the sentence imposed on the respondent in the Dublin Circuit Criminal Court on the 15th October, 2014.

2

On the 14th April, 2014, the respondent pleaded guilty to the possession of controlled drugs for the purpose of sale or supply contrary to s. 15A of the Misuse of Drugs Act 1977, as amended, and to possession of a firearm in suspicious circumstances contrary to s. 27A of the Firearms Act 1964, as amended.

3

The total value of the drugs was €153,000 comprising cocaine valued at €135,000 and cannabis herb worth €18,000. A very small quantity of a third drug Fluoroamphetamine was also recovered. The firearm was a revolver and the ammunition was 6.4 10 calibre shotgun cartridges.

4

The respondent was sentenced to three and a half years imprisonment in respect of the drugs offence and the offences relating to possession of the firearm and ammunition were taken into account.

5

In order to consider this application it is necessary first to consider the background to these offences.

Background
6

On the 2nd April, 2013, the respondent's home was searched on foot of a warrant obtained as a result of confidential information received by the gardaí. The respondent was present during the search and cooperated with the gardaí. Six packages of cocaine and three packages of herbal cannabis were found in a shed in...

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