DPP v Keith Jervis and Another

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Mr. Justice Fennelly
• Judgment Date: 25 March 2014
• Neutral Citation: [2014] IECCA 14
• Docket Number: Record Nos: 251 & 252 CJA/11
• Date: 25 March 2014

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT, 1993

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPELLANT

AND

KEITH JERVIS AND THERESE DOYLE

RESPONDENTS

[2014] IECCA 14

Fennelly J., Sheehan J., White, Michael J.

Record Nos: 251 & 252 CJA/11

COURT OF CRIMINAL APPEAL

Criminal law – Possession of a controlled drug with intent to supply - Appeal against sentence - Unduly lenient - Mitigating and aggravating factors - Suspended sentence - Nature and gravity of offence - Exceptional and specific circumstances - Special reasons of a substantial nature and wholly exceptional circumstances - Misuse of Drugs Act 1977

Facts: These proceedings concerned an application by the Director of Public Prosecutions (‘the appellant’) to review the sentences that had been imposed on the respondents by the Central Criminal Court on the 17th October 2011, on the basis that they were unduly lenient. Both respondents had pleaded guilty on indictment to charges of possession of a controlled drug with intent to supply, namely cannabis, at a market value of €13,000 or more, contrary to s 15A of the Misuse of Drugs Act 1977 (‘the 1977 Act), s. 27 of the Misuse of Drugs Act 1977 (as amended) and the applicable Misuse of Drugs Regulations. Both respondents were sentenced to seven years imprisonment, which was entirely suspended on condition of the respondents” being of good behaviour in their own bond in the sum of €50.

It was undisputed that on foot of a judicial warrant, Gardaí had uncovered cannabis at the respondents” family home. Gardaí estimated that the street value was between €320,000 and €550,000. The sentencing judge had accepted that the respondents had stored these drugs for unnamed individuals in exchange for a payment of between €200 and €300, but had not been aware of the quantity until the cannabis arrived. It was also accepted that the respondents were in fear of the individuals who had delivered the cannabis and had no option but to comply with their demands. In regards to the personal circumstances of the respondents, it was noted that they had two children, that the second named respondent had no criminal record and that the first named respondent had a moderate criminal record. It was also clear that the respondents had cooperated with Gardaí. On the basis of these mitigating considerations, the sentencing judge decided to exercise his discretion to depart from that mandatory minimum sentence of 10 years.

The appellant argued that the sentencing judge was not justified in suspending the entirety of the sentence of imprisonment, which meant that the sentence was unduly lenient. It was said that undue emphasis was placed on the respondents” mitigating circumstances, that inadequate consideration was given to the aggravating factors, and that there was a failure to distinguish between the respondents who had played differing roles in the commission of the offence.

Held by Fennelly J. (with Sheehan J. and White Michael J. concurring) that due to the market value of the cannabis that had been seized, the sentencing judge had been obliged, pursuant to s. 27 of the 1977 Act (as amended), to impose sentences ‘of not less than 10 years as the minimum term of imprisonment’ unless there were exceptional and specific circumstances relating to the offences. It was noted that under s. 27(3D)(b) of the 1977 Act (as amended), a plea of guilty and the giving of material assistance in the investigation of the offence were given as specific circumstances that could potentially be regarded as exceptional, though it was also said that the sentencing court could have regard to any matters it considered appropriate. Applying these principles to the present case, it was held that the sentencing judge was justified in holding that the respondents” early pleas of guilty and their cooperation with Gardaí were exceptional and specific circumstances that justified a departure from the obligation to impose sentences of 10 years imprisonment.

It was said that the Court then had to consider whether the sentencing judge was justified in suspending the entirely of the respondents” sentences. It was noted that the cases of People (Director of Public Prosecutions) v Alexiou [2003] 3 I.R. 513 and People (Director of Public Prosecutions) v McGinty [2007] 1 I.R. 633 demonstrated that a sentence of imprisonment for an offence under s. 15A and s. 27 of the 1977 Act could be entirely suspended where there were ‘special reasons of a substantial nature and wholly exceptional circumstances’. Although it was not specifically stated, it was assumed that the trial judge had held that the respondents” family life and the welfare of their children amounted to ‘special reasons of a substantial nature and wholly exceptional circumstances’. It was held that the sentencing judge had been entitled to entirely suspend the sentences of imprisonment imposed on the respondents, but it was determined that the sentences were unduly lenient because they had been suspended without any proper conditions. It was said that the sentencing judge had, in the circumstances, been obliged to impose meaningful conditions given the very serious offences to which the respondents had pleaded guilty and their history of drug addiction. The respondents” sentences were, therefore, quashed and the parties were invited to make submissions on the appropriate conditions to be imposed.

Appeal allowed. Sentences quashed and new sentences imposed in lieu.

Mr. Justice Fennelly

JUDGMENT of the Court of Criminal Appeal delivered by Mr. Justice Fennelly on the 25th day of March 2014.

1 This is an application by the Director of Public Prosecutions (hereinafter ‘the Director’) for review of sentences imposed on the respondents by His Honour Judge Nolan in the Dublin Circuit Criminal Court on each of the respondents. Section 2 of the Criminal Justice Act, 1993 permits the Director to make such an application to this Court on the ground that a sentence imposed on a person convicted on indictment was ‘unduly lenient.’

2 Both respondents (who will be referred to as Mr Jervis and Ms Doyle respectively) were charged on indictment with the offence of possession, for the purpose of selling or otherwise supplying it to another, of a controlled drug, to wit, cannabis, having a market value of €13,000 or more. The offence was committed on 19th March 2010 at the residence of the respondents at 74 Rosewood Grove, Lucan, County Dublin.

3 The charge was laid as being contrary to s 15A of the Misuse of Drugs Act, 1977 and s. 27 of the Misuse of Drugs Act, 1977, as amended as well as the applicable Misuse of Drugs Regulations.

4 Both respondents pleaded guilty to the relevant charge on the indictment on 31st March 2011. On that date a probation report was requested. On 17th October 2011, evidence was given regarding the circumstances of the offence by Detective Garda Liam Aherne. Following pleas from counsel for each respondent, Judge Nolan sentenced each of them to seven years imprisonment but suspended the entire of the sentence on condition of the respondents” being of good behaviour in their own bond in the sum of €50, but no other condition.

The facts

5 The Gardaí had received confidential information to the effect that there was a controlled drug to be found at 74 Rosewood Grove, Lucan, Dublin, the family home of the respondents. They conducted a search of the house, on foot of a judicial warrant, at approximately 5:50 in the evening of 19th day of March 2010. Both respondents were present. A garda asked if there was anything in the house that should not be there. Ms Doyle immediately said to Mr Jervis: ‘ it”s upstairs, Keith. Just show them where it is.’ Mr Jervis led the gardaí upstairs to where a quantity of cannabis was hidden. It was in what was described as ‘the crawl space’ in an attic area off the bedroom at the top of the house. Mr Jervis had put it there. The man who delivered the drugs had brought them up there and handed the bags in to Mr Jervis. He knew it was cannabis and that it was illegal to possess it.

6 It consisted of 15 large silver bags containing approx 2 kilos each and 13 smaller bags of approximately one kilo each. There were two small cannabis plants and a lamp to facilitate their growth, unconnected with the cannabis bags. They had been grown by Mr Jervis for his own use. In total, approximately 45 kilos of cannabis was recovered. The market value of the cannabis was first given as being €549,404, but it was accepted by Garda Aherne under cross-examination that the value was probably between €320,000 and €550,000.

7 Ms Doyle said that she had been contacted by an unknown person and had been asked to store the drugs. As it happens, Mr Jervis also said that he had been approached to store some drugs, but it appeared to be accepted that, in truth, it was Ms Doyle who had been the point of contact. The cannabis had been in the house for about one week. No payment had been agreed but it appears that the respondents expected to receive some €200 to €300.

8 Ms Doyle said that she had been asked to hold a couple of packets and had been shocked (as was Mr Jervis) at the amount which arrived when the man turned up at the house. She described it as a ‘ van load.’ The respondents said that the people involved with the drugs were dangerous and that they had no option but to accept the drugs once they were delivered. There was a pipe bomb attack subsequently on the house, which belongs to Ms Doyle. The gardaí accepted that this was part of the intimidation.

9 Ms Doyle knew it was cannabis herb from the smell. She had handled approximately ten bags of the cannabis when it was delivered. The man had also delivered a mixing bowl and weighing scales. She had no phone...