DPP v Lawel

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 09 October 2017
• Neutral Citation: [2017] IECA 253
• Docket Number: 94/16
• Court: Court of Appeal (Ireland)
• Date: 09 October 2017

[2017] IECA 253

THE COURT OF APPEAL

Hedigan J.

Birmingham J.

Edwards J.

Hedigan J.

94/16

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Ibrahim Lawel

Appellant

Sentencing – Drug offence – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Lawel, entered a guilty plea at Naas Circuit Criminal Court, on the 6th October, 2015, to a s. 15A offence pursuant to the Misuse of Drugs Act 1977 arising from the controlled delivery of a parcel containing cocaine. The appellant was sentenced on the 14th March, 2016, when the Court imposed a sentence of 10 years imprisonment. The final three years were suspended on condition that the appellant enter a bond of €200 to keep the peace and be of good behaviour for a period of three years. He was given credit for the period he spent in custody. The appellant appealed to the Court of Appeal against severity of sentence on seven grounds: 1) the sentence placed undue emphasis on aggravating factors; 2) the sentence failed to adequately take into consideration the relevant mitigating factors; 3) the trial judge failed to exercise, properly or at all, his discretion to depart from the presumptive minimum sentence; 4) the trial judge failed to weigh correctly in the balance the evidence in respect of the role of the appellant in the offence, and in particular, erred in law and in fact in determining the sentence with regard to the 'sophisticated and elaborate' nature of the importation of drugs, as opposed to the appellant's role in that operation; 5) the trial judge erred in law and in fact in failing adequately to give the appellant due credit for his guilty plea and the stage at which it was entered; 6) the trial judge erred in having undue regard to the sentence imposed on the co-accused and failed to adequately distinguish between their roles and involvement in the offences, and that of the appellant; 7) the trial judge failed to have regard sufficiently or at all to the efforts made by the appellant in respect of his rehabilitation and further failed to have regard to the objective of rehabilitation insofar as same is a component part of any sentence.

Held by Hedigan J that the three year suspension amounted to a 30% reduction and that a rough figure of 25% reduction would have been justified by the guilty plea alone in most similar cases. While the Court acknowledged the meticulous care with which the trial judge approached the sentencing, it considered the 5% discount in respect of all the other mitigating factors to be inadequate in all the circumstances and thus it identified an error in principle. The Court therefore quashed the sentence imposed by the court below and proceeded to resentence the appellant.

Hedigan J held that, taking into account all the mitigating factors, there were exceptional grounds present to justify disapplication of the mandatory sentence. The Court considered that the appropriate sentence was one of six years with the final 18 months suspended on the same conditions as were imposed in the Circuit Criminal Court. Hedigan J held that this should include as credit the almost nine months that the appellant spent in custody on remand from 26th October, 2011 to 19th July, 2012.

Appeal allowed.

JUDGMENT of the Court delivered on the 9th day of October 2017 by Mr. Justice Hedigan

Introduction

1 This is an appeal against severity of sentence. The appellant entered a guilty plea at Naas Circuit Criminal Court, on the 6th October, 2015, to a s. 15A offence pursuant to the Misuse of Drugs Act 1977 as amended (‘the 1977 Act’) arising from the controlled delivery of a parcel containing cocaine. The appellant was sentenced on the 14th March, 2016, when the Court imposed a sentence of 10 years imprisonment. The final three years were suspended on condition that the appellant enter a bond of €200 to keep the peace and be of good behaviour for a period of three years. He was given credit for the period he spent in custody.

2 The offence occurred in 2011 and on the 19th July, 2012, the Circuit Court discharged the appellant from the indictment. An application under s. 4E of the Criminal Procedure Act 1967 was successfully brought claiming that the package containing the controlled drugs was not inspected, seized or detained in accordance with law. The Court of Criminal Appeal reversed this decision ( The People (DPP) v. Lawel [2014] IECCA 33). It held that as the package was not addressed to the appellant no constitutional right arose. Therefore, it was an error to find that there was a breach of a constitutional right. Further that s. 4E was not the appropriate method of challenge. It upheld the illegality of the provisions relied upon in the interception. The charges were reinstated. The appellant was at liberty during the time between these two judgments.

The circumstances of the offence

3 The offence occurred on the 25th May, 2011, when the appellant took receipt of a parcel at his home in Co. Kildare which contained €1.4m. worth of cocaine. The delivery was by way of controlled delivery. The parcel was addressed to a fictional person, namely, ‘Tony Tutu, Honorary Consul of the Republic of South Africa’. It contained a green bag labelled ‘Diplomatic Mail’. It purported to have been sent by the South African embassy in Venezuela.

4 The parcel arrived at the FedEx depot in Dublin Airport on the 20th May, 2011. It was examined, suspected of containing cocaine and detained. A field test determined that it contained cocaine. Detective Garda John Dunning initiated a controlled delivery. It was delivered on the second attempt. On the 24th May, 2011, there had been no one home and a card with a fictitious telephone number was left. This number was used by someone other than the appellant to arrange delivery for the next day. The appellant accepted the parcel and signed for it using the name Tony Tutu on the 25th May, 2011. The parcel was left inside a front door but not an interior door. It was not secreted in any fashion.

5 Shortly after delivery the appellant was observed leaving the premises in his car. He picked up Mr. Ashola who had been waiting in the estate on foot and handed over the keys to the exterior door. Mr. Ashola came to the premises and immediately left with the parcel. The appellant continued on to his job street leafletting in Swords. Mr. Ashola travelled with the parcel and met a third co-accused. The Gardaiì seized the parcel later that day in Co. Meath. The appellant was placed under surveillance and was arrested later that day.

6 The appellant upon arrest stated that he signed for the parcel for a friend as a favour. During interview at Finglas Garda station he stated he took delivery for a named friend. He stated that he didn't know there was cocaine in the parcel but that he did know that Mr. Ashola was involved in a class of criminality but not that he was a drug dealer. He also accepted that he didn't ask what was in the parcel because he didn't want to know. Further he had expected a smaller parcel than was delivered. He accepted that in doing so he was being reckless. It was on the basis of this recklessness that he entered a guilty plea. Mr. Ashola and another co-accused entered guilty pleas and were sentenced, in a different court, to 10 years with nothing suspended.

The appellant's personal circumstances

7 The appellant was born in 1980. He was originally from Nigeria. He came to Ireland in 2007 and applied for refugee status which was granted in 2015. He has no previous convictions and had never come to Garda attention before. At the time of sentencing he was living in Galway. He got married in 2014. He has a number of FETAC qualifications dating back to 2009. A city of Dublin Vocational Educational Committees certificates, in relation to the European Computer Driving Licence, together with a future FETAC Certificate, for word processing and such matters, were handed into the Court. These were completed prior to July, 2012 while he was in Cloverhill. At the time of sentencing he was undergoing a course of studies in the national university of Ireland in Galway, which was a DFS1 science and engineering foundation course. This was a preliminary course with the intention of proceeding to fuller studies in information technology in Galway. There were references from his Pastor and a friend as to his character and community ties. At sentencing he had served almost nine months in custody.

8 He felt vulnerable to Mr. Ashola in 2011 due to the uncertainty regarding his immigration status and felt that if difficulties arose Mr. Ashola, who had been in the jurisdiction longer, might be able to assist him. It is accepted by the prosecuting Garda that there was an imbalance of power in that relationship.

9 The appellant had no involvement in setting up the operation or in the distribution thereafter. He had no ownership and was not to receive any profits from the distribution. He received €20 for diesel to get back to his leafletting job. It was accepted by D/Garda Dunning that the appellant was at the lowest rung of the ladder and his admissions reflected his involvement. Further it was accepted that he is unlikely to come to Garda attention again.

10 The appellant cooperated with and assisted the investigation with the knowledge he had which was limited. His account was borne out by the investigation of the electronic devices.

Sentence

11 Before imposing the sentence the judge noted that whilst his involvement was at a low level the appellant was a very important link in a sophisticated and elaborate plot. It was accepted by the prosecuting Garda that the appellant was not aware of the package's contents albeit he was aware that he was receiving an illegal package. It was further accepted that he had no part in setting up...