DPP v O'Leary

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Finnegan J.
• Judgment Date: 07 March 2011
• Neutral Citation: [2011] IECCA 27
• Date: 07 March 2011

[2011] IECCA 27

COURT OF CRIMINAL APPEAL

Finnegan J.

Hanna J.

O'Keeffe J.

CCA/07/10

DPP v O'Leary

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

.v.

ANTHONY O'LEARY

APPLICANT

MISUSE OF DRUGS ACT 1977 15A

CRIMINAL JUSTICE ACT 1999 S5

CRIMINAL JUSTICE ACT 2006 S84

CRIMINAL JUSTICE ACT 2006 S27(3CCC)

ROAD TRAFFIC ACT 1961 S49

CRIMINAL LAW (JURISDICTION) ACT 1976 S10

CRIMINAL LAW

Sentence

Severity - Presumptive statutory minimum sentence - Conviction for two misuse of drugs offences - Principle of proportionality and totality - Whether trial judge erred in failing to take in to account proportionality principle when imposing statutory minimum sentences - Criminal Justice Act 2006 (No 26), s 84 - Leave to appeal refused (7/2010 - CCA - 7/3/2011) [2011] IECCA 27

People (DPP) v O'Leary

Facts The applicant was convicted of two offences under s. 15A of the Misuse of Drugs Act, 1977 as amended . The first offence which involved a quantity of drugs with a value of €991,076.00 was committed on 05/08/08 and following a guilty plea the applicant was sentenced to ten years imprisonment. The learned trial judge indicated that a sentence of twelve years would have been imposed but for the applicant's plea of guilty, his co-operation by way of early admissions and his co-operation at interview. The second offence also involved the possession of diamorphine, this time with a value of €270,000 and this offence was committed on 09/12/08. The applicant was sentenced to ten years imprisonment for that offence also but the learned trial judge put the matter in for review after five years in order to ascertain whether the applicant had addressed his own problem with drug abuse.

Held by the C.C.A., Finnegan J. (Hanna, O'Keeffe JJ) (ex tempore) in refusing leave to appeal: That there was no error in the way the learned trial judge approached the sentence in respect of the first offence. Taking all matters into account there was no breach of the principles of proportionality or of totality. The learned trial judge expressly referred to the proportionality in giving judgment. Furthermore, the totality principle was fully reflected in the manner in which the learned trial judge dealt with the second offence where she was obliged to impose the presumptive statutory minimum sentence. It was a long sentence but it was not out of line in any way with the sentences regularly handed down by the courts for these offences and upheld by this court on appeal.

Reporter: L.O'S.

1 Judgment of the Court (ex tempore) delivered on the 7th day of March 2011 by Finnegan J.

2 The applicant in this case was convicted of two offences under section 15A of the Misuse of Drugs Act 1977 as inserted by the Criminal Justice Act 1999 section 5. In this case also the amendments to the 1999 Act introduced by section 84 of the Criminal Justice Act 2006 are relevant.

3 The first offence was on Bill DU1437 of 2008 and that related to an offence committed on the 5 ^th August 2008 when the applicant was found with a quantity of drugs and on his conviction on a plea of guilty a sentence of ten years imprisonment was imposed. The...