DPP v Mannion

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 31 May 2016
• Neutral Citation: [2016] IECA 162
• Docket Number: Appeal No.: 94/95CJA/15
• Court: Court of Appeal (Ireland)
• Date: 31 May 2016

[2016] IECA 162

THE COURT OF APPEAL

Mahon J.

Appeal No.: 94/95CJA/15

Sheehan J.

Mahon J.

Edwards J.

In the Matter of an Application pursuant to Section 2 of the Criminal Justice Act 1993

Between/

The Director of Public Prosecutions

Appellant

- and -

Jonathan Mannion

and

John Martyn

Respondents

Sentencing – Undue leniency – Unlawful possession of cannabis with intent to sell or supply – Appellant seeking review of sentences – Whether sentences were unduly lenient

Facts: The respondents, Mr Mannion and Mr Martyn, were stopped in a car by gardaí?following the receipt of confidential information on 9th October 2012 at Loughrea, Co. Galway.?The car was searched and cannabis was found in the boot which had a street value of just under ?200,000. The car was the property of Mr Martyn. Mr Mannion, who was a passenger in the car, told the investigating gardaí that he had taken a lift from Mr Martyn, they had travelled from Galway to Dublin, collected the consignment of drugs and were en route back to Galway when stopped by the gardaí. He stated that he had been told that a drugs debt of ?3,800 owed by him would be forgiven in return for his assistance in transporting this consignment of drugs. He told gardaí that he was surprised at the amount of drugs involved and had thought they were of considerably less value than they were. He made immediate admissions, and to that extent co-operated with the gardaí. Mr Martyn maintained that he had driven Mr Mannion to Dublin and back to Galway as a favour to Mr Mannion, and that he was to receive ?200 for his efforts. Mr Martyn was stated to have fully co-operated with the gardai. The respondents pleaded guilty on 6th December 2013 at the Circuit Criminal Court sitting in Galway to an offence under s. 15A of the Misuse of Drugs Act 1977, namely the unlawful possession of cannabis with intent to sell or supply. The respondents were each sentenced on 20th March 2015 to five years imprisonment but with the entire term suspended on conditions. Mr Mannion spent a number of months in custody awaiting sentence, but was released on bail before he was sentenced. The appellant, the DPP, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 seeking a declaration that the sentences imposed on both respondents were unduly lenient. The appellant took issue with the fact that Mr Mannion did not receive a custodial sentence, referring to DPP v Flanagan?[2015] IECA 99. It was contended that the sentencing judge failed to give sufficient weight to the aggravating factors in the case, the seriousness of the offence, and the intention of the Oireachtas in relation to s. 15A offences. The appellant further relied on the negative conclusions of Mr Mannion?s probation report, and other factors including Mr Mannion?s attempt to lay blame for his involvement in the enterprise with Mr Martyn and the fact that he was involved in the transportation of the very large quantity of drugs in order to gain profit. In relation to Mr Martyn the appellant?s submissions were broadly similar, albeit with due acknowledgment of the fact that Mr Martyn had no previous convictions and had a more positive report from the probation service. The appellant was also critical of the failure by the sentencing judge to identify headline sentences before discounting for mitigation, as appropriate.

Held by Mahon J that, having considered DPP v McCormack?[2000] 4 IR 36, the sentence imposed on Mr Mannion was unduly lenient. The significant value of drugs involved in the case coupled with the existence of twenty nine previous convictions, including one particularly relevant conviction for a drugs offence, warranted in the Court?s view an immediate custodial sentence of two years or more. Mahon J held that the sentencing judge had good reason to treat Mr Martyn with considerable leniency in the circumstances. Mr Martyn?s sentence of a wholly suspended five year term was, in the court?s view very lenient, but stopped short of being unduly lenient.

Mahon J held that that, concerning Mr Mannion, the ?headline sentence? identified in the court below was correct and appropriate. Mahon J imposed on him a sentence of two years imprisonment.?The Court suspended the newly imposed two year custodial sentence for a period of two years.?The Court dismissed the appellant?s application in relation to Mr Martyn.

Appeal allowed in part.

Judgment of the Court delivered on 31st day of May 2016 by Mr. Justice Mahon

1 This is the Director's application pursuant to s. 2 of the Criminal Justice Act 1993 seeking a declaration that the sentences imposed on both respondents were unduly lenient.

2 The respondents pleaded guilty on 6th December 2013 at the Circuit Criminal Court sitting in Galway to an offence under s. 15A of the Misuse of Drugs Act 1977 (as amended) namely, the unlawful possession of cannabis with intent to sell or supply. The street value of the cannabis was ?199,600. The respondents were each sentenced on 20th March 2015 to five years imprisonment but with the entire of the term suspended on conditions. Mr. Mannion spent a number of months in custody awaiting sentence, but was released on bail before he was sentenced

Section 2 Criminal Justice Act 1993

3 Section 2 of the Criminal Justice Act 1993 provides:-

?2(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the ?sentencing court?) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(2)

(3) On such an application, the Court may either:-

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application.

(4)

The background facts

4 Following the receipt of confidential information, gardaí stopped both respondents in a car on 9th October 2012 at Loughrea in Co. Galway. The car was searched and cannabis was found in a cardboard box in the boot of the car and which had a street value of just under ?200,000. The car was the property of Mr. Martyn.

5 Mr. Mannion, who was a passenger in the car, told the investigating gardai that he had taken a lift from Mr. Martyn, they had travelled from Galway to Dublin, collected the consignment of drugs and were en route back to Galway when stopped by the gardai. He stated that he had been told that a drugs debt of ?3,800 owed by him would be forgiven in return for his assistance in transporting this consignment of drugs. He told gardaí that he was surprised at the amount of drugs involved and had thought they were of considerably less value than in fact they were. He made immediate admissions, and to that extent co-operated with the gardai.

6 Mr. Mannion has fifteen previous convictions for offences including theft, trespass, burglary, public order, criminal damage, arson and for one relating to the possession of drugs in respect of which he had pleaded guilty on 15th April 2013 (value approximately ?5,000), as well as other minor offences. He was sentenced in the District Court in respect of a previous drugs offence on 31st March 2014.

7 In relation to Mr. Martyn, he maintained that he had driven Mr. Mannion to Dublin and back to Galway as a favour to Mr. Mannion, and that he was to receive ?200 for his efforts. Mr. Martyn was stated to have fully co-operated with the gardai. Mr. Martyn has no previous convictions. He is twenty four years old, unemployed and has one child.

The sentencing process in the Circuit Court

8 The sentencing of both respondents was initially scheduled for 20th March 2014. On that date, the learned sentencing judge heard evidence in relation to the offences and the personal circumstances of the respondents from the relevant garda witnesses.

9 On that occasion, in relation to Mr. Martyn, the learned sentencing judge considered a report provided by the Probation Service. He placed Mr. Martyn under the superivison of the Probation and Welfare Service and adjourned sentencing for a period of twelve months. He remanded Mr. Mannion in custody to await a final decision as to his sentence.

10 In deciding to put the case back for sentence for twelve months, the learned sentencing judge stated:-

?Now, it seems to me that if I were to deal with this matter today then the period of probation and supervision would arise at the end of the sentence and it may not be as useful as if I were to deal with it as is suggested by his counsel, which is to put the matter back for twelve months and during that period require him to observe the conditions that are set out in the final report ? or, sorry, in the final paragraph of the probation officers report, that he attend counselling for his personal issues or any other service deemed suitable by the probation service, that he attend all appointments with the training and employment officer, that he not come to the adverse attention of the gardai, that he attend all probation appointments and provide urine for random drug screening as requested by this office, and that is the manner in which I purpose to deal with that today.?

11 It was emphasised to Mr. Martyn that the decision to put his case back for twelve months was not to be taken in any way as an indication as to the actual sentence that would eventually be imposed. He was also told that he was ?parking? the issue as to whether it was appropriate to depart from the statutory requirement to impose a minimum sentence of ten years in respect of an offence under s. 15A of the Misuse of Drugs Act 1977, as amended by s. 84 of the Criminal Justice Act 2006 and s. 33 of the Criminal Justice...