DPP v McBride
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 25 July 2016 |
| Neutral Citation | [2016] IECA 223 |
| Docket Number | Appeal No.: 232/13 and 51/14 |
| Court | Court of Appeal (Ireland) |
| Date | 25 July 2016 |
[2016] IECA 223
THE COURT OF APPEAL
Mahon J.
Appeal No.: 232/13 and 51/14
Sheehan J.
Mahon J.
Edwards J.
Sentencing – Drug offences – Totality – Appellant seeking to appeal against sentences – Whether sentences offended against the principle of totality
Facts: The appellant, Mr McBride, on 12th May 2011, was found in possession of cannabis herb and resin with a combined street value of ?97,680 when his car was searched by gardaí in Cork. He was charged with an offence under s. 15A of the Misuse of Drugs Act 1977. He pleaded guilty in the District Court on 12th October 2011, and was sent forward for sentence to the Cork Circuit Criminal Court, where, on 7th November 2011 he affirmed his plea of guilty and was remanded on bail for sentencing. On 29th November 2011 the appellant was sentenced to seven years imprisonment. On 16th November 2011, subsequent to his plea of guilty and before his sentencing in Cork, drugs, mostly cannabis herb and resin, were found at the appellant?s home in Enniscorthy, Co. Wexford following a search carried out on foot of a search warrant. The street value of the drugs haul was ?44,052. The appellant was once again charged with an offence under s. 15A of the 1977 Act, and was sent forward for trial to Wexford Circuit Criminal Court on 23rd April 2013. When an issue relating to the search warrant was ruled in favour of the prosecution, the appellant pleaded guilty to the s. 15A offence. He was sentenced on 24th October 2013 to ten years imprisonment. Because the Wexford offence was committed while the appellant was on bail in respect of the Cork offence, the Wexford sentence was required to be served consecutively to the Cork sentence by virtue of s. 11(1) of the Criminal Justice Act 1984. A sentence of at least ten years imprisonment was mandatory in respect of the Wexford offence because of the provisions of s. 27(3F) of the 1977 Act, as it was a second s. 15(A) or s.15(B) offence. Furthermore there existed no scope for a sentence of less than ten years being imposed having regard to the provisions of s. 27(3E) of the 1977 Act, again by virtue of it being a second s. 15(A) or s. 15(B) offence. The appellant appealed to the Court of Appeal against the overall sentence imposed. He contended that a sentence of that magnitude was excessive and offended against the principle of totality on the grounds that: (i) the term ?conviction? in the context of its use in s. 27(3)(e) of the 1977 Act, and more specifically, the reference to a person convicted of a first offence under s. 15A or 15B of that Act should be read as meaning a conviction consisting of (in this case) the plea of guilty in Cork on 7th November 2011 and the completion of the sentencing process on 29th November 2011; (ii) if the date of the Cork conviction is 7th November 2011 (on the basis that it is severable and separate to the imposition of the sentence on 29th November 2011) then that conviction constitutes a conviction of a first offence under s. 15A as of the date of sentencing on 24th October 2013, and, as such, it would invoke s. 27(3E) and thereby require that the sentence imposed on 24th October 2013 had to be at least a term of ten years imprisonment; (iii) if, on the other hand, the contrary was correct so that at the time of the sentencing on 24th October 2013 there did not exist a conviction for a s. 15(A) offence prior to 29th November 2011, it was open to the court below to consider the imposition of a sentence of less than ten years; (iv) the activation of the second offence provision, (3E), and the provisions relating to the commission of an offence while on bail should not both apply at the same time; (v) a portion of the ten year sentence imposed for the Wexford offence should be suspended; (vi) the application of the totality principle provides the Court with jurisdiction to reduce the seven year sentence in respect of the Cork offence, notwithstanding the fact that no error of principle had been identified in relation to that sentence.
Held by Mahon J that the Court has jurisdiction to reduce the Cork sentence in the interests of totality and proportionality. Mahon J held that in reducing the Cork sentence the Court is reducing a sentence in respect of which a statutory minimum sentence was not, in the circumstances, required to be imposed, nor was that sentenced required to be served consecutively to any other sentence.
Mahon J held that the Court would quash the seven year prison sentence imposed at Cork Circuit Criminal Court on 29th November 2011 and in its place impose a prison sentence of four years. Mahon J held that the sentences, and their structuring, as imposed at Wexford Circuit Criminal Court on 24th October 2014 would remain unaltered.
Appeal allowed.
This is an appeal against sentences imposed at Cork Circuit Criminal Court on 29th November 2011 (the ?Cork offence?) and at Wexford Circuit Criminal Court on 24th October 2013 (the ?Wexford offence?), of seven years and ten years imprisonment respectively. The latter was directed to be served consecutively to the former so that the total effective term of imprisonment is seventeen years.
On 12th May 2011 the appellant was found in possession of cannabis herb and resin with a combined street value of ?97,680 when his car was searched by gardaí in Cork. He was charged with an offence under s. 15A of the Misuse of Drugs Act 1977 (as amended). He pleaded guilty in the District Court on 12th October 2011, and was sent forward for sentence to the Cork Circuit Criminal Court, where, on 7th November 2011 he affirmed his plea of guilty and was remanded on bail for sentencing. On 29th November 2011 the appellant was sentenced to seven years imprisonment.
On 16th November 2011, (subsequent to his plea of guilty on 7th November 2011 and before his sentencing in Cork on 29th November 2011), drugs, (mostly cannabis herb and resin), were found at the appellant's home in Enniscorthy, Co. Wexford following a search carried out on foot of a search warrant. The street value of the drugs haul was ?44,052. The appellant was once again charged with an offence under s. 15A of the Act of 1977 (as amended), and was sent forward for trial to Wexford Circuit Criminal Court on 23rd April 2013. When an issue relating to the search warrant was ruled in favour of the prosecution, the appellant pleaded guilty to the s. 15A offence. He was sentenced on 24th October 2013 to ten years imprisonment.
Because the Wexford offence was committed while the appellant was on bail in respect of the Cork offence, the Wexford sentence, (being ten years), is required to be served consecutively to the Cork sentence, (being seven years), by virtue of s. 11(1) of the Criminal Justice Act 1984.
A sentence of at least ten years imprisonment was mandatory in respect of the Wexford offence because of the provisions of s. 27(3F) of the Act of 1977 (as amended), as it was a second s. 15(A) or s.15(B) offence. Furthermore there existed no scope for a sentence of less than ten years being imposed having regard to the provisions of s. 27(3E) of the Act of 1977 (as amended), again by virtue of it being a second s. 15(A) or s. 15(B) offence.
The appellant's appeal effectively raises three issues for consideration by this court, and they are:-
(1) Should the provisions of s. 27 of the Act of 1977 (as amended) be interpreted in such a way as to avoid a mandatory sentence in the circumstances of the present case (i.e. so as to provide for a mandatory sentence only where the accused has already been actually sentenced in respect of the first offence, at the time he committed the second or subsequent offence)?
(2) Should s. 27 of the 1977 Act (as amended) and s. 11(1) of the Criminal Justice Act 1984 be interpreted in such a way as to prevent them from operating simultaneously, where it is not explicitly provided in statute that they should apply with a combined effect (and in effect to the exclusion of the principle of totality or any other common law sentencing principles)?
(3) Assuming a mandatory ten year sentence arose in respect of the offence which occurred later in time (being the Wexford offence), was the sentencing judge entitled to suspend a portion of the ten years so imposed or is s. 27 of the 1977 Act (as amended) to be interpreted as requiring an actual and effective sentence of ten years?
In relation to the Cork offence the sentencing judge noted that the appellant was a transporter of drugs for which he was due to receive a fee of ?1,000. He indicated that the plea of guilty, his co-operation, his lack of previous convictions and the fact that he was highly thought of within his community, were mitigating factors. He noted that s. 15(A) required the imposition of a statutory minimum sentence of ten years imprisonment unless there were exceptional and specific circumstances present which would render a sentence of ten years or more unjust. In this regard the sentencing judge placed particular emphasis on the appellant's plea of guilty and his co-operation, (which he distinguished from providing material assistance). The sentencing judge was satisfied that there was good reason to depart from the requirement to impose the minimum mandatory sentence, and proceeded to impose a sentence of seven years imprisonment.
In relation to the Wexford offence the sentencing judge imposed a ten year consecutive sentence on the appellant having been informed of the existence of the previous s. 15A offence (the Cork offence) in respect of which he had been sentenced to seven years imprisonment. The learned sentencing judge stated:-
?.. I am obliged in law to impose a sentence of not less than...
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DPP v Hutton
...a manifestly unjust punishment on the accused.’ 7 That principle was also applied by this Court in its judgment in DPP v. Martin McBride [2016] IECA 223, delivered on the 25th July, 2016, by Mahon J. In that case the Court held inter alia, that an overall sentence of seventeen years impriso......