DPP v Michael Byrne

• Jurisdiction: Ireland
• Judge: Murray J.
• Judgment Date: 06 July 2012
• Neutral Citation: [2012] IECCA 72
• Court: Court of Criminal Appeal
• Date: 06 July 2012

[2012] IECCA 72

THE COURT OF CRIMINAL APPEAL

Murray J.

Hanna J.

Hogan J.

[No. 117/10 CCA]

DPP v BYRNE

BETWEEN/

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

PROSECUTOR/RESPONDENT

AND

MICHAEL BYRNE

APPELLANT

CRIMINAL JUSTICE ACT 1977 S15A

CRIMINAL JUSTICE ACT 1999 S4

CRIMINAL JUSTICE ACT 1999 S27

CRIMINAL JUSTICE ACT 1999 S5

DPP v DALY MCKECHNIE 20.10.2011 2011/16/3908 2011 IECCA 104

MISUSE OF DRUGS ACT 1977 S27(3C)

MISUSE OF DRUGS ACT 1977 S27(3D)

CRIMINAL JUSTICE ACT 2006 S84

CRIMINAL JUSTICE ACT 2007 S33

DPP v ALEXIOU 2003 3 IR 513

DPP v MCGINTY 2007 1 IR 633

DPP v WALL UNREP CCA 29.7.2011 2011/19/4864 2011 IECCA 45

DPP v GILLIGAN (NO2) 2004 3 IR 87

DPP v LONG UNREP CCA 7.4.2006 2006/19/3939 2006 IECCA 49

DPP v O'TOOLE UNREP CCA 25.3.2003 2003//4412

Crime – Drugs – Possession of controlled drug for purpose of selling or supplying – Sentencing – Appeal against severity of sentence – S 15A, Misuse of Drugs Act 1977

Facts: The appellant had been arrested after being apprehended with a considerable amount of diamorphine. He was convicted in 2010 of a number of offences relating to the possession of controlled drugs with intent to supply. Following a sentencing hearing, the appellant was sentenced to eighteen years imprisonment in respect of one charge, with the others taken into account. He now sought to appeal against the severity of that sentence claiming firstly that the trial judge had penalised him for seeking to defend the case and secondly, that the sentence was too high taking account of sentencing principles.

Held by Murray J, that it was common ground that an accused was entitled to defend any charges without fear of being punished for doing so. In this case, whilst the trial judge had made remarks in regards to perjury on the part of the appellant in the witness box, he had also stressed that he would not be punished for contesting any issue in the course of the trial. The remarks would be taken as suggesting the appellant could not expect the same treatment as an accused that had pleaded guilty at the first opportunity. People (Director of Public Prosecutions) v Daly [2011] IECCA 104 applied.

In regards to the severity of the sentence, s 15A of the Misuse of Drugs Act 1977 under which the appellant had been charged carried a presumptive minimum sentence in almost all cases. There were no exceptional circumstances in this case which justified not complying with s 15A. Rather, there were a number of aggravating factors, particularly the volume of drugs concerned. Considering the relevant case law, the appellant”s sentence could not be deemed excessive or severe. People (Director of Public Prosecutions) v Long [2006] IECCA 49 considered.

The appeal was therefore dismissed.

1 1. On 8 ^th March, 2010, the appellant, Michael Byrne, was found guilty of three counts on the indictment. The most serious offence was comprised in count 3, namely, possession of a controlled drug for the purpose of selling or supplying, contrary to s.15A (as inserted by s.4 of the Criminal Justice Act 1999) and s.27 (as amended by s.5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977. The controlled drug found in his possession was diamorphine, or heroin, which had a value of €6,200,000. Mr. Byrne was also convicted on two other counts namely, the unlawful possession of controlled drugs for the purposes of sale or supply to another. These other two counts, whilst serious in themselves, rather pale in comparison with the more serious s.15A charge.

2 2. Following a sentence hearing on 20 ^th April, 2010, in which Detective Garda Gregory Sheehan gave evidence for the prosecution in relation to the background to the charges, the learned Circuit Court Judge (His Honour Judge O'Donnell) pronounced sentence a week later on 27 ^th April, 2010. Judge O'Donnell imposed a sentence of eighteen years imprisonment in respect of the s.15A charge and took the other two counts into consideration. Mr. Byrne now appeals to this Court against the severity of that sentence. Before considering the arguments advanced in relation to the severity of sentence, it is necessary first to set out the key background facts.

3 3. On the 15 ^th January, 2008 following a surveillance operation, Gardai came upon the defendant at the rear of a Volkswagen Caddy van. That van had just performed a circular lap of a particular housing estate and Detective Sergeant Sheehan observed Mr. Byrne filling plastic bags with taped packages from the rear of the van. Mr. Byrne then closed the door of the van and made his way down a laneway while carrying two plastic bags. At that point Mr. Byrne was called upon to stop by members of the Garda Síochána who produced their service firearms. Mr. Byrne did not, however, stop but rather continued down the laneway and ran across a park. Mr. Byrne was ultimately apprehended. Taped packages of diamorphine (heroin) were found in the plastic shopping bags and in the back of the van. Other similarly packed packages were found in the park under a staked tree. Some 32kg of heroin was seized and the value of these seizures was put at €6,200,000.

4 4. Mr. Byrne's defence was that the items in question must have been deposited by the person to whom he had just given a lift to the airport and that he had panicked when he discovered the nature of items in question. This explanation was obviously rejected by the jury. Mr. Byrne had 19 previous convictions, mainly for petty crime: assault, public order, larceny, unauthorised taking of a vehicle and other road traffic offences in relation to stolen vehicles. Mr. Byrne had no previous convictions for possession of drugs.

5 5. The principal grounds of appeal are that (i) the learned trial judge penalised the accused for defending the case against him and (ii) that the sentence imposed was, in any even, too severe as a matter of principle.

Whether the judge may be taken to have penalised the accused for defending the case against him

6 6. It is perfectly clear, both as a matter of first principle and established authority, that an accused has a complete right to defend the proceedings and he cannot be penalised by reason of the fact that he has elected to plead not guilty, even if this is in the teeth of the evidence. As McKechnie J. observed in The People (Director of Public Prosecutions) v. Daly [2011] IECCA 104"an accused has a legal (and, may I add, a constitutional) right to fight the case tooth and nail… and his decision to do so must not add one day to his sentence."

7 7. Any other conclusion could lead to a situation where an accused might be dissuaded from exercising this constitutional right for fear of retribution by a sentencing judge if he were ultimately convicted by a jury of the charge on the indictment. The only relevance of a not guilty plea in the context of sentencing is that the accused cannot get the benefit of the discount which is otherwise available (save in exceptional cases) to the accused who has entered a timely plea of guilty.

8 8. In Daly a similar issue arose where it was contended that the trial judge had made remarks which suggested that he had penalised the accused for the manner in which the defence had been conducted:-

"Some of the judge's remarks in the instant case were highlighted in this regard, such as his reference to the "cynical, perjured criminality before [the] jury" which, in his view, had marred the appellant's trial. This was contrasted with the position of Mr. Hagan who the judge said had not "engaged in [such] calculated perjury." It should, of course, be noted that these were comments made at Hagan's sentencing on the 5th November, 2008 and not at the appellant's hearing, some three and a half months earlier.

Nonetheless, in sentencing the appellant, the judge did make reference to the "transparently fallacious" stories told by Mr. Daly and Mr. Wanden to the jury. This showed, he said, "[a] complete contempt for the jury, and… levels of incorrigibility that are hard to fathom" (p. 28). Other general references were noted, including a remark that by failing to plead and co-operate with the Gardaí, the co-accuseds had sought out the full appropriate sentence without deduction. Further, the judge stated on p. 29 that he would have "ameliorated" Mr. Wharrie's sentence on the basis that he had not given evidence, but for his appalling criminal record. Accordingly, it is asserted that the sum of these comments signal a real danger that the heavy sentence, at least in part, was imposed because of Mr. Daly's not guilty plea and also because of the manner in which his defence was conducted."

9 9. In response, the Director of Public Prosecutions drew attention to the comments which the trial judge in that case made at the start of the sentencing hearing:-

"[t]he accused are entitled to the assurance, and I give it to them at the start, that their sentence will not be increased by one, nor one hour because they fought the case, that is not an aggravating factor; they are entitled to a trial, notwithstanding in Wanden's case that the evidence against him was absolutely overwhelming, he is entitled to put the State on their proofs and he cannot be punished by an increase in sentence because of that."

10 10. Delivering the judgment of this Court, McKechnie J. concluded:-

"Given the express nature of this statement it is quite clear that the trial judge was mindful of the law and of the accused's right to fully fight the case, even if the judge found the manner of his so doing highly off putting. Being therefore conscious of such entitlement, and having explicitly said so in his judgment, we are satisfied to accept the assurances so given, and to proceed on the basis that the learned judge did not penalise Mr. Daly for...