DPP v Molloy

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 20 February 2018
• Neutral Citation: [2018] IECA 37
• Docket Number: [CCA No. 117/17]
• Court: Court of Appeal (Ireland)
• Date: 20 February 2018

[2018] IECA 37

THE COURT OF APPEAL

Edwards J.

Mahon J.

Edwards J.

Hedigan J.

[CCA No. 117/17]

BETWEEN

RAYMOND MOLLOY

APPELLANT

AND

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

RESPONDENT

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

Facts: The appellant, Mr Molloy, on 10th May 2017, pleaded guilty to an offence contrary to s. 15A of the Misuse of Drugs Act 1977. On 15th May 2017, the appellant was sentenced by a judge of the Dublin Circuit Court to a sentence of six and half years imprisonment backdated to 26th January 2016, the date on which he went into custody in the United Kingdom prior to his extradition to Ireland. The appellant appealed to the Court of Appeal against the severity of his sentence on the following grounds: (a) the sentencing judge erred in law and fact in imposing a sentence which was disproportionate and overly severe in all the circumstances; (b) the sentencing judge erred in law in the manner in which he imposed the sentence, a sentence which on its face failed to accord with the established principles of sentencing and from which it was impossible to determine what weight, if any, was given to mitigation.

Held by the Court that to have ended up at six and a half years the sentencing judge would have to have started somewhere north of nine years. The Court considered that that was too high in the particular circumstances of this case having regard to the individual culpability of this offender. The Court therefore considered that there was an error of principle in the assessment of the gravity of the case. The Court held that it would quash the sentence imposed in the Court below, and proceed to re-sentence the appellant.

The Court held that the appropriate headline sentence was one of seven and a half years. The Court would reduce that by one third to reflect the mitigation in the appellant’s case not already taken into account, to arrive at a final sentence of five years imprisonment; the sentence was again to be backdated to the 26th January 2016. The Court would not suspend any portion of the final figure of five years in circumstances where there was no pressing need to do so to specifically incentivise rehabilitation.

Appeal allowed.

JUDGMENT of the Court delivered on 20th February 2018 by Mr. Justice Edwards

1 On 10th May 2017, the appellant pleaded guilty to an offence contrary to s. 15A of the Misuse of Drugs Act 1977. On 15th May 2017, the appellant was sentenced by a judge of the Dublin Circuit Court to a sentence of six and half years imprisonment backdated to 26th January 2016, the date on which he went into custody in the United Kingdom prior to his extradition to Ireland.

2 The appellant was arrested following a surveillance operation by the Gardaí in August 2002. He had been involved in the transportation by a van of 498kg of Cannabis valued at €6.324m. Upon his detention and interview, the appellant answered questions and made a number of admissions which were considered to be helpful to the Gardaí in their investigation of these offences. His case came on for trial in April 2004, the third trial date, and the appellant failed to appear having fled the jurisdiction. A warrant was issued for his arrest. He was subsequently located living in the Isle of Wight in the United Kingdom and was arrested on foot of a European Arrest Warrant and detained on 26th January 2016. Following extradition proceedings which were contested, the appellant was returned to Ireland on 16th August 2016. A trial date was set, but a plea was entered on 10th May 2017. In this appeal, the appellant claims that the sentence imposed was excessive.

The Appellant's Circumstances

3 The appellant was born on 16th May 1962. He worked in the Equine industry both in Ireland and in Europe. He received financial assistance in setting up an Equestrian Centre. It appears that this may have been a front, but it is accepted that the appellant believed it to be a legitimate business. In relation to this offence, whilst the appellant admitted that he had a very good idea of what was happening, the Gardaí considered that he was used by other more serious criminals. It was accepted that this was a one-off situation and there was no suggestion that the appellant had been involved in a large way in this offence. It was accepted that he was put under pressure and that a number of threats had been issued to him and in respect of his horses. There was no evidence that he was a gang member or that he was gaining financially from this transaction. Gardaí stated that he was specifically set up in the Equestrian Centre due to his background in horses and it was seen by others as an ideal cover for a criminal enterprise. From the time of his detention, the appellant suffered a rapid deterioration of his mental health. He has made several serious attempts at suicide. There were in-patient stays in Lakeview Psychiatric Unit in Naas General Hospital.

The Sentencing Judge's remarks

4 In sentencing the appellant the sentencing judge made the following remarks:

‘The facts of this case are pretty clear. In one sense, it's not an unusual type of case. It seems parties who were involved in transporting this large amount of drugs obviously wanted a way to bring the drugs into the country or bring them from certain other locations, obviously wanted, let's say, the transportation of drugs separated from, so they would be difficult to follow. It seems the guards had certain information and were following a Mr David Dempsey. They followed him to the Poitín Stil and it seems there was some interaction with, I think, Mr Molloy at that stage. It seems a vehicle was given to Mr Molloy. I think he drove back to his equestrian centre and there, there was another vehicle which had been parked there previously. It seems that contained a large amount of drugs. It was a very significant amount of drugs, it seems. There was almost 600 kilos, if I'm not mistaken, of drugs involved, 498 kilos valued at €6.3 million in value at the time. It seems Mr Molloy, and probably other people, transported these drugs from this vehicle to the vehicle that was going to transport the drugs and it seems to me at this point in time, Mr Molloy must have known what was afoot. It seems he must have known this was illicit substances. He must have known there was a large amount of drugs involved and he must have known he was doing wrong. Now, at the time, it seems to me, Mr Molloy was in his 40s. It seems that he was old enough and mature enough to make a decision at this point either to involve himself or not involve himself. By reasons of fear, I suppose, by reasons of indecision, he didn't make the right decision. He committed a huge error of judgment. He involved himself in this large drug dealing operation and it seems he loaded the drugs into this vehicle and drove the -- this vehicle back to the Poitín Stil, where Mr Dempsey again took control of this vehicle and drove the vehicle until it was stopped by the guards. The guards searched the vehicle, found the drugs and obviously, it seems, searched Mr Dempsey's residence and found more drugs and, I think, armaments or guns as well. It seems Mr Molloy eventually was detected and located. It seems he was interviewed, he co-operated and made admissions and it seems -- but he took a trial date. It seems that he was in difficult -- had mental health problems at this time and eventually bail was procured and it seems he basically ran. He basically didn't show up for his trial date and since that time he has been living in the UK, working away and probably hoping that this day wouldn't arrive. Eventually the guards in Blessington, I think, received certain information and it seems this information was good information, that the defendant was indeed living in the Isle of Wight and the wheels of justice began to turn and eventually he arrives back in this Court. Now, in deciding what to do about Mr Molloy, I must take into account the nature of the crime. The crime is serious. To involve oneself in the transportation of almost 500 kilograms of cannabis is a very serious offence. I believe there is a life -- the maximum for this type of offending is a life sentence. Obviously, there is a mandatory minimum sentence of 10 years for this type of behaviour and as everybody here well knows, I have been given the discretion to depart from this mandatory minimum sentence where I find there is suitable circumstances. Now, suitable circumstances are -- obviously are a plea, co-operation, admissions and such like. They are present in this case, there's undoubtedly in the case. Now, Mr Molloy has his own history. It seems that he has no record whatsoever, it seems he wanted to have an equestrian centre and involved himself with obviously some unscrupulous people. I accept as a fact in this trial, a sentencing hearing, he didn't know who he was involving himself with at the time by reason of the fact, it seems, a member of his extended family was the conduit to his involvement and therefore it seems to me he had no reason to believe that the people behind the financing of his equestrian centre were shady, if you want to put it that way, but obviously the facts of the crime speak for itself. Obviously he has no record before this event or after this event. I have to accept, I think, that it's unlikely that Mr Molloy will involve himself in any serious criminality in the future. I also have to accept that he is remorseful for what he did. I also have to accept that there's a certain toll. He has -- I suppose he's paid a price for what he did. He has probably been living under pressure and under fear for the last 12 or 13 years. I also have to accept, I think, that he is well capable of contributing to society and I have to accept that basically, in his...