DPP v Molloy

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 28 July 2016
• Neutral Citation: [2016] IECA 239
• Court: Court of Appeal (Ireland)
• Docket Number: 263/15
• Date: 28 July 2016

[2016] IECA 239

THE COURT OF APPEAL

Edwards J.

263/15

Sheehan J.

Mahon J.

Edwards J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

RICHARD MOLLOY

Appellant

Sentencing - Having custody or control of materials or implements for the purpose of counterfeiting currency - Severity of sentence - Appellant seeking to appeal against sentence - Whether sentence was unduly severe

Facts: The appellant, Mr Molloy, on the 2nd of February 2014, was observed entering?a public house in the Phibsboro area of Dublin by the Special Detective Unit of An Garda Siochána engaged in an intelligence led operation monitoring the activities of suspected members of the IRA. He walked straight towards the man who was the particular subject of that surveillance and was observed placing a package down on a chair beside that man. The man was then observed placing the package in his right hand pocket. The appellant then picked up a different package, which the man at the table had placed on the seat beside him and on top of which he had placed a newspaper. The appellant put that package in his pocket. The exchange having taken place, the man left the public house and was searched by the Gardaí. The package that he had placed in his right hand pocket was retrieved and was found to contain 400 counterfeit €50 notes, in two separately wrapped bundles, amounting to a purported €20,000 in total. The appellant was separately intercepted and was also searched. He was found to be in possession of a package containing legitimate cash in the sum of €2,234.38. He was also found to be in possession of a set of keys. Gardaí determined that these keys related to a unit in Barstown Commerical Park, in Dunboyne, Co Meath, which had been leased to the appellant. The premises was found to contain two Heidelberg colour off set printers and other ancillary equipment and materials including various powders, guillotines, other digital printers, and paper. In addition, the Gardaí found a further quantity of completed counterfeit €50 notes, amounting to a purported €189,000 and an additional quantity of only partly completed counterfeit €50 notes, amounting to a purported sum of €2,000,000 approximately. The appellant faced trial before Dublin Circuit Criminal Court upon a two count indictment, charging in Count 1 the offence of delivery of counterfeit currency, contrary to s. 34 (1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001, and in Count 2 the offence of having custody or control of materials or implements for the purpose of counterfeiting currency, contrary to s. 36 (1) and (3) of the 2001 Act. On the 7th of July 2015 the appellant pleaded guilty to Count 2, following an indication that he was disposed to having the circumstances of Count 1 taken into consideration in his sentencing on Count 2. This plea was deemed acceptable by the respondent, the DPP, and accordingly the trial did not proceed. On the 6th of November 2015 the appellant was duly sentenced to six years imprisonment on Count 2, with Count 1 being taken into consideration. The appellant appealed to the Court of Appeal against the severity of that sentence, contending that the sentence was disproportionate, and that insufficient allowance had been made for all the mitigating factors in the case especially the plea of guilty, the absence of any relevant previous convictions making it appropriate that the appellant should be treated as being of previous good character, his ostensible remorse, and his personal circumstances including his need to foster and maintain his relationship with his daughter who was in her formative years and the many adversities in his life such as his alcohol abuse problem, the illness of his partner, his financial difficulties, and his emotional and personal difficulties.

Held by Edwards J that, in circumstances where the trial judge's reasons were insufficiently detailed, the Court could not be satisfied that sufficient discount for mitigation was afforded. Having found a significant error of principle Edwards J proceeded to quash the sentence imposed and proceeded to re-sentence the appellant.

Edwards J held that the gravity of the case merited a headline sentence of eight years imprisonment. Further, to reflect the mitigation to which he felt the appellant was entitled he discounted a period of 30 months from the headline sentence. In addition, in the light of the progress which the appellant made towards his rehabilitation, and with a view to incentivising his continued progress in that regard, Edwards J suspended a further 18 months of the sentence, on condition that he enter into a bond in the sum of €100 to keep the peace and be of good behaviour for a period of two years following his release from prison.

Appeal allowed.

Judgment of the Court delivered on the 28th day of July 2016 by Mr. Justice Edwards .

1 In this case the appellant was facing trial before Dublin Circuit Criminal Court upon a two count indictment, charging in Count No 1 the offence of delivery of counterfeit currency, contrary to s.34 (1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001, and in Count No 2 the offence of having custody or control of materials or implements for the purpose of counterfeiting currency, contrary to s.36 (1) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The trial was scheduled to commence on the 7th of July 2015.

2 On the 7th of July 2015 the appellant pleaded guilty to Count No 2, following an indication that he was disposed to having the circumstances of Count No 1 taken into consideration in his sentencing on Count No 2. This plea was deemed acceptable by the respondent and accordingly the trial did not proceed.

3 On the 6th of November 2015 the appellant was duly sentenced to six years imprisonment on Count No 2, with Count No 1 being taken into consideration

4 The appellant appeals against the severity of his said sentence.

The facts as established in evidence.

5 The sentencing court heard evidence from Detective Superintendent Thomas Maguire concerning the circumstances of the crime.

6 The court was told that on the 2nd of February 2014 the Special Detective Unit of An Garda Siochána was engaged in an intelligence led operation, in the course of which they were monitoring the activities of suspected members of the IRA in Dublin.

7 Two men, who were not before the court, were the particular subject of that surveillance. They were believed to be members of the IRA. These men were observed arriving outside of a public house in the Phibsboro area of Dublin. One of these two men entered the public house and was observed to sit down at a table opposite the bar. The other remained outside in the car in which they had arrived with the engine running.

8 Some time later the appellant was observed entering the public house through a side door. He walked straight towards the man seated at the table opposite the bar, and was observed placing a package down on a chair beside that man. The man at the table was then observed placing the package in his right hand pocket. The appellant then picked up a different package, which the man at the table had placed on the seat beside him and on top of which he had placed a newspaper. The appellant put that package in his pocket.

9 The said exchange having taken place, the man at the table got up and left the public house. He was observed getting into the passenger side of the car in which he had earlier arrived. The associate who had remained outside was in the drivers seat. At this point the Gardai intervened. The man in the passenger seat was searched, and the package that he had placed in his right hand pocket was retrieved and was found to contain 400 counterfeit €50 notes, in two separately wrapped bundles, amounting to a purported €20,000 in total.

10 At the same time the appellant was separately intercepted within the public house and he was also searched. He was found to be in possession of a package containing legitimate cash in the sum of €2,234.38. The appellant was arrested and detained under s. 30 of the Offences Against the State Act 1939 as amended, initially on suspicion of being a member of an unlawful organization. That was subsequently changed to suspicion of providing assistance to an unlawful organization. The appellant in the course of his detention but maintained his right to silence throughout.

11 During a search of the appellant's person he was also found to be in possession of a set of keys. Gardaí determined that these keys related to a unit in Barstown Commerical Park, in Dunboyne, Co Meath, which had been leased to the appellant. The Gardai subsequently searched this premises utilising a search warrant obtained under s. 29 of the Offences Against the State Act 1939 as amended. The premises was found to contain two Heidelberg colour off set printers, which are substantial printing machines, and other ancillary equipment and materials including various powders, guillotines, other digital printers, and paper. In addition, the Gardai found a further quantity of completed counterfeit €50 notes, amounting to a purported €189,000 and an additional quantity of only partly completed counterfeit €50 notes, amounting to a purported sum of €2,000,000 (two million euro) approximately.

12 The partly completed counterfeit notes were at various stages of production.

13 Some, though not all, of the counterfeit notes were considered to of very good quality, particularly those that had been exchanged in the public house. Samples were produced to the sentencing judge for his inspection.

The appellant's personal circumstances

14 The appellant was born on the 14th of March 1972 and accordingly was 43 years of age at the date of his sentencing.

15 The sentencing court heard that the appellant was married, but...