DPP v Monye
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 29 May 2020 |
| Neutral Citation | [2020] IECA 156 |
| Docket Number | Record Number: 6/20 |
| Court | Court of Appeal (Ireland) |
| Date | 29 May 2020 |
[2020] IECA 156
Edwards J.
McCarthy J.
Kennedy J.
Record Number: 6/20
THE COURT OF APPEAL
Sentencing – Importation of a controlled drug – Proportionality – Appellant seeking to appeal against sentence – Whether the judge imposed a sentence which was disproportionate in all the circumstances
Facts: The appellant, Mr Monye, pleaded guilty to importation of a controlled drug contrary to s. 15B of the Misuse of Drugs Act 1977 (as amended). On the 17th December 2019, the appellant received a sentence of three years’ imprisonment in Dublin Circuit Criminal Court. The appellant appealed to the Court of Appeal against sentence. Two grounds of appeal were advanced as follows: (1) the judge failed to balance adequately the mitigating factors with the aggravating factors and thus imposed a sentence which was disproportionate in all the circumstances; and (2) the judge failed to encourage further rehabilitation by suspending the custodial sentence contemplated.
Held by the Court that the sentence was within the margin of appreciation afforded to a sentencing judge and was indeed wholly appropriate.
The Court held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal against sentence. The appellant pleaded guilty to importation of a controlled drug contrary to section 15B of the Misuse of Drags Act, 1977 (as amended). On the 17 th December 2019, the appellant received a sentence of three years’ imprisonment in Dublin Circuit Criminal Court.
On the 24 th July 2019, the appellant flew from Barcelona to Dublin. At Dublin Airport he was stopped by customs officers following a call from an authorised officer in relation to an indication from a sniffer dog concerning a bag from Barcelona. The appellant's bag was put through an x-ray scanner and an anomaly was noticed. He was informed that his luggage would be searched and on being asked if he packed the bag himself, he said: “Yes, but my friends packed some of it as well”. The bag was then searched and ultimately, 2.6 kgs of cannabis herb with an estimated value of €52,438 was recovered. The appellant stated that he had lived in Barcelona since October 2018, working as an engineer. On being asked whether he had instructions to meet anybody regarding the controlled substance, he said ”No, I think they were trying to contact me when I arrived.”
The appellant was subsequently arrested and questioned by gardai. During the course of interview he stated that he had no knowledge of the drugs in his bag and they were placed there without his knowledge. The appellant subsequently pleaded guilty and he was sentenced on the 17 th December 2019.
The appellant, originally from Nigeria, is a UK citizen. He was 27 years old at the time of sentencing. The Court heard that he had studied engineering in university, had a master's degree in aerospace engineering and had moved to Spain for work. He has no previous convictions in this jurisdiction but has four convictions in the UK, the most recent in 2016 for driving under the influence, failing to report a collision and giving his name and address in 2014, simple possession contrary to the Misuse of Drugs legislation in 2013, and possession of a knife in 2011.
In his plea in mitigation, a letter from the appellant's father was handed into the Court expressing the hope that he completes a specialist training programme to enable him to refocus into the future. Testimonials and a letter from the appellant expressing remorse were also furnished.
A sentence of three years’ imprisonment was imposed. In arriving at this sentence, the sentencing judge stated as follows:-
“I think I can accept that he was transporting these drugs for some type of reward and it seems he doesn't have the background that he would own these drugs. Now the mitigation is clear in the case: (1) he has pleaded guilty: (2) he did co-operate, he didn't make admissions in the garda station, but the important issue he pleaded. He has a record of conviction but it's not too relevant. He has a work history, which is to his credit, he seems to be an intelligent man with good educational background and qualifications. Now undoubtedly he has committed a serious crime and must be punished for that crime.
I think the appropriate sentence, taking all the factors into account, including the matters raised by Mr Clarke on his behalf is a term of imprisonment of three years backdated to the 24th of July of this year. Thank you. I note also that lie's an English national, thank you.”
The appellant submits that the sentencing judge did not set out the offence on the spectrum of severity and indicate his starting point or how much credit he was giving the appellant for the mitigating circumstances.
It is said that the sentencing judge failed to take into account the admissions made by the appellant to the customs officials and the appellant submits that there was a wealth of mitigation present which was not adequately reflected in the sentence.
The appellant further submits that the sentencing judge erred in imposing an immediate custodial sentence with no suspension of the final part of his sentence. It is submitted that the sentencing judge failed to have sufficient regard to the significant steps towards rehabilitation which the appellant had taken and failed to give due weight to the public interest in the rehabilitation of the appellant. The appellant submits that the sentencing judge ought to have considered the incentivisation of the appellant by partly suspending his sentence, as per the principles set out in the judgment of Walsh J. in People (Attorney General) v. O'Driscoll (1972) 1 Frewen 351 where he stated:-
“The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him in so far as possible to tum from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the Courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case - not only in regard to the particular crime but in regard to the particular criminal.”
The appellant refers to The People (DPP) v. McGinty [2007] 1 IR 633 and The People (DPP) v. Alexiou [2003] 3 IR 513 where the Courts upheld the imposition of wholly suspended sentences in respect of s15A offences, hi Alexiou, Murray J. held that
“… where there are special reasons of a substantial nature and wholly exceptional circumstances, it may be that the imposition of a suspended sentence is collect and appropriate in the interest of justice.”
The respondent accepts that there were a number of mitigating factors for which the appellant was entitled to credit. However, the respondent submits that the mitigation must be balanced with the seriousness of the offence and the manner in which the legislature views such offending behavior. The respondent refers, inter alia, to the dicta of Hardiman J. in The People (DPP) v. Botha [2004] 2 IR 375:-
“… it is clear that the effect of the statutory provision is significantly to encroach on the otherwise untrammelled discretion of the sentencing court. If there are no specific and exceptional circumstances rendering it unjust to impose the minimum sentence then that sentence must be imposed, if indeed a greater one is...
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