DPP v Morrow

• Jurisdiction: Ireland
• Judge: Ms. Justice Kennedy
• Judgment Date: 22 October 2019
• Neutral Citation: [2019] IECA 268
• Court: Court of Appeal (Ireland)
• Docket Number: 289/2018
• Date: 22 October 2019

[2019] IECA 268

THE COURT OF APPEAL

Edwards J.

Kennedy J.

Donnelly J.

289/2018

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

EOIN MORROW

APPELLANT

Sentencing – Unlawful possession of controlled drugs with a value of €13,000 or more – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Morrow, pleaded guilty and received a sentence of eight years’ imprisonment in respect of one count of unlawful possession of controlled drugs with a value of €13,000 or more contrary to s. 15A of the Misuse of Drugs Act 1977. The sentence was imposed on the appellant in Dublin Circuit Criminal Court on the 7th November, 2018. The appellant appealed to the Court of Appeal against severity of sentence. The appellant submitted that the trial judge erred in treating the fact that the appellant had left the jurisdiction as an aggravating factor. It was also submitted that the trial judge erred in comparing the sentence imposed on a Mr Needham and the appellant in that she incorrectly held that the appellant had taken a trial date after he had presented himself to the Gardaí. Furthermore, it was submitted that a prior conviction for a similar offence, which would have attracted a mandatory minimum sentence if it had occurred in Ireland’s jurisdiction, was far more significant than a late guilty plea in circumstances where there was no evidence that the respondent, the Director of Public Prosecutions, had had to prepare for a trial, considering the appellant was not in the jurisdiction. The appellant said that the trial judge did not attach sufficient weight to the fact that the appellant had not taken part in the transportation for financial gain. It was submitted that the sentencing judge erred in not giving any/any sufficient weight to the factors highlighted in The People (DPP) v Ryan & Rooney [2015] IECA 2 and The People (DPP) v Devlin [2016] IECA 125. The appellant submitted that the trial judge did not give enough weight to several mitigating factors including the presence of duress and the significant rehabilitation the appellant has undergone.

Held by the Court that, when looking at the ultimate sentence imposed by the sentencing judge, it found no error in a sentence of eight years’ imprisonment for the offence. The Court held that, while some of the factors the judge considered were more properly within the ambit of an assessment of culpability and were considered by the judge in the context of mitigation, nonetheless the overall sentence was the appropriate sentence and as a consequence it would not intervene in the sentence imposed. The Court found no error in principle.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court (ex tempore) delivered on the 22nd day of October 2019 by Ms. Justice Kennedy

1 This is an appeal against severity of sentence imposed on the appellant in Dublin Circuit Criminal Court on the 7th November, 2018. The appellant pleaded guilty and received a sentence of eight years’ imprisonment in respect of one count of unlawful possession of controlled drugs with a value of €13,000 or more contrary to s.15A of the Misuse of Drugs Act 1977 (as amended).

Background

2 On the 25th July, 2015 Detective Sergeant Donnellan received confidential information in relation to the transport of what was believed to be a consignment of controlled drugs. Acting upon this information, which concerned a Scania trailer/tractor unit, several members of an Garda Siochána undertook surveillance in the relevant area and the vehicle was seen at around 6.08pm. It was followed by members of an Garda Siochána as it made its way to Newcourt Business Park in St Margaret's Road. A black Volkswagen Jetta was observed pulling in behind this vehicle and the driver of the Jetta, the appellant, was observed getting out of that vehicle. The appellant and the driver of the truck, a Mr. Needham, were then observed unloading pallets filled with boxes from the truck. The Gardaí intervened once the boxes had been moved inside a container unit and having conducted a search of the unit itself, boxes similar to those unloaded by the appellant which contained what appeared to be cannabis resin were found.

3 A full search was carried out and 96.7 kilogrammes of cannabis with a street value of €580,200 and 400,000 tablets of Zopiclone with a street value of €800,000 were seized. Both men were arrested, the appellant's co-accused, Mr Needham, received an eight-year sentence in relation to the s.15A offence. The appellant failed to appear and a bench warrant issued on the 31st January, 2017. It transpired that he had fled the jurisdiction. Subsequently he returned, his solicitor contacted the Gardaí and the warrant was executed by arrangement.

4 The appellant was then arraigned on the 15th June, 2018 and pleaded guilty and the matter was adjourned for sentence.

The Sentence

5 In imposing sentence, the trial judge departed from the presumptive mandatory minimum of 10 years in relation to Section 15A and did so on the following basis: -

“I have given this aspect of the case some considerable consideration, and I am of the view that in view of the efforts that have been made by the accused since his returning to this jurisdiction, the fact that he did in fact present himself, and that he has effected very significant improvements in terms of his own circumstances, and the efforts he's made towards his own rehabilitation, I'm of the view that these are aspects of the evidence that I can consider in concluding that the specific and exceptional circumstance test is met in this particular case, and that I am at liberty to depart from the 10-year mandatory sentence. However, I am of the view that, given the valuation of the cannabis involved, and also the value of the Zopiclone tablets, and the respective role taken by the accused, Mr Morrow, which was mirrored by that taken by his co-accused, Mr Needham, that they were trusted operatives within this particular venture. However, I do accept that he was not a beneficiary, and was not at the upper end of the hierarchy.

Therefore, in terms of the sentence, I am going to impose a headline sentence of 10 years, but I am going to give Mr Morrow credit for his plea of guilty. I am going to give him credit for the fact that he was somebody who had addictions at the time of the offence, and that he was not materially benefitting from his activities. I also take into account that there may have been an element of coercion involved in his commission of the offences. I take into account his personal circumstances, the fact that he has a supportive and decent family. I also take into account the matters which have been the subject of the many documents that have been submitted on his behalf, the letter from his GP outlining the mental health issues he has experienced in the past and in the recent past. I also note that he has not any previous convictions for drug offences, and that he has not offended since the commission of these offences. I also take into consideration the fact that he is embracing the opportunities that he is presented with in Clover Hill, and that he has, to a very large extent, undergone a complete rehabilitation, and that is evidenced in the urine analysis that has been presented to the Court.”

6 In light of the mitigating factors the headline sentence was reduced to a sentence of eight years’ imprisonment.

Personal circumstances

7 The appellant was born...