DPP v Murtagh

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice William M. McKechnie
Judgment Date25 June 2015
Neutral Citation[2015] IECA 3
Docket Number[2010 No. 111 CCA]
Date25 June 2015

[2015] IECA 3

THE COURT OF APPEAL

The President

Peart J.

Sheehan J.

[101 CJA/12]
DPP v J (M)
THE PEOPLE AT THE SUIT OF DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
V.
CATHAL MURTAGH
RESPONDENT

Sentencing – Undue leniency – Drug offences – Applicant seeking to appeal against sentence on grounds of undue leniency – Whether there was an error in principle

Facts: The respondent, Mr Murtagh, was sentenced to five years imprisonment by the Dublin Circuit Criminal Court in March, 2012 for an offence under s. 15A of the Misuse of Drugs Act, 1977. The judge departed from the presumptive mandatory minimum sentence of ten years because of his early plea of guilty and his co-operation with the investigating Gardaí. The facts that the judge took into account when sentencing were the early plea, co-operation, good history, limited involvement with the drug operation and the fact that he was receiving very little remuneration. The DPP applied under s. 2 of the Criminal Justice Act 1993 to the Court of Appeal for a review of the sentence, submitting that the sentence was unduly lenient by reason of error in principle. The DPP claimed that the trial judge failed to assess the seriousness of the case in light of the maximum penalty as well as the statutory presumptive minimum so as to identify its location on the scale of heinousness and calculate the appropriate sentence before applying other considerations, whether mitigating or aggravating. The DPP also alleged that the judge failed to give sufficient weight to the nature, quantity and value of the drugs; the respondent was in a position where he was trusted with control of an extremely valuable stock of drugs and he got involved for financial reward. The DPP stated that judge attached too much weight to the mitigating features. The respondent argued that it would be unjust to impose an increased sentence of imprisonment on the respondent at a point nearly three years following the date of sentence and when he had been on Community Release since the September, 2014. The respondent stated that the sentencing judge balanced all the relevant factors, including the seriousness of the offence and the statutory minimum sentence; the judge was impressed by the respondent and was entitled to hold that he was the lowest cog who would receive small reward and that he did not realise at first what he was involved in.

Held by the President that, having considered s. 15A and DPP v Botha [2004] 2 IR 375, the plea of guilty in the circumstances was not exceptionally significant in that the accused was caught acting as if in charge of the unit containing the drugs; as for co-operation, the respondent gave false information. The President noted that Mr Murtagh got into the business to make money and not because he was a drug addict or in any way coerced. On the facts as revealed, the President found it difficult to see how the respondent could have been under any illusion as to what was going on. Having said that, the President held that the judge was entitled to come to the conclusion that the respondent was a minor player operating in a big business and the evidence was clear in that regard. In the circumstances, the Court was satisfied that there was an error in principle in that the trial judge failed to assess the gravity of the offence in accordance with the terms of the section and the legal authorities.

The President held that the sentence imposed by the Circuit Court was unduly lenient. Allowing that there was enough in the case to justify departure and giving maximum value to mitigation, the quantity and value of the drugs and the circumstances of the case was held to generally demand a higher sentence to comply with the legitimate statutory purpose. The Court would afford the parties an opportunity of putting forward any up to date relevant material before imposing the sentence the Court considered appropriate. In doing so, the Court would consider what allowance if any could be made for the anguish occasioned by the imposition of a further period of incarceration.

Appeal allowed.

1

1. This is an application by the Director of Public Prosecutions under s. 2 of the Criminal Justice Act 1993 for a review of the sentence of five years imprisonment imposed on the respondent at the Dublin Circuit Criminal Court on the 6th March, 2012 for an offence under s. 15 A of the Misuse of Drugs Act, 1977 as amended.

2

2. On the 20 th April, 2011, two customs officers went to premises in an industrial park on the Malahide Road when they were carrying out enquiries as to cigarette smuggling. They found the respondent at one of the units where he was opening the shutters. He gave them a false name. They noticed boxes of different shapes and sizes on the premises and the respondent said that he was employed by a man named Stephen Devine and his duties included work on the premises such as moving boxes and taking deliveries. The Customs men opened a box and saw a green plant-like substance which they thought to be drugs. At that stage Mr. Murtagh gave his correct name. He denied knowing what was in the boxes. The Customs men contacted Detective Sergeant Sheehan of the Garda National Drugs Unit who got a search warrant.

3

3. The respondent also had the key of a Transit van which the Gardai searched. Between the unit and the van 16 boxes of drags were found as follows: -

1

cannabis resin - 382.4 kg valued at €2,294,760

2

Cannabis herb in the van 9.961 kg valued at €119,138

3

Cannabis herb in the unit 63.9 kg valued at €766,800

4

MDMA tablets 40,168 valued at €o 401,680.

The total market value of the haul was €3,582,778.

4

4. The Garda evidence in court was that the accused man made admissions during interviews and the fullest account he gave was in the fifth interview, as follows. He met a man in a pub in Dundalk who offered him employment at a rate of €50 or €60 a day; the job was to move boxes and tape up boxes in a warehouse; he was given a mobile phone; lifts were arranged from his home in Dundalk but he did not identify the driver; he was dropped off near the unit but never actually at it; in the fifth and last interview he admitted that he knew that the boxes contained drugs. He said he discovered this after some time and rang his employer wishing to stop doing the work but was told to continue on with it, that he could not walk away from it and that is what he did. He had done the work for about four or five days over a two-week period. He had a key to the warehouse. He said that he got calls on the mobile phone with instructions to place a particular box into the back of the Transit van and park it up in a location in the industrial estate or other business premises and leave the key in the visor; he collected the van the next day or later when the contents would have been removed. He drove the van around and when shown footage from CCTV he accepted it was him.

5

5. The respondent was born on 22 May, 1983 so he is now aged 31 years. At the time of sentencing on 6 March, 2012 he had a partner and a young child of about two years. He was unemployed and the Garda witness said that this was his way of seeking employment "to get a few quid together."

6

6. The respondent has no previous convictions.

7

7. In cross-examination, it was established that there were other people involved in the renting of the unit; the Gardai had got descriptions of a fairly vague nature. When Customs Officers opened the package and saw the resinous material Mr Murtagh made an exclamation and stepped back, indicating surprise. The Garda agreed that this was a large-scale operation which would require large financial backing and Mr Murtagh would have had no means to set up that operation.

8

8. The Gardai had got a photograph from the M1 toll plaza showing the Transit van going through and they were following up trying to identify the driver. The name that Mr Murtagh gave for the person in charge of the unit was a false one.

9

9. Mr Murtagh was unemployed and he engaged in a lot of community work in the Dundalk area with younger people.

10

10. The trial judge said that Mr Murtagh should have known that there was something suspicious going on. He should have reported the matter but he did not do it for his own reasons. He found that he was probably the lowest cog and the consideration he received was very minor compared to the risk he was taking. He said he was a decent man, which he inferred from his history. He had no previous convictions and his references were impressive. He had plenty of good points. He was a good family man and contributed to his community.

11

11. The judge departed from the presumptive mandatory minimum sentence of 10 years because of his early plea of guilty and his co-operation with the investigating Gardai. That left the judge at large in regard to sentence and the fact that he took into account were the early plea; co-operation; good history; limited involvement with the drug operation and the fact that he was receiving very little remuneration.

12

12. The DPP submits that the sentence was unduly lenient by reason of error in principle. The learned trial judge failed to assess the seriousness of the case in light of the maximum penalty as well as the statutory presumptive minimum so as to identify its location on the scale of heinousness and calculate the appropriate sentence before applying other considerations, whether mitigating or aggravating. Instead, he applied mitigating factors to the minimum 10 year sentence. The judge also failed to give sufficient weight to the nature, quantity and value of the drugs. The respondent was in a position where he was trusted with control of an extremely valuable stock of drugs. He got involved for financial reward and not because of addiction....

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4 cases
  • DPP v Samuilis
    • Ireland
    • Court of Appeal (Ireland)
    • 11 October 2018
    ...We were referred by the applicant to a number of cases in that regard, including The People ( Director of Public Prosecutions) v. Murtagh [2015] IECA 3; The People (Director of Public Prosecutions) v. Botha [2004] 2 I.R. 375; and The People (Director of Public Prosecutions) v. John Ryan ......
  • DPP v Flanagan
    • Ireland
    • Court of Appeal (Ireland)
    • 1 May 2015
    ......Rooney and Ryan [2015] IECA 2 (unreported, Court of Appeal, 19 th January, 2015; and The People (Director of Public Prosecutions) v. Cathal Murtagh (unreported, [2015] IECA 3 (unreported, Court of Appeal, 19 th January, 2015). . 71 30. The Court has considered each of these cases and they clearly illustrate that in the overwhelming majority of cases, a S.15A offence will attract and require the imposition ......
  • DPP v Bowen
    • Ireland
    • Court of Appeal (Ireland)
    • 1 May 2015
    ......Rooney and Ryan [2015] IECA 2 (unreported, Court of Appeal, 19 th January, 2015; and The People (Director of Public Prosecutions) v. Cathal Murtagh (unreported, [2015] IECA 3 (unreported, Court of Appeal, 19 th January, 2015). . 72 29. The Court has considered each of these cases and they clearly illustrate that in the overwhelming majority of cases a s.15A offence will attract and require the imposition ......
  • DPP v Dung Tran
    • Ireland
    • Court of Appeal (Ireland)
    • 1 February 2021
    ...purpose…” 13 Furthermore, the appellant provided full assistance and cooperation. The appellant refers to The People (DPP) v. Murtagh [2015] IECA 3 where quantities of cannabis and MDMA with a total market value of €3, 582778 were seized from a storage unit and van. Although the Court of Ap......

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