DPP v Ormonde

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeMr. Justice Declan Budd
Judgment Date29 July 2011
Neutral Citation[2011] IECCA 46
Date29 July 2011

[2011] IECCA 46

COURT OF CRIMINAL APPEAL

Hardiman J.

Budd J.

Hanna J.

Record No.: 170/08
DPP v Ormonde
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
v.
BRIAN ORMONDE
APPLICANT

MISUSE OF DRUGS ACT 1977 S15A

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1984 S6

MISUSE OF DRUGS ACT S15(1)

MISUSE OF DRUGS ACT 1977 S3

FIREARMS & OFFENSIVE WEAPONS ACT 1990 S9(1)

CRIMINAL JUSTICE ACT 1999 S4

CRIMINAL JUSTICE ACT 1999 S5

PEOPLE v LONG UNREP CCA 7.4.2006 2006/19/3939 2006 IECCA 49

DPP v RENALD UNREP CCA 23.11.2001 2001/8/2140

PEOPLE v MCGRANE UNREP CCA 8.2.2010 2010/16/3874 2010 IECCA 8

DAVIS v DPP UNREP CCA 19/2/2008

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 338

CRIMINAL JUSTICE ACT 1999 S9(1)

PEOPLE v GALLIGAN UNREP CCA 23.7.2003 2003/16/3475

MISUSE OF DRUGS ACT 1977 S3(3)

DPP v BOTHA 2004 2 IR 375 2004/14/3210 2004 IECCA 1

CRIMINAL LAW

Sentence

Drugs - Possession with intent to supply - Ten year minimum sentence imposed - Whether sentencing judge entitled to consider background matters explaining context of crime - Whether entitled to consider entire book of evidence including admissions - Whether entitled to consider offences other than charged - Whether entitled to consider involvement in drugs trade if no charges laid - Whether improperly influenced by background matters - Duty on sentencing judge clearly to exclude extraneous matters in judgment - Importance of guilty plea where accused caught red-handed- Whether lack of previous convictions amounts to exceptional circumstances - Whether road traffic offences relevant previous convictions for drugs offence - People (DPP) v Patrick Long [2006] IECCA 49 (Unrep, CCA, 7/4/2006) applied; People (DPP) v McGrane [2010] IECCA 8 (Unrep, CCA, 8/2/2010) followed; People (DPP) v Renald (Unrep, CCA 23/11/2001), People (DPP) v Botha [2004] IECCA 1 [2004] 2 IR 375, People (DPP) v Davis[2008] IECCA 58 (Unrep, CCA, 19/2/2008 and People (DPP) v Galligan (Unrep, CCA, 23/7/2003) considered - Misuse of Drugs Act 1977 (No 12), ss 3, 5, 15A and 27 - Criminal Justice Act 1999 (No 10), ss 4, 5 and 9 - Sentence quashed and sentence of 7 years with 2 suspended imposed (170/2008 - CCA - 29/7/2011) [2011] IECCA 46

People (DPP) v Ormonde

Facts The applicant had pleaded guilty to an offence under S.15A of the Misuse of Drugs Act, 1977 and had received a sentence of ten years imprisonment. An application was brought contending that the sentencing judge had failed to give proper weight to the applicant's lack of previous convictions, his early admissions and his guilty plea. These factors would have permitted to depart from the mandatory minimum sentence of ten years.

Held by the Court of Criminal Appeal in granting the application. There were particular features of the case which merited consideration such as the early admissions, guilty plea and lack of previous convictions. In the circumstances the court would mitigate the original sentence, impose one of seven years with the last two years suspended.

Reporter: R.F.

1

Judgment of the Court delivered on the 29th day of July, 2011, by Mr. Justice Declan Budd

Background
2

The applicant was sentenced to ten years imprisonment for an offence contrary to S.15A of the Misuse of Drugs Act 1977, as amended, on the 3 rd June, 2008, by Her Honour Judge Katherine Delahunt sitting in the Dublin Circuit Criminal Court. The term of imprisonment was backdated to the 23 rd June, 2007, from when the applicant was taken into custody. The applicant was in possession of approximately 448 grammes of diamorphine valued at €90,000. The applicant made full admissions at the scene and during interview and admitted that he had the drugs for the purpose of sale, although he attributed a lesser value to them. The applicant furthermore consistently and duly pleaded guilty to the s. 15A offence. This plea surmounted a problem of the lack of prosecution evidence of his sale of heroin other than by his own admissions.

Particulars of conviction and indictment
3

Count no. 1: Possession of a controlled drug for unlawful sale or supply contrary to s. 15A, as inserted by the Criminal Justice Act 1999 and amended by the Criminal Justice Act 2006, and s. 27 of the Misuse of Drugs Act 1977, as amended by s. 6 of the Misuse of Drugs Act 1984 and the Criminal Justice Act 2006.

4

Count no. 2: Possession of a controlled drug for unlawful sale or supply contrary to s. 15(1) and s. 27 of the Misuse of Drugs Act 1977, as amended by s. 6 of the Misuse of Drugs Act 1984.

5

Count no 3: Possession of a controlled drug contrary to s. 3 and s. 27 of the Misuse of Drugs Act 1977, as amended by s. 6 of the Misuse of Drugs Act 1984.

Evidence at the trial
6

The gardaí, on the basis of confidential information, obtained a search warrant to search the residence of Brian Ormonde at Flat 1, 9 Synott Place, Dublin 1. on the 23 rd June, 2007. The drugs were found secreted in the extractor fan in the kitchen of the applicant's residence. A weighing scales, a tub of glucose (commonly used as a mixing agent) and two "tick lists" relating to an amount of drugs and names were also found along with €830 in cash. When asked by gardaí about the items found, the applicant immediately admitted and accepted that the packages contained heroin, that he owned them, and he said that there was about half a kilogramme of heroin in the packages.

7

The applicant said that he owed approximately €14,000 for the heroin and that he had begun selling heroin after some heroin he had was stolen. He then fled to England for the safety of his life for some time. After he returned, he began selling heroin to pay off the debt, which at that time was €20,000. The applicant also said that he was addicted to cocaine. He admitted that the tick list referred to the amounts of heroin he had supplied to people and that the glucose was to mix with the heroin. The garda gave evidence that the total value of the drugs seized was approximately €90,000. The garda also gave evidence that the accused had eight minor previous convictions, a majority of which related to public order offences, one traffic offence and a s. 9(1) possession of firearms and offensive weapons offence under the Firearms and Offensive Weapons Act 1990.

8

Under cross-examination, the garda accepted that the applicant was immediately cooperative, from and during the search and since, and was honest about his role. The garda said that if the applicant had not been as forthcoming, it was likely perhaps that the matter would have had to go to trial as the gardaí did not have evidence of him selling and supplying the heroin independent of his own admissions. The garda also accepted that the applicant's primary motivation in selling the heroin was to pay back the debt which had been incurred by the applicant due to his being held responsible for the loss due to a purported theft of heroin in his possession.

Mitigation
9

Counsel for the applicant, in mitigation, relied on a governor's report, a supportive letter from the accused's parents, a letter from his uncle, who is a medical doctor, a letter from Sister O'Donovan in the chaplain's office in Cloverhill, a letter from a previous employer and a letter from the accused himself. The letters, taken together, showed a picture of how the applicant had become involved in misbehaviour in his teenage years. It was submitted that the applicant suffered significant difficulties in his childhood, having to try to cope with his family moving from place to place and country to country and having to try to adapt to different schools in Australia due to his father's career. When the family returned to Ireland, he struggled in school and started using cocaine and alcohol. The applicant came from a respectable family who were shocked at this drugs charge but were, nevertheless, supportive of him.

10

Counsel for the applicant relied on the early plea of guilty, which had been signalled in advance to the gardaí, and also the applicant's co-operation, from the outset, as well as on the accused's progress since going into custody. It was submitted that the applicant had been in custody for a year, having gone into custody on the 23 rd June, 2007, and that he had made progress with regard to tackling his relationship with drugs. He had matured and had developed insight into the offence before the Court, and had undertaken some education. It was submitted that the chaplain's letter and the governor's report were both positive. Counsel for the applicant further submitted that any references made in the interview to heroin that the applicant had previously possessed was referring to heroin which he was holding and that he was not selling this. It was submitted by counsel for the applicant that in looking at matters taken together, these amounted to exceptional and specific circumstances and subsequently, a sentence of not less than ten years imprisonment would be unjust and overly severe in all the circumstances.

The sentence
11

The sentencing judge sentenced the accused as follows, at pp. 12 and 13 of the transcript on the 3 rd June: 2008:-

"Now, Mr. Ormonde, you are coming before this Court on a charge of a Section 15A, which as you are aware carries a sentence of up to life imprisonment with a presumptive sentence of a minimum of 10 years. This arises out of the seizure at your residence of heroin to the value of €90,000. Found with the heroin was glucose powder and some tick lists and some €830. On being cautioned you admitted immediately that the heroin was yours and also that you were selling this heroin. You were arrested and brought to the garda station and further interview detailed your involvement in the sale of heroin."

12

You indicated that at Christmas, that...

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