DPP v Parkes

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 15 July 2019
• Neutral Citation: [2019] IECA 199
• Docket Number: Record Number: 320CJA/2018
• Court: Court of Appeal (Ireland)
• Date: 15 July 2019

BETWEEN/

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

- AND -

MARK PARKES

RESPONDENT

[2019] IECA 199

Irvine J.

Birmingham P.

Irvine J.

Donnelly J.

Record Number: 320CJA/2018

THE COURT OF APPEAL

Criminal Law – Misuse of Drugs Act 1977 – Appeal as to Sentence – Applicant seeking a review of the respondent’s sentence under Section 2 of the Criminal Justice Act 1993 – Whether the trial judge erred in fixing the headline sentence at five years

Facts: The DPP sought to have the respondent’s sentence reviewed on the grounds of undue leniency. The respondent was convicted after a guilty plea to an offense contrary to S.15 of the Misuse of Drugs Act 1977, as amended. The respondent had received a consignment of cannabis with an estimated value of €598,000. The consignment was intercepted and the respondent had admitted in interview that he knew the goods he was receiving were “bogey.” S. 27(3C) of the Misuse of Drugs Act 1977, as amended, provides for a 10-year mandatory minimum sentence for such offenses, however, this is not obligatory should the judge be satisfied that circumstances exist which would make it unjust. The sentencing judge found that the 10-year minimum should not apply, and fixed the headline sentence at five years, stating that the offense fell at the lower end of the mid-range offenses under this section. The sentencing judge then reduced this sentence to three years due to mitigating factors and suspended the final twelve months.

Held by Irvine J that the sentencing judge erred in principle by fixing the headline sentence at five years. While the sentencing judge was not obliged to impose the ten-year mandatory minimum, he did have to give regard to it and was not at large as to the sentence he might impose. Having regard to the ‘quantity, type, and value of the drugs’, it was difficult to see how the sentencing judge could have placed the offense at the lower end of the mid-range of offenses under this section. Moreover, the sentencing judge gave undue weight to the fact that the drug concerned was cannabis, as opposed to heroin or cocaine.

The court fixed the headline sentence at seven years having regard to the mandatory minimum, the high value of the drugs, and the respondent’s particular circumstances. As there were a number of mitigating factors, the court suspended the final three years of the seven-year headline sentence.

Relief granted.

JUDGMENT of the Court ( ex tempore) delivered on the 15th day of July 2019 by Ms. Justice Irvine

1 This is an application brought by the DPP pursuant to Section 2 of the Criminal Justice Act 1993 seeking a review of a sentence on the grounds of undue leniency.

2 The sentence in respect of which the review is sought is one of three years' imprisonment with the last twelve months suspended on terms that the respondent keep the peace and be of good behaviour during the period of imprisonment and for a period of twelve months thereafter and that he would, inter alia, engage in offence and victim focused work, engage in an anger management programme and desist from engaging with anti-social peers. The sentence was imposed on the 29th November, 2018 at Trim Circuit Court, the respondent having pleaded guilty on the 1st May, 2018 to an offence contrary to Section 15A of the Misuse of Drugs Act 1977, as amended.

Background

3 In July 2017 the Garda National Drugs Unit, as a result of an investigation, detected an inward bound consignment of cannabis. An arrangement was made to conduct a controlled delivery and this was carried out by Detective Garda Barber at Marywell Business Park, Drumree, County Meath. There, Detective Garda Barber met with the respondent who admitted that he was the consignee and he assisted him in unloading the delivery. Shortly after the respondent left the Business Park he was intercepted, then later arrested and taken to Finglas Garda Station. A search was then carried out at Marywell Business Park where 29.9 kilograms of cannabis, then concealed in air filters, with an estimated market value of €598,000, was uncovered.

4 The respondent was interviewed on multiple occasions and was co-operative to the extent that he admitted that he knew that the consignment which he had taken possession of was illegal or to use his own word, ‘bogey’. It was also not contested that he had rented the premises concerned, which was a commercial premises, for the purposes of housing the consignment which was delivered on a number of pallets.

5 In cross-examination it was accepted that the respondent had never previously come to the attention of An Garda Síochána and that he was not somebody who they would have expected to have been involved in this type of operation but for the fact that he had been put under some pressure to take possession of the drugs.

6 The Court heard that the respondent, at the time of his sentence, was thirty-two years of age. He had no relevant previous convictions. He was of good character. He was one of eleven children who had had a difficult upbringing due to the fact that his parents had issues with alcohol. He had been in a committed relationship for fourteen years and was the father of three children aged thirteen, nine and five months. He left school early and had been employed on a relatively constant basis in different types of manual employment and/or in driving until 2016 when he became unemployed.

7 The respondent had co-operated with the Probation Service and was assessed as being at a moderate risk of re-offending.

The sentence imposed

8 Prior to the imposition of sentence, the sentencing judge was advised that the mandatory minimum ten-year sentence provided for in s. 27(3C) of the Misuse of Drugs Act 1977, as amended, was not obligatory if the court was satisfied that there were exceptional and specific circumstances relating to the offence or to the person convicted of the offence that would make a sentence of not less than ten years' imprisonment unjust in all of the circumstances. Ms Murphy, SC for the respondent maintained that this was one such case. She emphasised the respondent's guilty plea, his co-operation, his remorse, the minor level of his involvement which had been at the level of a mule and the implicit threats to the safety of his family. Furthermore, whilst he knew what he was storing was illegal and would have suspected the delivery was a consignment of drugs, he had admitted that he knew that what he was receiving was illegal and had taken responsibility for his conduct.

9 Relying on those factors the sentencing judge concluded that the minimum mandatory sentence of ten years' imprisonment should not be imposed as to do so would be unjust.

10 In coming to his conclusion concerning the gravity of the offence, and whilst stating that these were not exhaustive factors, the sentencing judge stated that he would pay particular regard to four factors. First, the quantity and value of the drugs which in this case constituted just under 30 kilograms of cannabis with a value of close to €600,000. Second, the type of drug involved which in this case was cannabis which he stated was deemed to be a less harmful drug than drugs such as cocaine or heroin. Third, the role of the respondent which in this case was stated to be at a low level as he was not a ‘prime mover’. Finally, he would have regard to the condition of the respondent, and in this regard he referred to the fact that it had been accepted in evidence that he had become involved due to coercion involving threats against himself and his extended family rather than due to the promise of outright profit.

11 The sentencing judge went on to conclude that:

‘Having regard to the quality, type and value of the drugs in this case, I believe that the offence falls in the lower end of the mid-range of offences under this section, and I believe that a headline sentence of five years' imprisonment would be appropriate.’

12 Accordingly, having nominated a headline sentence of five years' imprisonment, he reduced that sentence downwards to three years' and further suspended the final twelve months by reason of the prevailing mitigating factors, most of which he had identified when considering whether or not he should depart from the minimum mandatory sentence of ten years'...