DPP v Patrick Long

• Jurisdiction: Ireland
• Judge: Macken J.
• Judgment Date: 07 April 2006
• Neutral Citation: [2006] IECCA 49
• Docket Number: 227/04
• Court: Court of Criminal Appeal
• Date: 07 April 2006

[2006] IECCA 49

COURT OF CRIMINAL APPEAL

Macken J.

Lavan J.

Murphy J.

227/04

DPP v LONG

Between:

The People at the Suit of the Director of Public Prosecutions

AND

Patrick Long

Applicant

CRIMINAL LAW:

Evidence

Admissibility - Whether trial judge erred in ruling admissible evidence of admission made by accused to offences with which he had not been charged - Whether trial judge influenced by admissions in calculating sentence to impose - Whether trial judge made it clear that he was not influenced by admissions in sentencing - People (DPP) v Gilligan [2004] 3 IR 87 followed - People (DPP) v Hogarty (Unrep, CCA,21/12/2001) and People (DPP) v Duffy(Unrep, CCA, 21/12/2001) referred to - Appeal allowed; sentence set aside; new sentence imposed (227/2004 - CCA -7/4/2006) [2006] IECCA 49 People (DPP) v Long

Judgment of the Court delivered on the

Macken J.

1 This is an application for leave to appeal the sentence imposed upon the Applicant's plea of guilty to a charge in respect of the importation of drugs, the Applicant having been sentenced to 14 years imprisonment by the learned sentencing judge at Dublin Circuit Criminal Court on the 10^th November 2004.

2 Essentially the grounds upon which the application for leave to appeal are that the learned Judge erred in ruling that the prosecution was entitled to adduce evidence of admissions made by the accused to offences with which he had not been charged: and that the cumulative effect of the prosecution's attempts to do so (and the alleged ruling in of them) was such as to prejudice the learned Judge in his sentencing. In addition it is contended that the learned sentencing judge gave insufficient weight to the mitigating factors existing in the case, in particular the plea of guilty and the Applicant's previous good character, and wrongly placed excessive reliance on the claimed aggravating factors. In all of the circumstances the sentence was therefore disproportionate to the individual circumstances of the accused.

3 The events giving rise to charges in this matter involve the importation of a very substantial quantity of drugs. The Applicant indicated at the return for trial date, and prior to his arraignment on the 28^th June 2004, that he intended to plead guilty to one of several charges, namely count number 7. The statement of offence in respect of that count was possession of controlled drugs of value for supply in contravention of the Misuse of Drugs Regulations 1988 and 1993 made pursuant to the Misuse of Drugs Act 1977, and contrary to s.15(A) of that Act, as amended. The particulars of the offence were that on the 29^th of May 2003 within Dublin he had in his possession controlled drugs being cannabis resin and cannabis for the purposes of supply to another at a time when the drugs in his possession had an aggregate market value in excess of €13,000.

4 The evidence, according to the transcript of the sentencing hearing on the 10^th November 2004, was that the drugs had a street value of about €12,000,000, and weighed almost one metric tonne. The actual amount was 967 kilograms of cannabis resin and 20 kilograms of cannabis herb. These were found in two separate pallets in the rear of a long distance truck being driven by the Applicant. The truck was searched and he was arrested.

5 The evidence of Detective Sergeant Sheehan was also to the effect that when arrested the Applicant was cooperative with the gardaí having immediately admitted his role in their importation, and was of material assistance to the gardaí. He admitted that he had collected the drugs, by prior arrangement, on the Dutch-Belgian border, and according to the memos of interviews made on the 29^th and 30^th May 2003 with him, these pallets were brought back to Ireland in a container carrying genuine computer parts being shipped from Holland to Ireland, as well as eight other pallets of faulty computer parts which were being collected in the United Kingdom. The Applicant had explained that when he got to the United Kingdom he removed the two pallets containing the drugs from his truck, loaded the eight pallets being collected there and reloaded the two containing drugs, the reason being that these two were to be unloaded from the truck first, prior to delivery of the other pallets containing legitimate products.

6 The evidence also tendered was that in return for bringing these drugs into Ireland the Applicant admitted he would be paid €20,000, or perhaps €40,000-the exact figure is not clear on the transcript.

7 The interviews with the Applicant also made it clear that the immediate arrangements for the shipping and delivery of the drugs were made by mobile phone. Two mobile phones were furnished to the Applicant together with telephone numbers already installed in them, one to contact the supplier in continental Europe, and a separate one with a second number to contact the person in Ireland to whom the drugs were to be delivered. When he left Ireland he was handed these two phones and the intention was that he would hand them back when he returned to Ireland. The Applicant also stated in the interviews that he did not know the name of the party from who he obtained the drugs nor the party to whom he was to deliver the drugs, and understood the product was what he called the "lowest level of recreational drugs". He said he had become involved because he wished to pay off certain debts and other living costs.

8 Finally the garda witness also gave evidence (notwithstanding objection on behalf of the Applicant) relating to the Applicant's admissions to a series of importations, the first in around May 2002 involving a box of gold krugerrand coins, the second in or around August or September 2002 which consisted of a "bag of drugs", being cannabis, and the third in or around December 2002 or January 2003 also in respect of the same type of drugs, and of the fact that he had been paid, in respect of those transactions, a sum amounting to €80,000.

9 Insofar as the sentencing hearing is concerned objection was taken on behalf of the Applicant to an application by the Director to introduce evidence of the manner or style in which the Applicant appeared to be living. This objection concerned, not only to the attempt to introduce such evidence on the part of the prosecution, but also, and in any event, to the introduction or consideration of any evidence which went outside the specific indictment being dealt with. The learned sentencing judge refused to hear the general evidence sought to be adduced, and indicated he would deal with the matter on a two tier basis, deferring the admission of any such evidence to a future possible hearing on forfeiture, and confining the evidence to that going to sentence only on the charge before him. He did, however, allow evidence as to the above admissions, on the basis that they were in the statements of interview in the Book of evidence and he was therefore entitled to read them.

10 The learned Judge in dealing with the question of sentencing approached it in the following way. First of all he drew attention to the provisions of s.15(A) of the Act of 1977 and to the fact that the legislator had provided for very severe prison sentences, having a maximum sentence of life imprisonment, as well as to the fact that the section also provides for a mandatory minimum sentence of 10 years, unless the Court considers under certain circumstances that such a mandatory minimum sentence would be unjust. In that regard the Judge's approach to the statutory parameters of the sentencing was perfectly acceptable and appropriate, and no serious suggestion is made to the contrary.

11 The learned Judge then proceeded to consider the mitigating circumstances in the case, as he is obliged to do, having regard to the personal circumstances of the Applicant. These included the early plea of guilty, following a degree of cooperation with the gardaí, his admission of involvement in the matter in early course, even though this was in the context of driving a truck with a very large amount of cannabis of about a metric tonne. Nevertheless the learned judge pointed out that he had pleaded guilty and that he, the Judge, was satisfied that his early plea of guilty materially assisted the...