DPP v Petrauskas

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Kennedy
Judgment Date18 Dec 2018
Neutral Citation[2018] IECA 399
Docket Number[9CJA 2016]

[2018] IECA 399

THE COURT OF APPEAL

Kennedy J.

Birmingham P.

McCarthy J.

Kennedy J.

[9CJA 2016]

BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
AND
VIDAS PETRAUSKAS
RESPONDENT

Sentencing – Drug offences – Undue leniency – Applicant seeking review of sentence – Whether the sentence was unduly lenient

Facts: The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 seeking review of a sentence on grounds of undue leniency. The sentence sought to be reviewed was one of five years’ imprisonment suspended almost in its entirety with the exception of a period of some five and a half months spent in custody by the respondent, Mr Petrauskas, prior to the imposition of sentence on the condition that he leave Ireland and not return for a period of at least twenty years. The sentence was imposed on the 8th December 2015 at Wexford Circuit Criminal Court and concerned an offence contrary to s. 15(b) of the Misuse of Drugs Act 1977. The appellant argued that the judge failed to identify such wholly exceptional circumstances so as to justify suspending the sentence in the manner he did.

Held by the Court that there was before the sentencing court insufficient material and in particular no exceptional circumstances so as to justify a sentence which was in reality wholly suspended; in particular, the question of deterrents was not considered by the sentencing judge. The Court considered that the court attached excessive weight to the mitigating factors and it was satisfied that the sentencing judge was in error in imposing the sentence as he did. The Court was of the view ultimately that the sentence imposed and suspended almost in its entirety was unduly lenient.

The Court held that an error in principle had been established by the Director of Public Prosecutions. The Court therefore held that it would address the issue of sentence at the appropriate time and consider the appropriate headline sentence and a reduction, if appropriate, of that sentence for mitigating factors.

Appeal allowed.

JUDGMENT of the Court (ex tempore) delivered on the 18th day of December 2018 by Ms. Justice Kennedy
1

This is an application brought by the Director of Public Prosecutions pursuant to s.2 of the Criminal Justice Act 1993 seeking review of a sentence on grounds of undue leniency. The sentence sought to be reviewed is one of five years” imprisonment suspended almost in its entirety with the exception of a period of some five and a half months spent in custody by the respondent prior to the imposition of sentence on the condition that he leave Ireland and not return for a period of at least twenty years. The sentence was imposed on the 8th December 2015 at Wexford Circuit Criminal Court and concerned an offence contrary to s.15(b) of the Misuse of Drugs Act 1977 as amended.

The background facts
2

On the 1st July 2015 a Lithuanian registered Opel Vivaro was stopped by customs officials at Rosslare Harbour, having disembarked the ferry which had arrived from Cherbourg. Following a search of the vehicle at Rosslare Europort a substantial quantity of drugs was discovered concealed in the vehicle. There were four persons travelling in the car and all were subsequently detained at Wexford Garda Station pursuant to s.2 of the Criminal Justice Drug Trafficking Act 1996. Panels were removed from the flooring of the vehicle and cannabis herb and cannabis resin to a total value of €144,272.00 was discovered. In the course of this detention, the respondent was interviewed by members of an Garda Síochána on five occasions. He was co-operative to the extent that while he initially denied any knowledge of the content of the vehicle or the route travelled in the course of the four interviews, in the final interview he made admissions in relation to the journey and the collection of the drugs in question.

3

The court heard that the respondent was at the time of sentence 47 years of age and resided with his mother, was a married man and had been in gainful employment in Lithuania. The respondent has one previous conviction which appears to be that of criminal damage and was not considered to be a relevant conviction for the purpose of sentence.

4

In cross examination it was accepted by the guard that the respondent decided from the outset of the fifth interview to take responsibility for the substance in question and stated that he suspected that there was something illegal and that while he was unsure of the amount, he accepted that he had a level of knowledge in respect of what was being carried. The prosecution guard also accepted that the respondent was more in the nature of a ‘cog’ in the wheel and had been induced to make the trip by...

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