DPP v Power

JurisdictionIreland
JudgeMs. Justice Máire Whelan
Judgment Date22 July 2019
Neutral Citation[2019] IECA 202
Docket Number[152/2018]
CourtCourt of Appeal (Ireland)
Date22 July 2019

[2019] IECA 202

THE COURT OF APPEAL

Whelan J.

Birmingham P.

Whelan J.

McCarthy J.

[152/2018]

BETWEEN
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
AND
WILLIAM POWER
APPELLANT

Sentencing – Possession of cannabis – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Power, pleaded guilty on the first day of trial to one count of possession of cannabis, a controlled drug, for the purpose of selling or otherwise supplying it to another contrary to s. 15 of the Misuse of Drugs Act, 1977. On the same day, the appellant pleaded guilty to another charge of possession of cannabis worth approximately €71,114 for the purpose of selling or otherwise supplying it to another, in circumstances where the market value of said controlled drug amounted to €13,000 or more, contrary to s. 15A of the 1977 Act. On 26th April, 2018 the appellant was sentenced in the Cork Circuit Criminal Court to five years imprisonment in respect of possession of approximately €9,000 worth of cannabis and to ten years imprisonment in respect of the possession of cannabis worth approximately €71,114. The trial judge suspended the last two years of the latter sentence conditionally to encourage rehabilitation. The appellant appealed to the Court of Appeal against severity of sentence, submitting that the sentencing judge erred: 1) in failing to have regard to the principle of parity when sentencing the appellant and his co-accused; 2) in considering the opinion and/or hearsay evidence of Detective Garda O’Toole (i) that the appellant was using the premises to store and distribute cannabis, (ii) that the appellant was the main organiser of the drugs enterprise, (iii) that he was the man profiting from the enterprise and (iv) that he was at a good level of management in the organisation and dealing of drugs; and 3) in failing to have proper regard for the fact that the appellant’s only previous conviction (apart from some minor road traffic offences) was for possession of a small amount of cocaine for personal use in 2005.

Held by the Court that, having identified no error of principle, it found no basis to interfere with the sentence imposed.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 22nd day of July 2019 by Ms. Justice Máire Whelan
1

This is an appeal against severity of sentence. The appellant pleaded guilty on the first day of trial to one count of possession of cannabis, a controlled drug, for the purpose of selling or otherwise supplying it to another contrary to section 15 of the Misuse of Drugs Act, 1977, as amended. On the same day, the appellant pleaded guilty to another charge of possession of cannabis worth approximately €71,114 for the purpose of selling or otherwise supplying it to another, in circumstances where the market value of said controlled drug amounted to €13,000 or more, contrary to section 15A of the Misuse of Drugs Act 1977.

2

On 26th April, 2018 the appellant was sentenced in the Cork Circuit Criminal Court to five years imprisonment in respect of possession of approximately €9,000 worth of cannabis and to ten years imprisonment in respect of the possession of cannabis worth approximately €71,114. The trial judge suspended the last two years of the latter sentence conditionally to encourage rehabilitation.

3

At the sentencing hearing, Detective Garda Eoin O'Toole gave evidence to say that arising from an intelligence and surveillance led operation targeting Mr. Power, it was established that he was using No. 4 Hogans Cottages, Ballinlough Road, Co. Cork to store and distribute cannabis. It was also established that he was not residing at this address and that there was a co-accused, Mr. Ronald McKenzie, who was the sole occupant of this house.

4

On the 31st of January, 2017, a warrant was obtained by Detective Garda O'Toole under section 26 of the Misuse of Drugs Act, and surveillance continued on that date. At approximately 14:40 pm, the appellant arrived at the scene and parked approximately 100 yards away from the house. He exited his vehicle and entered the premises. Twenty-five minutes later, the appellant left the house with a shopping bag in hand and returned to his vehicle. At this point he was intercepted and searched pursuant to section 23 of the Misuse of Drugs Act. Approximately €9,000 worth of cannabis was recovered from the appellant's vehicle and a sum of €1,245 in cash. The appellant was then arrested, brought to the Bridewell Garda Station, and detained under section 2 of the Criminal Justice (Drug Trafficking) Act. A search of the dwelling house at 4 Hogans Cottages was then undertaken pursuant to section 26 of the Misuse of Drugs Act.

5

At the residence, Detective O'Toole met the occupant, Mr. Ronald McKenzie (the co-accused). During the search of the one-bedroom cottage, in the bedroom there were found two holdall bags with four packages of cannabis in one and three packages of cannabis in the other. Several white latex gloves were found in each bag. In the kitchen area, the search uncovered smaller amounts of cannabis together with an electronic scale, clear bags, Aldi cling film and room spray, an electronic food sealer and a box of latex gloves. There was a receipt from Aldi recovered in the premises for cling film and room spray. CCTV was retrieved from that store which showed Mr. Power paying for these items.

6

When the search was completed, Mr. McKenzie was arrested and conveyed to the Bridewell Garda Station. Mr. Power was interviewed on four occasions. While at no point did he take responsibility for what was found in the house, he made full admissions as to what was recovered outside the house in his possession. Mr. McKenzie was questioned, interviewed on two occasions and was open and frank about his reason for storing the cannabis in the house, that he was being paid €100 a week and being provided with some cannabis. Both men were charged at this time and brought before the Court and released on bail. The total value of the drugs located in the house was €71,114. Exhibits also sent from the house for DNA and fingerprint testing proved positive for a fingerprint on the latex glove box for the appellant. A set of latex gloves showed a profile of DNA matching the appellant. It also showed two other profiles; one main contributor and two minor contributors, one of which belonged to the appellant.

7

The appellant had one relevant previous conviction under section 3 of the Misuse of Drugs Act for possession of cocaine for personal use in 2005. Detective Garda O'Toole gave evidence to say that the appellant herein was the main organiser in the enterprise, and that his co-accused, Mr. McKenzie, played a much lesser role in the enterprise.

8

The appellant is married and has four children. His wife Ms. Rebecca Power gave evidence to say that he has struggled with addiction issues but had been doing better since engaging with the organisation “Arbour House”. He had notified the Department of Social Welfare that he has re-engaged in employment and was working as a landscaper.

9

A letter was handed to the Court from a senior counsellor from Arbour House, Mr. David Wyse, stating; ‘[the appellant] is genuine in his endeavours to understand his addiction and become skilful and confident in his recovery. He has consistently demonstrated commitment, engaged well with staff and peers, increased insight and awareness of what the effects of addiction on himself, his wife and his four children.

10

The trial judge determined a sentence of five years imprisonment as appropriate in respect of the section 15 offence. He considered the appellant's guilty pleas but noted that the appellant was effectively caught red handed.

11

In respect of the section 15A offence, the trial judge noted that the main aggravating factor was that the appellant was an organiser and manager of the offence and determined a sentence of ten years imprisonment to be appropriate. The judge noted the appellant's personal circumstances and the efforts he had made in rehabilitation. The judge considered the appellant to be a person capable of rehabilitation, and therefore suspended the final two years of the sentence to incentivise that.

Grounds of Appeal:-

12

The appellant submits the following grounds of appeal in that the sentencing judge erred:-

1) in failing to have regard to the principle of parity when sentencing the appellant and his co-accused;

2) in considering the opinion and/or hearsay evidence of Detective Garda O'Toole;

(i) that the appellant was using the premises to store and distribute cannabis,

(ii) that the appellant was the main organiser of the drugs enterprise,

(iii) that he was the man profiting from the enterprise and

(iv) that he was at a good level of management in the organisation and dealing of drugs;

3) in failing to have proper regard for the fact that the appellant's only previous conviction (apart from some minor road traffic offences) was for possession of a small amount of cocaine for personal use in 2005.

Submissions:-

Ground
One
13

The appellant submits that despite the fact that there was evidence that both the appellant and his co-accused Mr. McKenzie were addicted to illegal drugs and that they both may have committed the offences to feed their respective drug habits, and despite the fact that Mr. McKenzie (unlike the appellant) had a previous conviction for possession of approximately €200,000 worth of cannabis, the trial judge imposed an eight year custodial sentence to be served by the appellant whilst only imposing what was characterised as amounting to a de facto five year custodial sentence on his co-accused. The appellant refers to DPP v Poyning [1972] IR 402, where it was stated by Walsh J.:-

Of course, in any particular case the...

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