DPP v Purse
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 22 July 2019 |
| Neutral Citation | [2019] IECA 203 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 221/2018 |
| Date | 22 July 2019 |
[2019] IECA 203
THE COURT OF APPEAL
Whelan J.
Whelan J.
McCarthy J.
Kennedy J.
Record Number: 221/2018
Sentencing – Drug offences – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Purse, on the 5th February 2018, pleaded guilty at Clonmel Circuit Criminal Court to three counts: (1) possession of a controlled drug for unlawful sale or supply in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Misuse of Drugs Act 1977 contrary to s. 15 and s. 27 (as amended) of the 1977 Act; (2) unlawful possession of a controlled drug contrary to s. 3 and s. 27 (as amended) of the 1977 Act; and (3) cultivation of cannabis contrary to s. 17 and s. 27 (as amended) of the 1977 Act. The appellant was sentenced in respect of the said offences on the 29th June, 2018. In respect of count one he was sentenced to a term of five years’ imprisonment and in respect of count three to a term of four years’ imprisonment both to run concurrently from 3rd of May 2017. Count two was taken into consideration. The appellant appealed to the Court of Appeal against severity of sentence. He advanced the following grounds of appeal: (1) the trial judge erred in principle in identifying a headline sentence of eight years and imposing a five-year custodial sentence in respect of count one and same was unduly harsh and not proportionate in the circumstances; (2) the judge erred in principle in imposing a four-year custodial sentence in respect of count three and same was unduly harsh and not proportionate in the circumstances; (3) the judge erred in determining that the offence in count three was within the upper end of mid-range of the scale of gravity in respect of drug offences; (4) the judge erred in determining that the offence specified in count one was within the middle range on the scale of gravity in respect of drug offences; (5) the judge erred in principle in failing to properly assess the mitigating factors in coming to a proportionate sentence, including (a) the early plea of guilty, (b) cooperation with the investigation, (c) the expression of remorse and (d) the peculiar circumstances applying at the time of the commission of the offences between the appellant and his family; and (6) the judge erred in failing to have adequate regard to the appellant’s circumstances and the fact that he had to serve a twelve-year sentence in the UK upon the expiration of the sentences.
Held by the Court that the final sentences did not represent any deviation from what might reasonably have been expected in a case such as this. The Court held that the offences did fall into the upper end of the middle range considering their gravity. The Court held that the conduct of the appellant, including his thirteen previous convictions in respect of drug offences in the context of ninety-two previous convictions (inclusive of the thirteen for drugs), demonstrated his significant disregard for the law. The Court was satisfied that the sentences imposed were to be regarded as proportionate and within the margin of reasonable appreciation enjoyed by a sentencing judge. The Court was satisfied that it ought not to interfere with the sentence in circumstances where it revealed no error in principle.
The Court held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal against severity of sentence. On the 5th February 2018, the appellant pleaded guilty at Clonmel Circuit Criminal Court to three counts:
(1) possession of a controlled drug for unlawful sale or supply in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s.5 of the Misuse of Drugs Act, 1977 contrary to s.15 and s.27 (as amended) of the Misuse of Drugs Act, 1977.
(2) unlawful possession of a controlled drug contrary to s.3 and s.27 (as amended) of the Misuse of Drugs Act, 1977; and
(3) cultivation of cannabis contrary to s.17 and s.27 (as amended) of the Misuse of Drugs Act, 1977.
The appellant was sentenced in respect of the said offences on the 29th June, 2018, by His Honour Judge Teehan. In respect of count one he was sentenced to a term of five years' imprisonment and in respect of count 3 to a term of four years' imprisonment both to run concurrently from 3rd of May 2017. Count two was taken into consideration.
The appellant was born in February, 1978 and is a Welsh national. He is now aged forty-one years. It was submitted on his behalf at the sentencing hearing on the 29th June, 2018, that he had resided in this jurisdiction for four or five years prior to his arrest in connection with the offences in question on the 3rd of May, 2017. He had rented a dwelling house and property at Rossadrehid, Ballydavid, County Tipperary. On the 3rd May, 2017 Gardaí obtained a search warrant in respect of the said premises which was believed to be used by the appellant for the cultivation and harvesting of cannabis plants on a large scale and in connection with the supply of cannabis. Enquiries indicated that there had been tampering with the ESB meters and that exorbitant consumption of electricity was occurring at the house. A search of the property indicated that the attic was equipped with UV lights, a ring, a water system and the area was insulated with all natural light blocked off. There, forty-six mature cannabis plants were found. In the garage the remains of a previous cannabis plant harvest were found on the floor in black plastic bags. In the kitchen area a box was located containing €250 worth of cannabis herb. An upstairs bedroom was noted to be locked and secured. On gaining entry, Gardai found it to have been adapted with a sophisticated system in operation for the cultivation of cannabis including UV lighting, a full running water system, fans and heaters. There were approximately sixty-six cannabis plants being grown in that room at the time.
On the 8th May, 2017, Detective Garda John English encountered the appellant who initially gave a false name. He was subsequently arrested for possession of a controlled drug for unlawful sale or supply (s.15 of the Misuse of Drugs Act). He gave three separate interviews to the Gardaí. He declined the services of a solicitor. During the said interviews, he made admissions as to his involvement, though initially claiming that he had been coerced by a gang or a group in Cork. The credibility of this claim was substantially undermined when he provided names of one or two people whom he claimed to have been his employer or boss. It was subsequently established in respect of one such that same was merely an alias which the appellant had been using for himself outside of the jurisdiction.
Regarding the valuation of the cannabis, a notice of additional evidence was served on behalf of the respondent suggesting that the valuation of the plants and the yield on the date of detection indicated a valuation of between €350 and €400 each. There were one hundred and twelve plants located in the search. A valuation of €350 was ascribed to fifty-six of them and €400 to a further fifty-six, resulting in a total valuation of €42,000. That valuation was not disputed.
The appellant had ninety-two previous convictions, all of which had been committed outside of the jurisdiction and had been dealt with before the courts of either England or Wales. He had thirty-seven previous convictions for theft, five for failing to surrender to bail, twenty-four road traffic convictions, two for public order offences, three breach of conditional discharge convictions, one for violent disorder, three convictions for breach of community service orders, one each for harassment, breach of restraining order, for perverting the course of justice and affray. Relevantly, he had thirteen previous convictions in respect of drugs.
The evidence was that his first conviction for drug offences was before Cardiff Magistrates' Court in July, 1996 when he was about eighteen years of age.
The Circuit judge considered the more significant offences relating to drugs including the following: -
(a) His most recent conviction was on the 1st July, 2016, at Stafford Crown Court where he was convicted of supply and control of drugs, class A, cocaine. The offence was committed on the 20th June, 2014. He was sentenced to twelve years' imprisonment. It is not clear whether he was convicted in absentia or how he came to be at liberty in this jurisdiction in the years subsequent to the said conviction up to and including the date of his arrest. There was no suggestion of a warrant being outstanding for his extradition.
(b) He was convicted on the 22nd March, 2013, at Cardiff Crown Court of possession of cannabis with intent to supply and sentenced to eight months' imprisonment. On the same date he was convicted of possession of a controlled drug, amphetamines, with intent to supply and sentenced to nine months' imprisonment.
(c) He had been convicted at Cardiff Crown Court on the 27th March, 2001, of possession of controlled drugs and sentenced to four years' imprisonment.
The appellant advanced the following grounds of appeal: -
(1) That the trial judge erred in principle in identifying a headline sentence of eight years and imposing a five-year custodial sentence in respect of count 1 and same was unduly harsh and not proportionate in the circumstances.
(2) The trial judge erred in principle in imposing a four-year custodial sentence in respect of count three and same was unduly harsh and not proportionate in the circumstances.
(3) The trial judge erred in determining that the offence in count three was...
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