DPP v Rakovac

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr Justice Edwards
Judgment Date10 October 2022
Neutral Citation[2022] IECA 233
Docket Number[Record Number 58CJA/2022]

In the Matter of an Application Pursuant to Section 2 of the Criminal Justice Act, 1993

Between/
The People (At the Suit of the Director of Public Prosecutions)
Applicant
and
Miren Rakovac
Respondent

[2022] IECA 233

Edwards J.

Kennedy J.

Ní Raifeártaigh J.

[Record Number 58CJA/2022]

THE COURT OF APPEAL

Sentencing – Misuse of Drugs Act 1977 s. 15A – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Rakovac, appeared for sentencing before the Circuit Criminal Court in Cork on the 25th of February 2022 having previously signed and affirmed guilty pleas to both an offence contrary to s. 15A of the Misuse of Drugs Act 1977 and an offence contrary to s. 7 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2005. The respondent was sentenced to two and a half years imprisonment in respect of the s. 15A offence, the last 18 months of which were suspended on condition that he enter a bond to keep the peace, be of good behaviour and that he submit to probation supervision, to include urinalysis, for a period of 12 months. The s. 7 offence was taken into consideration by the trial court. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal seeking a review of the sentence imposed, pursuant to s. 2 of the Criminal Justice Act 1993, contending that it was unduly lenient on the following grounds: (i) the sentencing judge erred in placing too much weight on the mitigating factors and the personal circumstances of the respondent, thereby imposing an ultimate sentence which was substantially outside the norm given all the facts of the case; and (ii) the sentencing judge erred in failing to nominate and impose a separate sentence in respect of the charge of possessing the proceeds of criminal conduct.

Held by the Court that the ultimate sentence imposed was significantly outside of the norm, particularly having regard to the sentencing policy statements by the Oireachtas in regard to s. 15A type of offending and the guidance of the Court in The People (DPP) v Sarsfield [2019] IECA 260. In the Court’s assessment there was excessive discounting for mitigation and incentivisation, and that represented an error of principle leading to an unduly lenient sentence. The Court held that the respondent’s possession of the proceeds of crime was not uncharged criminal conduct which he wished to have taken into account having been convicted of the s. 15A offence; on the contrary, it was a charged offence. The Court held that it represented a count on the indictment in its own right. The Court held that absent direct relatedness to the s. 15A count, there should properly have been a discrete sentence imposed for it. The Court considered that it was an error to have taken it into consideration in the way that was done, and accordingly how this offence was treated for sentencing purposes was also outside the norm and unduly lenient on that account. The Court held that it would quash the sentences imposed by the court below and proceed to a resentencing.

The Court nominated a headline sentence of five years imprisonment for the s. 15A offence. Further, the Court discounted from that by two years to reflect mitigating circumstances. In circumstances where the respondent had asserted a determination to abstain from illegal substances in the future, and where he was said to be doing well in prison, the Court suspended the final six months of the resultant three-year sentence. Insofar as the count relating to the possession of the proceeds of crime was concerned, the Court nominated a headline sentence of five years imprisonment. The Court discounted from that by two years to reflect the mitigating circumstances in the case and suspended the final six months of the resultant three-year sentence. The Court held that it was appropriate in the circumstances of this case that the sentences be made concurrent rather than consecutive. The Court held that both sentences were to date from the 25th of February 2022. The Court held that the conditions attaching to the part suspended sentences in each case were the same as those attaching to the part suspended sentence that was imposed in the court below, save for the duration of the suspension which was six months rather than 18 months. The Court confirmed the forfeiture order made in respect of the cash seized.

Appeal allowed.

JUDGMENT of the Court ( ex tempore) delivered on the 10th of October, 2022 by Mr Justice Edwards.

Introduction
1

The respondent appeared for sentencing before the Circuit Criminal Court in Cork on the 25th of February 2022 having previously signed and affirmed guilty pleas to both an offence contrary to section 15A of the Misuse of Drugs Act 1977 and an offence contrary to section 7 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2005.

2

The respondent was sentenced to two and a half years imprisonment in respect of the s.15A offence, the last 18 months of which were suspended on condition that he enter a bond to keep the peace, be of good behaviour and that he submits to probation supervision, to include urinalysis, for a period of 12 months. The offence in respect of the s.7 Criminal Justice (Money Laundering and Terrorist Financing) Act 2005 was taken into consideration by the trial court.

3

The applicant now seeks a review of the sentence imposed, pursuant to s.2 of the Criminal Justice Act 1993, on the basis that it was unduly lenient.

Factual Background
4

The sentencing court heard evidence from Detective Garda Robert Kennedy who outlined the circumstances of the offences the subject of this appeal and stated that following the signing and affirming of guilty pleas, the respondent was granted bail.

5

He continued by explaining that the charges in respect of the s.15A offence related to two categories of drugs, those being cannabis and cocaine.

6

The Detective Garda then proceeded to outline the details of the offences stating that on the 25th of October 2020 he had obtained a search warrant from peace commissioner Michael Murphy, following the swearing of an information on oath, pursuant to s.26 of the Misuse of Drugs Act 1977–84. The gardaí then proceeded to the respondent's address at 76 St. Kevins Square, off Barrack Street in Cork, where the search warrant was shown and explained to him.

7

During the search of the respondent's residence a number of controlled drugs were seized which included 256 grams of cocaine with an estimated street value of €17,943, and 155 grams of cannabis with an estimated street value of €3,102, the combined value of both being €21,045. Drug paraphernalia such as baggies and an electronic weighing scales were also seized.

8

During the search of the respondent's bedroom a safe was discovered which was opened by the respondent and from which a quantity of cash was recovered to the value €35,000. A search of the respondent's wallet was conducted from which €685 was recovered by gardaí.

9

Two mobile phones were also recovered from the respondent both of which were PIN locked and both of which were opened by the respondent on request.

10

The respondent was arrested and conveyed to Togher Garda Station where he was detained under s.2 of the Criminal Justice (Drug Trafficking) Act and where he made admissions in relation to the sale and supply of drugs and that the cash seized at his residence was the proceeds of his drug dealing. Following his admissions, the respondent was released from detention.

11

An application was made to the court in relation to the €35,685 seized, that it be declared forfeit to the State, and this was acceded to.

Personal circumstances of the respondent
12

The respondent is a 30-year-old Croatian national who has lived in Ireland for some time and who, prior to the onset of the COVID pandemic, had been employed as a chef.

13

He has a partner with whom he lives and who was present in court during sentencing. During cross-examination Detective Garda Kennedy acknowledged that the taking of responsibility for the drugs by the respondent was of evidential value in circumstances where, at the time of his arrest his partner was in the process of moving into his apartment.

14

Evidence was also given under cross-examination that during the pandemic the respondent had lost his employment due to the closure of the food establishment he had worked for, and that although in receipt of the COVID pandemic payment he had come under financial pressure in relation to his rent.

15

Three references were handed into the sentencing court, two from previous landlords and one from his employer at the time of his sentence hearing, who testified as to his character and work record.

16

A probation report was also prepared which noted that the respondent had a good insight into his offending and that he took full responsibility for the drugs and money seized. It was also noted in the report that he had taken steps to rehabilitate himself in relation to his drug use and had not taken any illegal substances or traded in them since his arrest in 2020.

17

The respondent had no previous convictions in Ireland and following a check with Interpol by the gardaí it was established that he had no convictions abroad.

Sentencing judge's remarks
18

In sentencing the judge outlined the details of the offence and acknowledged that the respondent was a man with no prior convictions who had made admissions promptly and had entered an “ extremely early plea”, had been fully cooperative with the investigation including providing the gardaí with assistance in unlocking the two seized mobile phones and had provided the combination to the safe during the search of his residence. The judge held that these “ exceptional and specific circumstances” allowed him to depart from the 10-year presumptive minimum sentence for a s.15A offence as...

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