DPP v Rashid Shekale

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 25 February 2008
• Neutral Citation: [2008] IECCA 28
• Docket Number: 77/07
• Court: Court of Criminal Appeal
• Date: 25 February 2008

COURT OF CRIMINAL APPEAL

Finnegan J.

Herbert J.

Hedigan J.

77/07

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

v.

RASHID SHEKALE

APPLICANT

Abstract:

Criminal law - Appeal against sentence - Unduly harsh - Misuse of drugs - Whether the learned trial judge erred in imposing a sentence of 13 years imprisonment in circumstances where another individual involved in the offence was sentenced to 10 years imprisonment.

Facts: The applicant was convicted following trial of possession of cocaine for sale of supply contrary to s. 15A of the Misuse of Drugs Act, 1977 and was sentenced to 13 years imprisonment, with the last two years suspended. There was a second individual involved in the offence, who was sentenced to ten years imprisonment. The first issue raised by counsel on behalf of the applicant related to a comment made by the learned trial judge when imposing sentence, in relation to the fact that the applicant did not plead guilty and ‘fought the case tooth and nail’. It was submitted that the aforementioned comment raised the suggestion that the learned trial judge penalised the applicant for not pleading guilty. The second issue raised concerned the imposition of a lower sentence on the other individual involved in the offence.

Held by the CCA, Finnegan J. (Herbert, Hedigan JJ) in allowing the appeal: That having regard to the parity principle and the fact that there should not be the appearance of injustice, it was appropriate to interfere with the sentence imposed in this case. The appropriate sentence having regard to the applicant’s personal circumstances was one of ten years, with the final two years of that sentence suspended.

Reporter: L.O’S.

1 Judgment of the Court (ex tempore) delivered on the 25th day of February 2008 by Finnegan J.

2 The applicant in this matter was convicted before the Circuit Court of four offences but in respect of one of those offences only this appeal against sentence is taken. That was an offence under section 15A of the Misuse of Drugs Act 1977, the possession for sale or supply of a quantity of drugs which exceeded the statutory quantity and brought into play the minimum sentence provided for by that section. On that offence the learned trial judge fixed as an appropriate sentence one of fifteen years. He reduced that to thirteen years and suspended two years of those thirteen years. A feature of the case is that there was a second person involved in the offence, a Mr Mohamed, and his sentence was considerably shorter than that imposed on the applicant. Mr Mohamed, however, had the benefit of pleading guilty to the offence and he co-operated with the Gardai and in that case, that is Mr Mohamed’s case, the learned trial judge fixed as the appropriate sentence one of ten years and to that applied allowance for matters in mitigation of sentence.

3 The situation in this case is that the value of the drugs in question is €260,127 and the drug in question was cocaine. The circumstances in which the offence occurred are that the applicant was stopped at Dublin Airport coming off a flight from Amsterdam. He had a suitcase with a false bottom and within that suitcase there were two packages of cocaine with a total weight of 5.76 kilograms. He prevaricated at interview but eventually he gave an account of what had occurred and what his involvement was.

4 There are two matters in particular that arise on this application. The first is that there was a comment by the learned trial judge that the applicant here did not plead guilty but fought the case tooth and nail and that that raises a suggestion, be it right or wrong, that the learned trial judge approached the situation on a wrong basis in that instead of treating a plea of guilty as a circumstance which would enable a lesser sentence to be imposed, his thought process may have been different in that he penalised the applicant for not pleading guilty. That would be quite wrong and while it is far from certain that that is what the learned trial judge did the suggestion that that thought process occurred appears from what he said at the sentencing. To penalise someone for exercising his constitutional right, to plead not guilty and have the case against him proved, would be wrong and if that is what occurred in this case it would indeed be wrong.

5 The second matter to arise is the discrepancy between the sentence imposed on Mr Mohamed who was involved in the same offence and received a considerably lesser sentence. The starting point of the trial judge was that the appropriate sentence was a term of ten years against which he allowed mitigation. It is well established inThe People (Director of Public Prosecutions). v Duffy [2003] 1 I.R. 192 and The People (Director of Public Prosecutions) v O’Toole, unreported Court of Criminal

6 Appeal 25th March 2003 that while identity of sentences is not a requirement there is a parity principle that operates and unless a significant disparity is justified then this court would interfere. The court is concerned that there should not be the appearance of injustice and indeed that phrase applies equally to the first ground raised here, that there should not be the appearance of injustice. The court is satisfied in this case that it is appropriate to interfere....